[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Proposed Rules]
[Pages 32026-32063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13381]



[[Page 32025]]

Vol. 76

Thursday,

No. 106

June 2, 2011

Part II





Department of Commerce





-----------------------------------------------------------------------



National Oceanic and Atmospheric Administration



-----------------------------------------------------------------------



50 CFR Part 226



Endangered and Threatened Wildlife and Plants: Proposed Rulemaking To 
Revise Critical Habitat for Hawaiian Monk Seals; Proposed Rule

  Federal Register / Vol. 76 , No. 106 / Thursday, June 2, 2011 / 
Proposed Rules  

[[Page 32026]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 110207102-1136-01]
RIN 0648-BA81


Endangered and Threatened Wildlife and Plants: Proposed 
Rulemaking To Revise Critical Habitat for Hawaiian Monk Seals

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: We, the National Marine Fisheries Service (NMFS), propose 
revising the current critical habitat for the Hawaiian monk seal 
(Monachus schauinslandi) by extending the current designation in the 
Northwestern Hawaiian Islands (NWHI) out to the 500-meter (m) depth 
contour and including Sand Island at Midway Islands; and by designating 
six new areas in the main Hawaiian Islands (MHI), pursuant to section 4 
of the Endangered Species Act (ESA). Specific areas proposed for the 
MHI include terrestrial and marine habitat from 5 m inland from the 
shoreline extending seaward to the 500-m depth contour around: Kaula 
Island, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, 
Maui, and Molokai), and Hawaii (except those areas that have been 
identified as not included in the designation). We propose to exclude 
the following areas from designation because the national security 
benefits of exclusion outweigh the benefits of inclusion, and exclusion 
will not result in extinction of the species: Kingfisher Underwater 
Training area in marine areas off the northeast coast of Niihau; 
Pacific Missile Range Facility Main Base at Barking Sands, Kauai; 
Pacific Missile Range Facility Offshore Areas in marine areas off the 
western coast of Kauai; the Naval Defensive Sea Area and Puuloa 
Underwater Training Range in marine areas outside Pearl Harbor, Oahu; 
and the Shallow Water Minefield Sonar Training Range off the western 
coast of Kahoolawe in the Maui Nui area. We solicit comments 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 on this proposed rule to designate critical habitat 
must be received no later than August 31, 2011. A public hearing will 
be held promptly if any person so requests by August 16, 2011. Notice 
of the date, location, and time of any such hearing will be published 
in the Federal Register not less than 15 days before the hearing is 
held.

ADDRESSES: You may submit comments identified by 0648-BA81 by any one 
of the following methods:
     Electronic Submissions: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
     Mail or hand-delivery: Submit written comments to 
Regulatory Branch Chief, Protected Resources Division, National Marine 
Fisheries Service, Pacific Islands Regional Office, 1601 Kapiolani 
Blvd., Suite 1110, Honolulu, HI, 96814, Attn.: Hawaiian monk seal 
proposed critical habitat.
    Instructions: Comments must be submitted to one of these two 
addresses to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent to any other address or individual, 
or received after the end of the comment period, may not be considered. 
All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. All 
Personal Identifying Information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
Confidential Business Information or otherwise sensitive or protected 
information. We will accept anonymous comments (enter ``NA'' in the 
required fields if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only. The petition, 90-day 
finding, 12-month finding, draft biological report, draft economic 
analysis report, draft 4(b)(2) report, and other reference materials 
regarding this determination can be obtained via the NMFS Pacific 
Islands Regional Office Web site: http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html or by submitting a request to the Regulatory 
Branch Chief, Protected Resources Division, National Marine Fisheries 
Service, Pacific Islands Regional Office, 1601 Kapiolani Blvd., Suite 
1110, Honolulu, HI 96814, Attn: Hawaiian monk seal proposed critical 
habitat. Background documents on the biology of the Hawaiian monk seal, 
the July 2, 2008, petition requesting revision of its critical habitat, 
and documents explaining the critical habitat designation process, can 
be downloaded from http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html, or requested by phone or e-mail from the NMFS staff in 
Honolulu (area code 808) listed under FOR FURTHER INFORMATION CONTACT. 
The October 3, 2008, 90-day finding (73 FR 57583), the public comments 
received on the 90-day finding, and the June 12, 2009, 12-month finding 
(74 FR 27988), can be viewed at http://www.regulations.gov by searching 
for docket number ``NOAA-NMFS-2008-0290''.

FOR FURTHER INFORMATION CONTACT: Jean Higgins, NMFS, Pacific Islands 
Regional Office, (808) 944-2157; Lance Smith, NMFS, Pacific Islands 
Regional Office, (808) 944-2258; or Marta Nammack, NMFS, Office of 
Protected Resources (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    The Hawaiian monk seal (Monachus schauinslandi) was listed as 
endangered throughout its range under the ESA in 1976 (41 FR 51611; 
November 23, 1976). In 1986, critical habitat for the Hawaiian monk 
seal was designated at all beach areas, sand spits and islets, 
including all beach crest vegetation to its deepest extent inland, 
lagoon waters, inner reef waters, and ocean waters out to a depth of 10 
fathoms (18.3 m) around Kure Atoll, Midway Islands (except Sand 
Island), Pearl and Hermes Reef, Lisianski Island, Laysan Island, 
Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa 
Island in the NWHI (51 FR 16047; April 30, 1986). In 1988, critical 
habitat was expanded to include Maro Reef and waters around previously 
designated areas out to the 20 fathom (36.6 m) isobath (53 FR 18988; 
May 26, 1988).
    On July 9, 2008, we received a petition dated July 2, 2008, from 
the Center for Biological Diversity, Kahea, and the Ocean Conservancy 
(Petitioners) to revise the Hawaiian monk seal critical habitat 
designation (Center for Biological Diversity, 2008) under the ESA. The 
Petitioners sought to revise critical habitat by adding the following 
areas in the MHI: key beach areas; sand spits and islets, including all 
beach crest vegetation to its deepest extent inland; lagoon waters; 
inner reef waters; and ocean waters out to a depth of 200 m. In 
addition, the Petitioners requested that designated critical habitat in 
the NWHI be extended to include Sand Island at Midway, as well as ocean 
waters out to a depth of 500 m (Center for Biological Diversity, 2008).

[[Page 32027]]

    On October 3, 2008, we announced in our 90-day finding that the 
petition presented substantial scientific information indicating that a 
revision to the current critical habitat designation may be warranted 
(73 FR 57583; October 3, 2008). On June 12, 2009, in the 12-month 
finding, we announced that a revision to critical habitat is warranted 
because of new information available regarding habitat use by the 
Hawaiian monk seal, and we announced our intention to proceed toward a 
proposed rule (74 FR 27988; June 12, 2009). Additionally, in the 12-
month finding we identified the range of the species as throughout the 
Hawaiian Archipelago and Johnston Atoll (74 FR 27988; June 12, 2009). 
Although petitioned to designate areas identified by specific 
boundaries or concepts (i.e., ``key'' areas), we evaluated habitat 
needs for the species, including all areas within the identified range 
to best realize the conservation goals and needs of the species. This 
proposed rule describes the proposed critical habitat designation, 
including supporting information on Hawaiian monk seal biology, 
distribution, and habitat use, and the methods used to develop the 
proposed designation.
    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. We have 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 was excluded from the designation) outweigh the benefits of 
designation (i.e., the conservation benefits to the Hawaiian monk seal 
if an area was designated), so long as exclusion of the area will not 
result in extinction of the species. This evaluation process introduces 
various alternatives to the revision of designated critical habitat for 
the Hawaiian monk seal, all of which we considered. The alternative of 
not revising the designated critical habitat for Hawaiian monk seals 
would impose no additional economic, national security, or other 
relevant impacts, but would not provide any additional 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 based on 
the best available science. The alternative of designating all 
potential critical habitat areas (i.e., no areas excluded) also was 
considered and rejected because, for several areas, the national 
security benefits of exclusion outweighed the benefits of designation, 
and we determined that exclusion of these areas would not significantly 
impede conservation or result in extinction of the species.
    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. 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 is subject to the 
Secretary's discretion after the impacts have been evaluated in 
accordance with section 4(b)(2) of the ESA. This evaluation was 
conducted for each area and is described in detail in the draft ESA 
4(b)(2) report (NMFS, 2010b). Under this preferred alternative we 
propose to exclude 5 particular areas within the areas considered. We 
determined that the exclusion of these areas would not significantly 
impede the conservation of Hawaiian monk seals nor result in extinction 
of the species. We selected this as the preferred alternative because 
it results in a critical habitat designation that provides for the 
conservation of the Hawaiian monk seal while reducing the national 
security impacts. This alternative also meets ESA and joint NMFS and 
U.S. Fish and Wildlife Service (USFWS) regulations concerning critical 
habitat at 50 CFR part 424.

Hawaiian Monk Seal Natural History and Ecology

    In the following sections, we describe the natural history of the 
Hawaiian monk seal as it relates to the habitat needs of the species. 
Hawaiian monk seals are members of the Phocidae family, also known as 
the true seals, which are characterized by a lack of external ear and 
an inability to draw the hind-flippers under the body for movement on 
land. The Hawaiian monk seal falls within the primitive genus Monachus. 
Only two other species of seal occur in this genus, the recently 
extinct Caribbean monk seal (M. tropicalis) and the critically 
endangered Mediterranean monk seal (M. monachus). These three monk seal 
species were widely dispersed geographically (i.e., in the Hawaiian 
Archipelago, the Caribbean, and the Mediterranean), and disagreement 
remains regarding the historical biogeography of the monachine seals' 
origin and dispersal (Repenning and Ray, 1977; Fyler et al., 2005; 
Arnason et al., 2006). Regardless of the debate over geographic origin 
or chronology, the closure of the Central American Seaway would 
indicate that Hawaiian monk seals were separated from the Caribbean 
species at least 3 million years ago (mya) (Fyler et al., 2005). At 
this time period geologically, Hawaiian monk seals would have been able 
to exploit habitat in the NWHI as well as utilize some habitat in the 
MHI, including Kauai and Niihau, which were forming as early as 5 and 
4.9 mya, respectively (Juvik and Juvik, 1998).
    Hawaiian monk seals are wide-ranging, air-breathing aquatic 
carnivores that spend a majority of their time in the ocean, but 
continue to rely on terrestrial habitat. Monk seals utilize aquatic 
habitat for foraging, socializing, mating, resting, and traveling. 
Adept at propulsion in the water, individual monk seals may travel 
hundreds of miles in a few days (Littnan et al., 2006) and dive to more 
than 500 m (1,600 ft) (Parrish et al., 2002). Although a majority of 
its time is spent in the water, like many other pinnipeds, the Hawaiian 
monk seal utilizes terrestrial habitat to rest, avoid predators, molt, 
pup (give birth), and nurse. In contrast to commonly recognized 
pinnipeds such as sea lions, walrus, and harbor seals, which often haul 
out in groups of larger numbers, the Hawaiian monk seal is considered 
solitary, often hauling out individually. The solitary nature extends 
both on land and in the water; however, monk seals may congregate in 
small numbers (e.g., males may haul out with and guard females, or 
several animals may be found hauled out in relative proximity to one 
another) in favorable haul-out areas (Antonelis et al., 2006).
    Adult monk seals reach a length of 2.3 m (7.5 ft) and weigh up to 
273 kg (600 lb). On average the adult males are smaller in size than 
females (NMFS, 2007a). It is thought that Hawaiian monk seals have a 
lifespan of up to 30 years in the wild (NMFS, 2007a). Females reach 
breeding age at about 5 to 11 years of age (NMFS, 2010d) depending on 
their condition. Little is known regarding the sexual maturation of 
males of the species, but behavior and size suggest similar maturation 
rates to that of the females (Antonelis et al., 2006). Mating occurs at 
sea, and gestation is thought to be approximately 11 months. Females 
typically will haul out on land near the birth site and give birth to a 
single pup (Johanos et al., 1994). Monk seal births are most common 
between February and August, but births have been documented at all 
times of the year (NMFS, 2007a). Upon birth the female will nurse the 
pup for

[[Page 32028]]

approximately 6 weeks; throughout this time period the mother remains 
with the pup usually fasting and decreasing in mass (Kenyon and Rice, 
1959). The nursing period concludes with an abrupt weaning when the 
mother returns to the marine environment to forage, leaving the pup on 
its own (Johanos et al., 1994). Females will mate about 3-4 weeks after 
weaning her pup, and 5-6 weeks after mating she will haul out to molt 
(NMFS, 2007a). The weaned pups are left to teach themselves to 
successfully forage. While their foraging skills develop, they depend 
on fat stores built up during the nursing period, resulting in 
considerable weight loss (NMFS, 2007a). Juveniles (up to 3 years old) 
are typically longer but thinner than recently-weaned pups, and 
juveniles in the NWHI typically do not regain their post-weaning weight 
until approximately 2 years of age (Johanos et al., 1994).
    Adult seals appear silvery white ventrally with dark silvery tinged 
brown or slate gray pelage (fur) dorsally, and as the hair ages, the 
ventral pelage takes on a yellow tinge while the dorsal pelage may 
appear dull brown or darker (Kenyon and Rice, 1959). When monk seals 
stay at sea for an extensive period, they may develop a red or green 
tinge from algal growth on their pelage (Kenyon and Rice, 1959). Monk 
seals undergo an annual molt, which is termed a catastrophic molt 
because the entire layer of pelage (skin and hair) is shed, leaving a 
new silvery grey coat underneath. During their annual molt, Hawaiian 
monk seals may haul out on land, staying ashore 10-14 days or more 
(NMFS, 2007a). At birth, pelage is black and may occasionally be marked 
with small white patches, referred to as natural bleaches (Kenyon and 
Rice, 1959). The black pelage is lost during the postnatal molt, which 
occurs around the time of weaning.

Range

    In the 12-month finding (74 FR 27988; June 12, 2009), we identified 
the range of the Hawaiian monk seal to include habitat throughout the 
Hawaiian Archipelago and Johnston Atoll. This determination was based 
on pupping (birth) and sighting data from the Hawaiian Archipelago 
collected by the NMFS Pacific Islands Fisheries Science Center (PIFSC), 
Protected Species Division (PSD). Verified past accounts from Johnston 
Atoll were used to determine that the Atoll may be considered as part 
of the geographical area occupied by the species (NMFS, 2001). 
Unconfirmed sightings of Hawaiian monk seals from Palmyra Atoll (1,800 
km south of NWHI); Wake Island (2,000 km southwest of NWHI); Bikini 
Atoll and Mejit Island in the Marshall Islands (2,400 km southwest of 
NWHI) (NMFS, 2010c) were recognized, but substantial evidence was not 
found to incorporate these areas into the species' range. In discussing 
the range of the species, we also acknowledged that animals have been 
historically relocated to manage serious threats to the population or 
individual animals. Relocations include: 21 males from the NWHI to the 
MHI, three females from the MHI to the NWHI, 11 males from the NWHI to 
Johnston Atoll, and 1 male from the MHI to Johnston Atoll. Female 
Hawaiian monk seals have not been relocated to the MHI.

Population Status and Trends

    The current Hawaiian monk seal population is estimated at 1,161 
individuals (NMFS, 2009). The estimate includes the sum of estimated 
abundances at the six main NWHI breeding subpopulation sites, an 
extrapolation of counts at Necker and Nihoa Islands, and an estimate of 
minimum abundance in the MHI (NMFS, 2009). Minimum population estimates 
for 2008 based on the number of seals identified from the six main NWHI 
subpopulations was 913 seals, and for the MHI, 113 seals (NMFS, 2009). 
Additional information regarding the methods used to determine 
estimates may be found in the NMFS annual stock assessment reports. The 
breeding subpopulations identified are geographically separated, but 
re-sights of identified animals indicate seal movement among the NWHI, 
among the MHI, and, on rare occurrence, from the NWHI to the MHI 
(Littnan et al., 2006; NMFS, 2009). The complete history of Hawaiian 
monk seal population status and trends is unknown; however, data and 
historical accounts do indicate impacts to population trends from human 
exploitation and disturbance. The following is a review of pertinent 
information and trends with regard to population status.
    The first beach counts of Hawaiian monk seals in the NWHI occurred 
in the late 1950s, but prior to that time period human-influenced 
declines in population can be inferred from historical accounts. The 
first written accounts during Lisianski's exploration in the 1800s 
indicated seals of the NWHI being exploited for oil, pelts, or food 
(Ragen, 1993). Reports from the end of the same century highlight the 
impact of early human exploitation on the seal population, with 
accounts of no seals being seen on extended visits to Midway and 
Laysan, areas where numerous seal sightings were indicated in the past 
(Ragen, 1999). Following the period of exploitation in the 1800s, areas 
in the NWHI were settled for entrepreneurial and military reasons. 
Descriptions of seal sightings at this time indicate behavioral 
changes, including seals showing a habitat preference for sites less 
accessible to human inhabitants (Ragen, 1999). Starting in the late 
1950s, counts were made at the islands almost every year, with a high 
count of 1,206 seals recorded in the spring of 1958 (NMFS, 1983). 
Although these counts do not provide a total population estimate 
(because the proportion of the total included in the count was not 
determined), the beach counts do demonstrate a decline between the late 
1950s and mid-to-late 1970s. Counts in the 1970s ranged from 500-600 
seals, less than half the high counts from the late 1950s (NMFS, 1983). 
This decrease was most evident in the western portions of the range and 
has been associated with human disturbance related to military 
settlement (Kenyon and Rice, 1959; Ragen, 1993). Military activities 
and presence eventually ceased at these sites, and the islands have 
been managed as a refuge; in 2006 the islands and surrounding waters 
were incorporated into the Northwestern Hawaiian Islands Marine 
National Monument, now renamed Papahanaumokuakea Marine National 
Monument. Periods of decline and stability have been documented since 
the area has been managed as a refuge, with the most recent period of 
decline beginning in 2001 (NMFS, 2007a). In 2008, beach counts of 
juveniles and adults (i.e., all seals except pups) were 68 percent 
lower than those of the late 1950s (NMFS, 2009). Total abundance at the 
six primary NWHI sites (French Frigate Shoals, Laysan, Lisianski, Pearl 
and Hermes, Midway, and Kure) is declining at a rate of about 4.5 
percent per year (NMFS, 2009). While the earlier declines are marked by 
human exploitation and disturbance, the current declines in the NWHI 
may be driven by food limitations and other sources of mortality, which 
disproportionally impact juvenile seal survival and consequently reduce 
recruitment into breeding age classes. With fewer adults of breeding 
age, the current age structures of the NWHI subpopulations indicate 
that declines are likely to continue for at least the next decade 
(Baker et al., 2010). A detailed account of the Hawaiian monk seal 
population status and trends in the NWHI is provided in the recovery 
plan (NMFS, 2007a).

[[Page 32029]]

    It is generally accepted that Hawaiian monk seals are native to the 
islands of the northwest, as discussed earlier; however, conflicting 
views remain regarding Hawaiian monk seal historical use of the MHI. 
The lack of seal references in the Hawaiian oral tradition has led some 
to believe that Hawaiian monk seal use of this region is a recent 
phenomenon. However, fossil remains of seal bones discovered at an 
archeological site from the Island of Hawaii dating from 1,400-1,760 
years ago (Rosendahl, 1994) has led support to an alternate view 
suggesting that Hawaiian monk seals may have been forced to peripheral 
habitat by exploitation or disturbance during early Polynesian 
settlement (Ragen, 1993; Baker, 2004; Baker and Johanos, 2004). 
Anecdotal evidence, including the Polynesian extirpation of other avian 
species during early settlement (Olson and James, 1982; Diamond et al., 
1989), the availability of coastal habitat (Juvik and Juvik, 1998), and 
the monk seal presence in the Pacific basin well before the Polynesian 
settlement, lends additional credence to this theory (Olson and James, 
1982; Diamond et al., 1989; Juvik and Juvik, 1998; Athens et al., 2002; 
Kirch et al., 2004; Fyler et al., 2005). Thus, Polynesian settlement of 
the MHI may have driven Hawaiian monk seals to the NWHI, where human 
settlements were limited by the availability of fresh water (Ragen, 
1999; Baker and Johanos, 2004). In summary, this view presents the 
current growth and dispersal of the Hawaiian monk seal population in 
the MHI as a re-colonization event.
    More recent MHI history provides the historical accounts of seal 
sightings indicating the occasional presence of seals, including 
sightings from as early as 1900 and later accounts spanning into the 
1950s throughout the MHI (Bailey, 1952; Kenyon and Rice, 1959). Niihau 
residents reported that seals appeared regularly after 1970 (Baker and 
Johanos, 2004), and NMFS PIFSC's records from 1980-1986 reveal 125 seal 
sightings recorded throughout the MHI (NMFS, 2010e). These sightings do 
not represent a discrete number of seals, because the sightings are 
incidental and seal identification is unknown; however, it does reveal 
the presence of seals throughout the islands in the early 1980s prior 
to the first critical habitat designation. By as early as 1994, a small 
naturally-occurring population of male and female monk seals was 
present in the MHI. Since the mid-1990s, an increasing number of 
documented sightings and annual births of monk seal pups have occurred 
in the MHI. Estimates using systematic surveys or sightings of uniquely 
identified individuals within the MHI indicate an increase in numbers 
as demonstrated by the following estimates: 45 individuals reported in 
2000, 77 individuals in 2005, and 113 individuals in 2008 (NMFS, 2007b; 
NMFS, 2009). The growth in numbers in the MHI is not likely to be a 
consequence of increased migration from the NWHI, since only 5 seals 
have been documented to have migrated from the NWHI to the MHI since 
the 1980s when regular tagging efforts began (Baker et al., 2010). It 
is likely that seals in the MHI are growing in numbers due to the 
increase in births and have been dispersing from under-documented areas 
(such as Niihau) to the rest of the chain (Baker and Johanos, 2004).

Northwestern Hawaiian Islands vs. Main Hawaiian Islands

    There is no genetic evidence suggesting monk seals occurring in any 
part of the archipelago are genetically distinct from monk seals 
elsewhere in the range (Schultz et al., 2009); thus, the Hawaiian monk 
seal consists of one population distributed throughout the Hawaiian 
Archipelago. While the population is not genetically distinct in the 
NWHI and MHI, differences between Hawaiian monk seal population status, 
habitat, research efforts, and threats to the seals utilizing these two 
regions support a separate approach to management and conservation 
efforts (Baker et al., 2010). The following discussion summarizes some 
of the differences identified between the two management areas and 
refers to the seals in these geographic areas as separate populations 
due to these differences.
    Recruitment trends differ between the NWHI and MHI. In the NWHI, 
many of the reproductive subpopulations are experiencing a decline in 
breeding subpopulations that is attributed primarily to food limitation 
(NMFS, 2007a). The impacts resulting from food limitation are most 
strongly expressed in poor juvenile condition and survival, and low 
age-specific reproductive rates (delayed maturity) (Antonelis et al., 
2006; NMFS, 2007a). High juvenile mortality rates result in fewer 
females achieving reproductive maturity, thereby causing an imbalanced 
age structure, which in turn contributes to the continued decline. In 
contrast, the MHI portion of the population is increasing. This is 
evident by the growing number of identified individuals and number of 
pups born annually (Baker and Johanos, 2004). In addition to the 
difference in population growth, monk seals in the MHI appear to be in 
better physical condition than those in the NWHI. In general, MHI 
females begin reproducing at a younger age, and attain higher birth 
rates than females in the NWHI (Baker et al., 2010). In 2008, a 4 year 
old MHI female became the youngest documented Hawaiian monk seal of 
known age to pup (NMFS, 2010f). The successfully reproducing females of 
the MHI are also producing robust pups. Measurements from axillary 
girths and standard lengths of weaned pups from the MHI were 
significantly greater in comparison to the same measurements from 
weaned pups from the NWHI, which are thought to have better foraging 
conditions for the mothers in the MHI (Baker and Johanos, 2004; Baker 
et al., 2006). Additionally, the estimated survival from weaning to age 
1 is 77 percent in the MHI, which is much higher than the 42-57 percent 
survival estimated for breeding subpopulations in the NWHI. This 
disparity in population status between the two regions is well 
reflected in recent efforts to estimate population growth and decline 
of monk seals in the separate areas. If demographic trends continued at 
the current rates, the MHI and NWHI portions of the population would 
equalize in 15 years (Baker et al., 2010).
    Factors influencing foraging success may explain the disparity 
between the two regions. These factors can be attributed to an inequity 
in ecological competition on several levels. First, low numbers of monk 
seals in the MHI may point to a greater per capita availability of prey 
than in the NWHI (Baker and Johanos, 2004). Specifically, the lower 
number of seals in the MHI across a large expanse of available foraging 
habitat allows for less intra-specific competition for food resources. 
Secondly, the NWHI is located within the Papahanaumokuakea Marine 
National Monument, one of the largest and best-protected marine areas 
in the world, where commercial fishing efforts have been minimized in 
past years and recently completely ceased. The protected ecosystem of 
the NWHI, in comparison to the MHI, has a greater number of large 
predators. The sharks, jacks, and other demersal fish that have been 
observed to compete directly with monk seals in the NWHI are much less 
abundant in the MHI. In other words, inter-specific competition is 
likely lower in the MHI (Baker and Johanos, 2004; Parrish, 2008). 
Additionally, competition between humans and monk seals may be limited 
in the MHI because seals prefer small (usually less than 20 cm, or 8 
in) eels, wrasses, and other benthic species not commonly sought

[[Page 32030]]

by fishermen (Parrish et al., 2000). All of these factors appear to 
positively influence the population status of monk seals in the MHI at 
this time, but these favorable dynamics may shift as the population 
grows in the MHI.
    Additional differences between the two regions are further 
reflected in the threats to the species, and, consequently, in the 
management priorities and activities for each population, which are 
discussed in detail in the Hawaiian Monk Seal Recovery Plan (NMFS, 
2007a). One of the threats discussed includes that of habitat loss 
(NMFS, 2007a). The low-lying islets and islands of the NWHI are 
particularly susceptible to sea level rise, an impact that results from 
several factors associated with climate change, including thermal 
expansion of the warming oceans and melting of glaciers and ice caps 
(Baker et al., 2006). In the 20th century sea levels rose 15 cm, and 
increases are expected to continue (Baker et al., 2006). As a result of 
sea level rise, important pupping and haul-out habitat may be lost 
(Baker et al., 2006). While the threat of sea level rise may be 
accelerated by anthropogenic forces, human activities which influence 
this threat are considered to be of a complex global scale. Management 
efforts in the NWHI area would more likely focus on the preservation of 
specific areas for pupping and hauling out and may include regular 
monitoring for changes in elevation at the various islets and islands. 
Long-term mitigation planning at specific sites may also play a role in 
conserving habitat in the NWHI (Baker, 2006). In the MHI, habitat loss 
is equally a threat, but in the MHI, coastal anthropogenic development 
plays a pronounced role by exacerbating the threat to coastal habitat. 
Like most other coastal states, Hawaii's dependence on coastal 
resources has led to increased development of shorelines. In response 
to natural erosion processes, urban shorelines were often hardened to 
protect assets. Efforts to harden shorelines alter the natural 
hydrodynamic system of waves and currents, affecting sand transport 
rates that control the erosion-accretion process of beaches (Defeo et 
al., 2009). Consequences of armoring vary depending on the placement of 
the structure and the surrounding hydrodynamics, but have included 
passive erosion on the armored beach, flanking erosion of shorelines 
adjacent to engineered structures, and possibly the enhanced erosion on 
protected coasts (Venter et al., 2006). On Oahu past reliance on 
shoreline armoring to mitigate coastal erosion has resulted in 
widespread beach narrowing and sand loss (Fletcher et al., 1997). 
Current management measures in the MHI are aimed at coastal setbacks 
(i.e., planning development inland from the water's edge and the threat 
of erosion), but the increased demand for the use of coastal areas for 
industry, recreation, and private use may put continued pressure on 
developers to increase access to ``new'' beach areas. In the future, 
remote beaches may be squeezed between seaward directed development and 
rising sea levels, leaving no room for natural sediment dynamics (Defeo 
et al., 2009). As the number of Hawaiian monk seals increases in the 
MHI and development continues, available habitat for hauling out and 
pupping will become increasingly important.
    Direct anthropogenic threats from activities within the 
Papahanaumokuakea Marine National Monument have been minimized through 
management measures aimed at protecting the unique resources within the 
NWHI. Despite being located in this highly protected area, the Hawaiian 
monk seals continue to face threats in the NWHI that require 
management. Twenty years of robust population monitoring data in the 
NWHI aids in making these management decisions. Data reflecting poor 
juvenile survival has focused management efforts towards positively 
influencing population trajectories by increasing efforts which support 
monk seal health during the fragile first years. Conversely, the MHI 
population is only in the early stages of scientific monitoring 
efforts, as previous research efforts were concentrated towards NWHI. 
Currently, a great deal of information regarding MHI seals is received 
from a growing volunteer network, and management efforts in the MHI 
have been focused on threats centered on anthropogenic influences. 
Growth in seal numbers in the MHI has increased human and seal 
interaction, and many coastal residents and visitors are unfamiliar 
with the specific needs of the species. This increased overlap in use 
of coastal and marine habitat has led to fishery interactions (hookings 
and entanglements), disturbance and harassment of seals, and sometimes 
injuries to humans (Baker et al., 2010). Impacts from pollution and 
runoff into the aquatic environment also pose health hazards to the 
species in the MHI; these threats are not factors considered in the 
NWHI (Littnan et al., 2006). In addition to these unintentional 
anthropogenic threats, three seals were recently documented shot and 
killed in the MHI.
    As discussed above, differences between the NWHI and MHI portions 
of the population present unique research and management challenges for 
the Hawaiian monk seal. With the continued decline in numbers and the 
fragile status of reproductive classes in the NWHI, the survival of the 
species as a whole may become increasingly dependent on the success of 
the portion of the population in the MHI along with management efforts 
taken to ensure that success.

Habitat

    The Hawaiian monk seal depends on aquatic environments as well as 
terrestrial environments for survival. While Hawaiian monk seals spend 
a majority of their time in the water, the terrestrial component of 
their habitat plays a vital role throughout all life stages. Monk seals 
utilize terrestrial habitat to haul out for resting, molting, pupping, 
nursing and avoiding predators. Since monk seals may remain at sea for 
several days or more at a time, resting on land is essential to 
conserve energy. Resting commonly occurs on sandy beaches, but may also 
occur on rocky shores, rock ledges, emergent reefs, and even shipwrecks 
(Antonelis et al., 2006). While on shore, monk seals may take shelter 
from wind and rain under shoreline vegetation. When ocean conditions 
are rough, monk seals may spend a greater proportion of time resting on 
land. Resting on land may be for a few hours to several days at a time 
(Antonelis et al., 2006).
    Terrestrial habitat is essential for pupping and nursing of pups. 
Pupping and nursing areas are usually sandy beaches adjacent to shallow 
protected water (Westlake and Gilmartin, 1990). Individual females 
appear to favor certain pupping locations, returning to them year after 
year. Pregnant females come ashore a few days before giving birth to a 
pup weighing approximately 16 kg (35 lb). Pups nurse for 5 to 6 weeks 
(Johanos et al., 1994) and weigh 50-100 kg (110-220 lb) at weaning. 
During nursing, mother and pup remain in close proximity to each other, 
and the mother is protective of her pup. Although the pup is able to 
swim at birth, nursing is done on land and the mother-pup pair usually 
remains on land for the first few days after the pup is born. The 
mother gradually begins swimming with her pup in the shallows, 
returning to the general area around the pupping site. As weaning 
approaches, the mother-pup pair spends more time in the water, 
venturing further away from the pupping site. After weaning, pups 
typically remain in the shallows near their nursing areas for several

[[Page 32031]]

weeks before venturing into deeper foraging areas (Kenyon and Rice, 
1959; Henderson, 1988). Hauling out on land is also required for 
molting, when old pelage is shed. Monk seals usually remain on land 
during the annual molting; the process lasts approximately 1 to 2 weeks 
(Kenyon and Rice, 1959).
    Hawaiian monk seals utilize the aquatic components of their 
environment for thermoregulating, resting, interacting, mating, and 
foraging. Observation of 24 adult male monk seals wearing animal-borne 
video cameras showed that greater than 50 percent of the time spent 
underwater was spent resting or interacting with other seals and that 
much of these activities were spent in shallower depths (Parrish, 2000; 
Parrish, 2004). Resting may also occur at sea or in shallow, submerged 
caves. Little has been observed regarding monk seals' mating behavior 
in the marine environment; however, gains in foraging research provide 
new insight into monk seal foraging since the time of the previous 
critical habitat designation.
    Previous understandings of monk seal foraging assumed monk seals 
were feeding on localized prey species on near shore coral reef 
structures and on offshore banks surrounding the haul-out areas in the 
NWHI (NMFS, 1983). Although transit and deeper diving behavior was 
acknowledged in the 1983 recovery plan, little was known regarding monk 
seal foraging behavior at deeper depths, and the extent and frequency 
of foraging transits were not well understood. Information from 
satellite transmitter studies began to transform these concepts by 
regularly demonstrating seals transiting to neighboring banks (Parrish 
and Littnan, 2007). Additionally, digestion studies began to illustrate 
that scat found on the beach might only represent prey from close reefs 
and not the seals' entire diet (Goodman-Lowe, 1998; Goodman-Lowe et 
al., 1999; Parrish and Littnan, 2007). Later, Crittercam footage (or 
head-mounted cameras) revealed seals ignoring reef fish in the coral 
shallows in favor of foraging on deeper atoll slopes and neighboring 
banks. Additionally, depth recordings from these animals demonstrated 
foraging at depths greater than previously recognized (Parrish et al., 
2000; Stewart, 2006). These data combined have reshaped the knowledge 
of how seals utilize their foraging habitat and where seals are 
feeding.
    Today monk seals are considered to be foraging generalists 
consuming a wide variety of prey species. Goodman and Lowe (1998) 
identified inshore, benthic, and offshore teleosts as the most 
represented prey items in monk seal scat, followed by cephalopods and 
crustaceans. From the 940 scats sampled, the study was able to identify 
31 families of teleosts and 13 families of cephalopods (Goodman and 
Lowe, 1998). Additionally, fatty acid analysis of the monk seal diet 
has begun to identify an even broader number of prey species consumed 
by the Hawaiian monk seal (Iverson, 2006). Fatty acid analysis studies 
have also demonstrated substantial variation in diet among individuals, 
demographic groups (between juveniles and adults/sub adults), and 
locations (Iverson, 2006), indicating that individual monk seal 
foraging preferences and capabilities play a role in selection of 
foraging habitat. Recently increased resolution of regurgitation 
samples has identified the remains of morid cod, which are a species 
typically found at subphotic depths or depths greater than 95 m 
(Longnecker et al., 2006). These dietary analyses, that indicate 
individual seal foraging preferences and seals foraging at greater 
depths, are consistent with seal foraging ecology studies discussed 
below.
    Recent studies using new advances in technology have demonstrated 
that Hawaiian monk seals forage in marine habitats anywhere from a 
meter to several hundred meters in depth. Time-depth recorders from 
several studies revealed a large portion of effort at depths between 50 
and 300 m (164-984 ft), which coincides with the bank and slope 
habitats used by prey species often detailed in monk seals' diets 
(Parrish 2004; Parrish and Abernathy 2006). Foraging studies by Parrish 
describe these preferred foraging habitat as low-relief substrates such 
as sand and talus in areas of habitat uniformity at greater depths than 
previously considered for critical habitat (Parrish and Littnan, 2007; 
Parrish, 2008), where adult seals are able to move large, loose talus 
fragments found in the premium foraging habitat to reach the prey 
hiding underneath (Parrish et al., 2000). Although these sites are 
often greater distances from haul-out sites, it appears that the less 
sheltered prey in the uniform habitat may make this area energetically 
preferable to the seals (Parrish et al., 2000). Studies in the NWHI 
(Parrish et al., 2002; Stewart, 2006) have also shown that adult monk 
seals may forage at 300-500 m (1,000-1,600 ft), sometimes visiting 
patches of deep corals (Parrish 2004; Parrish et al., 2002). A summary 
of telemetry data from 37 male and female adults tagged throughout the 
NWHI revealed that 17 seals appeared to be specializing in subphotic 
foraging (Parrish 2004). This calculates out to 46% of the adults 
tracked, which Parrish (2004) extrapolated out to be about a fourth of 
the entire population. The use of these deeper habitats may reflect 
monk seals taking advantage of readily available prey in a habitat with 
decreased inter-specific competition (Parrish, 2008). The maximum depth 
at which seals have been documented to forage is around 500 m (1640 ft) 
(Parrish 2004); however, monk seals are almost certainly capable of 
exceeding depths of 550 m and the extent of foraging depth may still be 
unknown (Parrish 2004; Stewart et al. 2006).
    Foraging studies with instrumented juvenile monk seals (1-3 years 
old) in the NWHI illustrated foraging behavior similar to that of adult 
monk seals. Feeding occurred both within shallow atoll lagoons 10-30 m 
(33-98 ft) and on deep reef slopes (50-100 m/160-325 ft), usually over 
sand rather than talus (Parrish et al., 2005). Video footage of 
juvenile seal foraging showed seals moving along the bottom, flushing 
prey with a variety of techniques, including probing the bottom with 
their nose, using their mouth to squirt streams of water at the 
substrate, and flipping small rocks with their heads and shoulders 
(Parrish et al., 2005). While juvenile seals are able to dive to depths 
similar to adults, the smaller seals likely do not yet have the size or 
experience to engage in the successful large talus-foraging behavior 
exhibited by adults (Parrish et al., 2005). In addition to the 
preferred habitat, limited data also indicate that juvenile seals may 
occasionally forage at the deeper ranges used by adults (Parrish 2004).
    Although much less information is available regarding monk seals 
foraging in the MHI, 11 juvenile and adult monk seals were tracked in 
2005 using satellite-linked radio transmitters showing location and 
summaries of dive depths. This study indicated that seals usually 
remained in near shore waters within the 200 m (650 ft) isobath 
(Littnan et al., 2006). Since that study, recent tracking of Hawaiian 
monk seals with cell phone tags in the MHI demonstrates some diving 
depths up to 489 m (1,555 ft) (NMFS, 2010g).
    In general, the selection of foraging habitat by monk seals may be 
influenced by many factors, including environmental conditions that 
influence abundance and composition of prey assemblages; conditions 
that influence prey availability and capture success such as intra-
specific and inter-specific competition; as well as individual 
circumstance including size and age class, preferred prey, and 
individually

[[Page 32032]]

favored foraging tactics. These variables all influence where and how 
Hawaiian monk seals utilize foraging habitat within the marine 
environment.
    In summarizing monk seal habitat, features that support resting, 
reproduction, molting, predator avoidance, and foraging are essential 
for the conservation of this species. Therefore, Hawaiian monk seal 
critical habitat must include terrestrial and marine areas. Terrestrial 
areas include a sanctuary for hauling out for resting, molting, 
pupping, nursing, and avoiding predators. Terrestrial habitat consists 
of near shore or emergent surfaces where monk seals can haul out. Those 
areas preferred for pupping consist of a subset of haul-out habitat and 
are usually on sandy beaches adjacent to shallow marine areas. These 
shallow marine areas provide protection for pups while they become 
accustomed to unaccompanied life in the marine environment and begin 
learning to forage on their own. The marine habitat includes areas used 
for thermoregulating, resting, interacting, mating, and foraging. 
Foraging habitat for Hawaiian monk seals has been demonstrated to be at 
depths as great as 500 m in the NWHI. Recent declines in the Hawaiian 
monk seal population point to food limitations in the NWHI, especially 
for juvenile monk seals, making marine foraging areas particularly 
critical components of monk seal habitat.

Critical Habitat

    Section 4(b)(2) of the ESA requires us 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.'' However, the 
Secretary 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.''
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to insure 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 insure 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 
revision. In accordance with section 4(b)(2) of the ESA and our 
implementing regulations (50 CFR Part 424), this proposed rule is based 
on the best scientific information available.
    To assist with the revision of Hawaiian monk seal critical habitat, 
we convened a critical habitat review team (CHRT) consisting of seven 
biologists from NMFS PIFSC and the Pacific Islands Regional Office 
(PIRO). The CHRT members had experience and expertise in Hawaiian monk 
seal biology, distribution and abundance, and management. The CHRT used 
the best available scientific data and their best professional judgment 
to: (1) Identify the physical and biological features essential to the 
conservation of the species that may require special management 
considerations or protection; (2) identify specific areas within the 
occupied area containing those essential physical and biological 
features; (3) evaluate the conservation value of each specific area; 
and (4) identify activities that may affect any designated critical 
habitat. The evaluations and conclusions are described in detail in the 
following sections. We concur with these conclusions.

Physical or Biological Features Essential for Conservation

    Joint NMFS-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 protections.'' 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 require the agencies to ``focus on the principal biological 
or physical constituent elements within the defined area that are 
essential to the conservation of the species. Known primary constituent 
elements shall be listed with the critical habitat description. Primary 
constituent elements may include, but are not limited to, the 
following: roost sites, nesting grounds, spawning sites, feeding sites, 
seasonal wetland or dryland, water quality or quantity, host species or 
plant pollinator, geological formation, vegetation type, tide, and 
specific soil types.'' For the purposes of this proposed rule, the 
essential features are the same as primary constituent elements.
    In the 12-month finding (74 FR 27988; June 12, 2009), we identified 
five preliminary essential features in order to identify to the public 
areas that may be under consideration for the critical habitat. For 
this proposed rule, we used the best available scientific information 
to modify and supplement the essential features announced in the 12-
month finding to best describe those elements or areas essential for 
the conservation of the Hawaiian monk seal. The following six essential 
features were identified.
(1) Areas With Characteristics Preferred by Monk Seals for Pupping and 
Nursing
    Hawaiian monk seals have been observed to give birth and nurse in a 
variety of terrestrial coastal habitats; however, certain beaches may 
be preferred for pupping at the various atolls and islands within the 
range. Preferred pupping areas generally include sandy, protected 
beaches located adjacent to shallow, sheltered aquatic areas (Westlake 
and Gilmartin, 1990). Terrestrial pupping habitat may include various 
substrates such as sand, shallow tide-pools, coral rubble, or rocky 
substrates, as long as these substrates provide accessibility for seals 
for hauling out. Characteristics of preferred sites may also 
incorporate areas with low lying vegetation utilized by the pair for 
shade or cover (Antonelis et al., 2006). Preferred coastal areas may 
attract multiple mothers to the same area year after year for birthing 
(Antonelis et al., 2006); however, due to

[[Page 32033]]

the solitary nature of the species, some mothers may prefer to return 
to a lesser used location year after year. As discussed in the natural 
history of the species, female Hawaiian monk seals nurse their pups for 
approximately 6 weeks, then abruptly abandon the pup (Johanos et al., 
1994). This dramatic weaning leaves the pup independent, subsisting on 
fat stores until it learns to successfully forage on its own (NMFS, 
2007a). The preferred habitat for pupping and nursing provides area 
necessary for normal behavior, growth, and survival through the time 
period when pups are dependent on the mothers for sustenance and 
protection. These areas also provide a familiar sanctuary for the 
weaned pup during its transition to independence.
(2) Shallow, Sheltered Aquatic Areas Adjacent to Coastal Locations 
Preferred by Monk Seals for Pupping and Nursing
    Preferred pupping and nursing sites are often adjacent to shallow, 
sheltered aquatic areas (Westlake and Gilmartin, 1990). These sheltered 
marine areas provide protection for the mom and pup pair from predators 
and extreme weather events, as well as habitat for thermoregulatory 
cooling and swimming (Westlake and Gilmartin, 1990; NMFS, 2007a). Upon 
weaning, the newly independent pup will utilize the sheltered marine 
area to acclimate to life on its own, utilizing the habitat for 
swimming, exploring, socializing, thermoregulatory cooling, and the 
first attempts at foraging. Characteristics of the sheltered aquatic 
sites may include reefs, tide pools, gently sloping beaches, and 
shelves or coves that provide refuge from storm surges and predators. 
Marine habitat adjacent to preferred pupping and nursing areas provides 
area necessary for the normal behavior, growth, and survival during 
early juvenile development for the Hawaiian monk seal.
(3) Marine Areas From 0 to 500 m in Depth Preferred by Juvenile and 
Adult Monk Seals for Foraging
    Food limitation is identified in the recovery plan as a critical 
threat to the Hawaiian monk seal; therefore, foraging grounds within 
the marine environment are an essential component in the recovery and 
conservation of the species. As identified in the habitat section of 
this report, Hawaiian monk seals forage in marine habitat anywhere from 
0 to 500 m. This habitat includes barrier reefs of atolls, leeward 
slopes of reefs and islands, sites along the Hawaiian Islands 
Archipelago's submarine ridge, nearby seamounts, and submerged reefs 
and banks (Stewart, 2006). Preferred foraging habitat of adult monk 
seals is characterized by sand terraces and talus slopes that may range 
in depths of 50-100 m (160-325 ft) deep around their home atoll or 
island (Parrish and Littnan, 2007). These habitats provide substrate 
and materials for preferred benthic and cryptic prey species to hide. 
While the slopes are characterized as preferred feeding areas, recent 
diving, camera, and fatty acid analysis studies demonstrate that seals 
are feeding at depths greater than previously believed (300 m-500 m) 
(Parrish et al., 2002; Iverson, 2006; Stewart, 2006). The use of these 
deeper habitats may reflect monk seals taking advantage of readily 
available prey in a habitat with decreased inter-specific competition 
(Parrish, 2008). Habitat at these greater depths may be comprised of 
deep water coral beds or the barren habitats prey species move between 
(Parrish et al., 2002). Fatty acid analysis studies have demonstrated 
substantial variation in diet among individuals, demographic groups 
(between juveniles and adults/sub adults), and locations (Iverson, 
2006). Thus, individual monk seal foraging preferences and capabilities 
play a role in selection of foraging habitat. The steady decline of the 
species (attributed mainly to food limitation) coupled with individual 
foraging tactics and prey preferences, reveals a need for protection 
that incorporates the features found in these foraging areas for this 
species.
(4) Areas With Low Levels of Anthropogenic Disturbance
    Hawaiian monk seals utilize terrestrial habitat to haul out for 
resting, pupping and nursing, molting, and as a refuge from predators 
(NMFS, 2007a). The high energetic demands of life in the marine 
environment make resting behavior essential to the fitness of 
individual animals and the overall population. Human interactions with 
monk seals have the potential to cause disturbance and subsequent 
abandonment of a favored haul-out site or pupping area for less 
suitable locations. New locations may lack refuge characteristics, 
leaving the seals more vulnerable to predation or other environmental 
threats. Generally, Hawaiian monk seals seek areas that are undisturbed 
by large numbers of humans or human induced interactions (such as 
interactions with dogs or vehicles). Hawaiian monk seal intolerance of 
human disturbance is best documented in the NWHI following human 
settlement on specific islands throughout the various atolls (NMFS, 
2007a). Kenyon (1972) documented changes in seal haul-out patterns at 
the human settled islands at Midway Islands, French Frigate Shoals, and 
Kure Atoll. Changes observed included seals avoiding human inhabited 
islands during day time hours and seals hauling out on the islands or 
islets less frequented by humans (Kenyon, 1972). At Kure Atoll the 
population experienced depressed rates of reproduction and decreased 
juvenile survival during this period of human settlement. Kenyon (1972) 
related the poor juvenile survival to female adults either selecting 
inferior pupping habitat prior to birth or prematurely abandoning or 
weaning young, as a response to human disturbance. The preference for 
less disturbed areas is also evident in monk seal selection of many of 
the favored haul-out sites in the MHI, which consequently are located 
in the less populated areas (Baker and Johanos, 2004).
(5) Marine Areas With Adequate Prey Quantity and Quality
    Food limitation is identified in the recovery plan as a critical 
threat to the Hawaiian monk seal; therefore, prey quantity and quality 
within the marine foraging habitat is an essential component in the 
recovery and conservation of the species. Monk seals are considered 
foraging generalists, feeding on a wide variety of prey species. 
Goodman and Lowe (1998) identified inshore, benthic, and offshore 
teleosts as the most represented prey items in monk seal scat, followed 
by cephalopods and crustaceans. From the 940 scats sampled, the study 
was able to identify 31 families of teleosts and 13 families of 
cephalopods (Goodman and Lowe, 1998). Additionally, fatty acid analysis 
of the monk seal diet has identified a broad number of prey species 
consumed by the Hawaiian monk seal (Iverson, 2006). While the broad 
number of prey species makes identifying an individual prey species for 
specific protections difficult, the foraging habits of seals help to 
identify areas and habitat types that are regularly utilized, including 
the sand terraces, talus slopes, submerged reefs and banks, nearby 
seamounts, barrier reefs, slopes of reefs and islands, and deep coral 
beds. Within these habitats, conditions, such as water quality, 
substrate composition, and available habitat, should support growth and 
recruitment of prey species to the extent that monk seal populations 
are supported. Current evidence from shrinking seal subpopulations in 
the NWHI indicates that prey quantity and quality are essential to 
recovery, but further research is necessary to identify direct 
correlations to specific threats to the

[[Page 32034]]

prey species as well as to identify appropriate management actions.
(6) Significant Areas Used by Monk Seals for Hauling Out, Resting, or 
Molting
    Hawaiian monk seals utilize terrestrial habitat to haul out for 
resting, pupping and nursing, molting, and as a refuge from predators 
(NMFS, 2007a). Energetic requirements of life in the marine environment 
make resting behavior important, and, consequently, terrestrial haul-
out areas are an essential component for conservation. These haul-out 
sites are generally characterized by sandy beaches, sand spits, or low 
shelving reef rocks accessible to seals, but many substrates may be 
used including emergent reef (Antonelis et al., 2006). Favored sites 
may also reflect areas remote in nature or with low levels of human 
disturbance. Although Hawaiian monk seals are considered to be a 
solitary species (in comparison to other gregarious pinnipeds, such as 
sea lions), they may still haul out in small numbers (Antonelis et al., 
2006) and are likely to frequent general areas utilized by other seals 
due to the preferences for accessible and remote habitat.

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 and to identify specific areas within this geographically 
occupied area that contain at least one of the essential features that 
may require special management considerations or protection. As 
discussed in the Range section above, the range of the Hawaiian monk 
seal was defined in the 12-month finding on June 12, 2009 (74 FR 27988; 
June 12, 2009), as throughout the Hawaiian Archipelago and on Johnston 
Atoll. Using the identified range, we identified ``specific areas'' 
within the geographical area occupied by the species that may be 
eligible for critical habitat designation under the ESA. For an 
occupied area to meet the criteria of critical habitat, it must contain 
specific areas with one or more of the essential features that may 
require special management or protection. We identified areas that met 
the criteria of critical habitat within the range of the species, 
including areas in the NWHI and the MHI. Johnston Atoll was considered 
for potential critical habitat, but we determined that the lack of 
recent seal use, the remote nature of the atoll from the Hawaiian 
Archipelago, and the hazardous conditions associated with past human 
use (including contamination, erosion, and debris (communication with 
USFWS staff)) rendered the features in this area inadequate for seal 
conservation. Each specific area was selected to reflect current seal 
use as well as anticipated habitat needs for recovery for the species. 
These specific areas are identified across the range, but areas have 
been grouped according to the NWHI and MHI management units to express 
similarities in population status, essential features present, and the 
activities that may affect the essential features such that special 
management considerations or protections are needed. The draft 
Biological Report (NMFS, 2010a; available via our Web site at 
http:[sol][sol]www.fpir.noaa.gov/PRD/prd_critical_habitat.html, via 
the Federal eRulemaking Web site at http:[sol][sol]www.regulations.gov, 
or upon request (see ADDRESSES)) describes in detail the methods used 
to assess the specific areas and provides the biological information 
supporting the assessment. The following paragraphs provide a brief 
description of the essential features in each area and additional 
detail regarding the methods for delineating the specific areas.

Specific Areas in the NWHI

    While identifying specific areas in the NWHI, we first considered 
areas incorporated in the current (1988) designation of critical 
habitat and agreed that the identified areas in the NWHI continue to 
meet the definition of critical habitat under the ESA. Although omitted 
from the current designation, we also identified that Sand Island at 
Midway Islands provides essential features, including pupping and 
nursing areas and haul-out areas for Hawaiian monk seals. The human 
occupation of this island presents a need for special management and 
protections; thus, Sand Island meets the criteria for critical habitat. 
In considering Sand Island for the proposed designation, we recognized 
that the Midway Harbor located on Sand Island did not incorporate the 
essential features identified and that this area should not be included 
in the designation. We determined that for all specific areas in the 
NWHI, unless otherwise noted, all beach areas, sand spits and islets, 
including all beach crest vegetation to its deepest extent inland, 
lagoon waters, inner reef waters and ocean waters are included out to 
the seaward boundary of the 500-m depth contour.
    Specific Area 1: Kure Atoll's center point is defined at 
28[deg]25'11.00'' N/178[deg]19'45.00'' W. Located at the northwestern 
end of the archipelago, the coral atoll is comprised of the major 
island, Green Island, and a few small sand spits. Kure is one of the 6 
major breeding subpopulations described for the NWHI, and population 
declines were described for this area in 2009 (Center, 2009). All six 
essential features are present within the specific area.
    Specific Area 2: Midway Islands' center point is defined at 
28[deg]14'12.00'' N/177 2206.00'' W. Located at approximately 2,100 km 
northwest of Honolulu, the grouping consists of three islands, Sand, 
Eastern, and Spit, located within the circular-shaped atoll. Today Sand 
Island supports a full time refuge staff, including residents that 
support and maintain a runway, and a visitor program. Considered one of 
the 6 major breeding subpopulations, the monk seal population in the 
Midway Islands was reported as declining in 2009 (Center, 2009). The 
specific area incorporates 88 mi\2\ (227.9 km\2\) of terrestrial and 
marine habitat, and all six essential features are present within it. 
Midway Harbor does not meet the definition of critical habitat. The 
boundaries of Midway Harbor were delineated to incorporate the inner 
harbor and hardened shorelines of the harbor. The polygon that bounds 
Midway Harbor includes the area bounded by the point at the seaward 
edge of the northern breakwater at the harbor entrance 
(28[deg]12'44.31'' N/177[deg]21'35.64'' W) then north along the 
breakwater to where the breakwater meets the coastline at 
28[deg]12'54.06'' N/177[deg]21'38.69'' W then west to 28[deg]12'56.63'' 
N/177[deg]22'18.42'' W then south to 28[deg]12'30.88'' N/
177[deg]22'23.89'' W then east to 28[deg]12'32.68'' N/
177[deg]21'44.63'' W then north to the seaward edge of the southern 
breakwater at the harbor entrance (28[deg]12'39.99'' N/
177[deg]21'38.04'' W) and a line back to meet the seaward edge of the 
northern breakwater at Midway Harbor's entrance.
    Specific Area 3: Pearl and Hermes Reef center point is defined at 
27[deg]50'37.000'' N/175[deg]50'32.00'' W. The first land area 
southeast of Midway, this coral atoll consists of numerous islets, 
seven of which are above sea level. The total land area in the Atoll is 
approximately 80 acres (32.4 hectares), but the surrounding reef area 
is extensive. The specific area was estimated to be 242 mi\2\ (626.8 
km\2\). One of the 6 major breeding subpopulations, Pearl and Hermes 
Reef's monk seal population has been declining in recent years (Center, 
2009); however, all six essential features are present within the 
specific area.
    Specific Area 4: Lisianski Island center point is defined at 
26[deg]03'49.00'' N/173[deg]58'00.00'' W. The single island is

[[Page 32035]]

located at about 1,667 km northwest of Honolulu, and is a low sandy 
island measuring approximately 1.8 km long and 1.0 km wide (NMFS, 
1983). Though the island is small, a large reef area called Neva Shoals 
is located to the southeast. One of the 6 major breeding 
subpopulations, Lisianski's population has been declining in recent 
years (Center, 2009). However, the island and surrounding marine waters 
continue to support Hawaiian monk seals by providing all six essential 
features. The specific area was estimated to be 558 mi\2\ (626.8 
km\2\).
    Specific Area 5: Laysan Island center point is defined at 
25[deg]46'11.00'' N/171[deg]43'57.00'' W. The second largest land area 
in the NWHI, the coral-sand island encloses a hyper-saline lake in the 
middle of the island. The island is about 1.5 miles long (2.4 km) and 1 
mile (1.6 km) wide and is partially surrounded by a fringing reef. The 
island lies approximately 213 km east of Lisianski Island and supports 
a small field camp. The Laysan monk seal population is the second 
largest of the 6 major breeding subpopulations, and the 2009 report 
concluded that the population is still in decline (Center, 2009). The 
specific area including and surrounding Laysan Island was estimated to 
be 294 mi\2\ (761 km2) and all six essential features are present in 
this area.
    Specific Area 6: Maro Reef center point is defined at 
25[deg]25'27.00'' N/170[deg]35'19.00'' W. Maro Reef is the largest 
coral reef in the NWHI, located on top of a seamount. The reef is a 
complex maze of linear reefs that radiate out from the center and 
provide foraging habitat for the Hawaiian monk seal. Additionally, this 
area provides relatively undisturbed habitat with prey species present. 
This specific area incorporates approximately 960 mi\2\ (2,486 km\2\) 
of marine habitat.
    Specific Area 7: Gardner Pinnacles center point is defined at 
25[deg]0'00.00'' N/167[deg]59'55.00'' W. Gardener Pinnacles consists of 
two pinnacles of volcanic rock between Maro Reef and French Frigate 
Shoals. Underwater shelves surround the pinnacles, and land and the 
marine habitat extending within this specific area was estimated to be 
approximately 1,489 mi\2\ (3,857 km\2\). Home to a wide variety of prey 
species, Gardner Pinnacles provides relatively undisturbed marine 
foraging habitat and haul-out area for the Hawaiian monk seal (NMFS, 
1983).
    Specific Area 8: French Frigate Shoals center point is defined at 
23[deg]45'31.00'' N/166[deg]14'37.00'' W. This coral atoll is open to 
the west and partially enclosed by a crescent-shaped reef to the east. 
It lies about midpoint in the Hawaiian Archipelago and consists of 
several small sandy islets, the largest of which is Tern Island, where 
a year round field staff is present. French Frigate Shoals has provided 
habitat for a number of years to the largest breeding subpopulation of 
Hawaiian monk seals; however, this subpopulation has also experienced a 
tremendous decline in population attributed to poor juvenile survival 
(Antonelis et al., 2006). This downward trend is expected to continue 
due to poor recruitment into the breeding class (Antonelis et al., 
2006). This specific area was determined to be approximately 469 mi\2\ 
(1,215 km\2\) and all six essential features are present within the 
specific area.
    Specific Area 9: Necker Island center point is defined at 
23[deg]34'36.00'' N/164[deg]42'01.00'' W. The island also known as 
Mokumanamana is a small basalt island that is about 46 acres (19 
hectares) in size. Habitat utilized by Hawaiian monk seals includes 
accessible rocky benches for hauling out, and pupping has been recorded 
at this site. In contrast to other areas in the NWHI, counts of 
Hawaiian monk seals at Necker have indicated an increasing trend in 
recent years (Center, 2009). Although the island is small in size, 
marine habitat surrounding the island is large, and the specific area 
was estimated to be approximately 900 mi\2\ (2,331 km\2\) including 
land and marine habitat. All six essential features are present within 
the specific area. This island is uninhabited, but research crews do 
occasionally visit.
    Specific Area 10: Nihoa Island center point is defined at 
23[deg]03'23.00'' N/161[deg]55'18.99'' W. Nihoa is the easternmost 
island described in the NWHI and consists of a remnant volcanic peak 
with large foot cliffs, basalt rock surface, and a single beach. 
Hawaiian monk seals utilize the single beach and some accessible rock 
ledge areas for hauling out. The single beach is also used by multiple 
mothers for pupping and nursing. Similar to Necker, beach counts at 
Nihoa have indicated an increasing trend in recent years (Center, 
2009). All six essential features are present within the specific area, 
and the specific area is estimated to be approximately 547 mi\2\ (1,417 
km\2\) incorporating all land and marine habitat.

Specific Areas in the MHI

    In considering specific areas for the MHI, we recognized that data 
(including birth records and sighting information) indicate that each 
of the islands located within the MHI chain offers at least one of the 
essential features that fit the criteria for Hawaiian monk seal 
critical habitat. Additionally, human activities associated with human 
use and development of coastal habitats and marine waters surrounding 
these islands may require special management or protections. The 
recovery needs of the species become especially important when 
considering the current status of the Hawaiian monk seal in the NWHI. 
The poor juvenile recruitment in the NWHI over the past decade will 
contribute to continued decline in the breeding subpopulations for some 
time. Thus, MHI habitat, where seals are experiencing favorable 
conditions, has become vital to the survival of the species as a whole.
    In considering the MHI habitat, we recognized that designating 
critical habitat in the MHI based on current seals' beach preference 
would fail to take into account enough area to support the growing 
population or, more importantly, a recovered population. The recovered 
population identified by the Recovery Plan for the Hawaiian Monk Seal 
(NMFS, 2007a) set the population goal in the MHI at 500 individuals. 
This number is well above the estimated 150 individuals in the MHI. We 
considered that Hawaiian monk seals are unlike pinniped species that 
congregate in large numbers at specific or discrete sites (e.g., 
rookeries or colonies). The species is considered solitary and wide 
ranging, which results in individuals spreading out and utilizing a 
large range of areas in the terrestrial and marine environment. Monk 
seal habitat preferences vary greatly between individuals, and 
additionally may change throughout the life span of the animal. With 
this consideration in mind, the number of seals currently utilizing the 
MHI is small; however, this small group occupies the entire MHI chain, 
and both observation and tracking data demonstrate that seals utilize 
terrestrial habitat around the perimeter of all of the islands.
    While some seals may be well recognized at specific haul-out sites, 
these same seals are using multiple haul-out sites around an island or 
multiple islands. Seals may move around and between islands over the 
course of a day, several days, weeks, or several months. Basing our 
critical habitat designation on only currently recognized or favored 
Hawaiian monk seal haul-out sites may only reflect individual monk seal 
preference, rather than accurately characterize essential features for 
survival and recovery of the species as a whole. In conjunction with 
this concern is the fact that data gathered in the MHI are currently

[[Page 32036]]

dependent mostly on voluntary sighting information, and this may not 
accurately depict monk seal habitat use and preferences. For example, 
seals arriving in an area such as Poipu Beach, Kauai, which is 
frequented by human activity, are likely to be reported; however, seals 
utilizing more remote areas such as Laau Point, Molokai, having similar 
habitat characteristics, are likely to go unreported. We believe that a 
more expansive designation of critical habitat that includes areas 
where the species is likely to be found meets the needs of this wide 
ranging species and the conservation goals of the ESA. In addition to 
these factors, as a coastally dependent species, the Hawaiian monk seal 
will be impacted by sea level rise throughout its range. Habitat loss 
at low lying atolls in the NWHI will continue, and coastal habitats in 
the MHI may be impacted as well. This type of threat is not easily 
managed, and only a proactive approach to habitat protection will 
temper future losses and provide area for the recovery of the species.
    In identifying the terrestrial boundaries for the MHI, we 
recognized that terrestrial habitat in the MHI is not consistent with 
the small islands of the NWHI, in that the MHI represent much larger 
land masses, many of which are not accessible to the Hawaiian monk 
seal. Not all terrestrial habitat in the MHI is equal in seal 
accessibility and use, and portions of the MHI coastal habitat can be 
considered hardened shorelines or developed areas that do not have the 
essential features and would not support Hawaiian monk seal 
conservation. These areas identified include boat harbors, cliffs, 
active lava, and large bays with extensive runoff. These locations are 
identified under each specific area as regions that are not proposed to 
be designated as critical habitat. Other stretches of hardened 
shoreline do exist in the MHI; these stretches are often positioned 
between accessible haul-out locations, and identification of every area 
would cause a piecemeal delineation. Such areas have been included in 
the designation area with the understanding that terrestrial areas with 
manmade structures (e.g., docks, fishponds, seawalls, piers, roads, 
pipelines), and the land on which they are located, in existence prior 
to the effective date of the rule are not essential to the conservation 
of the species and do not meet the definition of critical habitat.
    To determine the marine boundaries in the MHI, we reviewed foraging 
information for the Hawaiian monk seal. Current foraging information 
from the MHI indicates that foraging monk seals have a smaller range 
than seals foraging in the NWHI, but recent tracking data indicate that 
some seals are utilizing habitat in deeper areas (NMFS, 2010g). As 
discussed earlier, in the NWHI vs. MHI section, the MHI may provide 
less inter-specific as well as intra-specific competition for foraging 
monk seals. As populations increase in the MHI and intra-specific 
competition increases, seals will likely be forced to greater foraging 
depths and ranges to meet foraging needs. Thus, foraging patterns will 
begin to mimic foraging patterns of seals tracked in the NWHI. With 
this consideration in mind, we identified that foraging habitat for 
each specific area should be consistent with that in the NWHI to 
reflect the growing needs of the population and what is known regarding 
the species as a whole.
    Specific areas in the MHI, identified by number below, include 
terrestrial habitat 5 m inland from the shoreline, described as upper 
reaches of the wash of the waves, other than storm or seismic waves, at 
high tide during the season in which the highest wash of the waves 
occurs, usually evidenced by the edge of vegetation growth or the upper 
limit of debris, through the shoreline into the marine environment out 
to the 500-m depth contour around: Kaula Island, Niihau, Kauai, Oahu, 
Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii 
(except those portions of the areas that have been identified as not 
included in the designation).
    Specific Area 11: Kaula Island is located 23 miles (37 km) west-
southwest of Kawaihoa Point on Niihau. The island is the second largest 
offshore islet found in the MHI, after Lehua, and is the eroded result 
of a tuff crater. The crater wall creates a small bay along the inside 
curve, and a rock terrace or bench sits along this inner edge, ranging 
in width from 3.1 m to 24 m and providing haul-out habitat for Hawaiian 
monk seals. Limited access surveys from the island have demonstrated 
that multiple seals use the bench area for hauling out. Surveys have 
recorded as many as 15 individuals in 2006 and 6 individuals in 2009. 
Near the outer side of the crater along the northwest side of the 
island is a large sea cave where Hawaiian monk seals have been sighted. 
The islet is surrounded by 39 mi\2\ (101 km\2\) of marine habitat that 
falls within the 500-m depth contour and is located on a shoal that 
supports a large variety of marine life. The U.S. Navy has 
jurisdictional control over the island and the 3 nautical mile (nm) 
(5.6 km) danger zone surrounding it, and uses the island for target 
practice with inert ordnances. The State of Hawaii identifies the as a 
State Seabird Sanctuary. No seal births have been recorded from the 
limited access surveys that have been done on the island. Kaula Island 
provides preferred haul-out areas, marine foraging habitat with 
available prey species, and relatively undisturbed areas.
    Specific Area 12: Niihau Island is located 17 miles (27 km) off the 
southwest coast of Kauai. Access to Niihau is limited to Niihau 
residents, the U.S. Navy, and invited guests. This specific area also 
includes Lehua Island, a tuff crater located a half mile (0.8 km) north 
of Niihau that provides shelves and benches for Hawaiian monk seals to 
haul out. The general coastline of Niihau is approximately 90 miles 
(145 km) and the specific area incorporates 200 mi\2\ (518 km\2\) of 
marine habitat. Lehua is administered by the U.S. Coast Guard, and 
activities are subject to Hawaii Department of Land and Natural 
Resources regulations because it is a Hawaii State Seabird Sanctuary. 
Hawaiian monk seals utilize the coast of Niihau for hauling out, and a 
total of 24 births have been documented on the island despite limited 
surveys due to restricted access. Single day aerial surveys of the 
island have produced the highest count of seals recorded in the MHI, 
with 47 individuals, and residents have acknowledged that seals were 
regularly seen on the island since the 1970s (Baker and Johanos, 2004). 
The less disturbed coastlines and marine areas surrounding the island 
of Niihau provide all of the essential features for the Hawaiian monk 
seal critical habitat.
    Specific Area 13: Kauai is the oldest of the islands in the MHI. 
The specific area incorporates 326 mi\2\ (844 km\2\) of marine habitat, 
and the island has approximately 90 miles (145 km) of coastline. 
Kauai's beaches and coastline are utilized by Hawaiian monk seals for 
hauling out and for pupping and nursing. Although few births were 
recorded on Kauai prior to 1999, since that time 40 births have been 
recorded on the island. All six essential features are present within 
the specific area.
    Areas within this specific area that do not meet the definition of 
critical habitat are defined as the following locations and are 
delineated by the identified boundaries: Hanalei Bay delineated by all 
terrestrial coastline areas located between the Makahoa Point 
(22[deg]12'49.48'' N/159[deg]31'01.82'' W) east to 22[deg]12'56.10'' N/
159[deg]29'52.82'' W and all waters located inshore of a line drawn 
between those two points; Kikiaola Harbor delineated by all terrestrial 
coastline areas from 21[deg]57'34.92'' N/159[deg]41'36.36'' W east to 
21[deg]57'28.89'' N/159[deg]41'34.91'' W and all

[[Page 32037]]

harbor waters located inshore of the line drawn between the seaward 
edge of western breakwater at the harbor's entrance (21[deg]57'28.58'' 
N/159[deg]41'36.57'' W) and the seaward edge of eastern breakwater at 
the harbor's entrance (21[deg]57'27.19'' N/159[deg]41'41.34'' W); 
Kilauea Point Cliff area delineated by all terrestrial coastlines 
located between 22[deg]13'50.27'' N/159[deg]24'07.42'' W east around to 
22[deg]13'50.97'' N/159[deg]24'05.68'' W; Na Pali coast cliffs 
delineated by the mouth of the Hanakapiai stream (22[deg]12'30.35'' N/
159[deg]35'53.00'' W) south west to the mouth of the Kalalau Stream 
(22[deg]10'43.33'' N/159[deg]39'03.42'' W); Nawiliwili Harbor 
delineated as all terrestrial coastlines between Kukii Point Light 
(21[deg]57'23.80'' N/159[deg]20'52.70'' W) south to where the southern 
breakwater meets the shoreline (21[deg]56'54.65'' N/159[deg]21'03.15'' 
W) and all waters inshore of a line drawn from Nawiliwili Harbor 
Breakwater Light (21[deg]57'11.68'' N/159[deg]20'54.94'' W) east to 
Kukii Point Light (21[deg]57'23.80'' N/159[deg]20'52.70'' W) (i.e., the 
harbor's USCG defined COLREG line); Hanapepe Bay and Port Allen 
delineated by all terrestrial coastlines between the Hanapepe Light 
(21[deg]53'34.55'' N/159[deg]36'15.55'' W) east to where the Hanapepe 
breakwater meets the shoreline to the east (21[deg]53'54.97'' N/
159[deg]35'14.50'' W) and all waters inshore of the line drawn from 
Hanapepe Light (21[deg]53'34.55'' N/159[deg]36'15.55'' W) east to 
Hanapepe Bay Breakwater (21[deg]53'49.10'' N/159[deg]35'27.25'' W) 
(i.e., the harbor's USCG defined COLREG line); Waikaea Canal delineated 
by all terrestrial coastline, structures and waters inshore of the line 
drawn from the seaward edge of the southern breakwater at the mouth of 
the canal (22[deg]04'14.7'' N/159[deg]18'58.98'' W) north to the 
seaward edge of the northern breakwater at the mouth of the canal 
(22[deg]04'16.41'' N/159[deg]18'58.00'' W); Wailua Canal delineated as 
all coastline and waters located inshore of the bridge crossing the 
Wailua River or a line drawn between 22[deg]02'41.13'' N/
159[deg]20'11.95'' W south to 22[deg]02'44.27'' N/159[deg]20'10.93'' W.
    Specific Area 14: Oahu is the third largest island in the MHI 
chain. The specific area incorporates 697 mi\2\ (1,805 km\2\) of marine 
habitat and the island has approximately 111 miles (179 km) of general 
coastline. Oahu's beaches, coastline and offshore islets are utilized 
by Hawaiian monk seals for hauling out and for pupping and nursing. 
Since 1991, 18 births have been recorded for the area. All six 
essential features are present within the specific area.
    Areas within this specific area that do not meet the definition of 
critical habitat are defined as the following locations and are 
delineated by the identified boundaries: Pearl Harbor to Kapua Channel 
delineated by all terrestrial coastlines between Keahi point 
(21[deg]18'57.95'' N/157[deg]58'42.82'' W) east to eastern edge of the 
Kapua channel (21[deg]15'28.77'' N/157[deg]49'07.51'' W) and all waters 
out to depth of the 3 fathoms (5.4864 m) between the line drawn from 
Keahi point (21[deg]18'57.95'' N/157[deg]58'42.82'' W) to meet the 3 
fathom (5.4864 m) contour following the 3-fathom (5.4864 m) contour 
east to a line drawn from the eastern edge of the Kapua channel 
(21[deg]15'28.77'' N/157[deg]49'07.51'' W) out to meet the 3 fathom 
(5.5 m) contour; Haleiwa Harbor delineated by all terrestrial 
coastlines between where the eastern breakwater meets the coastline 
(21[deg]35'47.44'' N/158[deg]06'16.15'' W) west to where the western 
breakwater meets the coastline (21[deg]35'42.59 N/158[deg]06'25.19'' W) 
and all waters in the harbor inshore of the line drawn between 
breakwater Light 6 (21[deg]35'47.63'' N/158[deg]06'22.42'' W) and the 
seaward edged of the eastern breakwater (21[deg]35'47.44'' N/
158[deg]06'16.15'' W); Maunalua Bay and Hawaii Kai Harbor delineated as 
all coastline and waters located inshore of the line drawn between 
21[deg]16'53.22'' N/157[deg]43'21.77'' W east to the point 
21[deg]15'49.13'' N/157[deg]42'41.45'' W; Kalaeloa Barbers Point 
delineated as all coastline and waters located inshore of the line 
drawn between the harbor's entrance channel Light 6 (21[deg]19'19.07'' 
N/158[deg]07'16.08'' W) north to harbor entrance channel Light 7 
(21[deg]19'23.81'' N/158[deg]07'19.82'' W); Kaneohe Bay delineated as 
all coastlines and waters located inshore of the line drawn from 
Pyramid Rock Light (21[deg]27'44.12'' N/157[deg]45'48.69'' W) through 
the center of Mokolii Island to the shoreline (21[deg]30'59.27'' N/
157[deg] 50'10.01'' W) (i.e., the bay's USCG defined COLREG line); 
Waianae Small Boat harbor delineated by all coastlines between northern 
point where the breakwater meets the coastline 21[deg]27'4.15'' N/
158[deg]11'54.59'' W south through to the range front light 
(21[deg]26'55.57'' N/158[deg]11'46.70'' W) and all waters inside the 
harbor located inshore of the line drawn between the range front light 
(21[deg]26'55.57'' N/158[deg]11'46.70'' W) west to the breakwater Light 
1 described by the USCG at (21[deg]26'50.68'' N/158[deg]11'48.90'' W).
    Specific Area 15: Maui Nui includes the islands Molokai, Lanai, 
Kahoolawe, and Maui and the surrounding marine waters. This specific 
area incorporates 2,510 mi\2\ (6,500 km\2\) of marine habitat, 119 mi 
(192 km) of general coastline on Maui, 88 miles (142 km) of general 
coastline on Molokai, 47 miles (76 km) of coastline on Lanai, and 29 
miles (47 km) of general coastline on Kahoolawe. Since 1995, 53 births 
have been recorded on the island of Molokai, 7 on the island of 
Kahoolawe, and 6 on the island of Maui. All six essential features are 
present within the specific area.
    Areas within this specific area that do not meet the definition of 
critical habitat are defined as the following locations and are 
delineated by the identified boundaries: Hana wharf and ramp, Maui is 
delineated by all terrestrial coastlines from 20[deg]45'18.53'' N/
155[deg]58'56.32'' W east to 20[deg]45'19.93'' N/155[deg]58'54.12'' W; 
Kahului Harbor is delineated by all terrestrial coastline between where 
the hardened shoreline meets the beach to the west of the harbor 
(20[deg]53'53.05'' N/156[deg]28'47.87'' W) east to where the hardened 
shoreline meets the beach to the east of the harbor (20[deg]53'49.07'' 
N/156[deg]27'38.84'' W) and all waters located inshore of the line 
drawn between the west breakwater Light 4 (20[deg]54'01.16'' N/
156[deg]28'26.82'' W) east to the east breakwater Light 3 
(20[deg]54'02.36'' N/156[deg]28'17.43'' W) (i.e., the harbor's USCG 
defined COLREG line); Kihei boat ramp, Maui is delineated by all 
terrestrial coastlines between 20[deg]42'31.34'' N/156[deg]26'46.95'' W 
south to 20[deg]42'27.19'' N/156[deg]26'46.13'' W and all waters in the 
harbor located inshore of the line drawn between 20[deg]42'31.34'' N/
156[deg]26'46.95'' W west to the seaward edge of the northern point on 
the breakwater at the harbor entrance (20[deg]42'30.29'' N/
156[deg]26'48.46'' W); Lahaina harbor, Maui is delineated by all 
terrestrial coastlines between 20[deg]52'21.63'' N/156[deg]40'44.05'' W 
south to 20[deg]52'11.67'' N/156[deg]40'38.53'' W and all waters in the 
harbor located inshore of the line drawn from 20[deg]52'21.63'' N/
156[deg]40'44.05'' W to the seaward edge of the breakwater at the 
harbor entrance (20[deg]52'18.18'' N/156[deg]40'45.33'' W); Maalaea 
Harbor is delineated by all terrestrial coastlines between where the 
western hardened shoreline meets the coast (20[deg]47'23.65'' N/
156[deg]30'49.85'' W) east to where the eastern hardened shoreline 
meets the coast (20[deg]47'32.07'' N/156[deg]30'34.24'' W) and all 
waters in the harbor located inshore of the line drawn from the seaward 
edge of the west breakwater at the harbor entrance (20[deg]47'24.74'' 
N/156[deg]30'39.18'' W) east to the seaward edge of the east breakwater 
at the harbor entrance (20[deg]47'24.59'' N/156[deg]30'36.41'' W); Mala 
wharf and ramp, Maui is delineated by all hardened structures and 
coastline between the point where the hardened

[[Page 32038]]

structures of the wharf meets the coastline on the south side of the 
wharf (20[deg]53'05.20'' N/156[deg]41'12.47'' W) north to the southern 
edge of the Kahoma stream (20[deg]53'07.86'' N/156[deg]41'10.78'' W); 
Nakalahale cliff region, Lanai is delineated by all coastline between 
20[deg]44'31.86'' N/156[deg]52'46.92'' W east to 20[deg]45'05.8458'' N/
156[deg]52'00.8214'' W; Kaholo cliff region, Lanai is delineated by all 
coastline between 20[deg]46'40.33'' N/156[deg]59'19.02'' W south to 
20[deg]44'17.52'' N/156[deg]58'03.36'' W; Manele Harbor, Lanai is 
delineated by all terrestrial coastlines from where the Manele Harbor 
breakwater meets the coastline (20[deg]44'29.34'' N/156[deg]53'15.88'' 
W) north to 20[deg]44'34.95'' N/156[deg]53'15.45'' W and all waters 
located inshore of a line drawn between the seaward extension of the 
breakwater (20[deg]44'30.38'' N/156[deg]53'16.33'' W) north to 
20[deg]44'34.95'' N/156[deg]53'15.45'' W; Kamalapau Harbor, Lanai is 
delineated by all terrestrial coastline between 20[deg]47'29.37'' N/
156[deg]59'20.04'' W south to 20[deg]47'07.94'' N/156[deg]59'21.51'' W; 
Haleolono Harbor, Molokai is delineated by all hardened structures and 
coastline between 21[deg]05'13.04'' N/157[deg]15'03.68'' W east to 
21[deg]05'04.43'' N/157[deg]14'54.82'' W and all waters located inshore 
of the line drawn between the seaward edge of the west breakwater 
21[deg]05'01.21'' N/157[deg]14'58.95'' W east to the seaward edge of 
the east breakwater 21[deg]05'04.43'' N/157[deg]14'54.82'' W; 
Kaunakakai Pier, Molokai is delineated by all terrestrial coastline 
between 21[deg]05'14.83'' N/157[deg]01'30.42'' W east to 
21[deg]05'09.12'' N/157[deg]01'23.05'' W; and Kalaupapa Harbor is 
delineated by all terrestrial coastline between 21[deg]11'26.09'' N/
156[deg]59'04.76'' W south to 21[deg]11'23.57'' N/156[deg]59'04.12'' W.
    Specific Area 16: Hawaii is the largest island in the MHI, with a 
general coastline of 265 miles (426 km), and the specific area 
incorporates approximately 1,015 mi\2\ (2,629 km\2\) of marine habitat. 
Since 2001, 9 births have been recorded on the island of Hawaii. All 
six essential features are present within the specified area.
    Areas within this specific area that do not meet the definition of 
critical habitat are defined as the following locations and are 
delineated by the identified boundaries: Hilo harbor delineated by all 
water inshore of a line drawn from the seaward extremity of the Hilo 
Breakwater 265[deg] true (as an extension of the seaward side of the 
breakwater) (19[deg]44'34.53'' N/155[deg]04'29.98'' W) west to the 
shoreline 0.2 nautical mile (0.4 km) north (19[deg]44'28.74'' N/
155[deg]05'23.80'' W) of Alealea Point or the harbor's USCG defined 
COLREG line and delineated by all terrestrial coastlines between 0.2 
nautical mile (0.4 km) north (19[deg]44'28.74'' N/155[deg]05'23.80'' W) 
of Alealea Point east to 19[deg]43'55.88'' N/155[deg] 03'01.68'' W; 
Honokohau harbor delineated by all terrestrial coastlines and waters 
inshore and inland of the line drawn between the Honokohau entrance 
channel Light 3 (19[deg]40'11.52'' N/156[deg]01'37.84'' W) and the 
Honokohau entrance channel Light 4 (19[deg]40'09.41'' N/
156[deg]01.35.90'' W) Kailua-Kona Wharf delineated by all coastlines 
and waters located inshore of the line drawn between 19[deg]38'17.09'' 
N/155[deg]59'53.05'' W east to 19[deg]38'17.69'' N/155[deg]59'39.43'' 
W; Kawaihae Harbor all coastlines and hardened structures located 
between Kawaihae Light (20[deg]02'29.12'' N/155[deg]49'58.21'' W) south 
to 20[deg]01'42.29'' N/155[deg]49'25.20'' W and all waters located 
inshore of the line drawn between Kawaihae Light (20[deg]02'29.12'' N/
155[deg]49'58.21'' W) and the seaward extremity of the Kawaihae 
breakwater Light 6 (20[deg]02'14.21'' N/155[deg]50'02.00'' W); Keauhou 
boat harbor all terrestrial coastlines between 19[deg]33'39.63'' N/
155[deg]57'45.06'' W east to 19[deg]33'42.89'' N/155[deg]57'42.69'' W; 
Mahukona Harbor all coastlines and structures located between 
20[deg]10'59.62'' N/155[deg]54'03.57'' W east to 20[deg]11'02.21'' N/
155[deg]54'01.99'' W; and the active lava flow areas along the 
coastline.

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 Hawaiian monk seals that may be essential 
for the conservation of the species.

Special Management Considerations or Protections

    Joint NMFS and USFWS regulations at 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.''
    Activities that may require special management or protection were 
identified by reviewing the threats identified in the Hawaiian Monk 
Seal Recovery Plan (NMFS, 2007a) as either impacting the seal or the 
essential features of the habitat. Threats identified as impacting the 
individual seal were considered jeopardy threats that are addressed 
with protections put in place with the listing of the species. Threats 
impacting the essential features of habitat were considered to be 
potential threats to critical habitat. In some cases, threats were 
considered both a threat to the species and to the habitat, and these 
threats were examined from a habitat perspective. Human activities with 
potential for generating or contributing to the habitat related threats 
were then identified in order to determine special management 
considerations or protections that may be necessary. Past PIRO ESA 
section 7 consultations were also reviewed to further identify 
activities that occur in the Hawaiian Islands that may impact the 
essential features. Additionally, threats recognized in the Petition 
(Center for Biological Diversity, 2008) were reviewed for possible 
associated activities that may impact the essential features. Human 
activities identified as having the potential to threaten the essential 
features such that special management considerations or protection may 
be necessary were then organized into categories for consideration 
during the 4(b)(2) analysis.
    Major categories of activities that are related to habitat were 
defined as the following: (1) In water and coastal construction; (2) 
dredging and disposal of dredged material; (3) energy development 
(renewable energy projects); (4) activities that generate water 
pollution; (5) aquaculture; (6) fisheries; (7) oil spills and vessel 
groundings response activities; and (8) military activities. All of the 
identified activities have the potential to affect one or more of the 
essential features by altering the amount of the physical habitat 
available for Hawaiian monk seals, the quality of that area available 
(e.g., increasing the level of anthropogenic disturbance), or the 
marine environment in such a way that the prey quantity or quality, is 
negatively impacted. This is not an exhaustive or complete list of 
potential effects, but rather a description of the primary concerns and 
potential effects that we are aware of at this time and that should be 
considered in the analysis of these activities under section 7 of the 
ESA. These activities are described briefly in Table 1 below. The draft 
Biological Report (NMFS, 2010a) and

[[Page 32039]]

draft Economic Analysis Report (ECONorthwest 2010) provide a more 
detailed description of the potential effects of each category of 
activities and threats on the essential features. For example, 
activities such as in-water and coastal construction, dredging and 
disposal of dredged materials, energy projects, aquaculture projects, 
and military activities may have adverse impacts on preferred pupping 
and nursing areas, marine areas associated with pupping and nursing 
areas, marine foraging areas, or significant haul-out areas by 
decreasing the amount of available space in these areas. Increased 
activities such as those mentioned, located in remote sites, also have 
the potential to impact the level of anthropogenic disturbance such 
that Hawaiian monk seals abandon preferred pupping and nursing areas 
and significant haul-out sites. In-water and coastal construction, 
dredging and disposal of dredged materials, energy projects, 
aquaculture projects, and activities that generate water pollution may 
result in impacts to water quality such that the quantity and/or 
quality of available prey species are impacted.

 Table 1--Information on Activities That May Affect Hawaiian Monk Seal Habitat Essential Features, Including the
   Specific Areas in Which the Activity Is Located, the Essential Features That Activity Could Affect and the
  Nature of That Threat, and the Possible Modifications to the Activity Due to the Hawaiian Monk Seal Critical
                                                Habitat Revision
----------------------------------------------------------------------------------------------------------------
                                                          Essential features and      Possible modifications to
            Activity                 Specific areas        nature of the threat              the activity
----------------------------------------------------------------------------------------------------------------
In water and coastal              2, 8, 13, 14, 15,    Preferred pupping and         Restriction on the spatial
 construction.                     16.                  nursing areas, marine areas   and temporal extent of the
                                                        adjacent to preferred         project. Limitations on
                                                        pupping and nursing areas,    the size, and numbers of
                                                        significant haul-out areas,   heavy equipment brought
                                                        and marine foraging areas--   into the area. Increased
                                                        development on or near        monitoring efforts
                                                        these areas may reduce the    regarding seal behavior
                                                        amount or quality of the      and response to
                                                        available habitat.            disturbance. Increased
                                                       Adequate quantity or quality   education efforts for the
                                                        of prey--construction may     public. Increased
                                                        impact water quality by       education efforts for
                                                        release of contaminants or    project personnel.
                                                        increased sedimentation,     Monitoring efforts to
                                                        resulting in impacts to the   identify impacts to
                                                        quantity and quality of       benthic community or prey
                                                        prey species.                 species. Limitations on
                                                       Low levels of anthropogenic    access to and from the
                                                        disturbance--development in   area. Monitoring efforts
                                                        remote or less disturbed      regarding seal foraging
                                                        areas may increase the        behavior.
                                                        potential for disturbance,
                                                        making monk seals avoid or
                                                        abandon preferred areas.
Dredging........................  2, 13, 14, 15, 16..  Preferred pupping and         Restriction on the spatial
                                                        nursing areas, marine areas   and temporal extent of the
                                                        adjacent to preferred         project. Limitations on
                                                        pupping and nursing areas,    the size, and numbers of
                                                        significant haul-out areas,   heavy equipment brought
                                                        and marine foraging areas--   into the area. Increased
                                                        dredging or disposing in or   monitoring efforts
                                                        near these areas may reduce   regarding seal behavior
                                                        the amount or quality of      and response to
                                                        the available habitat.        disturbance. Increased
                                                       Adequate quantity or quality   education efforts for
                                                        of prey--dredging or          project personnel.
                                                        disposing may impact water    Monitoring efforts to
                                                        quality by release of         identify impacts to
                                                        contaminants or increased     benthic community or prey
                                                        sedimentation, resulting in   species. Limitations on
                                                        impacts to the quantity and   access to and from the
                                                        quality of prey species.      area.
                                                       Low levels of anthropogenic
                                                        disturbance--dredging or
                                                        disposal in remote or less
                                                        disturbed areas may
                                                        increase the potential for
                                                        disturbance, making monk
                                                        seals avoid or abandon
                                                        preferred areas.
Energy Development (renewable     13, 14, 15, 16.....  Preferred pupping and         Restriction on the spatial
 energy projects).                                      nursing areas, marine areas   and temporal extent of the
                                                        adjacent to preferred         project. Limitations on
                                                        pupping and nursing areas,    the size, and numbers of
                                                        significant haul-out areas,   heavy equipment brought
                                                        and marine foraging areas--   into the area. Increased
                                                        development on or near        monitoring efforts
                                                        these areas may reduce the    regarding seal behavior
                                                        amount or quality of the      and response to
                                                        available habitat.            disturbance. Increased
                                                       Adequate quantity or quality   education efforts for the
                                                        of prey--construction may     public. Increased
                                                        impact water quality by       education efforts for
                                                        release of contaminants or    project personnel.
                                                        increased sedimentation,      Monitoring efforts to
                                                        resulting in impacts to the   identify impacts to
                                                        quantity and quality of       benthic community or prey
                                                        prey species.                 species. Limitations on
                                                       Low levels of anthropogenic    access to and from the
                                                        disturbance--development in   area. Monitoring efforts
                                                        remote or less disturbed      regarding seal foraging
                                                        areas may increase the        behavior.
                                                        potential for disturbance,
                                                        making monk seals avoid or
                                                        abandon preferred areas.
Activities that generate water    13, 14, 15, 16.....  Adequate quantity or quality  Restriction on the location
 pollution.                                             of prey--release of           or amount of discharge.
                                                        contaminants, pollutants,     Increased monitoring
                                                        or increased sediment may     efforts to identify
                                                        result in degradation of      impacts to benthic
                                                        water quality, causing        community or prey species.
                                                        declines in prey quantity     Where Federal permits are
                                                        and/or quality.               necessary, ensure that
                                                                                      discharge meets standards
                                                                                      other than existing
                                                                                      Federal standards and
                                                                                      regulations.

[[Page 32040]]

 
Aquaculture.....................  13, 14, 15, 16.....  Preferred pupping and         Restriction on the spatial
                                                        nursing areas, marine areas   and temporal extent of the
                                                        adjacent to preferred         project. Limitations on
                                                        pupping and nursing areas,    the size, and numbers of
                                                        significant haul-out areas,   heavy equipment brought
                                                        and marine foraging areas--   into the area. Increased
                                                        development of facilities     monitoring efforts
                                                        on or near these areas may    regarding seal behavior
                                                        reduce the amount or          and response to
                                                        quality of the available      disturbance. Increased
                                                        habitat.                      education efforts for
                                                       Adequate quantity or quality   project personnel.
                                                        of prey--construction and     Monitoring efforts to
                                                        effluent release may impact   identify impacts to
                                                        water quality by release of   benthic community or prey
                                                        contaminants or increased     species. Limitations on
                                                        sedimentation, resulting in   access to and from the
                                                        impacts to the quantity and   area. Monitoring efforts
                                                        quality of prey species.      regarding seal foraging
                                                       Low levels of anthropogenic    behavior. Where Federal
                                                        disturbance--development of   permits are necessary,
                                                        facilities in remote or       ensure that discharge
                                                        less disturbed areas may      meets standards other than
                                                        increase the potential for    existing Federal standards
                                                        disturbance, making monk      and regulations.
                                                        seals avoid or abandon
                                                        preferred areas.
Fisheries.......................  12, 13, 14, 15, 16.  Adequate quantity or quality  Restriction on the spatial
                                                        of prey--overlap between      or temporal extent of
                                                        prey species and commercial   fishing areas. Increased
                                                        fisheries may impact the      monitoring efforts to
                                                        amount of available prey      identify ecosystem impacts
                                                        species.                      to prey species.
Oil spills and vessel groundings  Due to vessel        Preferred pupping and         Limitations on the size,
 response activities.              traffic any          nursing areas, marine areas   and numbers of heavy
                                   specific area may    adjacent to preferred         equipment brought into the
                                   be impacted, but     pupping and nursing areas,    area. Increased monitoring
                                   more developed       significant haul-out areas,   efforts regarding seal
                                   areas may be at      and marine foraging areas--   behavior and response to
                                   higher risk: 12,     oil spills or groundings on   disturbance. Increased
                                   13, 14, 15, and 16.  or near these areas may       education efforts for the
                                                        reduce the amount or          public. Increased
                                                        quality of the available      education efforts for
                                                        habitat.                      project personnel.
                                                       Adequate quantity or quality   Monitoring efforts to
                                                        of prey--oil spills or        identify impacts to
                                                        chemical releases from        benthic community or prey
                                                        groundings may impact water   species. Limitations on
                                                        quality, resulting in         access to and from the
                                                        impacts to the quantity and   area. Monitoring efforts
                                                        quality of prey species.      regarding seal foraging
                                                        Additionally, removal of      behavior.
                                                        vessels may increase
                                                        sedimentation, impacting
                                                        water quality and prey
                                                        species.
                                                       Low levels of anthropogenic
                                                        disturbance--oil spills or
                                                        vessel groundings in remote
                                                        or less disturbed areas may
                                                        increase the potential for
                                                        disturbance, making monk
                                                        seals avoid or abandon
                                                        preferred areas.
Military activities.............  10, 12, 13, 14, 15,  Preferred pupping and         Restriction on the spatial
                                   16.                  nursing areas, marine areas   and temporal extent of the
                                                        adjacent to preferred         project. Increased
                                                        pupping and nursing areas,    monitoring efforts
                                                        significant haul-out areas,   regarding seal behavior
                                                        and marine foraging areas--   and response to
                                                        military activities in or     disturbance. Monitoring
                                                        near these areas may reduce   efforts to identify
                                                        the amount or quality of      impacts to benthic
                                                        the available habitat.        community or prey species.
                                                                                      Monitoring efforts
                                                                                      regarding seal foraging
                                                                                      behavior.
                                                       Adequate quantity or quality
                                                        of prey--certain activities
                                                        may impact the quantity and
                                                        quality of prey species.
                                                       Low levels of anthropogenic
                                                        disturbance--certain
                                                        activities in remote or
                                                        less disturbed areas may
                                                        increase the potential for
                                                        disturbance, making monk
                                                        seals avoid or abandon
                                                        preferred areas.
----------------------------------------------------------------------------------------------------------------

    We also considered impacts to essential features presented by the 
petitioner, specifically, the threat of global warming as described in 
the petition by the processes including sea level rise, warming ocean 
temperatures, and ocean acidification. A discussion of these threats 
may be found in the draft Biological Report (NMFS, 2010). We 
acknowledge that impacts as a result of global warming or global 
climate change are threats to Hawaiian monk seal habitat and, 
therefore, may threaten the survival and conservation of the Hawaiian 
monk seal. In evaluating these threats, we recognize that rising sea 
levels have the potential to diminish the number and size of available 
pupping and nursing areas, as well as haul-out areas, and that this 
threat exists in both the NWHI and the MHI. Additionally, sea level 
rise not only has the potential to impact haul-out areas, but resulting 
changes in ocean biochemistry and currents, coupled with increased 
ocean temperatures and ocean acidification, may affect Hawaiian monk 
seal foraging habitat by impacting prey species. It is expected that 
climatic shifts may result in changes to the range and distribution

[[Page 32041]]

of prey species, as well as to the composition and dynamics of the 
surrounding marine systems (Parmesan, 2006); however, the time scale 
and extremity in which impacts to marine ecosystems will be realized 
are still uncertain. These current limitations in predicting the 
specific changes to the ecosystem prevent us from predicting the 
resulting impacts to Hawaiian monk seals with any certainty. Given the 
complex and uncertain impacts of climate change, this threat is best 
addressed during the individual consultation process across all 
activities undergoing consultation. In this manner we will be able to 
incorporate special management considerations to specific activities as 
the extent of impacts from this threat are demonstrated or better 
understood. We request any additional information with regard to the 
threats associated with global climate change and known impacts to 
Hawaiian monk seal critical habitat, including its essential features 
(see ``Public Comments Solicited'').

Military Areas Ineligible for Designation (4(a)(3) Determinations)

    The Sikes Act of 1997 (Sikes Act, 16 U.S.C. 670a) requires military 
installations with ``land and water suitable for the conservation and 
management of natural resources'' to complete an integrated natural 
resource management plan (INRMP). The plans are meant to integrate 
implementation of the military mission of the installation with the 
stewardship of the natural resources found on site. Each INRMP 
includes: An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species; a 
statement of goals and priorities; a detailed description of management 
actions to be implemented to provide for these ecological needs; and a 
monitoring and adaptive management plan. Each INRMP must to the extent 
appropriate and applicable, provide for: Fish and wildlife management; 
fish and wildlife habitat enhancement or modification; wetland 
protection, enhancement, and restoration where necessary to support 
fish and wildlife or plants; and enforcement of applicable natural 
resource laws. INRMPs are prepared in cooperation with the USFWS and 
the appropriate state fish and wildlife agency, and are subject to 
review no less than every 5 years.
    Section 4(a)(3)(B)(i) of the ESA states: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We contacted the Department of Defense (DOD) and requested 
information on all INRMPs for DOD facilities that overlap with the 
specific areas considered for designation as critical habitat and that 
might provide a benefit for Hawaiian monk seals. Both the U.S. Marine 
Corps (USMC) and the Navy provided us with INRMPs for review under 
4(a)(3)(B)(i) of the ESA. The USMC provided an INRMP covering the years 
2006-2011 for the Marine Corps Base Hawaii (MCBH). Areas subject to the 
MCBH INRMP that overlap with the areas under consideration for critical 
habitat include: Marine Corps Base Hawaii, Kaneohe Bay (MCBH-KB), and 
the 500-yard buffer zone in marine waters surrounding the Mokapu 
Peninsula, Oahu; Marine Corps Training Area Bellows (MCTAB) Waimanalo, 
Oahu; and Puuloa Training Facility, on the Ewa coastal plain, Oahu.
    The Navy identified two INRMPs as relevant to this review process: 
The Pacific Missile Range Facility (PMRF) INRMP and the Naval Station 
Pearl Harbor INRMP, now referred to as the Joint Base Pearl Harbor-
Hickam INRMP. The Navy has been working with cooperating partners, in 
accordance with the SIKES Act (Sikes Act, 16 U.S.C. 670a), to revise 
both documents and multiple drafts of the documents and relevant 
materials were presented to NMFS for review. Areas subject to the PMRF 
INRMP that overlap with the areas under consideration for critical 
habitat include: PMRF Main Base at Barking Sands, Kauai; and Kaula 
Island. Although the 2001 Naval Station Pearl Harbor INRMP only covers 
those areas in the Pearl Harbor Complex that are not included in the 
areas under consideration, the Navy has identified that the Joint Base 
Pearl Harbor-Hickam INRMP will include the following areas that overlap 
with the proposed designation: The Navy Defensive Sea Area (NDSA), and 
the marine reserved zone outside Pearl Harbor and Navy retained lands 
at Kalaeloa (Nimitz Beach and White Plains Beach), Oahu.
    To determine whether a plan provides a benefit to the species, we 
evaluated each plan with regard to the potential conservation benefits 
to the species, the past known implementation of the management 
efforts, and the management effectiveness of the plan. Plans determined 
to be a benefit to the species demonstrated strengths in all three 
areas of the review. During consideration of the criteria, we 
determined that an effective management plan must have a structured 
process to gain information (through monitoring and reporting), a 
process for recognizing program deficiencies and successes (review), 
and a procedure for addressing any deficiencies (allowing for adaption 
for conservation needs).
    In review, the MCBH INRMP demonstrated potential conservation 
benefits for the species, a strong history of plan implementation, and 
a clear structure to ensure plan effectiveness; thus, the plan was 
found to be a benefit to the species. Conservation measures outlined in 
the ecosystem based plan included: Debris removal; prohibitions against 
lay nets and gill nets in the 500-yard buffer zone; enforcement of 
established rules via a Conservation Law Enforcement Officer; 
interagency cooperation for rehabilitation events; use of established 
procedures for seal haul out and pupping events; educational outreach 
(including classroom briefs, Web page, news articles, brochures, 
service projects, and on-site signage and monitoring); ecological 
assessment and inventories; and water quality projects (minimizing 
erosion and pollution). Implementation of past efforts was clearly 
outlined in the appendices for the plan through reports and a schedule 
of accomplishments. Management effectiveness was demonstrated by: The 
organized manner in which the plan and appendices outline the goals and 
objectives; reports and monitoring efforts; the plan's implementation; 
and the achievement of the goals and objectives. Based on these 
benefits provided for the Hawaiian monk seal, we determined that the 
areas covered under the MCBH INRMP on Oahu are not eligible for 
designation as critical habitat.
    Preliminary review of the PMRF INRMP identifies essential elements 
of a successful conservation program that will benefit the species 
including: Marine debris removal, monitoring, and prevention; trapping 
of feral pigs, cats, and dogs; pet restrictions; restriction of public 
access; protocols to prevent disturbance; public education; training to 
prevent ship groundings; and compliance and restoration programs for 
contaminants. Additionally, the Main Base at Barking Sands presents a 
history of plan implementation and management effectiveness. NMFS is 
currently working with the Navy to make revisions to the draft plan's 
performance monitoring element at

[[Page 32042]]

Kaula Island and other sites, which will help ensure consistent and 
effective plan implementation under the PMRF INRMP.
    Preliminary review of draft plans for the Joint Base Pearl Harbor-
Hickam INRMP demonstrates potential conservation benefits for the 
species including: Marine debris removal, monitoring, and prevention; 
pet restrictions; restriction of access; protocol to prevent 
disturbance during naval activities; public education; training to 
prevent ship groundings; and compliance and restoration programs for 
contaminants. Currently, the Navy is working to address concerns raised 
by NMFS regarding consistent monitoring and management efforts across 
all sites subject to the INRMP, and working to add a performance 
monitoring element that will aid in addressing management 
effectiveness.
    If the PMRF or the Joint Base Pearl Harbor-Hickam INRMPs are 
revised and finalized, meeting the identified concerns, and determined 
to provide a benefit to Hawaiian monk seals, as described under section 
4(a)(3)(B) of the ESA, then the areas would be ineligible for 
designation. Therefore, a determination on whether the areas warrant 
exclusion under 4(b)(2) of the ESA based on national security impacts 
would no longer be necessary. However, for this proposed rule, areas 
subject to the Navy's INRMPs were separately evaluated to determine the 
impacts that the proposed designation may have on National Security to 
meet the considerations established under 4(b)(2) of the ESA. These 
considerations are discussed in the draft ESA section 4(b)(2) report 
(NMFS, 2010b) and summarized further under the ``Exclusions Based on 
Impacts on National Security'' section of this proposed rule.

ESA Section 4(b)(2) Analysis

    Section 4(b)(2) of the ESA requires the Secretary to consider the 
economic, national security, and any other relevant impacts of 
designating any particular area as critical habitat. Any particular 
area may be excluded from critical habitat if the Secretary determines 
that the benefits of excluding the area outweigh the benefits of 
designating the area. The Secretary may not exclude a particular area 
from designation if exclusion will result in the extinction of the 
species. Because the authority to exclude is discretionary, exclusion 
is not required for any areas. In this proposed designation, the 
Secretary has applied statutory discretion to exclude five occupied 
areas from critical habitat where the benefits of exclusion outweigh 
the benefits of designation.
    The first step in conducting the ESA section 4(b)(2) analysis is to 
identify the ``particular areas'' to be analyzed. The ``particular 
areas'' considered for exclusion are defined based on the impacts 
identified. Where we considered economic impacts and weighed the 
economic benefits of exclusion against the conservation benefits of 
designation, we used the same biologically-based ``specific areas'' we 
had identified under section 3(5)(A) (e.g., Niihau, Kauai, Oahu). 
Delineating the ``particular areas'' as the same units as the 
``specific areas'' allowed us to most effectively consider the 
conservation value of the designation. We also considered exclusions 
based on impacts on national security and other relevant impacts (i.e., 
for this designation, impacts on FWS). Delineating particular areas 
based on impacts on national security or other relevant impacts was 
based on land ownership or control (e.g., land controlled by the DOD 
within which national security impacts may exist or land owned or 
controlled by the USFWS). We request information on other relevant 
impacts that should be considered (see ``Public Comments Solicited''). 
The next step in the ESA section 4(b)(2) analysis involves 
identification of the impacts of designation (i.e., the benefits of 
designation and the benefits of exclusion). We then weigh the benefits 
of designation against the benefits of exclusion to identify areas 
where the benefits of exclusion outweigh the benefits of designation. 
These steps and the resulting list of areas proposed for exclusion from 
designation are described in detail in the sections below.

Impacts of Designation

    The primary impact of a critical habitat designation stems from the 
requirement under section 7(a)(2) of the ESA that Federal agencies 
insure that their actions are not likely to result in the destruction 
or adverse modification of critical habitat. Determining this impact is 
complicated by the fact that section 7(a)(2) contains the overlapping 
requirement that Federal agencies must also insure their actions are 
not likely to jeopardize the species' continued existence. One 
incremental impact of the designation is the extent to which Federal 
agencies modify their actions to insure their actions are not likely to 
destroy or adversely modify the critical habitat of the species, beyond 
any modifications they would make because of the listing and the 
jeopardy requirement. When a modification would be required due to 
impacts to both the species and critical habitat, the impact of the 
designation is considered co-extensive with the ESA listing of the 
species. Additional impacts of designation include state and local 
protections that may be triggered as a result of the designation and 
the benefits from educating the public about the importance of each 
area for species conservation. Thus, the impacts of the designation 
include conservation impacts for Hawaiian monk seal and its habitat, 
economic impacts, impacts on national security, and other relevant 
impacts that may result from the designation and the application of ESA 
section 7(a)(2).
    In determining the impacts of designation, we focused on the 
incremental change in Federal agency actions as a result of critical 
habitat designation and the adverse modification provision, beyond the 
changes predicted to occur as a result of listing and the jeopardy 
provision. Following a line of recent court decisions, including: 
Arizona Cattle Growers Association v. Salazar, 606 F. 3d 1160 (9th Cir. 
2010)) (Arizona Cattle Growers); Home Builders Association of Northern 
California et al., v. U.S. Fish and Wildlife Service, 616 F.3d 983 (9th 
Cir. 2010) (Home Builders); and Cape Hatteras Access Preservation 
Alliance v. Norton, 344 F. Supp. 2d 108 (D.D.C. 2004)) (Cape Hatteras), 
economic impacts that occur regardless of the critical habitat 
designation are treated as part of the regulatory baseline and are not 
factored into the analysis of the effects of the critical habitat 
designation. In other words, consistent with Cape Hatteras, Arizona 
Cattle Growers, and Home Builders decisions, we focus on the potential 
incremental impacts beyond the impacts that would result from the 
listing and jeopardy provision. In some instances, potential impacts 
from the designation could not be distinguished from protections that 
may already occur under the baseline (i.e., protections already 
afforded Hawaiian monk seals under its listing or under other Federal, 
state, and local regulations). For example, the project modifications 
to prevent the disturbance to an area of critical habitat may be 
similar to the project modifications necessary to prevent jeopardy to 
the species in an area. The extent to which these modifications differ 
may be project specific, and the incremental changes or impacts to the 
project may be difficult to tease apart without further project 
specificity. Thus, the analysis may include some impacts or project

[[Page 32043]]

modifications that may have been required under the baseline regardless 
of the critical habitat rule.
    Once we determined the impacts of the designation, we then 
determined the benefits of designation and the benefits of exclusion 
based on the impacts of the designation. The benefits of designation 
include the conservation benefits for Hawaiian monk seals and their 
habitat that result from the critical habitat designation and the 
application of ESA section 7(a)(2). The benefits of exclusion include 
the economic impacts, impacts on national security, and other relevant 
impacts (e.g., impacts on Native lands) of the designation that would 
be avoided if a particular area were excluded from the critical habitat 
designation. The following sections describe how we determined the 
benefits of designation and the benefits of exclusion and how those 
benefits were weighed as required under section 4(b)(2) of the ESA, to 
identify particular areas that may be eligible for exclusion from the 
designation. We also summarize the results of this weighing process and 
determinations of the areas that may be eligible for exclusion.

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
section 7 of the ESA, requiring all Federal agencies to insure their 
actions are not likely to destroy or adversely modify designated 
critical habitat. This is in addition to the requirement that all 
Federal agencies insure their actions are not likely to jeopardize the 
continued existence of the species. In addition to the protections 
described above, the designation may also result in other forms of 
benefits as discussed in detail in the draft Economic Analysis Report 
(ECONorthwest, 2010), including, but not limited to: educational 
awareness and outreach benefits, benefits to tourism and recreation, 
and improved or sustained habitat quality.
    Most of these benefits are not directly comparable to the costs of 
designation for purposes of conducting the section 4(b)(2) analysis 
described below. Ideally, benefits and costs should be compared on 
equal terms (e.g., apples to apples); however, there is insufficient 
information regarding the extent of the benefits and the associated 
values to monetize all of these benefits. We have not identified any 
available data to monetize the benefits of designation (e.g., estimates 
of the monetary value of the essential features within areas designated 
as critical habitat, or of the monetary value of education and outreach 
benefits). Further, section 4(b)(2) also requires that we consider and 
weigh impacts other than economic impacts that do not lend themselves 
to quantification in monetary terms, such as the benefits to national 
security of excluding areas from critical habitat. Given the lack of 
information that would allow us either to quantify or monetize the 
benefits of the designation for Hawaiian monk seals discussed above, we 
determined that conservation benefits should be considered from a 
qualitative standpoint.
    In determining the benefits of designation, we considered a number 
of factors. We took into account the essential features present in the 
area, the habitat functions provided by each area, and the importance 
of protecting the habitat for the overall conservation of the species. 
In doing so, we recognized that Hawaiian monk seal habitat throughout 
the Hawaiian Archipelago is irreplaceable due to the remote nature of 
the Hawaiian Islands from other areas of suitable habitat. This is 
especially true of the newly proposed areas within the MHI, since these 
areas represent not only habitat where the species is currently 
thriving, but also a geologically younger area that is under less 
threat from natural erosion processes and rising sea levels in 
comparison to available habitat in the NWHI. Therefore, factors 
attributed to the benefits of the designation of areas were 
individually considered within each particular area during the 
exclusion discussions.

Benefits of Exclusion Based on Economic Impacts and Proposed Exclusions

    The economic benefits of exclusion are the economic impacts that 
would be avoided by excluding particular areas from the designation. To 
determine these economic impacts, we identified activities within each 
specific area that may affect Hawaiian monk seal and its critical 
habitat. The eight categories of activities are identified in the 
``Special Management Considerations and Protections'' section above. We 
then considered the range of modifications that we might seek in these 
activities to avoid destroying or adversely modifying Hawaiian monk 
seal critical habitat (identified in Table 1). Where possible, we 
focused on changes beyond those that may be required to prevent 
jeopardy to the continued existence of the species (i.e., protections 
in place resulting from listing the species). We relied on information 
from other ESA section 7 consultations and NMFS expertise to determine 
the types of activities and potential range of changes. Although the 
project modifications have been identified, we were unable to identify 
sufficient information to accurately monetize the estimated economic 
benefits of exclusion beyond the administrative costs of the section 7 
consultation, but we recognize that additional economic costs may 
exist. These costs may vary widely depending on the project scope, 
location of the project, number of essential features present, as well 
as the extent of the anticipated impact from the activity.
    We contacted a number of Federal and state agencies that are often 
involved in actions that require section 7 consultations to identify 
potential projects in areas proposed for designation and the potential 
economic impacts of the identified project modifications. Agencies 
contacted were unable to predict specific projects intended for the 
areas of overlap with the proposed designation, but agreed that there 
was potential for future projects in these areas. The inability of 
these agencies to identify potential projects may be in part because 
most projects tend to occur in highly developed areas that are outside 
the proposed designation areas. These highly developed harbors and 
ports (e.g., Pearl Harbor) were not included in the designation because 
these areas either lack the essential features or the quality of 
essential features that would be considered essential to the 
conservation of the Hawaiian monk seal. Another possible explanation is 
the uncertainty associated with projects that are still in the 
conceptual phase. Agencies identified that planned projects may take 
several years to move from conception to completion. The scope and 
locations which overlap with the proposed designation may not be fully 
realized; therefore, the costs associated with project modifications 
have not yet been recognized.
    Additionally, agencies identified that many projects have best 
management practices or standards to protect natural resources. The 
identified project modifications associated with the proposed 
designation may overlap with some of these best management practices. 
Until the difference between the best management practices and 
identified project modifications are realized in the field, the exact 
costs of the designation are difficult to determine. For example, a 
Federal project currently planned may incorporate certain practices to 
prevent disturbance to wildlife species. If the project were located 
within the critical habitat designation, measures taken to prevent 
disturbance may be increased due to the presence of essential features 
at the site (e.g., a preferred pupping

[[Page 32044]]

beach), resulting in additional costs. Until specifications, such as 
the scope and location, of the project are determined, the variation 
between project modifications to prevent disturbance for critical 
habitat and the baseline protections taken to prevent wildlife 
disturbance at some of these sites is difficult to tease apart; thus, 
the additional costs are difficult to discern. This inability to 
realize the costs of projects modifications may also demonstrate the 
lack of experience with marine critical habitat designations in the 
developed areas of the Pacific Island region. The proposed Hawaiian 
monk seal designation represents the first critical habitat designation 
in the marine environment of the highly developed areas of the MHI.
    In reviewing the factors associated with economic costs of the 
designation, we considered that the economic administrative costs of 
designation appear relatively low across the MHI where the majority of 
the incremental effects of the designation should be felt. The economic 
costs of designation in the NWHI are expected to remain similar, since 
consultations in this area (where critical habitat is already 
designated for the Hawaiian monk seal) have been subject to adverse 
modification considerations since 1988, and additional marine areas are 
not expected to increase the number of consultations for this region. 
An exception to this may include activities at Sand Island at Midway 
Islands because Sand Island was not included in the original 
designation. However, we have not been made aware of activity plans for 
Sand Island that may impact essential features. A discussion of impacts 
at Sand Island may be found under ``Other Relevant Impacts.'' 
Throughout the proposed critical habitat areas, we found that the 
activities of concern are already subject to multiple environmental 
laws, regulations, and permits which afford the proposed essential 
features a high level of baseline protections, but we also believe that 
despite these protections, uncertainty remains regarding the true 
extent of the impacts that some activities may have on the essential 
features. This uncertainty makes estimating economic impacts of the 
designation difficult to determine, since, as noted above, project 
modifications may be considered speculative. The draft Economic 
Analysis Report (ECONorthwest, 2010) indicates that impacts may be felt 
most strongly by in-water and coastal construction activities and the 
disposal of dredge materials. Beyond these impacts, the potential 
exists for greater economic impacts to activities associated with water 
quality control and fishing activities as we better understand the 
impacts that these activities have on the essential features of 
Hawaiian monk seal critical habitat.
    To conduct the ESA 4(b)(2) analysis we considered the 
aforementioned impacts of designation against the benefits of 
designating critical habitat for the Hawaiian monk seal in these areas. 
The Economic Analysis clearly demonstrates the potential for benefits 
in the tourism industry and through the values that people place on 
Hawaiian monk seals and the environment in Hawaii, but we focused on 
what this designation means for the Hawaiian monk seal. In doing so, we 
acknowledged first that the Hawaiian monk seal population is on the 
decline (NMFS, 2009). Secondly, we acknowledged that rises in sea level 
continue to present a threat to the species, especially in the habitat 
previously designated in the NWHI, and we recognized that the growing 
population in the MHI represents the best hope for conserving the 
population. As discussed earlier, the benefits associated with the 
designation of critical habitat stem from our ability to identify the 
features that are essential not only for the conservation of the 
species but also for its recovery. The proposed rule, if finalized as 
proposed, will in turn provide protections for those essential features 
through ESA section 7(a)(2) consultations. Specifically designating 
critical habitat within the MHI provides a means to protect those 
essential features in an area where the features are most threatened by 
expansion and development; this will be especially important as the 
population of seals increases in the MHI. In summary, at this time, we 
have not identified a particular area where the benefits of exclusion 
from the designation due to economic impacts outweigh the benefits of 
designation of Hawaiian monk seal critical habitat; therefore, no areas 
are proposed for exclusion due to economic impacts.

Exclusions Based on Impacts to National Security

    The national security benefits of exclusion are the national 
security impacts that would be avoided by excluding particular areas 
from the designation. We contacted representatives of DOD and the 
Department of Homeland Security to request information on potential 
national security impacts that may result from the designation of 
particular areas as critical habitat for the Hawaiian monk seal. In 
response to the request, the U.S. Air Force, the U.S. Army, and the 
U.S. Coast Guard made no requests for exclusion from the critical 
habitat areas under consideration. Both the U.S. Navy and the USMC 
identified sites that overlap with the areas under consideration. Both 
requested that we exclude all identified sites of overlap that met the 
definition of critical habitat (i.e., areas that contain essential 
features that may require special management or protection) from the 
Hawaiian monk seal critical habitat designation. Sites identified by 
the USMC subject to the MCBH INRMP (MCBH-KB and the 500-yard (457.2 m) 
buffer zone in marine waters surrounding the Mokapu Peninsula, Oahu; 
MCTAB Waimanalo, Oahu; and Puuloa Training Facility, on the Ewa coastal 
plain, Oahu) are not eligible for critical habitat in accordance with 
4(a)(3) of the ESA (See Military Areas Ineligible for Designation 
(4(a)(3) determinations) above).
    Consultation and discussion with the Navy and USMC resulted in the 
identification of 13 areas (See Table 2) that may warrant exclusion 
based on national security impacts. As in the analysis of economic 
impacts, we weighed the benefits of exclusion (i.e., the impacts to 
national security that would be avoided) against the benefits of 
designation. The Navy and USMC provided information regarding the 
activities that take place in each area, and they assessed the 
potential for a critical habitat designation to adversely affect their 
ability to conduct operations, tests, training, and other essential 
military activities. The possible impacts to national security 
summarized by both groups included restraints and constraints on 
military operations, training, research and development, and 
preparedness vital for combat operations for around the world.
    The primary benefit of exclusion is that the DOD would not be 
required to consult with NMFS under section 7 of the ESA regarding DOD 
actions that may affect critical habitat, and thus potential delays or 
costs associated with conservation measures for critical habitat would 
be avoided. To assess the benefits of exclusion, we evaluated the 
intensity of use of the particular area by the DOD, the likelihood that 
DOD actions in the particular area would affect critical habitat and 
trigger an ESA section 7 consultation, and the potential conservation 
measures that may be required and that may result in delays or costs 
that affect national security. We also considered the level of 
protection provided to critical habitat by existing DOD safeguards, 
such as regulations to control public access and use of the area

[[Page 32045]]

and other means by which the DOD may influence other Federal actions in 
the particular area.
    The primary benefit of designation is the protections afforded 
Hawaiian monk seals under the ESA section 7 critical habitat 
provisions. To evaluate the benefit of designation for each particular 
area, we considered what is known regarding Hawaiian monk seal use of 
the particular area, the size of the particular area when compared to 
the specific area and the total critical habitat area, and the 
likelihood that other Federal actions occur in the area that may affect 
critical habitat and trigger a consultation.
    As discussed in ``The Benefits of Designation'' section, the 
benefits of designation may not be directly comparable to the benefits 
of exclusion for purposes of conducting the section 4(b)(2) analysis, 
because neither may be fully quantified. We identified that Hawaiian 
monk seal use of the area and conservation need for the habitat should 
be most heavily considered against the impacts (i.e., project 
modification costs) that the proposed designation, if finalized, may 
have on DOD activities; however, all factors discussed played a role in 
the decision. Table 2 outlines the determinations made for each 
particular area identified and the factors that weighed significantly 
in that process.

  Table 2--Summary of the Assessment of Particular Areas Requested for Exclusion by the DOD Based on Impacts on
 National Security. Listed for Each Particular Area Are: DOD Site and Agency Requesting Exclusion; the Specific
 Area That the Particular Area Occurs in; Whether Exclusion Based on National Security Impacts Is Warranted, and
                    the Weighing Factors Found To Be Significant in Making the Determination
----------------------------------------------------------------------------------------------------------------
                                      Overlapping specific
DOD site (size mi\2\, or km\2\) and   area (size mi\2\, or          Exclude(?)           Significant weighing
               agency                        km\2\)                                             factors
----------------------------------------------------------------------------------------------------------------
(1) Kaula Island and the 3-mile      Area 11--Kaula (39      No.....................  Site was determined to be
 danger zone (20 mi\2\, or 52         mi\2\, 101 or km\2\).                            highly used by Hawaiian
 km\2\)--Navy.                                                                         monk seals. Navy
                                                                                       activities are not likely
                                                                                       to impact essential
                                                                                       features given current
                                                                                       protocols; therefore,
                                                                                       there is no impact to
                                                                                       national security that
                                                                                       can be avoided through
                                                                                       exclusion.
(2) Niihau, including all waters 0-  Area 12--Niihau (200    No.....................  Area requested for
 12 nmi offshore (200\+\ mi\2\, or    mi\2\, or 518 km\2\).                            exclusion included the
 518\+\ km\2\)--Navy.                                                                  entire specific area
                                                                                       which is currently the
                                                                                       highest used area by
                                                                                       Hawaiian monk seals in
                                                                                       the MHI and therefore
                                                                                       very important to monk
                                                                                       seal conservation. The
                                                                                       benefits of designation
                                                                                       outweigh the benefits of
                                                                                       exclusion.
(3) Kingfisher Underwater Training   Area 12--Niihau (200    Yes....................  The site is located near
 Area off of Niihau (2 mi\2\, or 5    mi\2\, or 518 km\2\).                            an important area used by
 km\2\)--Navy.                                                                         monk seals; however, the
                                                                                       particular area requested
                                                                                       is relatively small in
                                                                                       comparison to the
                                                                                       specific area proposed
                                                                                       for designation. Navy
                                                                                       protocol currently
                                                                                       provides some protection
                                                                                       for seals utilizing this
                                                                                       habitat. Impacts to
                                                                                       national security may
                                                                                       result from section 7
                                                                                       consultations specific to
                                                                                       the construction and
                                                                                       maintenance of the
                                                                                       training range. The
                                                                                       benefits of exclusion
                                                                                       outweigh the benefits of
                                                                                       designation for this
                                                                                       area.
(4) PMRF, Main Base at Barking       Area 13--Kauai (90 mi,  Yes....................  Impacts from amphibious
 Sands, Kauai (8 mi, or 13 km)--      or 145 km).                                      landings may impact
 Navy.                                                                                 essential features;
                                                                                       therefore, national
                                                                                       security impacts may
                                                                                       result from section 7
                                                                                       consultations. Although
                                                                                       the area is used by monk
                                                                                       seals, current protocols
                                                                                       in place and base
                                                                                       regulations provide
                                                                                       protections for monk
                                                                                       seals in this area. The
                                                                                       benefits of exclusion
                                                                                       outweigh the benefits of
                                                                                       designation for this
                                                                                       area.
(5) PMRF Offshore areas (including:  Area 13--Kauai (326     Yes....................  Essential features may be
 PMRF restricted area, Barking        mi\2\, or 844 km\2\).                            impacted by the
 Sands Tactical Underwater Range                                                       installation of
 (BARSTUR), and the Shallow Water                                                      hydrophones across the
 Training Range (SWTR)) (99 mi\2\,                                                     range; therefore,
 or 256 km\2\)--Navy.                                                                  national security impacts
                                                                                       may result from section 7
                                                                                       consultations. Although
                                                                                       the area is used by monk
                                                                                       seals, current protocols
                                                                                       in place provide
                                                                                       protections for monk
                                                                                       seals in this area. The
                                                                                       benefits of exclusion
                                                                                       outweigh the benefits of
                                                                                       designation for this
                                                                                       area.
(6) Barbers Point/Kalaeloa Navy      Area 14--Oahu (697      No.....................  No activities were
 retained areas--White Plains (15     mi\2\, or 1,805                                  demonstrated for this
 acres, or 6 hectares) and Nimitz     km\2\).                                          area; therefore there is
 (21 acres, or 8.5 hectares)                                                           no impact to national
 Beaches--Navy.                                                                        security that could be
                                                                                       avoided through
                                                                                       exclusion.
(7) Naval Defensive Sea Area (NDSA)  Area 14--Oahu (697      Yes....................  Essential features may be
 and Puuloa Underwater Training       mi\2\, or 1,805                                  impacted by activities on
 Range (<20 mi\2\, or 52 km\2\)--     km\2\).                                          site, and the location
 Navy.                                                                                 provides a training area
                                                                                       that is only found in one
                                                                                       other location
                                                                                       nationwide. National
                                                                                       security impacts may
                                                                                       result from section 7
                                                                                       consultations. Area is
                                                                                       not highly used by
                                                                                       Hawaiian monk seals. The
                                                                                       benefits of exclusion
                                                                                       outweigh the benefits of
                                                                                       designation.
(8) Commercial Anchorages B, C, D;   Area 14--Oahu (697      No.....................  Area is open for
 (1 mi\2\, or 2.6 km\2\)--Navy.       mi\2\, or 1,805                                  commercial anchorage
                                      km\2\).                                          purposes. It is unlikely
                                                                                       that Navy activities will
                                                                                       impact essential features
                                                                                       at this site; therefore,
                                                                                       there is no impact to
                                                                                       national security that
                                                                                       may be avoided through
                                                                                       exclusion.

[[Page 32046]]

 
(9) Fleet Operational Readiness      Area 14--Oahu (697      No.....................  It is unlikely that Navy
 Accuracy Check Site (FORACS) (12     mi\2\, or 1,805                                  activities will impact
 mi\2\, 31 km\2\)--Navy.              km\2\).                                          essential features at
                                                                                       this site; therefore,
                                                                                       there is no impact to
                                                                                       national security that
                                                                                       could be avoided through
                                                                                       exclusion. Area is
                                                                                       utilized frequently by
                                                                                       Hawaiian monk seals.
(10) Barbers Point Underwater Range  Area 14--Oahu (697      No.....................  Navy activities at this
 and Ewa Training Minefield (9        mi\2\, or 1,805                                  site may impact the
 mi\2\, or 23 km\2\)--Navy.           km\2\).                                          essential features of
                                                                                       critical habitat;
                                                                                       however, this area is
                                                                                       highly used by Hawaiian
                                                                                       monk seals and important
                                                                                       to monk seal
                                                                                       conservation. The
                                                                                       benefits of designation
                                                                                       outweigh the benefits of
                                                                                       exclusion.
(11) Marine Corps Training Area      Area 14--Oahu (697      No.....................  It is unlikely that Navy
 Bellows Offshore--Navy and USMC      mi\2\, or 1,805                                  activities will impact
 (size not estimated).                km\2\).                                          essential features at
                                                                                       this site; therefore,
                                                                                       there is no impact to
                                                                                       national security that
                                                                                       would be avoided through
                                                                                       exclusion.
(12) Shallow Water Minefield Sonar   Area 15--Maui Nui       Yes....................  Although the site is
 Training Range off Kahoolawe (4      (2,510 mi\2\, or                                 located near an important
 mi\2\, or 10 km\2\)--Navy.           6,500 km\2\).                                    area used by monk seals,
                                                                                       the area requested is
                                                                                       relatively small in
                                                                                       comparison to the
                                                                                       specific area. Navy
                                                                                       protocol currently
                                                                                       provides some protection
                                                                                       for seals utilizing this
                                                                                       habitat. Impacts to
                                                                                       national security may
                                                                                       result from section 7
                                                                                       consultations specific to
                                                                                       the construction and
                                                                                       maintenance, which may
                                                                                       impact essential
                                                                                       features. The benefits of
                                                                                       exclusion outweigh the
                                                                                       benefits of designation
                                                                                       for this area.
(13) Kahoolawe Danger Zone (68       Area 15--Maui Nui       No.....................  Area is well used by
 mi\2\, or 176 km\2\)--Navy.          (2,510 mi\2\, or                                 Hawaiian monk seals and
                                      6,500 km\2\).                                    supports pupping and
                                                                                       nursing areas. Activities
                                                                                       demonstrated for this
                                                                                       area are a matter of
                                                                                       public safety; therefore,
                                                                                       there is no impact to
                                                                                       national security that
                                                                                       would be avoided through
                                                                                       exclusion.
----------------------------------------------------------------------------------------------------------------

Other Relevant Impacts

    Section 4(b)(2) of the Act also allows for the consideration of 
``other relevant impacts'' associated with the designation of critical 
habitat. Comments received following the 90-day finding indicated that 
both the NPS and the USFWS anticipated impacts as a result of the 
designation. Both agencies were contacted in preparation for the 
proposed rule with information regarding the areas under consideration 
for the revision to Hawaiian monk seal critical habitat and asked to 
identify relevant impacts to their agencies, as well as to identify 
measures or protections that were in place to protect the Hawaiian monk 
seal or the essential features. The NPS concluded that a request for 
exclusion was not necessary, after corresponding with NMFS regarding 
impacts of the designation. Exclusion was requested by the USFWS for 
Sand Island at Midway Islands. USFWS identified economic and 
administrative burdens from the proposed designation and stated that 
the designation is an unnecessary burden since the Papahanaumokuakea 
Marine National Monument already afforded the Hawaiian monk seal the 
highest levels of protection and conservation. The USFWS did not 
quantify economic burdens but did identify that administrative 
requirements would not only have economic impacts but would detract 
from staff time, which in turn would detract from conservation 
initiatives being properly overseen and implemented on site.
    As with the national security exclusions, the primary benefit of 
excluding Sand Island is that the USFWS organization would not be 
required to consult with NMFS under section 7 of the ESA regarding 
actions that may affect critical habitat, and thus potential delays or 
costs associated with conservation measures for critical habitat would 
be avoided. To assess the benefits of excluding Sand Island, we 
evaluated the relative proportion of the area requested for exclusion, 
the intensity of use of the area, and the likelihood that actions on 
site will destroy or adversely modify habitat requiring additional 
section 7 delays, costs, or burdens. We also considered the likelihood 
of consultation with the agency in this area and the level of 
protection provided to critical habitat by existing USFWS safeguards.
    The primary benefit of designation is the protections afforded 
Hawaiian monk seals under the ESA section 7 critical habitat 
provisions. To evaluate the benefit of designation for each particular 
area, we considered what is known regarding Hawaiian monk seal use of 
the particular area, the size of the particular area compared to the 
specific area and the total critical habitat area, and the likelihood 
that other Federal actions may occur in the area that may affect 
critical habitat and trigger a consultation.
    In reviewing this information, we found that Sand Island at Midway 
Islands provides habitat with the essential features of preferred haul-
out areas and preferred pupping areas in the northwestern end of the 
chain. These features are very important to the declining population of 
the NWHI. USFWS acknowledged that its management plans provide 
protections for Hawaiian monk seals from disturbance, but revealed no 
additional plans that may impact the essential features of Hawaiian 
monk seal critical habitat. In considering the above listed factors, we 
were not able to identify any activities that the USFWS wished to 
engage in at this site that would impact the essential features of 
Hawaiian monk seal critical habitat. We acknowledge that consultation 
of activities on site will continue to be necessary due to listing of 
the species but cannot

[[Page 32047]]

anticipate additional burdens on the agency without the identification 
of activities that may generate impacts to the essential features. 
Thus, there appears to be no benefit of exclusion. At this time, and 
with the present information, we do not recommend Sand Island at Midway 
Islands for exclusion. We solicit information from the public regarding 
any additional areas that may overlap with and may warrant exclusion 
from critical habitat for Hawaiian monk seals (see ``Public Comments 
Solicited'').

Critical Habitat Designation

    This rule proposes to designate approximately 11,140 mi\2\ (28,853 
km\2\) of habitat throughout the Hawaiian Archipelago within the 
geographical area presently occupied by the Hawaiian monk seal. These 
critical habitat areas contain physical or biological features 
essential to the conservation of the species that may require special 
management considerations or protection. This rule proposes to exclude 
from the designation the following areas: Kingfisher Underwater 
Training area in marine areas off the northeast coast of Niihau; 
Pacific Missile Range Facility Main Base at Barking Sands, Kauai; 
Pacific Missile Range Facility Offshore Areas in marine areas off the 
western coast of Kauai; the Naval Defensive Sea Area and Puuloa 
Underwater Training Range in marine areas outside Pearl Harbor, Oahu; 
and the Shallow Water Minefield Sonar Training Range off the western 
coast of Kahoolawe in the Maui Nui area. Based on our best scientific 
knowledge and expertise, we conclude that the exclusion of these areas 
will not result in the extinction of the species, nor impede the 
conservation of the species.

Lateral Extent of Critical Habitat

    The lateral extent of the proposed critical habitat designation 
offshore is defined by the 500-m depth contour relative to the line of 
mean lower low water (MLLW) and shoreward to 5 m inland (in length) 
from the shoreline described by the upper reaches of the wash of the 
waves, other than storm or seismic waves, at high tide during the 
season in which the highest wash of the waves occurs, usually evidenced 
by the edge of vegetation growth or the upper limit of debris (except 
those areas that are indicated with boundaries as not included in the 
designation listed with the identified areas and manmade structures 
existing within the boundaries prior to the effective date of the 
rule). The textual descriptions of critical habitat in the section 
titled ``226.221 Critical habitat for the Hawaiian monk seal (Monachus 
schauinslandi)'' are the definitive source for determining the critical 
habitat boundaries. The overview maps provided in ``226.221 Critical 
habitat for the Hawaiian monk seal (Monachus schauinslandi)'' are 
provided for general guidance purposes only and not as a definitive 
source for determining critical habitat boundaries. As discussed in 
previous critical habitat designations, human activities that occur 
outside of designated critical habitat can destroy or adversely modify 
the essential features of these areas. This designation will help to 
insure that Federal agencies are aware of the impacts that activities 
occurring outside of the proposed critical habitat area (e.g., coastal 
development, activities that generate water pollution) may have on 
Hawaiian monk seal habitat.

Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, 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. When a species is listed or critical 
habitat is designated, Federal agencies must consult with us on any 
agency action 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 evaluate the agency action to determine whether the 
action may adversely affect listed species or critical habitat and 
issue our finding in a biological opinion. 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 are defined in 50 CFR 402.02 as 
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 at 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 re-initiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
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., a 
section 10(a)(1)(B) permit from NMFS) or some other Federal action, 
including funding (e.g., Federal Highway Administration (FHA) or 
Federal Emergency Management Agency (FEMA) funding). ESA section 7 
consultation would not be required for Federal actions that do not 
affect listed species or critical habitat, nor for actions on non-
Federal and private lands that are not carried out, funded, or 
authorized by a Federal agency.

Activities That May Be Affected

    ESA section 4(b)(8) requires, to the maximum extent practicable, in 
any proposed regulation to designate critical habitat, an evaluation 
and brief description of those activities (whether public or private) 
that may adversely modify such habitat or that may be affected by such 
designation. A wide variety of activities may affect Hawaiian monk seal 
critical habitat and may be subject to the ESA section 7 consultation 
processes when carried out, funded, or authorized by a Federal agency. 
The activities most likely to be affected by this critical habitat 
designation once finalized are: (1) In-water and coastal construction; 
(2) dredging and disposal of dredged material; (3) energy development 
(renewable energy projects); (4) activities that generate water 
pollution; (5) aquaculture ; (6) fisheries; (7) oil spills and vessel 
groundings response activities; and (8) military activities. Private 
entities may also be affected by this critical habitat designation if a 
Federal permit is required, Federal funding is received, or the entity 
is involved in or receives benefits from a Federal project. These 
activities would need to be evaluated with respect to their potential 
to destroy or adversely modify critical habitat. Changes to the actions 
to minimize or avoid destruction or adverse modification of designated 
critical habitat may result in changes to some activities. Please see 
the draft Economic Analysis Report (ECONorthwest, 2010) for more 
details

[[Page 32048]]

and examples of changes that may need to occur in order for activities 
to minimize or avoid destruction or adverse modification of designated 
critical habitat. Questions regarding whether specific activities would 
constitute destruction or adverse modification of critical habitat 
should be directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION 
CONTACT).

References Cited

    A complete list of all references cited in this rule making may be 
found on our Web site at http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html, and is available upon request from the NMFS (see 
ADDRESSES).

Public Comments Solicited

    To ensure the final action resulting from this proposal will be as 
accurate and effective as possible, we solicit comments and suggestions 
from the public, other concerned governments and agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. Specifically, public comments are sought 
concerning: (1) Information regarding potential impacts of designating 
any particular area, including the types of Federal activities that may 
trigger an ESA section 7 consultation and the possible modifications 
that may be required of those activities as a result of section 7 
consultation; (2) information regarding the benefits of excluding 
particular areas from the critical habitat designation; (3) current or 
planned activities in the areas proposed for designation and their 
possible impacts on proposed critical habitat; (4) impacts to Native 
Hawaiian organizations resulting from the designation or Native 
Hawaiian activities that may be affected in areas other than those 
specifically owned by the organization; (5) additional information 
regarding the threats associated with global climate change and known 
impacts to Hawaiian monk seal critical habitat and/or Hawaiian monk 
seal essential features (6) any foreseeable economic, national 
security, Tribal, or other relevant impacts resulting from the proposed 
designations. With regard to these described impacts, we request that 
the following information be provided to inform our ESA section 4(b)(2) 
analysis: (1) A map and description of the affected area (e.g., 
location, latitude and longitude coordinates to define the boundaries, 
extent into waterways); (2) a description of activities that may be 
affected within the area; (3) a description of past, ongoing, or future 
conservation measures conducted within the area that may protect 
Hawaiian monk seal habitat; and (4) a point of contact.
    You may submit your comments and materials by any one of several 
methods (see ADDRESSES). The proposed rule, maps, references, and other 
materials relating to this proposal can be found on our Web site at 
http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html on the Federal 
eRulmaking Portal at http://www.regulation.gov, or can be made 
available upon request. We will consider all comments and information 
received during the comment period for this proposed rule in preparing 
the final rule.

Public Hearings

    Regulations at 50 CFR 424.16(c)(3) require the Secretary to 
promptly hold at least one public hearing if any person requests one 
within 45 days of publication of a proposed rule to designate critical 
habitat. Requests for a public hearing must be made in writing (see 
ADDRESSES) by August 16, 2011. 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 specific hearing locations and times will 
also be posted on our Web site at http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html. These hearings provide the opportunity for 
interested individuals and parties to comment, exchange information and 
opinions, and engage in a constructive dialogue concerning this 
proposed rule. We encourage the public's involvement in such ESA 
matters.

Classification

Information Quality Act and Peer Review

    On December 16, 2004, the Office of Management and Budget (OMB) 
issued its Final Information Quality Bulletin for Peer Review 
(Bulletin). The Bulletin was published in the Federal Register on 
January 14, 2005 (70 FR 2664), and went into effect on June 16, 2005. 
The primary purpose of the Bulletin is to improve the quality and 
credibility of scientific information disseminated by the Federal 
government by requiring peer review of ``influential scientific 
information'' and ``highly influential scientific information'' prior 
to public dissemination. Influential scientific information is defined 
as ``information the agency reasonably can determine will have or does 
have a clear and substantial impact on important public policies or 
private sector decisions.'' The Bulletin provides agencies broad 
discretion in determining the appropriate process and level of peer 
review. Stricter standards were established for the peer review of 
``highly influential scientific assessments,'' defined as information 
whose ``dissemination could have a potential impact of more than $500 
million in any one year on either the public or private sector or that 
the dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.'' The draft Biological Report (NMFS, 
2010a) and draft Economic Analysis report (ECONorthwest, 2010) 
supporting this rule proposing to designate critical habitat for the 
Hawaiian monk seal are considered influential scientific information 
and subject to peer review. These two reports were distributed to three 
independent reviewers for review before the publication date of this 
proposed rule. The peer reviewer comments will be compiled into a peer 
review report to be made available to the public at the time the 
Hawaiian monk seal critical habitat designation is finalized.

Regulatory Planning and Review (E.O. 12866)

    This proposed rule has been determined to be significant for 
purposes of E.O. 12866. A draft Economic Analysis report and draft ESA 
section 4(b)(2) report (NMFS, 2010b) have been prepared to support the 
exclusion process under section 4(b)(2) of the ESA and our 
consideration of alternatives to this rulemaking as required under E.O. 
12866. The draft Economic Analysis report (ECONorthwest, 2010) and 
draft ESA section 4(b)(2) report (NMFS, 2010b) are available on the 
Pacific Islands Region Web site at http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html, on the Federal eRulemaking Web site at http://www.regulations.gov, or upon request (see ADDRESSES).

Regulatory Flexibility Act

    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). An initial 
regulatory flexibility analysis (IRFA) has been prepared, which is 
included as

[[Page 32049]]

Appendix C to the draft 4(b)(2) report (NMFS, 2010b). This document is 
available upon request (see ADDRESSES), via our Web site at http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html or via the Federal 
eRulemaking Web site at http://www.regulations.gov.
    We identified the impacts to small businesses by considering the 
eight activities that were identified as most likely impacted by the 
designation: (1) In-water and coastal construction; (2) dredging and 
disposal of dredged material; (3) energy development (renewable energy 
projects); (4) activities that generate water pollution; (5) 
aquaculture; (6) fisheries; (7) oil spills and vessel groundings 
response activities; and (8) military activities. Due to the inherent 
uncertainty involved in predicting possible economic impacts that could 
result from future consultations, we acknowledge that other 
unidentified impacts may occur, and we invite public comment on those 
impacts. As discussed in the ``Benefits of Exclusion Based on Economic 
Impacts and Proposed Exclusions'' section of this proposed rule, we 
were not able to find sufficient information to accurately monetize the 
estimated economic benefits of exclusion beyond the administrative 
costs of the ESA section 7 consultation, and found overall that 
administrative economic costs of the designation appear to be low. 
Activities most likely to be impacted by this rule, if finalized as 
proposed, include construction projects happening in-water or along the 
coastline that overlap with the proposed designation. In reviewing 
impacts to small businesses, we recognized that impacts may result from 
actions that a small business carries out within the boundaries of the 
proposed critical habitat areas that are permitted by the Federal 
Government, or funded by the Federal Government. In both cases the 
small business may be responsible for bearing the cost of project 
modifications or administrative work resulting from a section 7 
consultation. In addition, small businesses may be impacted indirectly 
if the company's earnings are dependent on Federal actions that undergo 
section 7 consultations as a result of the designation (e.g., 
contractors that are hired to carry out Federal actions). Ideally we 
would be able to monetize these potential impacts, but insufficient 
information is available to determine the extent, scope, and location 
of activities that may be carried out by small businesses in the areas 
of overlap or to what extent small businesses are dependent on earnings 
from Federal actions that may undergo section 7 consultation within the 
areas of the proposed designation. The inability to identify future 
projects in the area of overlap with the proposed designation may be in 
part because most projects in the MHI that are subject to the 
consultation requirements of ESA tend to occur in highly developed 
areas, and these areas were not included in the designation due to the 
lack of, or poor quality of, essential features (e.g. Pearl Harbor). 
Thus, many projects in the planning stages may still only overlap with 
areas not included in the designation. Additionally, the full extent of 
impacts may not yet be realized because there is currently no critical 
habitat designation in the marine environment of the MHI, and, 
therefore, no history with which to predict those impacts due to 
inexperience in dealing with marine critical habitat designations in 
the MHI.
    In accordance with the requirements of the RFA, as amended, this 
analysis considered various alternatives to the critical habitat 
designation for the Hawaiian monk seal. The alternative of not 
designating critical habitat for the Hawaiian monk seal was considered 
and rejected because such an approach does not meet the legal 
requirements of the ESA. We considered the alternative of designating 
all specific areas (i.e., no areas excluded); however, in some cases 
the benefits of excluding particular areas based on national security 
impacts outweighed the benefits of including them in the designation. 
Thus, we also considered the alternative of designating all specific 
areas, but excluding particular areas based on the impacts to national 
security. This alternative may help to reduce the indirect impact to 
small businesses that are economically involved with military 
activities in these areas; however, there is insufficient information 
to monetize the benefits of these exclusions at this time. In 
conclusion, we were unable to determine significant economic impacts 
(NMFS, 2010b) based on this designation; and, current information does 
not suggest that small businesses will be disproportionately affected 
by this designation. We solicit additional information regarding the 
impacts to small businesses that may result from this proposed 
designation, and we will consider any additional information received 
in developing our final determination to designate or exclude areas 
from critical habitat for the Hawaiian monk seal.

Clarity of the Rule

    Executive Order (E.O.) 12866 requires each agency to write 
regulations and notices that are easy to understand. We invite-your 
comments on how to make this proposed rule easier to understand, 
including answers to questions such as the following: (1) Are the 
requirements in the rule clearly stated? (2) Does the rule contain 
jargon that interferes with its clarity? (3) Does the format of the 
rule (grouping and order of section, use of headings, paragraphing, 
etc.) aid or reduce its clarity? (4) Would the rule be easier to 
understand if it were divided into more (but shorter) sections? (5) Is 
the description of the rule in SUPPLEMENTARY INFORMATION section of the 
preamble helpful in understanding the rule? (6) What else could we do 
to make the rule easier to understand? You may submit comments on how 
we could make this proposed rule easier to understand by any one of 
several methods (see ADDRESSES).

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    (A) This proposed rule will not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, 
Tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
The designation of critical habitat does not impose an enforceable duty 
on non-Federal government entities or private parties. The only 
regulatory effect of a critical habitat designation is that Federal 
agencies must insure that their actions do not destroy or adversely 
modify critical habitat under ESA section 7. Non-Federal entities who 
receive funding, assistance, or permits from Federal agencies or 
otherwise require approval or authorization from a Federal agency for 
an action may be indirectly impacted because they receive Federal 
assistance or participate in a voluntary Federal aid program; however, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
to State governments.
    (B) Due to the prohibition already in place against take of the 
Hawaiian monk seal both within and outside of the designated areas, we 
do not anticipate that this proposed rule will significantly or 
uniquely affect small governments. As such, a Small Government Agency 
Plan is not required.

Takings

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions

[[Page 32050]]

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 that 
substantially affect its value or use. In accordance with E.O. 12630, 
this proposed rule does not have significant takings implications. A 
takings implication assessment is not required. The designation of 
critical habitat generally affects only those activities and projects 
that are authorized, funded, or carried out by a Federal agency. This 
proposed rule would not increase or decrease the current restrictions 
on private property concerning take of Hawaiian monk seals, nor do we 
expect the proposed critical habitat designation to affect property 
values, or impose additional burdens on land use or landowner actions 
that do not require Federal funding or permits. Additionally, the 
proposed critical habitat designation does not preclude the development 
of Habitat Conservation Plans and issuances 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 
Hawaiian monk seals.

Federalism

    E.O. 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). Pursuant to the 
Executive Order on Federalism, E.O. 13132, the Assistant Secretary for 
Legislative and Intergovernmental Affairs will provide notice of the 
proposed action and request comments from the governor of the State of 
Hawaii.

Civil Justice Reform

    In accordance with E.O. 12988, the Department of Commerce has 
determined that this proposed rule does not unduly burden the judicial 
system and meets the requirements of section 3(a) and 3(b)(2) of the 
Order. We are proposing critical habitat in accordance with the 
provisions of the ESA. This proposed rule uses standard property 
descriptions and identifies the essential features within the 
designated areas to assist the public in understanding the habitat 
needs of the Hawaiian monk seal.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain new or revised information 
collections that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act. This proposed rule will 
not impose recordkeeping or reporting requirements on State or local 
governments, individuals, businesses or organizations. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act (NEPA)

    We have determined that an environmental analysis as provided for 
under the NEPA 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).

Coastal Zone Management Act of 1972 (CZMA)

    The CZMA emphasizes the primacy of state decision-making regarding 
the coastal zone. Section 307 of the CZMA (16 U.S.C. 1456), called the 
Federal consistency provision, is a major incentive for states to join 
the national coastal management program and is a powerful tool that 
states use to manage coastal uses and resources and to facilitate 
cooperation and coordination with Federal agencies.
    Federal consistency is the CZMA requirement where Federal agency 
activities that have reasonably foreseeable effects on any land or 
water use or natural resource of the coastal zone (also referred to as 
coastal uses or resources and coastal effects) must be consistent to 
the maximum extent practicable with the enforceable policies of a 
coastal state's Federally approved coastal management program. We have 
determined that this proposed critical habitat designation is 
consistent to the maximum extent practicable with the enforceable 
policies of the approved Coastal Zone Management Program of Hawaii. 
This determination will be submitted for review by the Hawaii Coastal 
Zone Management Program.

Government to Government Relationship 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 towards 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. E.O. 
13175--Consultation and Coordination with Indian Tribal Governments--
outlines the responsibilities of the Federal Government in matters 
affecting Tribal interests. Federally recognized Tribe means an Indian 
or Alaska Native Tribe or community that is acknowledged as an Indian 
Tribe under the Federally Recognized Indian Tribe List Act of 1994, 25 
U.S.C. 479a. In the list published annually by the Secretary, there are 
no Federally recognized Tribes in the State of Hawaii (74 FR 40218; 
August 11, 2009). Therefore, while we value information on the effects 
of this rule on the interests of Native Hawaiians, Native Hawaiian 
lands are not Tribal lands for purposes of the requirements of the 
President's Memorandum or the Department Manual. However, we recognize 
that Native Hawaiian organizations have the potential to be impacted by 
Federal regulations and, as such, that consideration of these impacts 
may be evaluated as other relevant impacts from the designation. We 
have opened communication with some Native Hawaiian organizations, and 
at this time have not been made aware of anticipated impacts resultant 
from the designation. We seek comments regarding areas of overlap with 
the designation that may warrant exclusion from critical habitat for 
the Hawaiian monk seal. We also seek information from affected Native 
Hawaiian organizations concerning other Native Hawaiian activities that 
may be affected in areas other than those specifically owned by the 
organization (e.g. marine areas)(see Public Comments Solicited and 
ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: May 24, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, this rule proposes to 
amend part 226, title 50 of the Code of Federal Regulations as set 
forth below:

[[Page 32051]]

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority:  16 U.S.C. 1533.

    2. Add Sec.  226.221, to read as follows:


Sec.  226.221  Critical habitat for the Hawaiian monk seal (Monachus 
schauinslandi).

    Critical habitat is designated for Hawaiian monk seals 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) Critical habitat boundaries.
    (1) Northwestern Hawaiian Islands: The Hawaiian monk seal critical 
habitat areas located in the Northwestern Hawaiian Islands include all 
beach areas, sand spits, and islets, including all beach crest 
vegetation to its deepest extent inland, lagoon waters, inner reef 
waters, and ocean waters out to the 500-m depth contour around the 
following (except those areas that have been identified as not included 
in the designation):
    (i) Kure Atoll--center coordinates: 28[deg]25'11.00'' N./
178[deg]19'45.00'' W.
    (ii) Midway Islands--center coordinates: 28[deg]14'12.00'' N./177 
22'06.00'' W. (Midway Harbor is not included in the designation. The 
boundaries of Midway Harbor were delineated to incorporate the inner 
harbor and hardened shorelines of the harbor. The polygon includes the 
area bounded by the point at the seaward edge of the northern 
breakwater at the harbor entrance (28[deg]12'44.31'' N./
177[deg]21'35.64'' W.) then north along the breakwater to where the 
breakwater meets the coastline at 28[deg]12'54.06'' N./
177[deg]21'38.69'' W. then west to 28[deg]12'56.63'' N./
177[deg]22'18.42'' W. then south to 28[deg]12'30.88'' N./
177[deg]22'23.89'' W. then east to 28[deg]12'32.68'' N./
177[deg]21'44.63'' W. then north to the seaward edge of the southern 
breakwater at the harbor entrance (28[deg]12'39.99'' N./
177[deg]21'38.04'' W.) and a line back to meet the seaward edge of the 
northern breakwater at Midway Harbor's entrance.)
    (iii) Pearl and Hermes Reef--center coordinates: 27[deg]50'37.000'' 
N./175[deg]50'32.00'' W.
    (iv) Lisianski Island--center coordinates: 26[deg]03'49.00'' N./
173[deg]58'00.00'' W.
    (v) Laysan Island--center coordinates: 25[deg]46'11.00'' N./
171[deg]43'57.00'' W.
    (vi) Maro Reef--center coordinates: 25[deg]25'27.00'' N./
170[deg]35'19.00'' W.
    (vii) Gardner Pinnacles--center coordinates: 25[deg]0'00.00'' N./
167[deg]59'55.00'' W.
    (viii) French Frigate Shoals--center coordinates: 23[deg]45'31.00'' 
N./166[deg]14'37.00'' W.
    (ix) Necker Island--center coordinates: 23[deg]34'36.00'' N./
164[deg]42'01.00'' W.
    (x) Nihoa Island--center coordinates: 23[deg]03'23.00'' N./
161[deg]55'18.99'' W.
    (2) Main Hawaiian Islands: Hawaiian monk seal critical habitat 
areas surrounding the following islands listed below are defined in the 
marine environment by a seaward boundary that extends from the 500-m 
depth contour line (relative to mean lower low water), through the 
water's edge into the terrestrial environment where the inland boundary 
extends 5 m inland (in length) from the shoreline described by the 
upper reaches of the wash of the waves, other than storm or seismic 
waves, at high tide during the season in which the highest wash of the 
waves occurs, usually evidenced by the edge of vegetation growth or the 
upper limit of debris (except those areas that are indicated with 
boundaries as not included in the designation listed with each 
identified area). Terrestrial areas not included have a seaward 
boundary of a line that marks mean lower low water between the two 
identified points.
    (i) Kaula Island.
    (ii) Niihau Island.
    (iii) Kauai Island--Areas identified as not included in the 
designation of this specific area are defined as the following 
locations and are delineated by the identified boundaries: Hanalei Bay 
delineated by all terrestrial coastline areas located between the 
Makahoa Point (22[deg]12'49.48'' N./159[deg]31'01.82'' W.) east to 
22[deg]12'56.10'' N./159[deg]29'52.82'' W. and all waters located 
inshore of a line drawn between those two points; Kikiaola Harbor 
delineated by all terrestrial coastline areas from 21[deg]57'34.92'' 
N./159[deg]41'36.36'' W. east to 21[deg]57'28.89'' N./
159[deg]41'34.91'' W. and all harbor waters located inshore of the line 
drawn between the seaward edge of western breakwater at the harbor's 
entrance (21[deg]57'28.58'' N./159[deg]41'36.57'' W.) and the seaward 
edge of eastern breakwater at the harbor's entrance (21[deg]57'27.19'' 
N./159[deg]41'41.34'' W.); Kilauea Point Cliff area delineated by all 
terrestrial coastlines located between 22[deg]13'50.27'' N./
159[deg]24'07.42'' W. east around to 22[deg]13'50.97'' N./
159[deg]24'05.68'' W.; Na Pali coast cliffs delineated by the mouth of 
the Hanakapiai stream (22[deg]12'30.35'' N./159[deg]35'53.00'' W.) 
south west to the mouth of the Kalalau Stream (22[deg]10'43.33'' N./
159[deg]39'03.42'' W.); Nawiliwili Harbor delineated as all terrestrial 
coastlines between Kukii Point Light (21[deg]57'23.80'' N./
159[deg]20'52.70'' W.) south to where the southern breakwater meets the 
shoreline (21[deg]56'54.65'' N./159[deg]21'03.15'' W.) and all waters 
inshore of a line drawn from Nawiliwili Harbor Breakwater Light 
(21[deg]57'11.68'' N./159[deg]20'54.94'' W.) east to Kukii Point Light 
(21[deg]57'23.80'' N./159[deg]20'52.70'' W.) (i.e., the harbor's USCG 
defined COLREG line); Hanapepe Bay and Port Allen delineated by all 
terrestrial coastlines between the Hanapepe Light (21[deg]53'34.55'' 
N./159[deg]36'15.55'' W.) east to where the Hanapepe breakwater meets 
the shoreline to the east (21[deg]53'54.97'' N./159[deg]35'14.50'' W.) 
and all waters inshore of the line drawn from Hanapepe Light 
(21[deg]53'34.55'' N./159[deg]36'15.55'' W.) east to Hanapepe Bay 
Breakwater (21[deg]53'49.10'' N./159[deg]35'27.25'' W.) (i.e., the 
harbor's USCG defined COLREG line); Waikaea Canal delineated by all 
terrestrial coastline, structures and waters inshore of the line drawn 
from the seaward edge of the southern breakwater at the mouth of the 
canal (22[deg]04'14.7'' N./159[deg]18'58.98'' W.) north to the seaward 
edge of the northern breakwater at the mouth of the canal 
(22[deg]04'16.41'' N./159[deg]18'58.00'' W.); Wailua Canal delineated 
as all coastline and waters located inshore of the bridge crossing the 
Wailua River or a line drawn between 22[deg]02'41.13'' N./
159[deg]20'11.95'' W. south to 22[deg]02'44.27'' N./159[deg]20'10.93'' 
W.
    (iv) Oahu--Areas identified as not included in the designation of 
this specific area are defined as the following locations and are 
delineated by the identified boundaries: Pearl Harbor to Kapua Channel 
delineated by all terrestrial coastlines between Keahi point 
(21[deg]18'57.95'' N./157[deg]58'42.82'' W.) east to eastern edge of 
the Kapua channel (21[deg]15'28.77'' N./157[deg]49'07.51'' W.) and all 
waters out to depth of the 3 fathoms between the line drawn from Keahi 
point (21[deg]18'57.95'' N./157[deg]58'42.82'' W.) to meet the 3 fathom 
contour following the 3 fathom contour east to a line drawn from the 
eastern edge of the Kapua channel (21[deg]15'28.77'' N./
157[deg]49'07.51'' W.) out to meet the 3 fathom contour ; Haleiwa 
Harbor delineated by all terrestrial coastlines between where the 
eastern breakwater meets the coastline (21[deg]35'47.44'' N./
158[deg]06'16.15'' W.) west to where the western breakwater meets the 
coastline (21[deg]35'42.59 N./158[deg]06'25.19'' W.) and all waters in 
the harbor inshore of the line drawn between breakwater Light 6

[[Page 32052]]

(21[deg]35'47.63'' N./158[deg]06'22.42'' W.) and the seaward edged of 
the eastern breakwater (21[deg]35'47.44'' N./158[deg]06'16.15'' W.); 
Maunalua Bay and Hawaii Kai Harbor delineated as all coastline and 
waters located inshore of the line drawn between 21[deg]16'53.22'' N./
157[deg]43'21.77'' W. east to the point 21[deg]15'49.13'' N./
157[deg]42'41.45'' W.; Kalaeloa Barbers Point delineated as all 
coastline and waters located inshore of the line drawn between the 
harbor's entrance channel Light 6 (21[deg]19'19.07'' N./
158[deg]07'16.08'' W.) north to harbor entrance channel Light 7 
(21[deg]19'23.81'' N./158[deg]07'19.82'' W.); Kaneohe Bay delineated as 
all coastlines and waters located inshore of the line drawn from 
Pyramid Rock Light (21[deg]27'44.12'' N./157[deg]45'48.69'' W.) through 
the center of Mokolii Island to the shoreline (21[deg]30'59.27'' N./
157[deg] 50'10.01'' W.) (i.e., the bay's USCG defined COLREG line); 
Waianae Small Boat harbor delineated by all coastlines between northern 
point where the breakwater meets the coastline 21[deg]27'4.15'' N./
158[deg]11'54.59'' W. south through to the range front light 
(21[deg]26'55.57'' N./158[deg]11'46.70'' W.) and all waters inside the 
harbor located inshore of the line drawn between the range front light 
(21[deg]26'55.57'' N./158[deg]11'46.70'' W.) west to the breakwater 
Light 1 described by the USCG at (21[deg]26'50.68'' N./
158[deg]11'48.90'' W.).
    (v) Maui Nui--Areas identified as not included in the designation 
of this specific area are defined as the following locations and are 
delineated by the identified boundaries: Hana wharf and ramp, Maui is 
delineated by all terrestrial coastlines from 20[deg]45'18.53'' N./
155[deg]58'56.32'' W. east to 20[deg]45'19.93'' N./155[deg]58'54.12'' 
W.; Kahului Harbor is delineated by all terrestrial coastline between 
where the hardened shoreline meets the beach to the west of the harbor 
(20[deg]53'53.05'' N./156[deg]28'47.87'' W.) east to where the hardened 
shoreline meets the beach to the east of the harbor (20[deg]53'49.07'' 
N./156[deg]27'38.84'' W.) and all waters located inshore of the line 
drawn between the west breakwater Light 4 (20[deg]54'01.16'' N./
156[deg]28'26.82'' W.) east to the east breakwater Light 3 
(20[deg]54'02.36'' N./156[deg]28'17.43'' W.) (i.e., the harbor's USCG 
defined COLREG line); Kihei boat ramp, Maui is delineated by all 
terrestrial coastlines between 20[deg]42'31.34'' N./156[deg]26'46.95'' 
W. south to 20[deg]42'27.19'' N./156[deg]26'46.13'' W. and all waters 
in the harbor located inshore of the line drawn between 
20[deg]42'31.34'' N./156[deg]26'46.95'' W. west to the seaward edge of 
the northern point on the breakwater at the harbor entrance 
(20[deg]42'30.29'' N./156[deg]26'48.46'' W.); Lahaina harbor, Maui is 
delineated by all terrestrial coastlines between 20[deg]52'21.63'' N./
156[deg]40'44.05'' W. south to 20[deg]52'11.67'' N./156[deg]40'38.53'' 
W. and all waters in the harbor located inshore of the line drawn from 
20[deg]52'21.63'' N./156[deg]40'44.05'' W. to the seaward edge of the 
breakwater at the harbor entrance (20[deg]52'18.18'' N./
156[deg]40'45.33'' W.); Maalaea Harbor is delineated by all terrestrial 
coastlines between where the western hardened shoreline meets the coast 
(20[deg]47'23.65'' N./156[deg]30'49.85'' W.) east to where the eastern 
hardened shoreline meets the coast (20[deg]47'32.07'' N./
156[deg]30'34.24'' W.) and all waters in the harbor located inshore of 
the line drawn from the seaward edge of the west breakwater at the 
harbor entrance (20[deg]47'24.74'' N./156[deg]30'39.18'' W.) east to 
the seaward edge of the east breakwater at the harbor entrance 
(20[deg]47'24.59'' N./156[deg]30'36.41'' W.); Mala wharf and ramp, Maui 
is delineated by all hardened structures and coastline between the 
point where the hardened structures of the wharf meets the coastline on 
the south side of the wharf (20[deg]53'05.20'' N./156[deg]41'12.47'' 
W.) north to the southern edge of the Kahoma stream (20[deg]53'07.86'' 
N./156[deg]41'10.78'' W.); Nakalahale cliff region, Lanai is delineated 
by all coastline between 20[deg]44'31.86'' N./156[deg]52'46.92'' W. 
east to 20[deg]45'05.8458'' N./156[deg]52'00.8214'' W.; Kaholo cliff 
region, Lanai is delineated by all coastline between 20[deg]46'40.33'' 
N./156[deg]59'19.02'' W. south to 20[deg]44'17.52'' N./
156[deg]58'03.36'' W.; Manele Harbor, Lanai is delineated by all 
terrestrial coastlines from where the Manele Harbor breakwater meets 
the coastline (20[deg]44'29.34'' N./156[deg]53'15.88'' W.) north to 
20[deg]44'34.95'' N./156[deg]53'15.45'' W. and all waters located 
inshore of a line drawn between the seaward extension of the breakwater 
(20[deg]44'30.38'' N./156[deg]53'16.33'' W.) north to 20[deg]44'34.95'' 
N./156[deg]53'15.45'' W.; Kamalapau Harbor, Lanai is delineated by all 
terrestrial coastline between 20[deg]47'29.37'' N./156[deg]59'20.04'' 
W. south to 20[deg]47'07.94'' N./156[deg]59'21.51'' W.; Haleolono 
Harbor, Molokai is delineated by all hardened structures and coastline 
between 21[deg]05'13.04'' N./157[deg]15'03.68'' W. east to 
21[deg]05'04.43'' N./157[deg]14'54.82'' W. and all waters located 
inshore of the line drawn between the seaward edge of the west 
breakwater 21[deg]05'01.21'' N./157[deg]14'58.95'' W. east to the 
seaward edge of the east breakwater 21[deg]05'04.43'' N./
157[deg]14'54.82'' W.; Kaunakakai Pier, Molokai is delineated by all 
terrestrial coastline between 21[deg]05′14.83'' N./
157[deg]01'30.42'' W. east to 21[deg]05'09.12'' N./157[deg]01'23.05'' 
W.; and Kalaupapa Harbor is delineated by all terrestrial coastline 
between 21[deg]11'26.09'' N./156[deg]59'04.76'' W. south to 
21[deg]11'23.57'' N./156[deg]59'04.12'' W.
    (vi) Hawaii--Areas identified as not included in the designation of 
this specific area are defined as the following locations and are 
delineated by the identified boundaries: Hilo harbor delineated by all 
water inshore of a line drawn from the seaward extremity of the Hilo 
Breakwater 265[deg] true (as an extension of the seaward side of the 
breakwater) (19[deg]44'34.53'' N./155[deg]04'29.98'' W.) west to the 
shoreline 0.2 nautical mile north (19[deg]44'28.74'' N./
155[deg]05'23.80'' W.) of Alealea Point or the harbor's USCG defined 
COLREG line and delineated by all terrestrial coastlines between 0.2 
nautical mile north (19[deg]44'28.74'' N./155[deg]05'23.80'' W.) of 
Alealea Point east to 19[deg]43'55.88'' N./155[deg] 03'01.68'' W.; 
Honokohau harbor delineated by all terrestrial coastlines and waters 
inshore and inland of the line drawn between the Honokohau entrance 
channel Light 3 (19[deg]40'11.52'' N./156[deg]01'37.84'' W.) and the 
Honokohau entrance channel Light 4 (19[deg]40'09.41'' N./
156[deg]01'35.90'' W.) Kailua-Kona Wharf delineated by all coastlines 
and waters located inshore of the line drawn between 19[deg]38'17.09'' 
N./155[deg]59'53.05'' W. east to 19[deg]38'17.69'' N./
155[deg]59'39.43'' W.; Kawaihae Harbor all coastlines and hardened 
structures located between Kawaihae Light (20[deg]02'29.12'' N./
155[deg]49'58.21'' W.) south to 20[deg]01'42.29'' N./155[deg]49'25.20'' 
W. and all waters located inshore of the line drawn between Kawaihae 
Light (20[deg]02'29.12'' N./155[deg]49'58.21'' W.) and the seaward 
extremity of the Kawaihae breakwater Light 6 (20[deg]02'14.21'' N./
155[deg]50'02.00'' W.); Keauhou boat harbor all terrestrial coastlines 
between 19[deg]33'39.63'' N./155[deg]57'45.06'' W. east to 
19[deg]33'42.89'' N./155[deg]57'42.69'' W.; Mahukona Harbor all 
coastlines and structures located between 20[deg]10'59.62'' N./
155[deg]54'03.57'' W. east to 20[deg]11'02.21'' N./155[deg]54'01.99'' 
W.; and the active lava flow areas along the coastline.
    (b) Essential Features: The essential features for the conservation 
of the Hawaiian monk seal are:
    (1) Areas with characteristics preferred by monk seals for pupping 
and nursing. Preferred pupping areas generally include sandy, protected 
beaches, which are located adjacent to shallow sheltered aquatic areas. 
Terrestrial pupping habitat may incorporate various substrates 
including sand, shallow tide-pools, coral rubble, or rocky substrates 
as long as these substrates provide accessibility to seals

[[Page 32053]]

for hauling out. Characteristics of preferred sites may also 
incorporate areas with low lying vegetation utilized by the pair for 
shade or cover.
    (2) Shallow, sheltered aquatic areas adjacent to coastal locations 
preferred by monk seals for pupping and nursing. Sheltered marine areas 
provide protection for the mom and pup pair from predators and extreme 
weather events, as well as provide protected habitat necessary for 
newly weaned pups to learn to forage. Characteristics of the sheltered 
aquatic sites may include reefs, tide pools, gently sloping beaches, 
and shelves or coves that provide refuge from storm surges and 
predators.
    (3) Marine areas from 0 to 500 m in depth preferred by juvenile and 
adult monk seals for foraging. Foraging habitat is necessary for the 
growth, and viability of all life stages. Foraging habitat may range 
from barrier reefs, leeward slopes of reefs and islands, submarine 
ridges, nearby seamounts, submerged reefs and banks, and deep coral 
beds. Preferred foraging habitat of adult monk seals is characterized 
by sand terraces and talus slopes. These habitats provide substrate and 
materials for preferred benthic and cryptic prey species to hide.
    (4) Areas with low levels of anthropogenic disturbance. Areas with 
low levels of anthropogenic disturbance are necessary to prevent the 
abandonment of preferred haul-out sites essential for pupping and 
nursing, and hauling out.
    (5) Marine areas with adequate prey quantity and quality. Food 
resources of adequate abundance and safe from contaminants are required 
for the growth and survival of all of the life stages of the Hawaiian 
monk seal. Prey resources may include a variety of species including 
some benthic and offshore teleosts, cephalopods, and crustaceans.
    (6) Significant areas used by monk seals for hauling out, resting 
or molting. Haul-out sites are generally characterized by sandy 
beaches, sand spits, or low shelving reef rocks accessible to seals. 
Sites favored by seals may also reflect areas that are remote in nature 
or with low levels of human disturbance. Haul out areas provide 
necessary habitat for normal behavior, growth, and viability of all 
life stages. Critical habitat does not include manmade structures 
(e.g., docks, seawalls, piers, fishponds, roads, pipelines) and the 
land on which they are located existing within the boundaries on the 
effective date of this rule.
    (c) Overview maps of Hawaiian monk seal critical habitat follow:
BILLING CODE 3510-22-P

[[Page 32054]]

[GRAPHIC] [TIFF OMITTED] TP02JN11.000


[[Page 32055]]


[GRAPHIC] [TIFF OMITTED] TP02JN11.001


[[Page 32056]]


[GRAPHIC] [TIFF OMITTED] TP02JN11.002


[[Page 32057]]


[GRAPHIC] [TIFF OMITTED] TP02JN11.003


[[Page 32058]]


[GRAPHIC] [TIFF OMITTED] TP02JN11.004


[[Page 32059]]


[GRAPHIC] [TIFF OMITTED] TP02JN11.005


[[Page 32060]]


[GRAPHIC] [TIFF OMITTED] TP02JN11.006


[[Page 32061]]


[GRAPHIC] [TIFF OMITTED] TP02JN11.007


[[Page 32062]]


[GRAPHIC] [TIFF OMITTED] TP02JN11.008


[[Page 32063]]


[GRAPHIC] [TIFF OMITTED] TP02JN11.009

[FR Doc. 2011-13381 Filed 6-1-11; 8:45 am]
BILLING CODE 3510-22-C