[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Proposed Rules]
[Pages 47133-47139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19676]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0045; MO 92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding and 
12-Month Determination on a Petition To Revise Critical Habitat for the 
Leatherback Sea Turtle

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and notice of 12-month 
determination.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 
90-day finding and 12-month determination on how to proceed in response 
to a petition to revise critical habitat for the leatherback sea turtle 
(Dermochelys coriacea) pursuant to the Endangered Species Act of 1973, 
as amended (Act). The petition asks the Service and the National Marine 
Fisheries Service (NMFS) (Services) to revise the existing critical 
habitat designation for the leatherback sea turtle by adding the 
coastline and offshore waters of the Northeast Ecological Corridor of 
Puerto Rico to the critical habitat designation. Our 90-day finding is 
that the petition, in conjunction with the information readily 
available in our files, presents substantial scientific information 
indicating that the requested revision may be warranted. Our 12-month 
determination is that we intend to proceed with processing the petition 
by assessing critical habitat during the future planned status review 
for the leatherback sea turtle.

DATES: The finding announced in this document was made on August 4, 
2011.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2011-0045. Information 
and supporting documentation that we received and used in preparing 
this finding is available for public inspection by appointment, during 
normal business hours at the North Florida Ecological Services Office, 
U.S. Fish and Wildlife Service, 7915 Baymeadows Way, Suite 200, 
Jacksonville, FL 32256 and at the U.S. Fish and Wildlife Service, 
Caribbean Ecological Services Field Office, Road 301, Km. 5.1, 
Boquer[oacute]n, Puerto Rico 00622. Please submit any new information, 
materials, comments, or questions concerning this finding to the above 
mailing address or the contact as listed under FOR FURTHER INFORMATION 
CONTACT.

FOR FURTHER INFORMATION CONTACT: Dave Hankla, Field Supervisor, North 
Florida Ecological Services Office, U.S. Fish and Wildlife Service, 
Attn: Leatherback CH Review; by mail at 7915 Baymeadows Way, Suite 200, 
Jacksonville, FL 32256; by telephone (904-731-3336); by facsimile (904-
731-3045); or by e-mail at [email protected]. If you use a 
telecommunications device for the deaf (TDD), please call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(D) of the Act of 1973, as amended (16 U.S.C. 1531 
et seq.) requires that we make a finding on whether a petition to 
revise critical habitat for a species presents substantial scientific 
information indicating that the revision may be warranted. In 
determining whether substantial information exists, we take into 
account several factors, including information submitted with, and 
referenced in, the petition and all other information readily available 
in our files. Our listing regulations at 50 CFR 424.14(c)(2) further 
require that, in making a finding on a petition to revise critical 
habitat, we consider whether the petition contains information 
indicating that areas petitioned to be added to critical habitat 
contain the physical and biological features essential to, and that may 
require special management to provide for, the conservation of the 
species; or information indicating that areas currently designated as 
critical habitat do not contain resources essential to, or do not 
require special management to provide for, the conservation of the 
species involved.
    To the maximum extent practicable, we are to make this finding 
within 90 days of our receipt of the petition and publish our notice of 
the finding promptly in the Federal Register. We are to base this 
finding on information provided in the petition, supporting information 
submitted with the petition, and information otherwise available in our 
files. If we find that a petition presents substantial information 
indicating that the revision may be warranted, we are required to 
determine how we intend to proceed with the requested revision within 
12 months after receiving the petition and promptly publish notice of 
such intention in the Federal Register.
    Critical habitat is defined under section 3(5)(A) of the Act as:

[[Page 47134]]

    (i) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, 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 that such areas 
are essential for the conservation of the species.
    Our implementing regulations at 50 CFR 424.12 describe our criteria 
for designating critical habitat. We are to consider physical and 
biological features essential to the conservation of the species. Those 
features include, but are not limited to: (1) Space for individual and 
population growth, and normal behavior; (2) Food, water, air, light, 
minerals, or other nutritional or physiological requirements; (3) Cover 
or shelter; (4) Sites for breeding, reproduction, or rearing of 
offspring; and (5) Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological distribution 
of a species. Essential physical and biological features may include, 
but are not limited to, nesting grounds, feeding sites, water quality, 
geological formations, tides, and specific soil types. Our implementing 
regulations at 50 CFR 424.02 define ``special management considerations 
or protection'' as any methods or procedures useful in protecting 
physical and biological features of the environment for the 
conservation of the species.
    Section 4(b)(2) of the Act requires us to designate and make 
revisions to critical habitat for listed 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. 
The Secretary may exclude any particular area from critical habitat if 
he determines that the benefits of such exclusion outweigh the benefits 
of specifying such area as part of the critical habitat. Unless, he 
determines that the failure to designate such area as critical habitat, 
will result in the extinction of the species concerned.

Previous Federal Actions

    In 1970, the leatherback sea turtle was listed as endangered (35 FR 
8491; June 2, 1970) in accordance with the Endangered Species 
Conservation Act of 1969 (Pub. L. 91-135; 83 Stat. 275), a precursor to 
the Act. The Service designated critical habitat for the leatherback 
sea turtle on March 23, 1978 (43 FR 12050), in the U.S. Virgin Islands 
to include: ``A strip of land 0.2 miles wide (from mean high tide 
inland) at Sandy Point Beach on the western end of the island of St. 
Croix beginning at the southwest cape to the south and running 1.2 
miles northwest and then northeast along the western and northern 
shoreline, and from the southwest cape 0.7 miles east along the 
southern shoreline.'' This critical habitat designation appears in our 
regulations at 50 CFR 17.95(c). NMFS designated critical habitat for 
the leatherback sea turtle on March 23, 1979 (44 FR 17710), in the U.S. 
Virgin Islands to include: ``The waters adjacent to Sandy Point, St. 
Croix, U.S. Virgin Islands, up to and inclusive of the waters from the 
hundred fathom curve shoreward to the level of mean high tide with 
boundaries at 17[deg]42'12'' North and 64[deg]50'00'' West.'' This 
critical habitat designation appears in the NMFS regulations at 50 CFR 
226.207. In 1984, the Sandy Point National Wildlife Refuge was 
established; the refuge completely encompasses the stretch of beach 
that was designated as critical habitat in 1978.
    On October 2, 2007, NMFS received a petition from the Center for 
Biological Diversity, Oceana, and Turtle Island Restoration Network to 
revise the leatherback sea turtle critical habitat designation. The 
petitioners sought to revise the critical habitat designation to 
include the area NMFS was already managing under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act to reduce 
leatherback sea turtle interactions in the California-Oregon drift 
gillnet fishery targeting swordfish and thresher shark. This area 
encompasses roughly 200,000 square miles (321,870 square kilometers 
(km)) of the Exclusive Economic Zone from 45 degrees North latitude 
about 100 miles (160 km) south of the Washington-Oregon border 
southward to Point Sur and along a diagonal line due west of Point 
Conception, CA, and west to 129 degrees West longitude.
    On December 28, 2007, NMFS published a 90-day finding that the 
petition presented substantial scientific information indicating that 
the petitioned action may be warranted and initiated a review of the 
critical habitat of the species to determine whether the petitioned 
action was warranted (72 FR 73745). On January 5, 2010, NMFS proposed 
regulations to designate specific areas within the Pacific Ocean as 
critical habitat (75 FR 319). The areas proposed for designation 
encompass approximately 70,600 square miles (182,854 square km) of 
marine habitat. Specific areas proposed for designation include two 
adjacent areas covering 46,100 square miles (119,400 square km) 
stretching along the California coast from Point Arena to Point 
Vincente and an area covering 24,500 square miles (63,455 square km) 
stretching from Cape Flattery, WA, to the Umpqua River (Winchester 
Bay), OR, east of a line approximating the 6,562-ft (2,000-meter) depth 
contour. A final determination has not yet been published by NMFS.

Petition History

    On February 22, 2010, the Service and NMFS received a petition 
dated February 22, 2010, from Craig Segall of the Sierra Club, 
requesting that we revise critical habitat for the leatherback sea 
turtle (Dermochelys coriacea) to include nesting beaches and offshore 
marine habitats in Puerto Rico pursuant to the Act and the 
Administrative Procedure Act (APA). Section 553 of the APA states that, 
``Each agency shall give an interested person the right to petition for 
the issuance, amendment, or repeal of a rule'' (5 U.S.C. 553(e)).
    The petition clearly identified itself as such and included the 
requisite identification information for the petitioner, as required by 
50 CFR 424.14(a). The petition asserted that the beaches of the 
Northeast Ecological Corridor (NEC) of Puerto Rico (which would fall 
under the jurisdiction of the Service) are ``centrally important to the 
U.S. Caribbean leatherback population, and should be designated as 
critical habitat.'' The petition also maintained that the near-shore 
coastal waters off those beaches (which would fall under the 
jurisdiction of NMFS) ``provide room for turtles to mate and to access 
the beaches, and for hatchlings and adults to leave the beaches.'' It 
likewise asserted that the coastal zone within the NEC is particularly 
vulnerable to developmental pressure and to the growing impacts of 
climate change, and so warrants protection as critical habitat.
    The petition also requested that the agencies revise the recovery 
plan for the leatherback sea turtle at the earliest possible time, and 
that the agencies issue no Atlantic leatherback-related incidental take 
permits (save for permits supporting pure conservation research), issue 
no Atlantic leatherback-related habitat conservation plan, issue no 
Atlantic leatherback-related biological opinion, and take no other 
final agency action that could affect the Atlantic population of the 
leatherback sea turtle

[[Page 47135]]

or its habitat, until the petition to revise critical habitat was ruled 
on and without taking climate change fully into account. However, none 
of these additional requests are petitionable under the Act and, 
therefore, they are not addressed in this 90-day finding and 12-month 
determination.
    Under the Act, the Service and NMFS each have respective areas of 
jurisdiction over sea turtles, as clarified by the 1977 Memorandum of 
Understanding Defining the Roles of the U.S. Fish and Wildlife Service 
and the National Marine Fisheries Service in Joint Administration of 
the Endangered Species Act of 1973 as to Marine Turtles. The Service 
has jurisdiction over sea turtles and their associated habitats when 
they are on land, while NMFS has jurisdiction over sea turtles and 
their associated habitats in the marine environment. Thus, if Federal 
agencies are involved in activities that may affect sea turtles 
involved in nesting behavior, or may affect their nests or their 
nesting habitats, those Federal agencies are required to consult with 
the Service under section 7 of the Act to ensure that their activities 
are not likely to jeopardize the continued existence of the sea 
turtles. If a Federal action may affect sea turtles while they are in 
the marine environment, the Federal agency involved must engage in a 
section 7 consultation with NMFS, to ensure that the action is not 
likely to jeopardize the continued existence of the sea turtles. 
Similarly, if critical habitat has been designated, and Federal actions 
may affect such habitat, a section 7 consultation under the Act would 
be required to ensure that the Federal action is not likely to destroy 
or adversely modify the critical habitat. If the critical habitat has 
been designated on land, the consultation would be with the Service; if 
the critical habitat has been designated in the marine environment, the 
consultation would be with NMFS.
    On April 1, 2010, the Service sent a letter to the petitioner 
acknowledging receipt of the petition. On April 28, 2010, the Service 
received an e-mail from the Sierra Club transmitting a letter from 36 
nonprofit organizations and conservation interests outlining the 
importance of the NEC of Puerto Rico and recommending that it be 
designated as critical habitat for the endangered leatherback sea 
turtle. On June 2, 2010, the Sierra Club sent a Notice of Intent To Sue 
over the alleged failure of the Service and NMFS to make a 90-day 
finding.
    On July 16, 2010, NMFS published in the Federal Register its 90-day 
finding on the portion of the petition that falls under its 
jurisdiction and determined that the petition did not present 
substantial scientific information indicating that the petitioned 
action may be warranted (75 FR 41436). On November 2, 2010, the Sierra 
Club submitted to NMFS a second petition that included additional data 
supporting the requested action. In response to the second petition, 
NMFS made a 90-day finding that the petition presented substantial 
information indicating that the petitioned revision of designated 
critical habitat for leatherback sea turtles may be warranted (May 5, 
2011; 76 FR 25660).
    On February 23, 2011, the Sierra Club sent a Notice of Intent To 
Sue over the alleged failure of the Service and NMFS to make both the 
90-day and 12-month findings. On March 18, 2011, we sent a letter to 
the Sierra Club acknowledging receipt of the February 23, 2011, Notice 
of Intent To Sue. On May 27, 2011, the Sierra Club filed a complaint 
over the alleged failure of the Service to respond to the petition 
dated February 22, 2010, to revise critical habitat. This finding 
addresses the portion of the petition under the Service's jurisdiction.
    This 90-day finding and 12-month determination is responsive only 
to aspects of the petition that fall under the Service's jurisdiction, 
the terrestrial portion of the area as identified in the petition as 
``The coastline of the Northeast Ecological Corridor of Puerto Rico, 
running from Luquillo, Puerto Rico, to Fajardo, Puerto Rico, including 
the beaches known as San Miguel, Paulinas, and Convento, and extending 
at least .025 mile (132 feet) inland from the mean high tide line.''

Species Information

Worldwide Distribution
    Leatherback sea turtles have the widest distribution of sea 
turtles, nesting on beaches in the tropics and subtropics and foraging 
into higher-latitude subpolar waters. In the Pacific, they extend from 
the waters of British Columbia (McAlpine et al. 2004, entire) and the 
Gulf of Alaska (Hodge and Wing 2000, entire) to the waters of Chile and 
South Island (New Zealand), and nesting occurs in both the eastern and 
western Pacific (M[aacute]rquez M. 1990, pp. 54-55; Gill 1997, entire; 
Brito M. 1998, entire). They also occur throughout the Indian Ocean 
(Hamann et al. 2006, entire). In the Atlantic, they are found as far 
north as the waters of the North Sea, Barents Sea, Newfoundland, and 
Labrador (Threlfall 1978, p. 287; Goff and Lien 1988, entire; 
M[aacute]rquez M. 1990, pp. 54-55; James et al. 2005, entire) and as 
far south as Argentina and the Cape of Good Hope, South Africa 
(M[aacute]rquez M. 1990, pp. 54-55; Hughes et al. 1998, entire; Luschi 
et al. 2003, entire; Luschi et al. 2006, pp. 53-54), and nesting occurs 
in both the eastern and western Atlantic. Although leatherback sea 
turtles occur in Mediterranean waters, no nesting is known to take 
place in this region (Casale et al. 2003, pp. 136-138).
    Historical descriptions of leatherback sea turtles are rarely found 
in the accounts of early sailors, and the size of their population 
before the mid-20th century is speculative (NMFS and Service 2007, p. 
26). Even for large nesting assemblages like French Guiana and 
Suriname, nesting records prior to the 1950s are lacking (Rivalan et 
al. 2006, p. 2). By the 1960s, several nesting sites were being 
discovered in the western Atlantic, in Pacific Mexico, and in Malaysia. 
Soon after, other populations in Pacific Costa Rica and Mexico were 
identified. Today, nesting beaches are known in all major ocean basins 
with catastrophic declines observed in the eastern Pacific (Spotila et 
al. 2000, entire) and Malaysia (Chan and Liew 1996, pp. 196-197).
    In the eastern Pacific, important nesting beaches occur in Mexico 
and Costa Rica, with scattered nesting along the Central American coast 
(M[aacute]rquez M. 1990, pp. 54-55). Nesting is very rare in the Gulf 
of California, Mexico (Seminoff and Dutton 2007, p. 139). In the 
western Pacific, the main nesting beaches occur in the Solomon Islands, 
Papua, Indonesia, and Papua New Guinea (Limpus 2002, p. 44; Dutton et 
al. 2007, pp. 49-50). Minor nesting occurs in Vanuatu (Petro et al. 
2007, entire), Fiji (Rupeni et al. 2002, p. 122), and southeastern 
Australia (Dobbs 2002, p. 81; Hamann et al. 2006, p. 20); and it is 
very rare in the North Pacific (Eckert 1993, p. 73). In the Indian 
Ocean, major nesting beaches occur in South Africa, Sri Lanka, and 
Andaman and Nicobar islands, with smaller populations in Mozambique, 
Java, and Malaysia (Hamann et al. 2006, p. 8).
    In the eastern Atlantic, a globally significant nesting population 
is concentrated in Gabon, Africa, with widely dispersed but fairly 
regular nesting between Mauritania in the north and Angola in the south 
(Fretey et al. 2007, entire). Important nesting areas in the western 
Atlantic Ocean occur in Florida (USA); St. Croix, VI; Puerto Rico; 
Costa Rica; Panam[aacute]; Colombia; Trinidad and Tobago; Guyana; 
Suriname; French Guiana; and southern Brazil (M[aacute]rquez M. 1990, 
pp. 54-55; Spotila et al. 1996, pp. 212-213; Br[auml]utigam and Eckert 
2006, p. 8). Other minor nesting beaches are scattered throughout the 
Caribbean, Brazil, and

[[Page 47136]]

Venezuela (Mast 2005-2006, pp. 18-19; Hern[aacute]ndez et al. 2007, p. 
81).
    For additional information on the biology, status, and habitat 
needs of the leatherback sea turtle, refer to the Leatherback Sea 
Turtle (Dermochelys coriacea) 5-Year Review (NMFS and Service 2007, 
entire); the Recovery Plan for Leatherback Turtles (Dermochelys 
coriacea) in the U.S. Caribbean, Atlantic, and Gulf of Mexico (NMFS and 
Service 1992, entire); and the Recovery Plan for U.S. Pacific 
Populations of the Leatherback Turtle (Dermochelys coriacea) (NMFS and 
Service 1998, entire), available on the Internet at http://www.regulations.gov.

Evaluation of Information for the 90-Day Finding

    In making this finding, we relied on information provided by the 
petitioners, sources cited by the petitioners, and information readily 
available in the Service's files. We evaluated the information in 
accordance with 50 CFR 24.14(c). Our process for making this 90-day 
finding under section 4(b)(3)(D) of the Act and 50 CFR 424.14(c) of our 
regulations is limited to a determination of whether the information in 
the petition meets the ``substantial scientific information'' 
threshold. In making a finding, we consider whether the petition 
provides the following in accordance with 50 CFR 424.14(c)(2):
    (i) Information indicating that areas petitioned to be added to 
critical habitat contain physical or biological features essential to, 
and that may require special management to provide for, the 
conservation of the species involved; or
    (ii) Information indicating that areas currently designated as 
critical habitat do not contain resources essential to, or do not 
require special management to provide for, the conservation of the 
species involved.
    The Service's evaluation of this information is presented below. We 
have organized the petition's claims into four categories relative to 
50 CFR 424.14(c)(2)(i) as described above:.
    (1) Petition claims the leatherback sea turtle nesting sites in 
Puerto Rico represent the second most significant nesting activity in 
the United States, and that the beaches of the Northeast Ecological 
Corridor are the most important leatherback sea turtle nesting sites on 
the main island of Puerto Rico.
    The petition claims ``[t]he United States contains at least three 
significant leatherback nesting areas: Sandy Point on St. Croix in the 
U.S. Virgin Islands, which hosted 1,008 nests in 2001, Brava and Resaca 
Beaches on Puerto Rico's island of Culebra, and the beaches around 
Fajardo and Luquillo in the Northeast Ecological Corridor of Puerto 
Rico. The Puerto Rican beaches cumulatively hosted a minimum of 469-882 
nests each year between 2000 and 2005.'' The petition cites a Puerto 
Rico Department of Natural and Environmental Resources (PRDNER) 
management plan that describes the Corridor's beaches as '' `one of the 
most important leatherback nesting areas in Puerto Rico and in the 
jurisdiction of the United States,' noting that from 1993 to 2007, 
3,188 nests have been recorded, for an average of 213 nests annually.'' 
The petition asserts that revision of leatherback sea turtle critical 
habitat to include the beaches of the NEC of Puerto Rico is necessary 
to protect leatherback sea turtles. The petition states that the NEC, 
including its coastal waters, is ``a centrally important space for 
`individual and population growth,' because it is also a site for 
`breeding, reproduction, [and] rearing of offspring.' '' It asserts 
that ``[a]s two decades of data demonstrate, it is a `nesting ground' 
or `reproduction [site]' which includes the sandy beaches and open 
access to the ocean that constitute the `soil type' and `physical 
constituent elements' that leatherbacks need to survive.''
    The Service assessed information provided by the petitioner and 
available in our files. The Service agrees with the petitioner that 
Sandy Point in the U.S. Virgin Islands, Brava and Resaca Beaches on 
Puerto Rico's Island of Culebra and the Northeast Ecological Corridor 
on the main island of Puerto Rico are important nesting areas for 
leatherback sea turtles in the United States. However, important 
leatherback sea turtle nesting habitat also occurs in Florida, as well 
as elsewhere in Puerto Rico on the Island of Vieques and in the Maunabo 
area on the main island. A summary of key leatherback nesting beaches 
in the United States is provided below.
    In Florida, the majority of leatherback sea turtle nesting occurs 
along the Southeast Atlantic coastline in Brevard through Broward 
Counties. These counties encompass approximately 206 miles (332 km) of 
sandy coastline fronting the Atlantic Ocean (Clark 1993, p. 17). Within 
these counties, approximately 89 miles (143 km) have been identified as 
conservation lands (NMFS and Service 2008, pp. V-36-V-39). Conservation 
lands are defined as public ownership (Federal, State, or local 
government) and privately owned lands (e.g., nonprofit conservation 
foundations) that are generally managed in a way to benefit sea turtle 
conservation (NMFS and Service 2008, p. V-33). Therefore, beaches 
identified as conservation lands in Brevard through Broward Counties 
represent approximately 43 percent of all oceanfront beaches in these 
counties.
    The Florida Statewide Nesting Beach Survey (SNBS) program 
documented an increase in leatherback sea turtle nesting numbers from 
98 nests in 1989 to between 453 and 1,747 nests per season in the 
2000s, with the highest number of nests recorded in 2009 (Florida Fish 
and Wildlife Conservation Commission SNBS data). Although the SNBS 
program provides information on distribution and total abundance of sea 
turtle nesting statewide, it cannot be used to assess trends because of 
variable survey effort. Therefore, leatherback nesting trends are best 
assessed using standardized nest counts made at Index Nesting Beach 
Survey (INBS) sites surveyed with constant effort over time (1989-
2010). Under the INBS program, approximately 30 percent of Florida's 
SNBS beach length is surveyed. The INBS nest counts represent 
approximately 34 percent of known leatherback nesting in Florida. An 
analysis of the INBS data has shown an exponential increase in 
leatherback sea turtle nesting in Florida since 1989. From 1989 through 
2010, the annual number of leatherback sea turtle nests at the core set 
of index beaches ranged from 27 to 615 (Florida Fish and Wildlife 
Conservation Commission INBS data). Using the numbers of nests recorded 
from 1979 through 2009, Stewart et al. (in press) estimated a 
population growth of approximately 10.2 percent per year.
    In the U.S. Virgin Islands, leatherback sea turtle nesting has been 
reported on the islands of St. Croix, St. Thomas, and St. John. 
However, the most significant leatherback sea turtle nesting activity 
occurs on Sandy Point, St. Croix (NMFS and Service 1992, p. 2). 
Leatherback sea turtle nesting on Sandy Point was first brought to the 
attention of biologists in the mid-1970s (Boulon et al. 1996, p. 141), 
and flipper tagging of nesting turtles began in 1977 (Dutton et al. 
2005, p. 186). Since 1982, the Sandy Point beach has been consistently 
monitored each nesting season. In 1984, the Sandy Point National 
Wildlife Refuge was established and encompassed the Sandy Point beach. 
Between 1982 and 2010, the number of nests recorded on Sandy Point 
ranged from a low of 82 in 1986 to a high of 1,008 in 2001 (Garner and 
Garner 2010, pp. 18-20). Dutton et al. (2005, p. 189) estimated a 
population growth of approximately 13 percent per year from 1994 
through 2001 for this nesting population. Using the number of observed 
females at Sandy Point from 1986 to 2004, the Turtle Expert Working

[[Page 47137]]

Group (2007, pp. 48-49) estimated a population growth of approximately 
10 percent per year.
    In Puerto Rico, the main nesting areas are at Fajardo (NEC) and 
Maunabo on the main island, and on the islands of Culebra and Vieques. 
Between 1993 and 2010, the number of nests recorded in the NEC in the 
Fajardo area ranged from a low of 51 in 1995 to a high of 456 in 2009 
(C. Diez, PRDNER, unpublished data). In the Maunabo area, the number of 
nests recorded between 2001 and 2010 ranged from a low of 53 in 2002 to 
a high of 260 in 2009 (C. Diez, PRDNER, unpublished data). On the 
island of Culebra, the number of nests recorded between 1993 and 2010 
ranged from a low of 41 in 1996 to a high of 395 in 1997 (C. Diez, 
PRDNER, unpublished data). Approximately two-thirds of Vieques Island 
was occupied by the U.S. Navy beginning in the early 1940s and was used 
by the U.S. Department of Defense for military practices until 2002, 
when most of the U.S. Navy lands on Vieques Island were transferred to 
the Department of the Interior to form part of the Service's National 
Wildlife Refuge System.
    Monitoring of sea turtle nesting beaches on Vieques Island has been 
challenging due to access restrictions imposed during military 
operations and the presence of unexploded ordnance throughout most of 
the areas formerly used for military training by the U.S. Navy. On 
beaches managed by the Commonwealth of Puerto Rico on the island of 
Vieques, PRDNER recorded annually 14-61 leatherback nests between 1991 
and 2000; 145 nests in 2002; 24 in 2003; and 37 in 2005 (C. Diez, 
PRDNER, unpublished data). The number of leatherback sea turtle nests 
recorded on Vieques Island beaches managed by the Service were as 
follows:

     32 in 2001;
     163 in 2002;
     13 in 2003;
     28 in 2004;
     88 in 2005;
     92 in 2006;
     93 in 2007;
     52 in 2008;
     155 in 2009; and
     132 in 2010.

Nesting data for 2006 and 2010 include nests found on beaches off 
Service lands (8 and 6 nests, respectively). Since several beaches on 
Vieques' eastern portion are not regularly monitored for sea turtle 
nesting activity due to logistical difficulties and presence of 
unexploded ordnance, the average yearly number of sea turtle nests on 
Vieques Island is likely to be greater. Using the numbers of nests 
recorded in Puerto Rico between 1984 and 2005, the Turtle Expert 
Working Group (2007, p. 47) estimated a population growth of 
approximately 10 percent per year.
    Fajardo (NEC) and Maunabo are the primary leatherback sea turtle 
nesting areas on the main island of Puerto Rico. The NEC of Puerto 
Rico, running from Luquillo to Fajardo, PR, includes approximately 
3,200 ``cuerdas'' (3,108 acres or 1,259 hectares) within the properties 
referred to as San Miguel I and II, Las Paulinas, El Convento Norte, 
and Seven Seas. Three of these properties (Las Paulinas, El Convento 
Norte, and Seven Seas) are owned by the Puerto Rico Industrial 
Development Company (PRIDCO) and the National Parks Company (NPC), 
while the remaining properties are privately owned.
    Beaches within the NEC comprise approximately 5.43 miles (8.74 km) 
of sandy beaches that support leatherback nesting. Maunabo is located 
on the southeastern coast and has approximately 3.93 miles (6.32 km) of 
sandy beaches suitable for leatherback sea turtle nesting. Although 
beaches in Maunabo are public domain, uplands adjacent to these beaches 
are privately owned with the potential for future development. On the 
island of Culebra, the majority of leatherback sea turtle nesting 
occurs on Brava and Resaca beaches. Brava Beach is approximately 0.78 
mile (1.25 km) in length, while Resaca Beach is 0.62 mile (1.00 km) in 
length. All of the land surrounding Resaca Beach and part of the land 
surrounding Brava Beach is owned by the Service as part of the Culebra 
National Wildlife Refuge. Therefore, Resaca Beach is relatively 
protected from development.
    Although at present there is no development on the private land 
near Brava Beach, there is the potential for future development. On the 
island of Vieques, leatherback sea turtles nest on both the southern 
and northern beaches on the eastern portion of the island within the 
Vieques National Wildlife Refuge. The refuge encompasses approximately 
18.09 miles (29.11 km) of sandy beaches that may support leatherback 
sea turtle nesting. These beaches are protected from development.
    Although other important leatherback sea turtle nesting beaches 
occur in the United States besides those identified in the petition, 
the Service believes the information submitted by the petitioner about 
the importance of the NEC to leatherback sea turtle nesting in the 
United States is substantial for this claim.
    (2) Petition claims that leatherback sea turtles in the Atlantic 
Ocean have declined and could experience a similar decline as those in 
the Pacific Ocean if their habitat is not protected.
    The petition cites a number of studies about the population decline 
of leatherback sea turtles in the Pacific Ocean, and concludes that 
leatherback sea turtles in the Atlantic Ocean could experience a 
similar decline if their habitat is not protected. The petition also 
states that conditions in the Atlantic and Caribbean are relatively 
more stable than those in the Pacific, but that some declines in 
nesting have been documented or are believed likely to have occurred 
based on estimates on nesting declines for other sea turtle species. 
However, the petition did not cite or provide information about the 
status of leatherback sea turtle populations in the Atlantic Ocean.
    In 2007, the Turtle Expert Working Group published An Assessment of 
the Leatherback Turtle Population in the Atlantic Ocean and estimated a 
population size of 34,000-94,000 adult leatherback sea turtles in the 
North Atlantic (Turtle Expert Working Group 2007, p. 59). An increasing 
or stable population trend was seen in all regions of the Atlantic 
except West Africa for which no long-term data were available (Turtle 
Expert Working Group 2007, pp. 48-51). The nesting trend for the North 
Caribbean population, which includes Puerto Rico, was characterized as 
increasing. Furthermore, a near record number of leatherback nests 
(1,330 nests) was laid on Florida index beaches in 2010. Leatherback 
nest counts have been increasing exponentially in Florida (http://myfwc.com/research/wildlife/sea-turtles/nesting/beach-survey-totals-1989-2010/).
    The petition does not provide information to support the claim that 
leatherback sea turtle populations have substantially declined in the 
Atlantic since the 1978 critical habitat designation in St. Croix, VI. 
Thus, the Service does not believe the petition or information in our 
files presents substantial information to support this claim. The 
Service also does not believe the petition or information available in 
our files presents substantial information to support the claim that 
the leatherback sea turtles in the Atlantic Ocean are likely to 
experience declines similar to those in the Pacific if critical habitat 
is not revised to include the beaches of the NEC. Therefore, the 
Service finds that the petition does not present substantial 
information for this claim.
    (3) Petition claims that the evidence supporting designation of the 
Northeast

[[Page 47138]]

Ecological Corridor as critical habitat is stronger than the evidence 
used by the Service to designate critical habitat for Sandy Point, St. 
Croix, VI.
    The petition cites the 1978 critical habitat designation of the 
nesting beaches of Sandy Point, St. Croix, as a rationale for likewise 
designating the beaches of the NEC of Puerto Rico as critical habitat. 
The petition indicates that the current level of leatherback sea turtle 
nesting within the NEC is greater than the level of nesting that was 
observed at Sandy Point in 1977, which was used as justification for 
its designation as critical habitat.
    At the time of the 1978 critical habitat designation, Sandy Point 
in the U.S. Virgin Islands was the only known beach under U.S. 
jurisdiction used extensively for nesting by leatherback sea turtles. 
Its designation as critical habitat was ``taken to insure the integrity 
of the only major nesting beach used by leatherbacks in the United 
States or its territories'' (43 FR 43688; September 26, 1978). Since 
that time, as described in the Species Information section above, 
additional beaches have been identified in the United States as 
important for leatherback sea turtle nesting, including beaches in 
Puerto Rico and Florida. Therefore, the rationale used for the Sandy 
Point critical habitat designation is not applicable for the NEC. 
Therefore, the Service finds that the petition does not present 
substantial information for this claim.
    (4) Petition claims that threats on the nesting beach are 
substantial and that global climate change is exacerbating the 
situation.
    The petition claims threats to leatherback sea turtle nesting 
beaches, exacerbated by global climate change, further justify the need 
for designation of the NEC as critical habitat. The Service agrees 
there are substantial threats affecting leatherback sea turtle nesting 
habitat in the U.S. Atlantic. Leatherback nesting habitat is affected 
by development, including the construction of buildings, beach 
armoring, renourishment, and sand mining (Crain et al. 1995, entire; 
Lutcavage et al. 1997, pp. 388-391; Witherington 1999, pp. 180-181). 
These factors may directly, through loss of beach habitat, or 
indirectly, through changing thermal profiles and increasing erosion, 
serve to decrease the amount of nesting area available to nesting 
females, and may evoke a change in the natural behaviors of adults and 
hatchlings (Ackerman 1997, pp. 102-103; Mosier 1998, pp. 42-47; 
Witherington et al. 2003, pp. 7-10). In addition, coastal development 
is usually accompanied by artificial lighting. The presence of lights 
on or adjacent to nesting beaches alters the behavior of nesting adults 
and is often fatal to emerging hatchlings as they are attracted to 
light sources and drawn away from the water (McFarlane 1963, p. 153; 
Philibosian 1976, p. 824; Ehrhart and Witherington 1987, pp. 66-67; 
Witherington and Bjorndal 1991, pp. 146-147; Witherington 1992, pp. 36-
38; Villanueva-Mayor et al. 2003, entire).
    In 1990, a major part of the NEC was included as part of the 
coastal barrier system under the Coastal Barrier Resources Act (CBRA), 
as requested by the Puerto Rico Planning Board (PRPB). The CBRA 
encourages the conservation of hurricane-prone, biologically rich 
coastal barriers by restricting Federal expenditures that encourage 
development, such as federally subsidized flood insurance (16 U.S.C. 
3501-3510). In 1996, the PRPB rezoned the lands within the NEC as a 
tourist-residential development zone, allowing for recreational and 
tourism development of the area. Although the NEC had been designated 
as a Natural Reserve by the former Puerto Rico Governor in 2007, the 
new administration repealed the designation in October 2009. Thus, 
lands within the NEC continue under private and Commonwealth (PRIDCO, 
NPC) ownership, and are subject to potential future development. The 
NEC remains a unit within the CBRA system.
    Between 2007 and 2008, the Service awarded more than $4,000,000 for 
the acquisition of over 400 acres in the San Miguel area, and continues 
to support acquisition in the area to ensure long-term conservation of 
these lands, particularly for leatherback sea turtle nesting. However, 
development pressures exist, and there are no lighting codes or 
regulations in Puerto Rico. Therefore, development could threaten 
leatherback nesting within the NEC.
    As indicated in the petition, another factor that may affect 
leatherback sea turtle nesting habitat is climate change. Impacts from 
climate change, especially due to global warming, are likely to become 
more apparent in future years (Intergovernmental Panel on Climate 
Change 2007, pp. 12-17). The global mean temperature has risen 0.76 
degrees Celsius over the last 150 years, and the linear trend over the 
last 50 years is nearly twice that for the last 100 years 
(Intergovernmental Panel on Climate Change 2007, p. 5). One of the most 
certain consequences of climate change is sea level rise (Titus and 
Narayanan 1995, pp. 123-132), which will result in increased erosion 
rates along nesting beaches.
    On some undeveloped beaches, shoreline migration will have limited 
effects on the suitability of nesting habitat. Bruun (1962, pp. 123-
126) hypothesized that during sea level rise, a typical beach profile 
will maintain its configuration but will be translated landward and 
upward. However, along developed coastlines, and especially in areas 
where erosion control structures have been constructed to limit 
shoreline movement, rising sea levels are likely to cause severe 
effects on nesting females and their eggs (Hawkes et al. 2009, p. 139; 
Poloczanska et al. 2009, pp. 164, 174). Erosion control structures can 
result in the permanent loss of dry nesting beach or deter nesting 
females from reaching suitable nesting sites (National Research Council 
1990, p. 77). Nesting females may deposit eggs seaward of the erosion 
control structures potentially subjecting them to repeated tidal 
inundation.
    For additional information on threats affecting leatherback sea 
turtle nesting beaches, refer to the Leatherback Sea Turtle 
(Dermochelys coriacea) 5-Year Review (NMFS and Service 2007, pp. 32-
34); the Recovery Plan for Leatherback Turtles (Dermochelys coriacea) 
in the U.S. Caribbean, Atlantic, and Gulf of Mexico (NMFS and Service 
1992, pp. 9-14); and the Recovery Plan for U.S. Pacific Populations of 
the Leatherback Turtle (Dermochelys coriacea) (NMFS and Service 1998, 
pp. 21-23), available on the Internet at http://www.regulations.gov.
    The Service agrees with the petition that threats to leatherback 
sea turtle nesting habitat are substantial. We find the information 
submitted by the petitioner related to this claim to be substantial 
information for this claim.

90-Day Finding

    Based on the above information and information readily available in 
our files, and pursuant to criteria specified in 50 CFR 424.14(b), we 
find the petition presents substantial scientific information 
indicating that revision of the critical habitat designation for the 
leatherback sea turtle may be warranted.

12-Month Determination

    Pursuant to the provisions of the Act regarding revision of 
critical habitat and petitions for revision, we find that revisions to 
critical habitat for the leatherback sea turtle under the Act should be 
made. As described in the How the Service Intends to Proceed section 
below, we intend to fully assess critical habitat during the future 
planned status review for the leatherback sea turtle.

[[Page 47139]]

    The Service intends that any revisions to critical habitat for the 
leatherback sea turtle be as accurate as possible. To ensure that the 
status review is comprehensive, the Service will request scientific and 
commercial data and other information regarding the leatherback sea 
turtle from all concerned governmental agencies, the scientific 
community, industry, or any other interested party concerning this 
finding when we initiate the review.
    Until the Service is able to revise the critical habitat 
designation for the leatherback sea turtle, the currently designated 
critical habitat, as well as areas that support leatherback sea turtles 
but are outside of the current critical habitat designation, will 
continue to be subject to conservation actions implemented under 
section 7(a)(1) of the Act. Federal agency actions are subject to the 
regulatory protections afforded by section 7(a)(2), which requires 
Federal agencies, including the Service, to ensure that actions they 
fund, authorize, or carry out are not likely to jeopardize the 
continued existence of any listed species or result in the destruction 
or adverse modification of critical habitat.

How the Service Intends To Proceed

    One of the recommendations contained in the 5-year reviews for 
listed sea turtle species, completed in 2007, was that the Service and 
NMFS conduct an analysis and review for each listed sea turtle (except 
the Kemp's ridley sea turtle) to determine the application of the 
distinct population segment policy. After completing the reviews, the 
Service and NMFS made a decision to conduct the recommended sea turtle 
status reviews in the following order: (1) Loggerhead sea turtle, (2) 
Green sea turtle, (3) Olive ridley sea turtle, (4) Leatherback sea 
turtle, and (5) Hawksbill sea turtle.
    The loggerhead status review was selected to be conducted first 
because the species is listed as threatened worldwide, and there were 
substantial concerns about the status of some nesting populations. The 
green and olive ridley turtles were selected to be the second and third 
status reviews conducted because they have multiple vertebrate 
populations listed under the Act, some listed as threatened and some as 
endangered, and an assessment is needed to determine if these 
populations qualify as individual distinct population segments (DPSs) 
or are part of larger DPSs. The leatherback and hawksbill sea turtles 
were selected as the last two status reviews to be conducted because 
both species are listed as endangered worldwide and receive the fullest 
protection under the Act; therefore, the need for status reviews for 
these two species was deemed not to be as urgent as for the other 
species.
    Once a status review is completed for each species, a rulemaking 
process would be conducted, if appropriate, to revise the species' 
status, list a DPS of the species, or designate or revise critical 
habitat if prudent and determinable. The status review for the 
loggerhead sea turtle has been completed (Conant et al., 2009) and 
rulemaking is in progress (75 FR 12598; March 16, 2010); status reviews 
for the other species have not been initiated because they have been 
precluded by higher priority actions to amend the Lists of Endangered 
and Threatened Wildlife and Plants. It is our intention to assess 
leatherback sea turtle critical habitat as part of the future planned 
status review for the leatherback sea turtle.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the North Florida 
Ecological Services Office, U.S. Fish and Wildlife Service (see FOR 
FURTHER INFORMATION CONTACT).

Author

    The primary authors of this notice are the staff members of the 
U.S. Fish and Wildlife Service, North Florida Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT) and the Caribbean 
Ecological Services Field Office (P.O. Box 491, Boquer[oacute]n, PR 
00622; telephone 787-851-7297).

    Authority:  The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: July 26, 2011.
 Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-19676 Filed 8-3-11; 8:45 am]
BILLING CODE 4310-55-P