[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Rules and Regulations]
[Pages 4169-4201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-995]



[[Page 4169]]

Vol. 77

Thursday,

No. 17

January 26, 2012

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 226





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

Federal Register / Vol. 77 , No. 17 / Thursday, January 26, 2012 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 0808061067-1664-03]
RIN 0648-AX06


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

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

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule to revise the current critical habitat for the leatherback 
sea turtle (Dermochelys coriacea) by designating additional areas 
within the Pacific Ocean. This designation includes approximately 
16,910 square miles (43,798 square km) stretching along the California 
coast from Point Arena to Point Arguello east of the 3,000 meter depth 
contour; and 25,004 square miles (64,760 square km) stretching from 
Cape Flattery, Washington to Cape Blanco, Oregon east of the 2,000 
meter depth contour. The designated areas comprise approximately 41,914 
square miles (108,558 square km) of marine habitat and include waters 
from the ocean surface down to a maximum depth of 262 feet (80 m). 
Other Pacific waters within the U.S. Exclusive Economic Zone (EEZ) were 
evaluated based on the geographical area occupied by the species, but 
we determined that they were not eligible for designation, as they do 
not contain the feature identified as essential to the conservation of 
the species. The total estimated annualized economic impact associated 
with this designation is estimated to range between $188,000 and $9.1 
million U.S. dollars.

DATES: This rule becomes effective February 27, 2012.

ADDRESSES: This final rule and supporting documents (Economic Report, 
Endangered Species Act (ESA) Section 4(b)(2) Report and Biological 
Report) are available electronically on the NMFS Web site at http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents, or at 
the Federal eRulemaking Portal http://www.regulations.gov. Hard copies 
are available by contacting: Chief, Marine Mammal and Sea Turtle 
Conservation Division, NMFS, Office of Protected Resources, 1315 East 
West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Sara McNulty, NMFS, Office of 
Protected Resources, (301) 427-8402; Elizabeth Petras, NMFS Southwest 
Region, (562) 980-3238; Steve Stone, NMFS Northwest Region, (503) 231-
2317.

SUPPLEMENTARY INFORMATION: 

Background

    Under the ESA, we are responsible for determining whether certain 
species, subspecies, or distinct population segments (DPS) are 
threatened or endangered and for designating critical habitat for those 
species (16 U.S.C. 1533). The leatherback sea turtle was listed as 
endangered throughout its range on June 2, 1970 (35 FR 8491). Pursuant 
to a joint agreement, the U.S. Fish and Wildlife Service (USFWS) has 
jurisdiction over sea turtles on the land and NMFS has jurisdiction 
over sea turtles in the marine environment. The USFWS initially 
designated critical habitat for leatherbacks on September 26, 1978 (43 
FR 43688). This critical habitat area consists of a strip of land 0.2 
miles (0.32 kilometers) wide (from mean high tide inland) at Sandy 
Point Beach on the western end of the island of St. Croix in the U.S. 
Virgin Islands. On March 23, 1979, NMFS designated the marine waters 
adjacent to Sandy Point Beach as critical habitat from the hundred 
fathom (182.9 meters) curve shoreward to the level of mean high tide 
(44 FR 17710).
    On October 2, 2007, we received a petition from the Center for 
Biological Diversity (CBD), Oceana, and Turtle Island Restoration 
Network to revise the leatherback critical habitat designation by 
adding areas in the Pacific Ocean. On December 28, 2007, we announced a 
90-day finding that the petition provided substantial scientific 
information indicating that the petitioned action may be warranted (72 
FR 73745). On January 5, 2010 we published a combined 12-month finding 
and proposed rule to revise the critical habitat designation for this 
species (75 FR 319), followed by a notification of public hearings (75 
FR 5015, February 1, 2010), and a notification of the extension of the 
public comment period for an additional 45 days, (75 FR 7434, February 
19, 2010). As proposed, this rule identified eight specific geographic 
areas in the U.S. EEZ off the U.S. West Coast as critical habitat for 
the leatherback turtle, based on the presence in these areas of certain 
biological or physical features essential to conservation of the 
species for which special management consideration or protection might 
be required. In determining the areas that may be eligible for 
designation as critical habitat, regulations published at 50 CFR 
424.12(a)-(b) direct the Secretary to consider those physical or 
biological features that are essential to conservation of the species 
and that may require special management considerations or protection; 
and to focus on the principal biological or physical constituent 
elements within the area that are essential to the conservation of the 
species. Primary constituent elements (PCE's) in the proposed rule 
included migratory pathway conditions (i.e., the state of the areas 
through which leatherbacks traverse for feeding and reproduction), and 
the separate PCE of quality and quantity of prey.
    This final rule describes the final critical habitat designation, 
including responses to comments, a summary of changes from the proposed 
rule, and supporting information on leatherback sea turtle biology, 
distribution, and habitat use, and the methods used to develop the 
final designation. Based on review and evaluation of the comments 
received this final designation differs from our proposed designation 
in the following ways. We: (1) Eliminated ``migratory pathway 
conditions'' as a primary constituent element (PCE); (2) clarified the 
prey PCE to explicitly identify density of prey as a characteristic of 
the PCE; and (3) revised the boundaries of the specific areas in which 
the PCE is found. As a result of these changes, several occupied areas 
no longer meet the definition of critical habitat, and we have 
eliminated those areas from consideration in this final rule. These 
changes are reflected throughout the rule, and are described in detail 
below in the section ``Summary of Changes from the Proposed Rule.''
    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 before making a 
final designation. The Secretary has discretion to exclude an area 
otherwise meeting the definition of critical habitat from the 
designation if the benefits of the exclusion (i.e., the impacts that 
would be avoided if an area was excluded from the designation) outweigh 
the benefits of the designation (i.e., the conservation benefits to 
leatherbacks if an area was designated), so long as exclusion of the 
area will not result in extinction of the species.
    This evaluation process introduced various alternatives for the 
revision of designated critical habitat for the leatherback sea turtle, 
all of which we

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considered. The first alternative, not designating critical habitat for 
leatherbacks, would impose no economic, national security, or other 
relevant impacts, but would not provide any conservation benefit to the 
species. This alternative was considered and rejected because such an 
approach does not meet the legal requirements of the ESA and would not 
provide for the conservation of the species to the extent such benefits 
could be gained through designation.
    The second alternative, designating a subset of the areas that meet 
the definition of critical habitat and are therefore eligible for 
designation, our preferred alternative in the proposed rule, was also 
rejected. In our proposed rule we identified 8 particular areas meeting 
the definition of critical habitat and concluded that 5 out of these 8 
areas were eligible for exclusion based on the ESA section 4(b)(2) 
analyses. We then proposed to exclude all 5 areas from the critical 
habitat designation. However, as detailed in subsequent sections of 
this final rule, after reviewing the public comments and subsequently 
eliminating the migratory conditions PCE, and making boundary 
adjustments that resulted in the addition of area 9, we concluded that 
6 areas, including the 5 areas identified for exclusion in the proposed 
rule, did not contain the prey PCE and thus did not meet the definition 
of critical habitat. We confirmed that the three areas initially 
identified as critical habitat and proposed for designation continue to 
meet the definition of critical habitat. Our final 4(b)(2) analysis was 
revised to address only the three areas that meet the definition of 
critical habitat.
    The third alternative, designating the three areas as meeting the 
definition of critical habitat (i.e., no areas excluded), was 
considered and selected. We selected this alternative after conducting 
an ESA section 4(b)(2) analysis, and determining that the benefits of 
exclusion, including the avoidance or reduction of economic impacts, 
did not outweigh the conservation benefits to the species. The total 
estimated annualized economic impact associated with this designation 
is estimated to range between $188,000 and $9.1 million U.S. dollars. 
However, as explained below and detailed in the ESA Section 4(b)(2) 
Report (see ADDRESSES), the conservation benefit to the species 
outweighs these costs. We selected this third alternative because it 
would result in a critical habitat designation that provides for the 
conservation of the species and meets joint NMFS and USFWS regulations 
concerning critical habitat designation under the ESA (50 CFR part 
424).

Leatherback Natural History

    The leatherback is the sole remaining member of the taxonomic 
family Dermochelyidae. All other extant sea turtles belong to the 
family Cheloniidae. Leatherbacks are the largest marine turtle, with a 
curved carapace length (CCL) often exceeding 150 cm and front flippers 
that can span 270 cm (NMFS and USFWS, 1998). The leatherback's slightly 
flexible, rubber-like carapace is distinguishable from other sea 
turtles that have carapaces with bony plates covered with horny scutes. 
In adults, the carapace consists mainly of tough, oil-saturated 
connective tissue raised into seven prominent ridges and tapered to a 
blunt point posteriorly. The carapace and plastron are barrel-shaped 
and streamlined. Leatherbacks display several unique physiological and 
behavioral traits that enable this species to inhabit cold water, 
unlike other sea turtle species. These include a countercurrent 
circulatory system (Greer et al., 1973), a thick layer of insulating 
fat (Goff and Lien, 1988; Davenport et al., 1990), gigantothermy that 
limits heat loss (Paladino et al., 1990), and the ability to elevate 
body temperature through increased metabolic activity (Southwood et 
al., 2005; Bostrom and Jones, 2007). These adaptations also enable 
leatherbacks to have a larger geographic range than other species of 
sea turtle.
    Leatherbacks have the most extensive range of any living reptile 
and have been reported circumglobally throughout the oceans of the 
world (Marquez, 1990; NMFS and USFWS, 1998). Leatherbacks can forage in 
the cold temperate regions of the oceans, occurring at latitudes as 
high as 71[deg] N. and 47[deg] S.; however, nesting is confined to 
tropical and subtropical latitudes. In the Pacific Ocean, significant 
nesting aggregations occur primarily in Mexico, Costa Rica, Indonesia, 
the Solomon Islands, and Papua New Guinea. In the Atlantic Ocean, 
significant leatherback nesting aggregations have been documented on 
the west coast of Africa, from Guinea-Bissau south to Angola, with 
dense aggregations in Gabon. In the wider Caribbean Sea, leatherback 
nesting is broadly distributed across 36 countries or territories with 
major nesting colonies (>1000 females nesting annually) in Trinidad, 
French Guiana, and Suriname (Dow et al., 2007). In the Indian Ocean, 
nesting aggregations are reported in South Africa, India and Sri Lanka. 
Leatherbacks have not been reported to nest in the Mediterranean Sea.
    Migratory routes of leatherbacks are not entirely known. However, 
recent satellite telemetry studies have documented transoceanic 
migrations between nesting beaches and foraging areas in the Atlantic 
and Pacific Ocean basins (Ferraroli et al., 2004; Hays et al., 2004; 
James et al., 2005; Eckert, 2006; Eckert et al., 2006; Benson et al., 
2007a; Benson et al., 2011). In a single year, a leatherback may swim 
more than 10,000 kilometers (Eckert, 2006; Eckert et al., 2006; Benson 
et al., 2007a; Benson et al., 2011). Leatherbacks nesting in Central 
America and Mexico migrate thousands of miles into tropical and 
temperate waters of the South Pacific (Eckert and Sarti, 1997; 
Shillinger et al., 2008). After nesting, females from Jamursba-Medi, 
Indonesia, make long-distance migrations into the central and eastern 
North Pacific, westward to the Sulawasi and Sulu and South China Seas, 
or northward to the Sea of Japan (Benson et al., 2007a; Benson et al., 
2011). Turtles tagged after nesting in July at Jamursba-Medi arrived in 
waters off California and Oregon during July-August (Benson et al., 
2007a; 2011) coincident with the development of seasonal aggregations 
of jellyfish (Shenker, 1984; Suchman and Brodeur, 2005; Graham, 2009). 
Other studies similarly have documented leatherback sightings along the 
Pacific coast of North America during the summer and fall months, when 
large aggregations of jellyfish form (Bowlby, 1994; Starbird et al., 
1993; Benson et al., 2007b; Graham, 2009). Leatherbacks primarily 
forage on cnidarians (jellyfish and siphonophores) and, to a lesser 
extent, tunicates (pyrosomas and salps) (NMFS and USFWS, 1998). 
Leatherbacks forage widely in temperate and tropical waters and exploit 
diverse open-ocean and coastal habitats characterized by oceanic 
processes that aggregate prey, such as convergence zones, coastal 
retention areas, or mesoscale eddies (Morreale et al., 1994; Eckert, 
1998; 1999; Benson et al., 2011).

Summary of Comments and Responses

    We requested comments on the proposed rule and associated 
supporting reports to revise the critical habitat designation for 
leatherback sea turtles on January 5, 2010 (75 FR 319), and on February 
19, 2010 (75 FR 7434), we extended the comment period through April 23, 
2010. We held two public hearings to facilitate public participation, 
we made the proposed rule available on the NMFS Web site, and we 
accepted comments via standard mail, facsimile, and through the Federal 
eRulemaking portal. We received over 57,000 comments on the proposed 
rule

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from private, local, state, tribal and Federal entities. We also 
received peer review comments on the economic report and biological 
report. Comments ranged from general support of the rule to specific 
concerns regarding the analysis of threats. We have considered all 
public comments and peer review comments, and those that are responsive 
to the designation are addressed in this final rule in the following 
summary. We have assigned comments to major issue categories, and where 
appropriate, have combined similar comments.

Peer Review Comments

    In August 2009, a draft biological report developed by the critical 
habitat review team (CHRT) was provided to five external scientists 
with expertise in leatherback sea turtles and leatherback prey species. 
All peer review comments were incorporated into the proposed rule and 
associated supplementary documents prior to publication in the Federal 
Register. Therefore, no peer review comments regarding the biological 
report will be detailed in this rule.
    As a result of public comments on several sections of the draft 
biological report and the proposed rule, we updated the final 
biological report by adding detailed information on the presence of the 
prey feature considered a PCE in each of the areas identified in the 
proposed rule, as well as adding analysis and discussion on the usage 
of each area by leatherbacks for foraging.
    A draft of the economic report was sent out to four peer reviewers 
in October of 2009. Many of the responses received prior to the 
publication of the proposed rule were incorporated into the economic 
report. The comments detailed below were received after the publication 
of the proposed rule, and have been addressed in this final rule.
    Comment 1: One peer reviewer asked if there was a way to make the 
oil spill costs variable across areas, based on historical spill or 
area size.
    Response: In response to this and other comments, we reviewed 
additional data from the U.S. Coast Guard and NOAA Office of Response 
and Restoration on oil spill response to determine if costs could be 
broken down further; however, due to vast uncertainties in the size and 
location of oil spills, and the absence of existing data on the effect 
of U.S. West Coast critical habitat designations on the cost or even 
the extent of a potential spill response, we have decided it is not 
feasible to provide meaningful quantitative estimates of the 
incremental cost of oil spill response due to this leatherback critical 
habitat designation. As such, the oil spill response cost estimates 
provided in the initial economic report and the proposed rule have been 
omitted from this final rule. In our final economic report we have 
detailed a qualitative discussion regarding potential economic impacts 
to oil spill response. This revision (i.e., replacing quantitative 
costs with a qualitative discussion of economic impacts to oil spill 
response activities) as a result of the high level of uncertainty is 
consistent with NMFS' economic analysis for the recently designated 
critical habitat for black abalone (76 FR 66806; October 27, 2011).
    Comment 2: One peer reviewer questioned how our economic analysis 
treated proposed desalination plants, which may not ultimately be 
permitted or constructed. Specifically, each specific area evaluated 
has different ratios of existing to proposed desalination plants, so 
their ranking could be affected if you discounted the proposed plants 
in some way.
    Response: In our analysis, we identified desalination plants as a 
potential threat to leatherback critical habitat in two areas (Areas 1 
and 7) off the coast of California. We contacted Dean Reynolds and Ray 
Hoagland at the California Coastal Commission in order to obtain 
information on the probability that proposed desalination plants will 
be permitted and constructed. They conveyed that they do not have any 
statistical information on probability of proposed desalination plants 
being permitted or built. They also said that there are a wide variety 
of environmental, economic and political factors that affect whether a 
proposed desalination project is permitted. Also, although some 
desalination projects listed in the economic analysis may not ever be 
finalized, others will be proposed in the future, so they felt the 
economic analysis was sufficient given the available information. 
Therefore, we did not revise the analysis of desalination plants.

Public Comments

Comments on Specific Area Boundaries

    Comment 3: Several commenters questioned the delineation of area 
boundaries with respect to prey abundance. Overall the comments on this 
topic appeared to seek additional information on how the area 
boundaries were created and whether the abundance of prey contributed 
to the location of area boundaries and the subsequent designation, 
particularly in the areas south of Point Sur, California.
    Response: Many factors were used in determining the proposed area 
boundaries, including geographic and oceanographic features, 
leatherback presence, and leatherback prey concentration.
    Neritic waters off the central California coast were included to 
encompass a prominent oceanographic front that occurs between cool, 
nearshore upwelling-modified waters and warmer offshore waters of the 
California Current. The front is located within 60 miles of the coast, 
providing a mechanism for aggregating leatherback prey, primarily brown 
sea nettles that have been advected from neritic central California 
waters, and moon jellies (Aurelia sp.; Benson, unpublished). The 
southern and offshore areas have been used by foraging leatherback 
turtles equipped with satellite-linked transmitters (Benson et al., 
2011) and are part of a contiguous marine bioregion that extends from 
Cape Mendocino to Point Arguello, California.
    In response to this and other comments, we have reviewed all 
boundaries of our proposed specific areas and made several adjustments. 
These changes are detailed in the final biological report and below in 
the section, ``Summary of Changes from the Proposed Designation.''
    Comment 4: A number of commenters stated that our proposed Area 7, 
which is located nearshore and offshore from Point Arena, to Point 
Vicente, California, should be modified to exclude the area south of 
Point Arguello, California due to the different ocean conditions and 
lack of jellyfish in the area. Other commenters questioned the offshore 
boundary of Area 7, which extended to a line connecting 38[deg]57'14'' 
N./126[deg]22'55'' W. and 33[deg]44'30'' N./121[deg]53'41'' W.
    Response: As stated above, based on this and other comments related 
to the usage and boundaries of Area 7, we re-evaluated the features 
within this area and determined that it was appropriate to revise the 
boundaries for this area and provide a more detailed justification for 
these new boundaries. Due to differences in the geography, 
oceanography, and usage by leatherbacks between the northern and 
southern portions of our proposed Area 7, the southern portion of Area 
7 (south of Point Arguello, California) is now identified as a separate 
area, Area 9. This separation of the southern and northern portions of 
our proposed Area 7 allowed us to look at areas with more uniform value 
in terms of leatherback habitat. Additionally, in an effort to be 
consistent with other area boundaries

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marked by geographic features, the offshore boundary of Area 7 has been 
moved east to the 3,000 m isobaths. Additional information on changes 
to the area boundaries can be found in the section ``Summary of Changes 
from the Proposed Designation.''

Comments on Areas Included or Excluded From the Designation

    Comment 5: Many commenters specifically suggested that NMFS should 
designate Areas 4, 5, 6, and 8 (or a subset of these four areas) as 
critical habitat for leatherback turtles because they are important 
migratory corridors necessary to gain access to the coastal foraging 
areas, and others stated that these offshore areas should be designated 
to be precautionary and account for oceanographic variability.
    Other commenters provided general suggestions that since 
leatherbacks do not have predictable migration routes NMFS should 
designate large sections of ocean as critical habitat, if those areas 
are used by leatherbacks during their migrations.
    Some commenters also suggested that Area 5 should be included for 
its importance as a secondary foraging area, as well as its importance 
for access to both the northern and southern coastal foraging areas, 
while another group of commenters suggested that Area 8 should be 
designated, as it is an area in which leatherbacks wait for upwelling 
to subside and water in Area 7 to warm, and because it is used as a 
passage to and from coastal foraging areas.
    Response: We grouped these comments together, as they all 
recommended inclusion of offshore areas in this designation, many with 
particular interest in designating migration routes or areas that allow 
leatherbacks to access coastal foraging areas. In response to these 
comments and concerns, we re-evaluated the occupied areas within the 
U.S. West Coast EEZ, the boundaries of each of the areas, and the 
criteria used to determine whether the areas are eligible for 
designation as critical habitat and finally whether they were eligible 
for possible exclusions. Through this process, we detailed how each of 
the offshore areas are used by leatherbacks. This evaluation resulted 
in some adjustments to the area boundaries to better reflect the 
geographic and oceanographic features, leatherback presence, and prey 
concentrations, as well as the addition of a ninth area. These changes 
are detailed below in the section ``Summary of Changes from the 
Proposed Designation.''
    In response to the comments focusing on the need to designate 
offshore areas for their value as migratory areas or corridors, we re-
evaluated our analysis of all areas in terms of our proposed migratory 
pathway PCE. In our proposed rule, we recognized that to complete their 
life history, leatherback turtles must migrate through the offshore 
areas to access nearshore foraging areas; therefore, we proposed that 
an essential feature of leatherback habitat is ``migratory pathway 
conditions.'' We acknowledged, however, that based on the most current 
scientific information it was difficult to define specific migratory 
corridors, and we were therefore not able to provide any detail about 
what physical, biological, or hydrographic features specifically define 
``migratory pathway conditions.'' We solicited additional information 
on this PCE during the public comment period. However, peer review and 
public comments did not provide any additional information leading us 
to identify such features, and many commenters agreed that available 
evidence indicates that leatherback turtles do not have predictable 
migration routes. While water temperature gradients may influence 
leatherback migration pathways, at this time we cannot identify any 
known or consistent physically defined migratory corridors or 
associated specific areas that would consistently contain features of a 
migratory corridor for leatherbacks off the U.S. West Coast. As such, 
we have eliminated the migratory pathway PCE from this critical habitat 
designation. Additional information detailing this change and the 
analysis can be found in the final Biological Report and below in the 
section ``Summary of Changes from the Proposed Designation.''
    Given the elimination of the migratory pathway PCE, we then focused 
our response to this comment on the prey PCE and the foraging activity 
that was occurring in offshore areas. In our proposed rule, we noted 
that there is a distinct difference between nearshore and offshore 
areas with regard to leatherback foraging behavior and the availability 
of the prey PCE to leatherbacks. The intention of our prey PCE in the 
proposed rule was to differentiate between foraging areas and determine 
which areas truly contain the prey feature essential to the 
conservation of the species. Through discussions evaluating these 
public comments, we determined that our evaluation of the prey PCE 
should more systematically consider the quality, quantity, and density 
of prey in each area. As such, we have added the term ``density'' to 
the prey PCE definition in order to explicitly recognize that density 
of the prey is a critical characteristic of the prey PCE. Further 
clarification with respect to the components of the prey PCE is 
provided in later sections of this rule (see ``Summary of Changes from 
the Proposed Designation'').
    Based on the elimination of the migratory pathway PCE, and the more 
systematic consideration of our prey PCE, we re-evaluated each area to 
determine if it contains the prey feature (including density) 
identified as essential to the conservation of the species. In our 
proposed rule, we made the determination that the prey PCE was present 
in every area. This determination was made based on information that 
leatherbacks forage periodically and opportunistically during 
migrations. However, during the proposed rule analysis we did not look 
further at the type of prey they forage on in those instances, and if 
that level of foraging is expected to support leatherback individual 
and population growth, reproduction, and development, as defined in our 
PCE. We found that the offshore areas 4, 5, 6, and 8 (in addition to 
nearshore areas 3 and 9) do not contain the prey PCE, and therefore do 
not meet the definition of critical habitat. Additional information on 
this analysis can be found in the final Biological Report and below in 
the section ``Summary of Changes from the Proposed Designation.''
    In response to the comments suggesting that Area 5 should be 
designated based on its use as a secondary foraging area, as described 
above, we specifically looked at leatherback behavior and foraging 
within Area 5, and found that although some foraging activity has been 
documented in this area, this activity has been brief and inconsistent 
and the available evidence does not indicate this areas contains the 
prey PCE. Therefore, Area 5 does not meet the definition of critical 
habitat and will not be included in the final designation.
    Comment 6: Several commenters suggested that the area proposed for 
designation is too large and should be reduced to include only the 
primary coastal foraging areas (Areas 1 and 6).
    Response: In response to this and other comments, and as stated 
above, we re-evaluated our area boundaries and made several changes to 
better reflect the geographic and oceanographic features that 
contribute to use by leatherbacks, as well as leatherback presence and 
prey concentration in each area. Also, as mentioned above, we 
eliminated the proposed migratory pathway PCE, and therefore based our 
final designation on the prey PCE alone.

[[Page 4174]]

The resulting final designation is approximately 41,914 square miles, 
which is smaller than the proposed designation. The final designation 
focuses on the known and consistent coastal foraging areas that 
leatherbacks rely on after long migrations across the Pacific Ocean.
    The decrease in size of the designated critical habitat is largely 
due to the offshore boundary change for Area 7. This change was 
initiated in response to commenters that questioned how boundaries were 
drawn and the overall size of Area 7. Area 7 was adjusted to reflect 
the oceanographic differences north and south of Point Conception, 
California. The Biological Report includes detailed discussion of this 
change. The final designation of Areas 1, 2, and 7, with adjustments to 
the area boundaries from the proposed rule, better represents the 
coastal foraging areas that are used by leatherback sea turtles and 
that contain the prey PCE.
    Comment 7: The Ocean Conservancy and several other commenters 
questioned the exclusion of Area 3, and provided information that 
stated Area 3 is necessary as critical habitat as it encompasses the 
area between to the proposed Areas 1 and 2, and is part of the 
California Current System. Commenters also noted that it is possible 
that leatherbacks may shift their distribution and make greater use of 
Area 3 for foraging due to the El Ni[ntilde]o Southern Oscillation 
events and global warming. The commenters also noted that Cape Blanco, 
within Area 3 is a major upwelling center, and is described as an area 
of persistent jellyfish abundance north and south of Cape Blanco. Other 
commenters suggested that the designation of Area 3 would allow for a 
contiguous band of critical habitat along the coast, and would ensure 
that there was not any gap in coverage for current coastal foraging 
areas.
    Response: In response to comments, we re-evaluated the features 
found in Area 3 and determined that the boundary between Area 3 and 
Area 2 should be moved south to Cape Blanco, Oregon, as this area 
appears to be a more appropriate transition zone based on oceanographic 
features and data on leatherback presence. However, Area 3, the area 
between Cape Blanco, Oregon, and Point Arena, California, is 
characterized by cold, newly up-welled water. These waters provide 
nutrient input for phytoplankton production and subsequent energy 
transfer to higher trophic levels further south and offshore. However, 
these same waters are typically avoided by leatherbacks (Benson et al., 
2011). Although moon jellies can be abundant in this region, 
aggregations of sea nettles, the preferred prey of leatherbacks and 
prey of higher caloric value, are less common. For example, Graham 
(1993, 1994 in Suchman and Brodeur (2005)) hypothesized that brown sea 
nettles, the preferred prey of leatherbacks, remain in areas where a 
warm, low-chlorophyll shadow of water persists shoreward of the 
upwelling front such as in Monterey Bay. Such features are not known to 
regularly occur along such parts of the Oregon coastline. Furthermore, 
although leatherbacks are able to tolerate cold waters through a 
physiological mechanism that allow them to elevate body temperature 
through increased metabolic activity, occupying colder waters is 
expected to have energetic costs for leatherbacks when prey are less 
abundant or contain fewer calories per individual jellyfish species 
(i.e., the calories expended to maintain body temperature in cold 
waters may not be offset by consumption of low calorie moon jellies 
versus the higher calorie sea nettles). Our review of leatherback 
turtle telemetry data and multiple aerial surveys indicates that 
leatherbacks forage in warmer upwelled-modified waters where sea 
nettles are abundant and excessive energy is not lost trying to 
regulate body temperature (Benson et al., 2011). Available data suggest 
that the waters north of Cape Blanco (now within Area 2) and the waters 
south of Point Arena (within Area 1) are used regularly for foraging. 
In contrast, the area between Cape Blanco and Point Arena (Area 3), is 
generally avoided by leatherbacks and does not provide ideal habitat 
for the production of their preferred prey species (i.e., sea nettles).
    As such, we have determined that Area 3 does not contain the prey 
PCE. Therefore, this area is not eligible for designation as critical 
habitat.
    Comment 8: Several commenters stated that there was no biological 
reason to expand critical habitat south of Point Sur, California since 
the available biological data indicate that leatherbacks rarely occupy 
that area, and this will result in a much greater critical habitat area 
than necessary.
    Response: We agree with the commenters that data indicate that 
leatherbacks are more likely to occur in higher densities north of 
Point Sur, California than in areas to the south. However, leatherbacks 
have been tracked in the waters south of Point Sur (Benson et al. 
2011); therefore, it is considered an occupied area and should 
therefore be considered as potential critical habitat.
    As noted above, and in response to this and other comments, we re-
evaluated the southern portion of Area 7, and determined that the 
waters south of Point Arguello, California are substantially different 
than the waters to the north; thus, we identified the waters south of 
Point Arguello to be a new area, Area 9. NMFS then evaluated Area 9 for 
its usage by leatherback sea turtles and for the presence of the prey 
PCE. It was found that Area 9 does not contain the prey PCE, as 
detailed below in the section ``Summary of Changes from the Proposed 
Designation,'' and thus does not meet the definition of critical 
habitat.

Comments on Tribal Lands

    Comment 9: The Makah and Quileute tribes in Northwest Washington 
expressed concerns about the manner in which NMFS engaged them through 
the critical habitat designation process prior to the proposed rule. 
Each tribe objected to the proposed designation of critical habitat in 
marine areas identified as tribal usual and accustomed fishing grounds 
and requested that NMFS provide them an opportunity for government-to-
government consultation to discuss the implications of the designation. 
The Quileute tribe also raised concerns about our consideration of 
areas beyond those addressed in the petition as well as the limited 
information supporting our proposed rule. Additionally, the National 
Ocean Service (NOS) and the Pacific Fisheries Management Council (PFMC) 
raised similar concerns and requested that NMFS clarify the impacts of 
this critical habitat designation on the Northwest tribes.
    Response: As described in the proposed rule and documentation 
supporting this final rule, we acknowledge that the best available 
information on habitat use by leatherback turtles in the northeast 
Pacific Ocean is limited. We reviewed maps indicating that some Indian 
lands along the Washington coast likely overlap with areas under 
consideration as critical habitat for leatherback turtles. These 
overlapping areas consist of a narrow intertidal zone associated with 
several coastal Indian reservations, from the line of mean lower low 
water (an average of lower low water heights observed over a given 
period) to the extent of tribal land demarcated by the line of extreme 
low water (the lowest water height recorded for a given section of 
shoreline). In consideration of Executive Order 13175 ``Consultation 
and Coordination with Indian Tribal Governments'' and the 1997 
Secretarial Order, ``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities and the Endangered Species Act,'' we

[[Page 4175]]

contacted senior tribal staff early in the process of preparing our 
proposed rule and discussed with them the nature of the designation. To 
further coordinate with tribal governments, we discussed leatherback 
critical habitat during a regular annual meeting with the Northwest 
Indian Fisheries Commission and member tribes in August 2008. Between 
the time of our proposed rule and this final rule we made numerous 
additional attempts to arrange meetings between the NMFS Northwest 
Region's Deputy Regional Administrator and members of all the coastal 
tribes in the U.S. northwest. Although we met with the tribes, the 
leatherback critical habitat topic was removed from the meeting agendas 
because the tribes identified other fishery management issues as having 
a higher priority. We were able to have a government-to-government 
meeting with the Makah tribe on June 9, 2011, to discuss the 
designation and the tribe's concerns with a senior NMFS administrator 
and lead agency staff working on the critical habitat designation.
    Between the proposed and final rule, we re-assessed several spatial 
and biological elements of the proposed critical habitat designation 
and determined that the line of extreme low water more accurately 
depicted the shoreward extent of areas occupied by leatherback turtles 
(i.e., they are foraging in these waters and not accessing the 
beaches). Given this boundary change, there is no longer an overlap 
between designated areas and areas that meet the definition of Indian 
lands.
    NMFS acknowledges the presence of tribal usual and accustomed 
fishing grounds within Area 2. We considered the tribal concerns and 
concluded that the benefits of excluding these particular usual and 
accustomed fishing areas do not outweigh the benefits of designating 
these areas as critical habitat for leatherback turtles. The tribes 
have not identified any treaty-related activities in their usual and 
accustomed fishing areas that are likely to affect jellyfish and 
therefore likely to be affected by a critical habitat designation. 
Moreover, usual and accustomed fishing areas, while vitally important 
to the exercise of treaty-secured fishing rights, are not reserved by 
the United States for the exclusive use of a tribe, nor are they 
subject to the sovereign authority of a tribal government, as is the 
case with Indian lands. For these reasons, we conclude there are no 
impacts from this critical habitat designation on treaty-secured 
fishing rights, and little impact to tribal sovereignty and self-
governance.
    During the government-to-government consultation, the Makah tribe 
expressed concern for their ability to engage in cooperative projects, 
such as future alternative energy development, within their usual and 
accustomed fishing grounds, if designated as critical habitat. Through 
that discussion we informed the Makah tribe that the designation of 
critical habitat will not preclude such projects from moving forward; 
however, any projects that are federally funded or authorized and that 
may impact leatherback sea turtles or the PCE will be required to 
undergo an ESA section 7 consultation to evaluate the impact of the 
project on listed species and designated critical habitat.
    We acknowledge that the Makah Indian Tribe disagrees with our 
assessment and is concerned about potential impacts to the tribe's 
fishing rights. We will continue to coordinate with the tribe as we 
implement our responsibilities under section 7 with respect to 
leatherback turtles and address any conflicts, if they arise, in a 
government-to-government consultation.

Comments on Exclusions for National Security

    Comment 10: The Department of Defense (DOD) commented that the 
proposed critical habitat area would overlap with sea space used by the 
Navy at the Point Mugu Sea Range, the Northwest Training Range Complex, 
and the Naval Undersea Warfare Center Keyport Range Complex. The Navy 
identified national security impacts if critical habitat were to be 
designated for the areas identified above, as critical habitat may 
restrict or prohibit implementation of required training and result in 
impacts to the Navy's readiness and ability to perform its mission. 
Therefore, the Navy requested that NMFS exclude these areas through the 
4(b)(2) analyses. Additionally, The Oregon Military Department also 
identified areas offshore of Camp Rilea and recommended that NMFS not 
designate those waters as critical habitat.
    Response: In response to the Navy's comments, multiple informal 
discussions occurred between NMFS and Department of Defense (DOD). 
During this time frame NMFS revised its critical habitat designation to 
include only one PCE, the prey PCE. As required by section 4(b)(8) of 
the ESA, we briefly evaluate and describe in this final rule to the 
maximum extent practicable, those activities that might occur within 
the areas designated and that may destroy or adversely modify critical 
habitat designated or be affected by such designation. We conclude that 
the Navy's present training activities are not the types of activities 
that may adversely modify critical habitat designated for the 
leatherback, specifically the prey PCE, or likely to be affected by the 
designation. As a result, we conclude that the present Navy training 
activities are not likely to be affected by this designation of 
critical habitat. Because designation is not likely to affect Navy 
activities, we conclude that the designation would have no appreciable 
impact on national security. Through our ESA section 4(b)(2) analysis, 
we determined that the benefits to national security of exclusion do 
not outweigh the benefits of designation. Therefore, Navy training 
ranges and the waters referenced by the Oregon Military Department will 
not be excluded for this designation.
    Comment 11: We received comments that indicated that there are 
numerous military and government installations located within the 
proposed critical habitat. The commenter further stated that three 
military installations within the proposed designation are, or have 
recently, been subject to Integrated Natural Resource Management Plans, 
or INRMPs, including Vandenberg Air Force Base, Presidio of Monterey, 
and the Naval Post-Graduate School. Overall, the commenter expressed 
concern that critical habitat would negatively impact military and law 
enforcement actions along the U.S. West Coast.
    Response: The commenter is correct in that there are existing 
INRMPs for military installations within the areas under consideration 
as critical habitat. However, under the ESA we must be able to conclude 
that a particular INRMP provides a benefit to the species at issue, and 
only then can a particular site associated with the INRMP be considered 
ineligible for designation. We reviewed the existing INRMPs but have 
determined that none contain sufficient information on direct and 
indirect effects on leatherback sea turtles, their prey, or the areas 
occupied to conclude that the INRMP would provide a benefit to the 
species. Therefore, we considered the areas associated with these 
INRMPs to be eligible for consideration as leatherback critical 
habitat.

Comments on Primary Constituent Elements

    Comment 12: Several commenters indicated that NMFS should designate 
as critical habitat the passage corridors that leatherback turtles use 
to gain access to jellyfish concentrations in nearshore waters. Other 
commenters

[[Page 4176]]

stated that NMFS did not accurately evaluate the migratory pathway PCE 
of each area, as they were given the same score when rated for their 
passage conservation value.
    Response: As noted above, in response to numerous comments 
regarding migratory corridors, we re-evaluated the migratory pathway 
PCE. In our proposed rule, we recognized that leatherback turtles must 
migrate through the offshore areas to access foraging areas in the 
nearshore environment; however, we acknowledged that it is difficult to 
define specific migratory corridor conditions. At this time, we cannot 
identify any known and consistent geographically defined migratory 
corridors or discrete areas that would consistently contain the 
features that define a migratory corridor for leatherbacks off the U.S. 
West Coast, and we have therefore eliminated the migratory pathway PCE 
from this critical habitat designation.
    Both NMFS and the USFWS have identified some form of passage or 
migration corridors as PCEs in other critical habitat designations, but 
the species and the habitat involved differ significantly from 
leatherback sea turtles. For example, ``migratory corridor'' was 
identified as a PCE in NMFS' final critical habitat designation for the 
threatened southern distinct population segment (DPS) of North American 
green sturgeon. Through tagging studies and fisheries bycatch 
information, researchers found that green sturgeon are primarily 
associated with bottom habitats in the ocean and travel along the coast 
in a migration corridor that is defined by bathymetry (specifically, a 
60 fathom contour) (74 FR 52300; October 9, 2009). Unlike green 
sturgeon, leatherback sea turtles are not well associated with bottom 
habitat or bathymetry, travel thousands of miles, and occupy the entire 
U.S. EEZ.
    The final critical habitat designation for the DPS of Southern 
Resident killer whales (SRKW) identified ``passage conditions to allow 
for migration, resting, and foraging'' as a PCE (71 FR 229; November 
29, 2006). For the SRKW, one specific area primarily defined by the 
passage feature was the Strait of Juan de Fuca, a relatively narrow 
marine corridor, through which all members of this DPS of killer whales 
must pass on their migrations between open ocean and coastal waters and 
inland waters and in which all of the members of this DPS forage in the 
late spring through the fall. Unlike this DPS of killer whales, 
leatherback sea turtles are able to use vast areas within the open 
ocean for migration.
    In addition, the characteristics that cause leatherbacks to use an 
area for passage (i.e., the specific biological or physical features of 
habitat) are largely unknown. At this time, NMFS cannot identify any 
known and consistent geographically-defined migratory corridors for 
leatherbacks off the U.S. West Coast.
    Without specific physical or biological features predictably 
occurring within a defined geographic area to define a passage 
corridor, such as depth, or even a specific location where many 
individuals are likely to pass through to access foraging areas, NMFS 
concludes that our previously defined passage PCE does not meet the 
statutory criteria in the ESA section 3(5)(A)(i) as implemented by our 
regulatory guidance for determining a PCE (50 CFR 424.12(b)).
    Comment 13: Several commenters recommended that NMFS should 
identify water quality as a PCE, with specific concerns regarding the 
impact of non-point source pollution, storm water runoff, agricultural 
land runoff, plastic debris, trash, and heavy metals on leatherbacks 
and their prey. The Center for Biological Diversity (CBD) and Defenders 
of Wildlife expressed particular concern about the potential impacts of 
ocean acidification on leatherbacks, and cited a number of possible 
impacts ranging from changes in prey physiology to food web changes 
that might affect prey availability for leatherbacks.
    Alternatively, other commenters suggested that water quality should 
not be identified as a PCE, as there is little or no information on the 
effects of water quality on sea turtles.
    Response: In response to both perspectives, we re-evaluated whether 
to identify water quality as a separate PCE. At the proposed rule stage 
we reviewed available literature and previous agency determinations 
regarding water quality, and as a result did not identify water quality 
as a separate PCE. In our proposed rule we specifically requested 
comments and available data on this topic. In response to comments, we 
reviewed literature for new information, and we again conclude that we 
currently lack information to determine the relative impact and 
importance of water quality directly on the health of leatherback sea 
turtles. Thus, we do not identify water quality as an independent and 
separate PCE in this final designation. As more research is completed, 
and we learn more of the biological and ecological requirements of 
leatherbacks off the U.S. West Coast and how water quality and specific 
toxins and contaminants impact leatherbacks, we may determine that 
water quality should be a PCE. In our proposed rule we specified that 
the quality of the prey PCE is essential to the conservation of 
leatherback turtles and that this factor may depend on water quality. 
Adverse modification of leatherback critical habitat would result from 
actions that affect prey populations to the extent that they cannot 
provide for the conservation needs of leatherbacks.
    To ensure that our interpretation of water quality as a PCE was 
appropriate, we reviewed all recent NMFS critical habitat designations. 
Of note, the critical habitat designations for two marine mammals, the 
Cook Inlet beluga whale and the SRKW distinct population segment, 
include water quality as a feature essential to the conservation of the 
species. Both of these marine mammals have relatively small populations 
that forage on a seasonal basis in core areas, such as narrow inlets or 
inland waters adjacent to urban areas with large human populations or 
industrialization. Cook Inlet belugas are not known to migrate, and 
little is known of the offshore movements of SRKWs following their 
summer/fall residency in ``core'' inland areas. Research has shown that 
killer whales accumulate high concentrations of contaminants, including 
PCBs, DDT, heavy metals and flame retardants, which may induce immune 
suppression or reproductive impairment and this may be having 
population level effects and impeding their recovery. NMFS determined 
that water ``free of toxins'' was essential to the conservation of the 
Cook Inlet beluga and ``water quality to support growth and 
development'' was essential to the conservation of the SRKWs given 
these species' limited range during all or parts of the year.
    In contrast to SRKWs, leatherbacks are wide ranging, and the 
population as a whole does not depend on one or more ``core'' areas to 
access their prey. In addition, leatherbacks do not use inland 
waterways, where land-based and nearshore sources of pollution may 
present a greater threat to their recovery.
    In response to specific concerns regarding ocean acidification, we 
acknowledge that there is growing concern that rising concentrations of 
atmospheric carbon dioxide will change the ocean's carbonate chemistry 
system (e.g., acidification/declining pH), and that those changes are 
expected to affect various biological and geochemical processes in the 
marine environment (Kleypas et al. 2006, Fabry et al. 2008). However, 
relating those changes to impacts on leatherback turtles and their prey 
remains speculative. For example,

[[Page 4177]]

Attrill et al. (2007) recently analyzed data from the North Sea and 
noted increased jellyfish occurrence in years where the water was more 
acidic. They suggested that increasing acidity may be detrimental to 
calcareous, skeleton-forming plankton and thus allow proliferation of 
jellyfish/gelatinous organisms into those niches. On the other hand, 
Richardson and Gibson (2008) reviewed this work and analyzed a larger 
geographic area, but they found no significant relationships between 
jellyfish abundance and acidic conditions in any of the regions 
investigated. These authors concluded that it would be tenuous to 
assign a specific role to pH in structuring zooplankton communities, 
and also noted that it is possible that more acidic conditions could 
have negative effects on jellyfish. However, even those effects are 
speculative: Recent work by Winans and Purcell (2010) concluded that 
moon jelly polyps are quite tolerant of acidic conditions; surviving 
and reproducing asexually even at the lowest tested pH. Given these 
recent reviews and studies, it is not clear what if any impacts ocean 
acidification may have on jellyfish, and there is much less information 
available on the potential impacts of ocean acidification directly on 
leatherback sea turtles. Therefore, it would be equally speculative to 
suggest that we can presently identify tangible management 
considerations to address ocean acidification's influence on 
leatherback turtles or their prey.

Comments on the Economic Analysis

    Comment 14: One commenter questioned NMFS' use of the ``cost-
effectiveness'' analysis. The commenter cited two sources (Loomis 2006 
and Kroeger 2004) to help NMFS use a common metric to be able to 
estimate economic benefits rather than conservation benefits. 
Additionally, the commenter stated that for leatherback turtles the 
conservation benefits are no more difficult to measure than costs. The 
commenter suggested a specific methodology in papers by Loomis (2006) 
and Kroeger (2004), which would be applicable to valuing the benefits 
of designating critical habitat for leatherbacks. The commenter also 
noted that the approach used in the proposed rule compared apples and 
oranges within the context of economic costs and conservation benefits.
    Response: As discussed in Section 1.2.1 of the economic analysis 
report, we used a form of cost-effectiveness analysis, which develops 
an ordinal measure of the benefits of critical habitat designation. 
Since it is difficult to monetize or quantify benefits of critical 
habitat designation, expert judgment is used to classify habitat areas 
based on their estimated relative value to the conservation of the 
species. For example, habitat areas can be rated as having a high, 
medium, or low biological value. A qualitative ordinal ranking, which 
can be done with available information, may better reflect the state of 
the science for the geographic scale considered here rather than a 
quantitative measure which depends on several assumptions. The ESA 
section 4(b)(2) analysis discusses the cost comparison process when 
evaluating whether to exclude areas from the designation.
    We question the claim that the benefits of a critical habitat 
designation for leatherback turtles are no more difficult to measure 
than costs, and that the methodology in the referenced papers by Loomis 
(2006) and Kroeger (2004) would be applicable to valuing the benefits 
of designating critical habitat for leatherbacks. The referenced papers 
both rely on a benefits transfer approach to obtain a monetary value of 
policy measures. Kroeger (2004) provides a list of conditions that must 
be met in order for the benefits transfer methodology to be valid.
    Benefit transfer methodology is used in Loomis (2006) to measure 
the value of increasing the number of sea otters in a clearly defined 
geographic range of the California Coast, and in Kroeger (2004), to 
measure the value of improved lynx conservation and conservation of 
natural landscapes. In both cases, the type and magnitude of the 
expected policy impacts are simple to describe with respect to the 
nature of the impacts, the geographic region where they would be 
realized, and the population which would be directly affected. By 
contrast, the anticipated type and magnitude of expected policy impacts 
due to critical habitat designation for leatherbacks are far less 
certain.
    The vast uncertainty regarding the scope of a potential 
conservation benefit from this designation calls into question whether 
the policy context can be defined to a level of precision that meets 
Kroeger's (2004) qualifications.
    By contrast, potential costs of regulatory measures are relatively 
easier to assess, due to the existence of financial data for entities 
impacted by previous critical habitat designations. There are numerous 
precedents for using cost effectiveness analysis or similar approaches, 
including economic analysis to measure regulatory impacts of critical 
habitat designation for salmon and steelhead, and for green sturgeon.
    We further note that the criticism of the use of an ``apples and 
oranges'' comparison of economic costs of designation with the 
biological benefits of designation ignores a similar problem with the 
benefits transfer approach utilized in the Loomis (2006) and Kroeger 
(2004) studies. The benefits transfer methodology relies on benefit 
estimates from stated preference valuation studies, which assign a 
monetary value to a policy change using data from a survey that asks 
respondents to make an ``apples and oranges'' comparison between a 
hypothetical monetary cost of the policy change (their ``willingness to 
pay'') and the biological benefits the policy is supposed to create. It 
is unclear that asking untrained survey participants to report the 
subjective monetary cost they would be willing to bear in exchange for 
complicated and uncertain biological benefits will automatically result 
in a better policy assessment than relying on trained experts to 
subjectively compare biological benefits to monetary cost estimates.
    Comment 15: One commenter questioned the framework and assumptions 
for the analysis of the range in total administrative consultation 
costs. Specifically, the costs are based on national data as opposed to 
data based solely on U.S. West Coast marine-related species. The 
commenter also stated that there was no explanation provided in order 
to justify the assumptions given for each category of costs.
    Response: We do not have sufficient data for administrative costs 
specific to the U.S. West Coast to support statistically meaningful 
statements. We therefore used the best available data, which was based 
on a national level sample.
    Section 1.3.2 of the economic analysis discusses the assumptions 
made with regard to administrative costs of ESA section 7 
consultations. For example, costs associated with re-initiation of 
consultation, which would occur solely because of the critical habitat 
designation, are assumed to be attributed wholly to the critical 
habitat designation, and further assumed to be approximately half the 
cost of the original consultation that considered only jeopardy to the 
ESA listed species. We feel this is a valid assumption because re-
initiations are less time-consuming, since the groundwork for the 
project has already been considered in terms of its impact on the 
species. We feel this is also a valid assumption due to the 
efficiencies in conducting an ESA section 7 consultation on both 
jeopardy to the species and adverse modification

[[Page 4178]]

to critical habitat at the same time (e.g., in staff time saved for 
project review and report writing). Because leatherback sea turtles are 
already listed as endangered, the critical habitat designation adds 
only incremental administrative costs when considering adverse 
modification in consultations that are already required under the ESA 
for the species.
    Comment 16: One commenter questioned how the ``additional indirect 
impacts'' were calculated and stated that the property value impacts in 
the draft economic analysis were incorrectly measured and overstated. 
The commenter also stated that there will not be an impact on 
individual land owners since the property value is marine-based and 
that research indicates that property values actually increase as a 
result of critical habitat designation.
    Response: While the designated critical habitat is located in the 
marine environment, some of the activities analyzed in the economic 
analysis are land-based (such as National Pollution Discharge 
Elimination System (NPDES) permitted facilities, agricultural 
pesticides, power plants, and desalination plants). It is the perceived 
limitations and restrictions of the land-based economic activities that 
are assumed to reduce the market value of property adjacent to critical 
habitat in comparison to property that is not adjacent to critical 
habitat. Further research has described a positive impact on property 
values due to residential and commercial development. Our economic 
analysis does not include either the potential reduced or increased 
market value of property in our estimation of the total economic impact 
of this critical habitat designation. Therefore, we have not revised 
our cost estimates in response to this comment.
    Comment 17: One commenter disagreed with the draft economic 
analysis' method for assessing incremental impacts. One comment states 
that NMFS' consideration of all potential project modifications that 
may be required under section 7 of the ESA, regardless of whether those 
changes may also be required under the jeopardy provision, appears to 
be contrary to the reasoning of the N.M. Cattle Growers Association v. 
U.S. Fish and Wildlife Service, 248 F.3d 1277, 1283 (10th Cir. 2001), 
Ariz. Cattle Growers Association v. Kempthorne, 534 F. Supp. 2d 1013 
(D. Ariz. 2008) and Cape Hatteras Access Pres. Alliance v. U.S. 
Department of the Interior, 344 F. Supp. 2d 108 (D.D.C. 2004) court 
decisions that the effects of listing and the jeopardy provision should 
not be considered as part of the impacts of a designation in the ESA 
4(b)(2) analysis for a critical habitat designation. Another comment 
noted that the draft economic analysis did not adequately describe the 
methodology of how the incremental scores were developed and therefore 
appeared to result in arbitrary conclusions. Specifically, the economic 
analysis needed more explanation regarding the percentages attributed 
to the incremental scoring.
    Response: As outlined in Section 1.3 of the economic report, the 
analysis does not attribute all potential project modifications 
required under section 7 to the critical habitat designation. Rather, 
it compares the state of the world with and without the designation of 
critical habitat for leatherbacks. This approach has been reviewed and 
determined legally valid by the courts (see Arizona Cattle Growers v. 
Salazar, 606F. 3d 1160 (9th Cir. 2010)). The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering habitat protections already afforded leatherbacks under its 
Federal listing or under other Federal, State, and local regulations, 
including those afforded leatherbacks due to other listed species, such 
as green sturgeon, West Coast salmon and steelhead, delta smelt, and 
marine mammal species. The ``with critical habitat'' scenario attempts 
to describe the incremental impacts associated specifically with 
leatherback critical habitat designation. NMFS has put forth its best 
effort to consider the incremental cost of this critical habitat 
designation as compared to the world without this critical habitat 
designation. Although some level of protection would already be 
expected to exist under the listing of leatherbacks, we were unable to 
completely separate those costs. Section 1.4.4 of the economic analysis 
report discusses how incremental scores were developed. In response to 
this comment, we added information to this section to further clarify 
how the incremental scores were derived for each activity in each area.
    To assign incremental scores, we first systematically reviewed 
existing laws and regulations, overlap with previously designated 
critical habitat and other relevant information for each activity in 
each of the three specific areas of the leatherback critical habitat. 
The output of this analysis resulted in qualitative ratings (high, 
medium, low) for each of the seven economic activities in each area. 
This process and results are discussed in our economic report. Based on 
these ratings, we then relied on the best professional judgment of the 
CHRT, to calculate the probability that leatherback critical habitat 
would be the primary driver of project modifications identified for 
each economic activity in each area. This probability is dependent upon 
a number of factors, including the details of current and potential 
projects and conservation efforts and the number of sensitive species 
present. By excluding impacts for which leatherback critical habitat is 
not a key reason for a conservation effort, this analysis focuses the 
quantification of impacts on those associated specifically with 
leatherback habitat conservation. Because the probability that any 
given conservation effort is being driven by leatherback conservation 
as opposed to other laws or regulations is uncertain, the economic 
analysis report presents a sensitivity analysis for these assumptions. 
Appendix C of the economic analysis describes alternative results 
assuming the extreme case that leatherbacks are always a primary driver 
of the conservation efforts (e.g., that 100 percent of the time fish 
screens are installed, it is primarily due to leatherback conservation 
needs).
    Comment 18: One commenter states the 7 percent discount rate 
assumed in measuring costs is unreasonable and instead should utilize a 
``social'' discount rate of 2-3 percent.
    Response: In applying discount rate, we relied on guidance issued 
by the Office of Management and Budget (OMB) in Circular A-94, which 
states that a 7 percent discount rate should be used as a base-case for 
regulatory analysis to approximate the marginal pre-tax rate of return 
on an average investment in the private sector in recent years (before 
1992). We also followed OMB Circular A-4, which indicates that 
estimates using a 3 percent discount rate should also be provided for 
regulatory analyses. Thus, our analysis provides present discounted 
values using discount rates of 3 and 7 percent. Given the present low 
interest rate environment, we consider the present values discounted at 
3 percent to better reflect current economic conditions.
    Comment 19: One commenter questioned NMFS' description of how 
various economic activities would impact the PCEs. Furthermore, the 
commenter stated that NMFS' estimation of the likelihood that such 
activities would require potential project modifications was also very 
weak.
    Response: Due to a limited consultation history associated with 
many of the activities described, the CHRT was not able to estimate the 
likelihood of modifications to economic activities as a result of this 
critical habitat revision. Section 1.4.4 clarifies

[[Page 4179]]

how the uncertainty in identifying: (1) Which particular projects will 
in fact take place in critical habitat areas; and (2) which projects 
action agencies may consider to potentially result in the adverse 
modification or destruction of designated critical habitat for 
leatherbacks, leads to the assumption that all projects will go forward 
and all projects will require modification. Thus, the analysis is 
conservative, i.e., more likely to overestimate impacts to critical 
habitat rather than underestimate them.
    Comment 20: One commenter stated that the assumption made that all 
NPDES capital costs are incurred in first year is not correct.
    Response: Section 2.1.3 of the economic analysis provides a revised 
discussion of how the cost estimates for major NPDES-permitted 
facilities were developed. Note that capital costs originally presented 
were presented in value form, thus no additional discounting was 
needed. Costs are now presented in annual terms; however, note that the 
per-facility-cost remains the same.
    Comment 21: One commenter disagreed with the draft economic 
report's method for assessing agricultural pesticide application. The 
commenter stated the draft economic report analyzed impacts from 
agricultural pesticide application on the leatherback prey and not to 
the leatherbacks themselves. Also, the commenter disagreed with the 
assumption that similar restrictions would be imposed on pesticide use 
to protect turtle habitat as are imposed to protect salmon habitat. 
Lastly, the commenter disagrees with the assumption that all crops will 
be lost as a result of restrictions on pesticide application.
    Response: In estimating the economic impact of designating critical 
habitat, we must estimate the incremental costs associated with the 
designation and thus consider activities that may impact the essential 
features of the critical habitat. Impacts of an activity on 
leatherbacks themselves are not appropriate for us to consider when 
estimating the cost of designating this critical habitat. In this case 
we have identified the leatherback's prey, jellyfish, as the essential 
feature of the habitat. Therefore, our economic report considers how 
each activity may impact the quality, quantity, and density of prey. 
The project modifications and the methodology used in the leatherback 
critical habitat economic analysis were similar to that used in the 
salmon/steelhead and green sturgeon critical habitat analyses to 
calculate costs (i.e., foregone value from crop sales). However, in 
light of this comment, we reviewed this analysis and considered the 
series of Biological Opinions that have been issued by NMFS on various 
pesticides.
    Reasonable and prudent alternatives of recent Biological Opinions 
that considered the effects of pesticides on listed salmonids indicate 
that total crop loss is not a realistic outcome. We also considered the 
recent economic analysis conducted in support of the critical habitat 
designation for black abalone along U.S. West coast areas (76 FR 66806; 
October 27, 2011). This analysis acknowledged that concentrations and 
effects of pesticide ingredients in marine waters are unknown. Based on 
this information, we cannot assume total crop loss is a reasonable 
outcome of any project modification due to leatherback critical 
habitat. There is currently insufficient data to determine what, if 
any, project modification would be required. Therefore, we have revised 
our economic analysis to include a qualitative discussion of potential 
impacts of pesticides and have removed the estimated costs associated 
with this activity.
    Comment 22: One commenter states the total costs of power plants in 
Area 7 are not estimated correctly. The commenter refers NMFS to other 
sources that provide costs of retrofitting power plant facilities.
    Response: In response to this comment, we reevaluated information 
regarding the impact of power plants on the leatherback critical 
habitat and concluded that the impact to the leatherback prey from 
thermal effluent is so uncertain that it is not reasonable to attribute 
the project modifications suggested in the Tetra Tech (2008) and 
Enercon (2009) documents and their associated costs to the designation 
of leatherback critical habitat. The costs found in these documents are 
associated with drastic transformations of the facilities that are not 
expected to be imposed on the plants as a result of an ESA section 7 
consultation on leatherback critical habitat. With no other potential 
costs to use in our analysis, we determined that a qualitative approach 
would be the best way to address power plants.
    Comment 23: One commenter states that while the Diablo Canyon 
Nuclear Power Plant's (DCNPP's) NPDES permit allows the use the 
auxiliary salt water biofouling control system and the ``firewall,'' 
the DCNPP does not in fact utilize it. The comment also noted that 
while freshwater is occasionally added to the discharge, freshwater has 
never been used as an anti-biofouling technique.
    Response: While the DCNPP does not currently utilize the auxiliary 
salt water biofouling control system and the ``firewall,'' the fact 
remains that it is still in place and thus it could potentially be used 
at some point in the future. NMFS will work with the operators of the 
DCPP and the Federal permitting agency to aid in assessing impacts and 
to determine whether to re-initiate consultation on its NPDES permit 
due to adverse modification to critical habitat.
    Comment 24: One commenter states that the desalination plant at the 
DCPP should not require project modifications to protect leatherback 
critical habitat, since impingement and entrainment are low at the 
DCPP. The commenter also states that the amount of water that flows 
through the DCPP desalination intake pump is insignificant.
    Response: NMFS will work with the operators of the DCNPP as they 
assess whether re-initiation of consultation is necessary.
    Comment 25: One commenter questions the use of costs for 
desalination plant impacts, due to their uncertainty.
    Response: We acknowledge that there is uncertainty; however, we 
relied on the best available data in order to develop an estimated 
cost. We provide further discussion of the assumptions made in the 
economic report.
    Comment 26: One commenter questions the draft economic analysis' 
use of the potential cost estimate of future tidal and wave energy 
projects; specifically, where identified facilities overlap with green 
sturgeon critical habitat.
    Response: Although there are no tidal and wave energy projects 
currently in the specific areas identified, the economic analysis 
attempts to measure the scope of the potential impacts over a 20-year 
time frame. This involves predicting the occurrence and impacts of 
future projects.
    All of the projects listed are in some sort of proposed stage and 
have not actually been built yet. It is uncertain which projects will 
actually be built and the number of future projects that may be 
proposed. The projects identified in the economic analysis are our best 
approximation of the number of tidal and wave energy projects that will 
exist in the applicable time period, based on available information. 
The economic report describes the methods we used to develop our 
estimates.
    Comment 27: One comment provided additional information on the 
location of tidal and wave energy projects. The comment specifically 
describes one additional alternative energy project

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permit that had been issued since the proposed rule was published.
    Response: The economic analysis now includes an up-to-date list of 
projects, including the one described by the commenter.
    Comment 28: Several comments state that wind energy should be 
considered for its impacts to both prey and passage PCEs because it 
``may'' require special management consideration or protections. One 
commenter questions NMFS' treatment of wind energy in relation to other 
activities that were discussed qualitatively. Another commenter 
provides additional information on the location of two proposed wind 
energy projects.
    Response: As described elsewhere in this notice, we have eliminated 
the passage PCE and thus the response to this comment will only pertain 
to the prey PCE. After reviewing the information on the two proposed 
wind energy projects, NMFS has concluded that there is a project, the 
Principal Power Offshore Wind Project, which is currently being 
proposed in Oceanside and Netarts, OR (Area 2). The second proposed 
wind energy project identified by the commenter, the Grays Harbor Ocean 
Energy and Coastal Protection project, missed the submittal of the 
Notice of Intent, and the Federal Energy Regulatory Commission (FERC) 
cancelled the preliminary permit in September 2010.
    Section 2.6 of the Economic Report provides a revised discussion. 
The ``Tidal and Wave Energy'' activity is now known as ``Tidal, Wave, 
and Wind Energy.'' Leatherback sea turtles primarily use the west coast 
neritic waters for foraging, with the greatest density of turtles off 
the California coast within the 200 m isobath. Therefore, some overlap 
may be expected between the prey PCE and potential coastal wind energy 
projects.
    Comment 29: One commenter suggests that assignment of the economic 
thresholds be given more explanation in the economic analysis.
    Response: In the proposed rule, we compared the economic costs and 
conservation benefit of 8 areas, and we determined that 4 thresholds 
(high, medium, low and ultra low) would be necessary to adequately 
compare costs and benefits of these areas. The economic thresholds were 
determined by looking at a combination of values for each area, both 
total revenue for the activities identified in the proposed rule, as 
well as the costs we associated with the designation of critical 
habitat in each area. The high threshold was determined based on the 
revenue of each area, and we calculated the total revenue for each 
activity by area. The area with the highest revenue was Area 7; 
therefore, we took 3% of the total revenue for this area, which was 
between $20 million and $30 million. We then listed the high threshold 
at $20 million, assuming that any costs greater than 3% of total 
revenue would potentially be considered high economic costs to the 
industry. The other thresholds were determined based on area costs for 
this critical habitat designation.
    The economic thresholds were re-evaluated during the final rule 
development and it was determined that the thresholds were appropriate 
for use in this final rule. Please see the section below, ``Exclusion 
of Particular Areas Based on Economic Impacts,'' for additional 
information.
    Comment 30: Some commenters stated that they were unclear regarding 
the comparative analysis, specifically in the offshore areas where the 
relative value of migratory passage PCE is high and the economic costs 
are low.
    Response: As noted earlier in this final rule, NMFS has eliminated 
the migratory pathway PCE, and has determined that the offshore areas 
do not meet the definition of critical habitat when evaluated for the 
presence of the prey PCE. Therefore, economic costs for the offshore 
areas are not evaluated in this final designation.

Comments on Activities That May Require Modification Through a Section 
7 Consultation

Fishing and Fishing Gear
    Comment 31: Oregon Governor Kulongoski commented that, in December 
2009, the Oregon Fish and Wildlife Commission terminated a program that 
allowed use of large mesh drift gillnet gear targeting swordfish in 
Oregon waters. There had been no drift gillnet fishing under the permit 
program since 2004.
    Response: This has been noted. NMFS appreciates the information.
    Comment 32: The National Park Service commented that NMFS should 
consider the interaction between leatherback sea turtles and crab pots 
in the region of Point Reyes.
    Response: The impact of crab pots on leatherbacks constitutes a 
direct take of turtles. Most pot fisheries along the U.S. West Coast 
are state fisheries and therefore a direct Federal nexus requiring an 
ESA section 7 consultation on the jeopardy standard is not present. If 
state pot fisheries are known to interact with leatherback turtles via 
entanglement, the states should apply for an ESA section 10(a)(1)(B) 
incidental take permit. The take of leatherback sea turtles without 
exemption provided by an Incidental Take Statement developed through 
formal section 7 consultation for a Federal action or authorization 
under a section 10(a)(1)(B) Incidental Take Permit for a non-Federal 
action constitutes an unauthorized take under section 9 of the ESA.
    Comment 33: Several commenters, including the California Coastal 
Commission, Defenders of Wildlife, CBD, and several other 
organizations, commented that the regulation of the fishing industry is 
an activity that affects the proposed PCE passage. These and other 
commenters also urged NMFS to consider prohibiting use of drift 
gillnets or longlines within designated critical habitat for the 
protection of the species. Commenters stated that the use of fishing 
gear within critical habitat would greatly restrict migration and 
adversely modify the habitat.
    Response: We acknowledge that fishing gear has the potential to 
capture, entangle and kill leatherback sea turtles. Federal fisheries 
that operate within U.S. waters, where leatherbacks are known to occur, 
are subject to ESA section 7 consultation for their direct and indirect 
impacts to the species. As mentioned above, the take of leatherback sea 
turtles by a Federal or state fishery without an Incidental Take 
Statement through formal section 7 consultation or a section 
10(a)(1)(B) permit, respectively, constitutes an unauthorized take 
under section 9 of the ESA. NMFS has placed observers on Federal and 
state gillnet fisheries in order to monitor bycatch of sea turtles, 
marine mammals and other species. The take of turtles in longline 
fisheries (e.g., entanglement or hooking) occurs in fisheries that 
target highly migratory species (e.g., tuna, sharks, and swordfish). 
The use of longline gear to target highly migratory species is not 
allowed within the U.S. West Coast EEZ under the existing west coast 
fisheries management plans, therefore concern over possible 
interactions with this gear are unwarranted. There is limited use of 
bottom set longline gear to target ground fish. However, this gear is 
not the same type as is used for highly migratory species. The gear is 
set with only two vertical lines, and hooks are not suspended in the 
water column but rather rest on the bottom of the water so the bait is 
not an attractant to leatherbacks or other turtles. As such, the risk 
of entanglement is much lower than in other longline fisheries, and 
NMFS knows of no interactions between bottom-set longline gear and 
leatherback sea turtles.

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    As a result of this critical habitat designation, all Federal 
activities that occur within areas designated as leatherback critical 
habitat and that may impact the prey PCE will require consultation 
under ESA section 7. A critical habitat designation is not intended to 
determine which activities can and should occur within the designated 
area; rather, it provides a protective measure requiring consultation 
with NMFS to determine the impact to the habitat and any modifications 
of specific activities to avoid the adverse modification or destruction 
of critical habitat.
    Further, as stated in response to comments above, and fully 
detailed in the section, ``Summary of Changes from the Proposed Rule,'' 
NMFS has eliminated the migratory pathway PCE from this critical 
habitat designation and analysis. We received no information during 
public comment that fisheries may affect leatherback prey. Therefore, 
we conclude that Federal fisheries will not have an impact on the 
leatherback prey PCE, and we have not considered the impact of 
fisheries on leatherback critical habitat in this final rule.
    Comment 34: Several commenters, including the Pacific Fishery 
Management Council, West Coast Seafood Processors Association, and 
Alliance of Communities for Sustainable Fisheries, and the California 
Wetfish Producers Association (CWPA), commented that existing 
regulations are adequately protective of leatherback turtles in 
California, Oregon, and Washington waters. Fishermen and their 
organizations commented that fishing is not an activity that NMFS 
should include in the list of activities that affect the proposed PCEs, 
for the following reasons: (1) Fisheries have no impact on jellyfish or 
oceanographic conditions that may impact foraging habitat; and (2) 
fisheries do not impact migratory pathways, as the fishing industry has 
already worked to protect leatherbacks through modifications to the 
fisheries as a result of the ESA Section 7 process.
    Response: We agree that existing regulations on the Federal 
fisheries provide protections to leatherback sea turtles in the U.S. 
West Coast EEZ. NMFS further agrees that while sea turtles may be 
directly affected through interactions with gear, we have no 
information to indicate that fisheries are likely to adversely impact 
the prey PCE. As explained in the economic report, we could find no 
evidence of impact from fisheries on leatherback prey; there are no 
jellyfish fisheries, and jellyfish are not a substantial bycatch 
species in existing fisheries. Additionally, as stated above, we have 
eliminated the migratory pathway PCE from this analysis. Therefore, we 
will not be discussing impacts to leatherback migration from fisheries.
Shipping Traffic and Oil Spills
    Comment 35: Several commenters, including Defenders of Wildlife and 
CBD, stated that the proposed designation should include consideration 
of potential impacts to the shipping industry through the designation 
of critical habitat, as it is an activity that diminishes the quality 
of leatherback turtle habitat. Another commenter stated that NMFS 
failed to consider the U.S. Department of Transportation's plans to 
expand America's marine highway, and the commenter stated that this 
designation may hinder shipping to and from the U.S. West Coast.
    Response: We agree that ship strikes result in sea turtle 
mortality. However, as mentioned previously, we have eliminated the 
migratory pathway PCE; therefore, this critical habitat designation 
will not further evaluate the impact of shipping on sea turtle 
migration. We could not determine any means by which shipping would 
affect the prey PCE. As such, and given the elimination of the PCE 
passage, we did not further investigate the impacts of the shipping 
industry on leatherback critical habitat.
    As additional information related to these comments, NMFS is 
engaged in the development of traffic separation schemes (TSS), which 
are voluntary shipping lanes. The TSS are developed by the United 
States Coast Guard (USCG), and thus represents a Federal action that 
may be subject to evaluation under section 7 of the ESA. NMFS has 
worked closely with the USCG on the development of their port access 
route studies for the Long Beach and Los Angeles area and the San 
Francisco area to provide technical assistance on the presence and 
abundance of various protected species, including leatherback sea 
turtles. The USCG has been advised of their responsibilities as a 
Federal agency taking an action that may affect species listed on the 
ESA and designated critical habitat. Thus, when and if the USCG 
proposes changes to the existing TSS, we anticipate that NMFS will 
conduct an ESA section 7 consultation.
    With regard to the comment on America's marine highways, as a 
Federal agency, the Department of Transportation is already required to 
initiate consultation with NMFS if its actions, such as increasing 
shipping traffic, may impact listed species and designated critical 
habitat, such as leatherback sea turtles.
    Question 36: Several commenters, including the Minerals Management 
Service (now referred to as BOEM, Bureau of Ocean Energy Management), 
commented on the discussion in the proposed rule regarding the response 
to oil spills, such as the use of dispersants, booms, or skimmers, and 
the potential for these activities to affect leatherback turtles and 
their habitat. Commenters, including the NOS, also questioned the 
evaluation of oil spills and oil spill response, and the costs 
associated with such response.
    Response: In response to the comments specifically addressing oil 
spill response and the way this activity type was evaluated in the 
draft economic report and the proposed rule, we expanded our research 
on this subject and met with the USCG to better understand the costs 
associated with oil spill response and the potential impacts on both 
leatherback sea turtles and their prey species. We also focused effort 
on determining the differences between oil spill responses in nearshore 
areas versus the offshore areas. As noted previously, we have 
determined that offshore areas do not contain the prey PCE as we have 
defined it. However, we did spend time trying to understand the 
likelihood of response in offshore and nearshore areas in order to 
address these questions. The results of that research are provided 
below.
    Oil spill response is guided by Area Contingency Plans (ACPs) and 
Regional Contingency Plans (RCPs), developed by the USCG in 
coordination with state and Federal partners, and usually focuses on 
nearshore waters and coastlines. While the plans may have some 
strategies for response in open ocean areas, specifically in situations 
where there is a threat to land and sensitive shoreline resources, 
there are no existing protocols for offshore oil spill response, and 
the decision on how and whether to respond is left to the Federal On 
Scene Coordinator.
    There are many factors that influence the decision to respond to an 
oil spill, including the feasibility and efficacy of responding to a 
spill, particularly in offshore areas where weather, ocean conditions, 
and other factors can significantly restrict response options which the 
USCG must consider. A number of options are considered by the USCG 
regarding the type of response, but the most common method for 
controlling and eliminating surface oil wherever it is found is via the 
use of oil skimming vessels (referred to as mechanical recovery). In 
rare cases where the seas are relatively flat, in-situ

[[Page 4182]]

burning may be employed. The operational effectiveness of both 
mechanical recovery and in-situ burning operations dramatically 
decreases with sea states above a 2-foot chop or 5- to 6-foot swell. 
Sea states off the U.S. West Coast, particularly in the offshore areas, 
often preclude the use of mechanical recovery techniques, thus the use 
of chemical dispersants is usually the preferred option in offshore 
waters. In general, the use of dispersants may temporarily increase the 
risk to the plankton community in the upper several meters of the water 
column but this risk is likely to be short-term and geographically 
limited (California Dispersant Plan, 2008). The impact of dispersants 
and dispersed oil on jellyfish is not well known, but putting oil into 
the water column via dispersants may actually be more detrimental to 
jellyfish than not applying dispersants; therefore a response in 
offshore waters may not necessarily benefit critical habitat for 
leatherbacks. In fact, the best approach in terms of impacts to prey 
PCE may be to not respond to the spill and instead rely on natural 
means such as evaporation to remove the oil and keep it out of the 
water column.
    As mentioned previously, we have eliminated the migratory pathway 
PCE, and have determined that the offshore areas do not contain the 
prey PCE, as defined in this final rule. Therefore, the offshore areas 
are not eligible for designation as critical habitat. As such, this 
final designation only evaluates oil spill response and its potential 
impact on our prey PCE in Areas 1, 2, and 7. Since these areas are in 
the nearshore environment, it is likely that USCG will respond to a 
spill that occurs in these areas. In our proposed rule, we made the 
assumption that if critical habitat were designated, then the USCG may 
be more likely to launch a response to clean up the oil using chemical 
dispersants or other response techniques, and we developed associated 
costs for response based on this assumption. However, after additional 
research on oil spill response, we have determined that making this 
assumption does not necessarily reflect what is likely to occur in the 
event of an oil spill in Areas 1, 2 and 7. That is, the existence of 
leatherback critical habitat is likely to play a small part in the 
decision making on whether to respond and how to respond. Each spill is 
unique, and response is determined based on many complex factors, such 
as the type of oil, sea state, availability of mechanical or chemical 
materials, and risk to resources, particularly shoreline resources. 
Along the U.S. West Coast, NMFS is becoming more actively engaged in 
oil spill response planning and is reviewing ACPs and RCPs and 
providing information on protected species, including leatherbacks. Oil 
spill response is not like other Federal activities considered in this 
final rule. The ESA section 7 consultation occurs after the Federal 
activity (spill response) has occurred, through emergency consultation 
procedures, so there is limited opportunity to change activities during 
a response if a finding of jeopardy or adverse modification/destruction 
is made. NMFS' engagement at the ACP and RCP level is likely the 
optimal means of raising awareness of leatherback critical habitat and 
working within the spill response community to make changes to response 
protocols to protect critical habitat. At this time, we do not know 
what types of activities we would request that USCG modify to protect 
critical habitat during an oil spill response; therefore, we are unable 
to assign a dollar value to this activity.
    In the proposed rule and draft economic report, the costs 
associated with spill response were based upon a model developed and 
published by Etkin (1999). The costs associated with spill clean-up 
using the model were quite low, less than $100,000. Since publication 
of the proposed rule, and as discussed above, we thoroughly evaluated 
several different options for oil spill costs, but there is no way to 
reliably predict what incremental effect, if any, critical habitat for 
leatherbacks would have on these costs. Accordingly, this rule includes 
no quantitative estimates of the incremental costs of critical habitat 
designation for leatherbacks on the cost of oil spill response.
    Comment 37: Representative Woolsey noted that Area 3 is currently 
being considered by the Department of Interior for an oil lease, and 
requested that this be considered as an activity that may require 
modification through a section 7 consultation.
    Response: We acknowledge that we did not directly consider oil 
leasing in our proposed designation, and intended to include this 
proposed leasing action in our final designation. However, we have 
since determined that Area 3, the location for the potential leasing is 
not eligible for designation as critical habitat as it does not contain 
the prey PCE. Therefore, further analysis of potential oil leasing in 
this area is not necessary.
    With regard to existing oil platforms, we included the 
consideration of oil spills and leaks associated with existing 
platforms in our analysis of oil spill response.
    Comment 38: Commenters expressed uncertainty about the occurrence 
of point source pollutants and pesticides residue in marine waters, and 
recommended that we consider the potential high risk of a shipping-
related oil spill in the final designation.
    Response: As described above, we have further explored the 
potential for oil spills in the marine environment. Please see our 
response to Comment 37.
    Comment 39: Commenters specifically mentioned that NMFS failed to 
consider activities such as fishing and shipping traffic in areas 4 and 
5 when excluding these areas from designation based on oil spill costs 
alone. Commenters suggested that offshore areas, specifically Areas 6 
and 8, scored high on passage PCE but the overall conservation score 
decreased because of a low score for the prey PCE, then were eliminated 
because of economic costs. Commenters stated ``it is difficult to see 
NMFS's rationale for excluding these areas in the proposed rule.''
    Response: As mentioned previously, we have eliminated the migratory 
pathway PCE, and we re-evaluated Areas 4, 5, 6 and 8, as well as our 
new Area 9, to determine if they contain the prey PCE. We found that 
Areas 4, 5, 6, 8, and 9 do not contain the prey PCE and therefore do 
not meet the definition of critical habitat and are not eligible for 
designation as critical habitat. Therefore, the ESA section 4(b)(2) 
analysis has been modified accordingly and now focuses on Areas 1, 2, 
and 7. Please see responses above for more specific information on 
shipping and fishing and impacts on prey PCE.
    Comment 40: The U.S. West Coast National Marine Sanctuaries office 
noted that the entrance to the Strait of Juan de Fuca is an area of 
concern for oil spills due to vessel traffic and urged NMFS to consider 
this in final analysis.
    Response: The southern portion of the entrance to the Strait of 
Juan de Fuca is included in Area 2. As noted above, we have re-
evaluated the assumptions made in the proposed rule about oil spill 
response costs and we have considered the potential for oil spills to 
occur in this area. As described above, we have looked at the potential 
for oil spills to occur in coastal areas and determined that we can not 
quantify the costs of changes that would be made as we do not, at this 
time, know the types of changes that may be necessary to protect 
critical habitat during an oil spill response. We therefore provide 
only qualitative analysis of the changes. Please see our response to 
Comment 37.

[[Page 4183]]

Sanctuaries and Marine Reserves
    Comment 41: The National Park Service, California Coastal 
Commission, the CWPA, and California Department of Fish and Wildlife 
urged NMFS to recognize protections provided to leatherback sea turtles 
and their habitats through existing networks of marine protected areas 
along the California, Oregon, and Washington coasts. Established Marine 
Protected Areas should be considered in economic analysis.
    Response: Through the California Marine Life Protection Act, Marine 
Protected Areas (MPAs) in California state waters are primarily chosen 
to be formed due to the known or potential impact of overharvesting 
fish and to protect fish habitat to allow stocks to grow. As a result 
of these comments, we further considered the beneficial impacts of 
existing MPAs within the three specific areas, through the process of 
developing incremental scores and, if warranted, adjusted them 
accordingly.
    Comment 42: The National Ocean Service commented that the addition 
of critical habitat for leatherbacks along the west coast is 
complementary, not duplicative of the authorities of the National 
Marine Sanctuary Act.
    Response: NMFS agrees, and this clarification has been made in the 
final rule.
    Comment 43: Some commenters noted that NMFS should acknowledge that 
the primary neritic foraging areas along the central California coast 
are already encompassed through the existence of marine reserves.
    Response: NMFS agrees, and this acknowledgement has been made in 
the final rule.
    Comment 44: CWPA commented that there was little or no input from 
NOAA's Sustainable Fisheries Division (SFD) and no consideration of 
state-implemented species and habitat protections, specifically 
California's Marine Life Protection Act, which provides protection for 
high biodiversity areas along the California coast.
    Response: NMFS' SFD works closely with the Pacific Fishery 
Management Council. Members of the CHRT attended a Council meeting and 
gave several presentations on proposed leatherback critical habitat 
designation to the full Council, Management Teams and Advisory 
Subpanels and the Science and Statistical Committee, many of whose 
members include staff from the SFD. In addition, SFD staff attended the 
leatherback critical habitat public hearing held in Carlsbad, 
California in February, 2010 to hear public comments.
    Existing protections at the Federal, State, and local level were 
incorporated into the analysis via the incremental scores developed for 
economic analysis.
    Comment 45: Several commenters, including CWPA, indicate that 
California has implemented marine protected areas precisely in 
upwelling and retention areas where leatherback sea turtles are found. 
They also questioned why additional protection (i.e., critical habitat 
designation) of these same areas is necessary.
    Response: MPAs that have been designated off the coast of 
California specify the restrictions placed on users of the areas that 
may pose a threat to particular species and/or their habitat. We are 
not aware of any restrictions that are included in such MPAs to protect 
and maintain the quality and density of leatherback prey, the PCE we 
have identified in revising leatherback habitat. The ESA requires that 
we evaluate critical habitat based on specific criteria, and the 
existence of other statutes or protected areas does not preclude the 
ability or our requirement to designate critical habitat. However, we 
acknowledge that existing protections are important and they are taken 
into consideration during the incremental scoring process as part of 
the existing baseline.
    Comment 46: Some commenters noted that Monterey Bay and Gulf of 
Farallones are two important sites for leatherback foraging along the 
central California coast that are already encompassed in National 
Marine Sanctuaries and the State of California MPAs, and that therefore 
critical habitat in these areas is duplicative and unnecessary.
    Response: Please see our previous responses to comments 41 and 45 
regarding Marine Protected Areas.
Offshore Alternative Energy and Undersea Cables
    Comment 47: The Defenders of Wildlife, CBD, and Pacific Gas & 
Electric commented on the potential effects of offshore tidal and wave 
energy and other alternative energy facilities on leatherback turtle 
habitat. In addition, BOEM questioned our analysis of how alternative 
energy structures would affect leatherback turtle migration corridors.
    Response: The effects of wave energy and other alternative energy 
facilities on sea turtles or jellyfish is not fully understood, 
particularly because many facilities are still in the design phase, 
making it difficult to predict how an activity proposed in designated 
critical habitat might require changes to protect the leatherback prey 
PCE. It will be necessary for research in this area to produce data and 
analysis that can be used during ESA section 7 consultations. These 
consultations may include modifications to facilities to limit or avoid 
adverse modification or destruction of critical habitat. As discussed 
in other sections of this final rule, we have eliminated the migratory 
pathway condition PCE; therefore, we have not further discussed how 
permanent structures may impact leatherback migrations.
    Comment 48: The North American Submarine Cable Association 
commented that the activities of their member companies have no effect 
on leatherback turtle prey and, accordingly, NMFS should state that ESA 
section 7 consultations on these activities will not be required after 
NMFS designates critical habitat. The Association questioned how 
projects may affect benthic stages of jellyfish, especially since we 
lack a thorough description of benthic habitat needed for jellyfish 
and/or a description of where this habitat exists off the U.S. West 
Coast.
    Response: NMFS cannot say which activities would not require ESA 
section 7 consultation. It is the responsibility of the agency taking 
the action to determine if their actions impact listed species or 
designated critical habitat and therefore are subject the ESA section 7 
consultation. We agree with the comment regarding the lack of 
information on the specific type and location of habitat important to 
the early polyp stages of jellyfish. It is reasonable to conclude that 
some activities that involve disturbing benthic substrates (like 
undersea cable installation/maintenance) could affect jellyfish 
particularly in the nearshore areas where polyp beds are expected to 
occur. However, given the current best available science, we are unable 
to describe such benthic habitat and where it may occur.

General Comments

    Comment 49: Some commenters suggested that because the population 
trend for leatherback sea turtles in the Western Pacific is unknown, 
NMFS cannot say that excluding areas would not cause extinction.
    Response: We acknowledge that the overall population trend of 
leatherback sea turtles in the Western Pacific is unknown. In our 
proposed rule, we determined that exclusion of specific areas based on 
economic costs would not impede conservation or result in the 
extinction of the species. This determination was based on the best 
data available regarding the potential conservation benefits of the 
proposed

[[Page 4184]]

designation in comparison to the current level of species protection in 
those areas. Following our review and consideration of public comments, 
we made several modifications to the proposed rule, which are detailed 
in ``Summary of Changes from the Proposed Designation.'' As a result of 
these changes, our analysis under section 4(b)(2) of the ESA was also 
revised. In this final rule, we do not exclude any areas meeting the 
definition of critical habitat.
    Comment 50: Some commenters asserted that designating CH will 
promote data collection and analysis to aid in planning for ``resource 
uses'' in the areas and will become more important as the agency 
implements marine spatial planning.
    Response: We agree and are already supporting research on the 
effects of contaminants on jellyfish as an indicator of health for 
leatherback sea turtles.
    Comment 51: Some commenters contended that NMFS' assertion that 
only permanent or long-term structures should be considered for their 
potential to affect habitat and the passage PCE was arbitrary and 
capricious. They asserted that such a notion contradicts ESA 
requirements and marks an unreasoned departure from past critical 
habitat designations in marine waters, where fishing gear and other 
``non-permanent'' structures are considered to have an effect on 
foraging or migration. They concluded that NMFS would be setting a 
harmful new precedent for excluding clear threats to critical habitat 
functions in future critical habitat designations.
    Response: As described previously, we have removed the migratory 
pathway PCE conditions, and we have evaluated each area based on the 
prey PCE. Therefore, we will not further evaluate the type of 
structures that may impact passage. Please see our response to Comment 
12 for additional information on this topic.
    Comment 52: A commenter suggested that we use adaptive management 
in the final designation to ``deal with uncertain environmental 
variation.''
    Response: ``Adaptive management'', or the iterative process of 
evaluating and modifying a management decision over time to optimize 
results and address uncertainties, is a useful tool for the 
conservation of endangered and threatened species and their habitat; 
however the ESA requires that we designate critical habitat through a 
regulatory process that requires us to make decisions based upon the 
best available information at the time. When or if new information 
becomes available, including the effects of environmental variation on 
current designated critical habitats, we will evaluate the information 
and determine if a revision to this critical habitat designation is 
necessary.

Summary of Changes From the Proposed Designation

    Based on the comments received and our review of the proposed rule, 
we (1) eliminated ``migratory pathways'' as a PCE; (2) refined the 
description of the prey PCE specifically to clarify that density is an 
important element of the feature; (3) revised the boundaries of the 
areas in which the PCE may be found; and (4) re-evaluated each area for 
the presence of the PCE and determined which areas meet the definition 
of critical habitat and are thus eligible for designation. The 
following discussion describes in detail the rationale for these 
changes.
    (1) Eliminated as a PCE ``migratory pathway conditions to allow for 
safe and timely passage and access to/from/within high use foraging 
areas.''
    Several comments focused on migration routes as a PCE and our 
economic and biological analyses associated with that PCE. Such 
comments triggered our re-evaluation of this PCE. We reviewed available 
data and literature, evaluated public comments, and reevaluated the 
validity of the PCE based on applicable statutory and regulatory 
definitions and criteria. We explain our analysis in more detail below. 
In our proposed rule, we explained that while leatherbacks are known to 
migrate great distances on a seasonal basis across the Pacific Ocean to 
arrive at known foraging areas in the near-shore marine environment 
within the U.S. EEZ, the actual migratory routes to those areas are not 
well-known. We reviewed public comments to determine whether additional 
data were available to support our approach in the proposed rule. Our 
review of public comments and available data on leatherback turtle 
migration confirmed our general assumptions in the proposed rule 
regarding the seasonal migratory and forage behavior of leatherback sea 
turtles migrating long distances from nesting beaches and over-
wintering areas in the western Pacific Ocean to arrive during the 
summer and fall off the U.S. West Coast to forage in areas of dense 
prey concentrations associated with the California Current Ecosystem. 
In other words, NMFS confirmed the existence of valid and useful data 
on the general migration of leatherbacks to and their occurrence in the 
geographic areas considered for designation as critical habitat. 
However, our review of public comments and the best available 
scientific data did not resolve the uncertainty regarding the 
occurrence and presence of any specific biological or physical features 
indicating that a given area constitutes a migratory pathway or 
provides defined migratory pathway conditions for leatherback sea 
turtles from offshore areas to near-shore high-use forage areas, 
movement within those areas, and transit among those areas.
    In our proposed rule, we relied primarily on data indicating the 
presence of leatherbacks within the specified areas as a proxy for 
determining migratory pathway conditions (e.g., satellite telemetry, 
aerial surveys, nearshore ship-based research). While we recognized the 
importance of leatherback migration, we did not identify specific 
migratory pathway conditions, and acknowledged uncertainty regarding 
their occurrence and presence. Public comments and agency inquiry did 
not develop additional meaningful data to establish the occurrence or 
presence of such indicative conditions. Thus, while the general proxy 
approach was useful in identifying and framing the importance of 
leatherback seasonal migration to geographic areas off the U.S. West 
Coast, without further specific data regarding biological or physical 
features influencing migration to, from and among forage areas, it did 
not allow us to identify specific migratory conditions in any area 
under consideration. Rather, this approach indicated that the entire 
U.S. EEZ could be considered as a migratory corridor.
    A PCE is a biological or physical feature essential to the 
conservation of the species for which special management consideration 
or protection might be required. These features must be reasonably 
specific and identifiable in order to be protected. Our analysis of 
migratory pathway conditions did not produce a reasonable description 
of the physical and biological feature itself, allow a reasonable 
demonstration of how the feature is essential to conservation of the 
leatherback sea turtle, provide an effective basis for identifying 
``specific areas'' on which the feature is found, or inform our 
identification of the types of activities that might presently or 
prospectively pose a threat to the feature such that special management 
consideration or protections might be necessary. In addition, it 
presents the possibility of resulting in an over-designation of 
critical habitat. Accordingly, the migratory pathway conditions do not

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meet the requirements of the ESA, and we decided to remove it as a PCE.
    Both NMFS and the USFWS have identified passage as a PCE in other 
critical habitat designations; however, the species and habitats 
involved differed significantly from leatherback sea turtles. In those 
instances, passage was more narrowly defined, and it was essential that 
the species have access to passage through a discrete and identifiable 
section of habitat. Please see our responses to Comments 12 and 13 for 
additional information.
    We considered the impact of removing migratory pathway conditions 
as a PCE and the possible effects on conservation of leatherbacks. If 
there were threats to leatherback passage through the open ocean, and 
there were a federal nexus to those threats, they could potentially be 
mitigated through a section 7 consultation on the species. For example, 
some commenters cited ship strikes and fishing gear entanglement as a 
threat to passage. These threats do not alter habitat features as 
defined in this rule; however, because they pose a direct threat to the 
species, these threats can be addressed through a jeopardy analysis. We 
also note that in the proposed rule we had concluded, after conducting 
a 4(b)(2) analysis for each area, that offshore areas containing the 
migratory pathway conditions PCE, but low or medium ratings for the 
prey PCE due to low levels of quality prey, should be excluded from the 
designation (i.e., Areas 4, 5, 6, and 8). While the migratory pathway 
PCE would have been found in Areas 1, 2 and 7, we only identified a 
single activity type, construction of long-term or permanent structures 
(e.g., alternative energy projects), that might trigger section 7 
consultation and project modifications to protect the passage feature. 
Section 7 consultation would likely still be required for such 
activities to consider effects to the species under the jeopardy 
standard as well as adverse modification of the prey PCE.
    At this time, and in light of the data and analysis described 
above, the migratory pathway conditions PCE, as defined in the proposed 
rule, lacks the required defined physical and biological features and 
specific passage locations, and we cannot demonstrate that this feature 
is ``essential to conservation of the species.'' Nor can we determine 
whether and where such pathway conditions might reasonably be ``known'' 
to occur within the nine specific areas evaluated for designation. 
Based on this re-evaluation, we conclude that this feature fails to 
meet the regulatory guidance for determining a PCE and cannot serve to 
qualify geographic areas as critical habitat under the ESA, section 
3(5)(A)(i).
    (2) Refinement of the prey PCE. We have added the term density to 
our definition of the prey PCE to reaffirm the importance of this 
quality to the feature. In our proposed rule, we associated the prey 
PCE with each area given the general co-occurrence of leatherbacks with 
prey species and the corresponding likelihood of foraging activity. At 
the same time we recognized that certain areas, particularly the near-
shore areas, are more heavily used for foraging and are of greater 
conservation value to the species. As we discussed in the proposed 
rule, prey is a feature off the U.S. West Coast that is essential to 
the conservation of leatherback sea turtles. In our proposed rule, we 
recognized that all areas containing the prey PCE were not equal in 
terms of the quantity and type of prey available and in their value for 
conservation of the species. We also provided data and analysis 
indicating that the areas where dense aggregations of prey occurred 
were the most important forage habitats for the species. We 
acknowledged a significant distinction between the conservation value 
of nearshore areas and offshore areas in relation to this feature, 
noting that some areas were of marginal conservation value due to the 
absence of prey in sufficient density to make forage energetically 
efficient for migrating turtles (e.g., Areas 4, 5, 6, 8 and 9). 
Specific nearshore areas were shown to have significant conservation 
value as they displayed a high density of prey species and 
corresponding patterns of regular leatherback use for sustained forage 
(e.g., Areas 1, 2 and 7). At the same time, we proposed finding that 
the prey PCE was present in all eight areas evaluated for designation. 
The proposed rule did so, without reflecting sufficiently the 
importance of density of prey species as a characteristic of the PCE 
due to differences in dense aggregations of prey species and predicted 
use by leatherbacks for sustained foraging.
    During public hearings on the proposed critical habitat, we 
received questions about the amount or density of prey species 
necessary for an area to be considered critical habitat. We also 
received written public comments suggesting that any area in which 
scyphomedusae may be found in the U.S. West Coast EEZ should be 
designated as critical habitat.
    In evaluating these comments and reviewing data related to the 
occurrence of prey species in specific areas and leatherback use of 
such areas for foraging, we have decided in the final rule to 
specifically include ``density'' in the prey PCE, thus reaffirming its 
biological significance as an element of the habitat feature considered 
essential to conservation of leatherbacks. This refinement is 
consistent with the available literature, including recent work by 
Benson et al. (2011) and Benson et al. (2007) that highlights the 
importance of prey aggregations to foraging leatherbacks.
    We further revised the eight areas evaluated for designation to 
ensure those areas took into account density in evaluating the prey 
PCE. While we cannot quantitatively describe the density of prey (e.g., 
number of jellyfish per square mile) necessary to support the energetic 
needs of leatherbacks that travel across the Pacific Ocean to forage 
off the U.S. West Coast, based on the available information, we know 
that not all areas in which jellyfish may be found provide sufficient 
condition, distribution, diversity, abundance and density to support 
leatherback individual and population growth, reproduction, and 
development. Please see (4) below for additional information on how the 
prey PCE was evaluated in each area.
    (3) Adjustment to area boundaries and the addition of Area 9.
    In our proposed rule, we identified the overall area occupied by 
the species. This did not change in the final rule. The proposed rule 
then identified eight specific areas within the U.S. West Coast EEZ, 
the limit of our regulatory authority for designating critical habitat, 
for evaluation to determine whether they qualified as critical habitat. 
We evaluated each of these areas to determine whether they contained a 
PCE, in which case the area would qualify as critical habitat. In our 
proposed rule, we explained that the boundaries for these areas were 
based on a best estimate of where leatherback sea turtles transition 
from migrating to foraging, and where there are changes in the 
composition or abundance of prey species. The boundaries were intended 
to reflect substantial data demonstrating leatherback presence in 
marine waters as well as oceanographic, hydrological and physical 
features that impact the location of prey.
    During the public comment period, we received comments that 
questioned our rationale for drawing the original area boundaries. In 
response to these comments, we reviewed the literature and data 
available on leatherback foraging and movements, as well as new 
information on leatherback movements, to determine if the boundaries 
were drawn appropriately. After reviewing relevant oceanographic 
processes and

[[Page 4186]]

physical features, we made three changes to the area boundaries to 
better reflect documented breaks in coastal ocean biological and 
physical properties. Our approach in drawing these boundaries did not 
depart from the stated objective in the proposed rule. Rather, it 
reflected what we believe to be a more accurate depiction of the 
oceanographic, hydrological and physical features impacting the 
location of prey and likely use by leatherbacks.
    Boundary changes include the following: (1) We moved the offshore 
boundary of Area 7 east to the 3,000 meter isobath to better reflect 
where foraging is known to occur off the coast of central and southern 
California, and to better distinguish between nearshore and offshore 
habitat. Additionally, in an effort to be consistent with other area 
boundaries marked by geographic features, the offshore boundary of Area 
7 has been moved east to the 3,000 m isobath. This boundary change 
resulted in a decreased overall size of Area 7 from 46,100 sq. mi to 
13,102 sq. mi. (2) We moved the boundary between Areas 2 and 3 from the 
Umpqua River south to Cape Blanco. Cape Blanco is a well-documented 
``break'' in coastal ocean physical and biological properties due to 
differences in primary bottom types and current patterns that influence 
the dispersal and retention of larval fishes and invertebrates (Barth 
et al., 2000; McGowan et al., 1999; Peterson and Keister, 2002); 
therefore, it was determined to be an appropriate oceanographic 
boundary to distinguish between these two areas. This boundary change 
resulted in the increased overall size of Area 2 from 24,500 sq. mi. to 
25,004 sq. mi. (3) We created a new Area 9 from the southern portion of 
the proposed Areas 7 and 8. Due to differences in the geography, 
oceanography, and usage by leatherbacks between the northern and 
southern portions of our proposed Areas 7 and 8, the creation of Area 9 
allowed us to look at areas with more uniform value in terms of 
leatherback habitat.
    The following paragraphs describe each final area (shown in Figure 
1) and summarize the data used to determine each area occupied by 
leatherbacks:
    Area 1: Neritic waters between Point Arena and Point Sur, 
California extending offshore to the 200 meter isobath. The specific 
boundaries are the area bounded by Point Sur (36[deg] 18'22'' N./
121[deg] 54'9'' W.), then north along the shoreline following the line 
of mean lower low water to Point Arena, California (38[deg] 57'14'' N./
123[deg] 44'26'' W.), then west to 38[deg] 57'14'' N./123[deg] 56'44'' 
W., then south along the 200 meter isobath to 36[deg] 18'46'' N./
122[deg] 4'43'' W., then east to the point of origin at Point Sur. As 
described in our final Biological Report, leatherback presence is based 
on aerial surveys, telemetry studies, and fishery interactions. This 
area is a principal California foraging area (Benson et al. 2007b), 
characterized by high densities of primary prey species, brown sea 
nettle (C. fuscescens), particularly within upwelling shadows and 
retention areas (Graham 1994).
    Area 2: Nearshore waters between Cape Flattery, Washington, and 
Cape Blanco, Oregon extending offshore to the 2000 meter isobath. The 
specific boundaries are the area bounded by Cape Blanco (42[deg] 50'4'' 
N./124[deg] 33'44'' W.) north along the shoreline following the line of 
mean lower low water to Cape Flattery, Washington (48[deg] 23'10'' N./
124[deg] 43'32'' W.), then north to the U.S./Canada boundary at 48[deg] 
29'38'' N./124[deg] 43'32'' W., then west and south along the line of 
the U.S. EEZ to 47[deg] 57'38'' N./126[deg] 22'54'' W., then south 
along a line approximating the 2,000 meter isobath that passes through 
points at 47[deg] 39'55'' N./126[deg] 13'28'' W., 45[deg] 20'16'' N./
125[deg] 21' W. to 42[deg] 49'59'' N./125[deg] 8' 10'' W., then east to 
the point of origin at Cape Blanco. As described in our final 
Biological Report, leatherback presence is based on aerial surveys, 
telemetry studies, and fishery interactions. This area is the principal 
Oregon/Washington foraging area and includes important habitat 
associated with the Columbia River Plume, and Heceta Bank, Oregon. 
Great densities of primary prey species, brown sea nettle (C. 
fuscescens), occur seasonally north of Cape Blanco (Suchman and Brodeur 
2005; Reese 2005; Shenker 1984). Jellyfish densities south of Cape 
Blanco appear to be dominated by moon jellies (Aurelia labiata) and egg 
yolk jellies (Phacellophora camtschatica; Suchman and Brodeur 2005; 
Reese 2005). Cape Blanco is a well-documented ``break'' in coastal 
ocean physical and biological properties due to differences in primary 
bottom types and current patterns that influence the dispersal and 
retention of larval fishes and invertebrates (Barth et al., 2000; 
McGowan et al., 1999; Peterson and Keister, 2002).
    Area 3: Nearshore waters between Cape Blanco, Oregon and Point 
Arena, California extending offshore to the 2000 meter isobath. This 
line runs from 42[deg]49'59'' N./125[deg]8'10'' W. through 
42[deg]39'3'' N./125[deg]7'37'' W., 42[deg]24'49'' N./125[deg]0'13'' 
W., 42[deg]3'17'' N./125[deg]9'51'' W., 40[deg]49'38'' N./
124[deg]49'29'' W., 40[deg]23'33'' N./124[deg]46'32'' W., 
40[deg]22'37'' N./154[deg]44'19'' W., to 38[deg]57'14'' N./
124[deg]11'50'' W., then east to Point Arena. As described in our final 
Biological Report, leatherback presence is based on aerial surveys, 
telemetry studies, and fishery interactions. This area includes 
upwelling centers between Cape Blanco, Oregon and Point Arena, 
California and is characterized by cold sea surface temperatures 
(<13[deg] C). High densities of jellyfish have been documented between 
Cape Blanco and the Oregon-California border; however, species 
composition is dominated by moon jellies (A. labiata) and egg yolk 
jellies (Phacellophora camtschatica; Suchman and Brodeur 2005; Reese 
2005). Aerial surveys of leatherbacks and jellyfish prey indicate that 
moon jellies are also the dominant jelly species north of Point Arena, 
California.
    Area 4: Offshore waters west and adjacent to Area 2. Includes 
waters west of the 2000 meter isobath line to the U.S. EEZ from 
47[deg]57'38'' N./126[deg]22'54'' W. south to 43[deg]44'59'' N./
125[deg]16'55'' W. As described in our final Biological Report, 
leatherback presence is based on aerial surveys, telemetry studies, and 
fishery interactions. This area is used primarily as a region of 
passage to/from Area 2 (see above). No information is available 
regarding presence of jellyfish in this area; however, due to its 
distance from the coast and lack of persistent frontal habitat, prey 
species are likely limited to low densities of moon jellies (A. 
labiata) and salps.
    Area 5: Offshore waters south and adjacent to Area 4, and north of 
a line consistent with the California/Oregon border. Includes all U.S. 
EEZ waters west of the 2000-meter isobath. As described in our final 
Biological Report, leatherback presence is based on aerial surveys, 
telemetry studies, and fishery interactions. The eastern edge of this 
polygon is strongly influenced by an oceanographic front west of Cape 
Blanco, Oregon. The position and intensity of the front is variable, 
dependent on the strength of upwelling at Cape Blanco, and can be 
located within the extreme eastern edge of Area 5 during strong 
upwelling events. The front likely acts as an aggregation mechanism for 
zooplankton; however, no information is available about jellyfish 
densities. Given its distance offshore, jellyfish densities are likely 
variable and dominated by moon jellies that may be advected from nearby 
coastal waters (Suchman and Brodeur 2005; Reese 2005), therefore, 
importance as a foraging area to leatherbacks is secondary. This area 
is also a region of passage to/from Area 2 (see above).
    Area 6: Offshore waters south and adjacent to Area 5, west and 
adjacent to the southern portion of Area 3 (see above) offshore to a 
line connecting N42.000/W129.000 and N38.95/

[[Page 4187]]

W126.382, with the eastern boundary beginning at the 2000 meter isobath 
(42[deg]3'6'' N./125[deg]9'53'' W.). As described in our final 
Biological Report, leatherback presence is based on aerial surveys, 
telemetry studies, and fishery interactions. Offshore waters south of 
the Mendocino Escarpment are characterized by frontal habitat created 
by the Cape Mendocino upwelling center. Similar to Area 5, frontal 
intensity is variable and dependent on the strength of upwelling at 
Cape Mendocino (Castelao et al. 2006). No information is available 
about jellyfish densities in the Area 6, however, given its distance 
offshore, jellyfish densities are likely low, dominated by moon 
jellies, and of secondary importance to leatherbacks as a foraging 
area.
    Area 7: Offshore waters between the 200-3000 meter isobaths from 
Point Arena to Point Sur, California and waters between the coastline 
and the 3000 meter isobath from Point Sur to Point Arguello, 
California. This area includes waters surrounding the northern Santa 
Barbara Channel Islands (San Miguel, Santa Rosa, Santa Cruz, and 
Anacapa Islands). As described in our final Biological Report, 
leatherback presence is based on aerial surveys, telemetry studies, and 
fishery interactions. Offshore waters beyond the 200 meter isobath in 
this area are characterized by persistent ocean frontal habitat created 
by mesoscale retentive eddies and meanders associated with offshore-
flowing squirts and jets anchored at coastal promontories between Point 
Arena and Point Sur, creating linkages between nearshore waters of Area 
1 and offshore waters of the California Current. The recurrent 
oceanographic features at the edge of the continental shelf are 
occupied by aggregations of moon jellies (A. labiata) and lower 
densities of brown sea nettles (C. fuscescens). Telemetry data indicate 
that these offshore waters are commonly utilized by leatherbacks when 
jellyfish availability in Area 1 is poor, and as a region of passage 
to/from Area 1. Neritic waters between Point Sur and Point Arguello are 
also strongly influenced by coastal upwelling processes. Point Arguello 
is a well-documented ``break'' in coastal ocean physical and biological 
properties along the U.S. West Coast, separating newly upwelled waters 
of the central California coast from upwelled-modified and warm, lower 
salinity waters of the southern California Bight. The southern portion 
of the region includes Morro and Avila Bays, where large densities of 
brown sea nettles have been observed seasonally in fisheries monitoring 
surveys and trawl surveys.
    Area 8: Offshore waters west and adjacent to Area 6, and west of 
the 3000 meter isobath adjacent to Areas 7, and 9 between Point Arena, 
California and the U.S. EEZ/Mexico maritime border. As described in our 
final Biological Report, leatherback presence is based on aerial 
surveys, telemetry studies, and fishery interactions. Although eddies 
and meanders originating from coastal capes and headlands may be 
present in this region after particularly strong upwelling events, 
frontal features are not persistent or abundant and the region is 
primarily characterized by warm, low salinity offshore waters. Due to 
its distance from the coast and lack of persistent frontal habitat, 
prey species are likely limited to low densities of moon jellies (A. 
labiata) and salps. Area 8 is primarily a region of passage for 
leatherbacks to/from Area 7 (see above).
    Area 9: Southern California Bight waters extending from the coast 
to the 3000 meter isobath between Point Arguello and Point Vicente, and 
from Point Vicente to N32.589/W117.463 extending to the 3000 meter 
isobath. As described in our Final Biological Report, leatherback 
presence is based on aerial surveys, telemetry studies, and fishery 
interactions. Upwelling originating from Point Conception creates 
offshore frontal near the northern Santa Barbara Channel Islands (San 
Miguel, Santa Rosa, Santa Cruz, and Anacapa) extending to San Nicolas 
Island; however, most of this region is characterized by warm, low 
salinity waters. Little information is available about the presence of 
jellies in the area; however, trawl samples performed by the California 
Cooperative Fisheries Investigations (CalCOFI) suggest that moon 
jellies are the dominant scyphomedusae; therefore, this area is of 
secondary importance to leatherbacks as a foraging area. Leatherbacks 
use this area primarily as a region of passage to Area 7, particularly 
during the spring and early summer months. This area was created in 
recognition of the southern California Bight biogeographic region 
(Parrish et al. 1981) that lies south of Point Arguello/Point 
Conception extending to the U.S./Mexico maritime border and west to the 
3000 meter isobath.
    Additionally, as mentioned in our response above, the shoreward 
extent of the areas was moved from the mean lower low water line to the 
extreme low water line. In our proposed rule, we identified the mean 
lower low water line as the shoreward boundary for this designation; 
however, leatherbacks are unlikely to pursue prey beyond the extent of 
extreme low water (S. Benson, NMFS, September 2000, unpublished data). 
In light of this information, we determined that extreme low water is a 
more appropriate boundary for the shoreward extent of this critical 
habitat.
    As depicted in Figure 1, NMFS's adjustment of boundaries in the 
final rule do not either increase or decrease the total geographic area 
evaluated for potential designation as critical habitat identified in 
the proposed rule. Areas 1, 2 and 7 were identified for designation in 
the proposed rule. Areas 1, 2 and 7 are also included in the final 
designation though the boundaries for those areas have been adjusted as 
explained above. While the boundaries to Areas 1 and 2 remain largely 
unchanged from the proposed rule, the final rule's adjustment to the 
boundaries of Area 7 results in a substantial decrease in the spatial 
extent of the final designation when compared with the proposed rule.
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[GRAPHIC] [TIFF OMITTED] TR26JA12.015

BILLING CODE 3510-22-C
    (4) Determining which areas meet the definition of critical habitat 
after the elimination of our migratory pathway PCE and using our 
refined prey PCE.
    As described above, we eliminated our proposed migratory pathway 
PCE and therefore re-examined each of our areas to determine if the 
prey PCE, as refined in this final rule to include density, could be 
found within each of the nine areas. For each of the nine occupied 
areas, we evaluated the co-occurrence of leatherback turtles and their 
prey species based on the best available data. We specifically 
evaluated each area to predict whether and where the prey jellyfish 
could be consistently found in sufficient abundance, condition, 
distribution, diversity and density to provide for foraging that is

[[Page 4189]]

essential to the conservation of the species.
    Coastal nutrient input, high productivity, and shallow waters (less 
than 1000 meters depth) are favorable for the life history of many 
species of scyphomedusae. The consistent availability of abundant prey 
in relatively small geographic areas associated with fixed or recurrent 
physical features influenced by coastal geomorphology is likely a key 
factor causing leatherbacks to travel to the U.S. West Coast to forage. 
In contrast to coastal areas, prey patches in open ocean regions are 
likely more dynamic, ephemeral, and unpredictable and do not have 
consistent conditions that produce the abundance and densities 
necessary for providing sufficient energy for foraging leatherbacks.
    In addition, a telemetry and behavioral study has become available 
since the proposed rule was published (Benson et al. 2011). This study 
provides information and locations of high occurrences of leatherback 
foraging (described in the paper as area restricted search or ARS), and 
these foraging areas closely align with Areas 1, 2, and 7.
    The proposed rule described the general co-occurrence of 
leatherback turtles and their prey species in areas offshore, including 
Areas 3, 4, 5, 6 and 8, as well as the southern and offshore portion of 
Area 7. Based on the available data, we could not identify or 
reasonably predict whether or where the refined PCE could be 
consistently found in sufficient abundance, condition, distribution, 
diversity and density to provide for foraging that is essential to the 
conservation of the species in areas 3, 4, 5, 6, 8 and 9, in a manner 
consistent with our definition and explanation of the prey PCE in this 
final rule. As such these areas do not meet the definition of critical 
habitat and therefore are not eligible for further consideration in 
this designation. Please see our more specific evaluation of each area 
below.
    Area 1. The preferred prey of leatherback sea turtles, brown sea 
nettles (C. fuscescens), are found in abundance and high densities in 
this area particularly within upwelling shadows and retention areas. 
This area has been identified as the principal foraging area off the 
coast of California and contains features that produce abundant prey of 
sufficient condition, distribution, diversity and density to provide 
for foraging that is essential to the conservation of the species. 
Thus, this area meets the definition of critical habitat and is 
eligible for designation.
    Area 2. The preferred prey of leatherback sea turtles, brown sea 
nettles (C. fuscescens), are found in abundance and high densities in 
this area. This area is the principal foraging area off of Oregon and 
Washington as great densities of brown sea nettles are found to 
seasonally associate with the Columbia River Plume and Heceta Bank in 
Oregon, north of Cape Blanco. Based upon the best available scientific 
information, these features produce prey of sufficient condition, 
distribution, diversity abundance and density to provide for foraging 
that is essential to the conservation of the species. Thus this area 
meets the definition of critical habitat and is eligible for 
designation.
    Area 3. This area has features that produce an abundance of 
jellies, particularly during seasonal upwelling. However, south of Cape 
Blanco, Oregon to the Oregon-California border the area is dominated by 
moon jellies and egg yolk jellies. South of the Oregon-California 
border and north of Point Arena, moon jellies are the dominant species 
of jellies. These species are not the preferred prey for leatherbacks, 
although they may be consumed when brown sea nettles are not available. 
A recent publication analyzing movement of leatherbacks along the U.S. 
West Coast indicates that foraging behavior was not observed in Area 3 
(Benson et al., 2011). The water in this area (i.e., south of Cape 
Blanco, the boundary between Area 2 and Area 3) is colder than waters 
in adjacent Areas 1 and 7 to the south and Area 2 to the north (Huyer, 
1983; Brodeur et al., 2004). Cape Blanco is a coastal promontory that 
protrudes farther to the west than any other feature in the relatively 
straight coastline of the U.S. Northwest. The environmental variability 
associated with this feature suggests habitat partitioning between prey 
species. For example, Suchman and Brodeur (2005) found that brown sea 
nettles were more likely to be caught in waters north of Cape Blanco, 
while south of Cape Blanco, moon jellies were more prevalent. Thus, 
Area 3 may not be utilized by leatherbacks as a foraging region because 
it is energetically inefficient for leatherbacks to consume low caloric 
content prey (i.e., moon jellies) while maintaining their core body 
temperatures through swimming. Densities of brown sea nettles are 
likely insufficient to support regular foraging in the cold waters of 
Area 3. Based upon the best available scientific information, the 
oceanographic features of this area do not produce prey of sufficient 
condition, distribution, diversity, abundance and density to provide 
for foraging that is essential to the conservation of the species. Thus 
this area does not meet the definition of critical habitat.
    Area 4. This area has been characterized as primarily a region of 
passage to/from Area 2; therefore, we evaluated it in terms of the prey 
PCE. Although there is limited information available regarding the 
presence of jellyfish in this area, the recent study by Benson et al. 
(2011) indicates that jellyfish feeding occurs in the area. Due to 
distance from the coast and lack of persistent frontal habitat, prey 
species are likely limited to low densities of moon jellies (A. 
labiata) and salps. Small densities of low caloric prey resources in 
Area 4 may be sufficient for counteracting calorie loss but are likely 
not necessary for leatherbacks to reach Area 2. Further, it is unlikely 
that the densities of brown sea nettles within Area 4 are sufficient to 
provide adequate energy for leatherback growth or reproduction. Based 
upon the best available scientific information, the oceanographic 
features of this area do not produce prey of sufficient condition, 
distribution, diversity, abundance and density to provide for foraging 
that is essential to the conservation of the species. Thus, this area 
does not meet the definition of critical habitat.
    Area 5. This area was defined based on its use as passage for 
leatherbacks from far offshore waters to foraging sites in Area 2 and 
between Areas 1 and 2. The eastern edge of the area is influenced by an 
oceanographic front west of Cape Blanco, Oregon that is variable and 
dependent on the strength of upwelling at Cape Blanco. Although the 
front may act as an aggregation mechanism for zooplankton, no 
information is available on its impact on jellyfish densities or if it 
acts as a transport mechanism for jellyfish. Similar to other distant 
offshore areas, jelly densities are likely variable and dominated by 
moon jellies. Recent work by Benson et al. (2011) indicates that no 
foraging behavior was observed in Area 5 during their study period, 
2000 through 2008. While prey may be present in Area 5, based upon the 
best available scientific information, we could not find areas that had 
prey of sufficient condition, distribution, diversity, abundance and 
density to provide for foraging that is essential to the conservation 
of the species. Thus, this area does not meet the definition of 
critical habitat.
    Area 6. Similar to Area 5, frontal intensity is variable and 
dependent on the strength of upwelling at Cape Mendocino (Castelao et 
al. 2006). No information is available about jelly densities in the 
Area 6; however, given its distance offshore, jelly densities are

[[Page 4190]]

likely low, dominated by moon jellies. Recent work by Benson et al. 
(2011) showed that no leatherbacks foraged in Area 6 during their study 
period 2000 through 2008. While prey may be present in Area 6, based 
upon the best available scientific information, we could not find areas 
that have prey of sufficient condition, distribution, diversity, 
abundance and density to provide for foraging that is essential to the 
conservation of the species. Thus, this area does not meet the 
definition of critical habitat.
    Area 7. A quasi-stationary front occurs in this area near the 2000 
m to 3000 m isobaths as warm offshore waters meet cooler coastal 
upwelled water. As upwelling winds relax, this front moves closer to 
the coast and likely aggregates sea nettles that have been advected 
from nearby coastal waters (Area 1). The neritic waters between Point 
Sur and Point Arguello are also strongly influenced by coastal 
upwelling processes that produce abundant and dense aggregations of 
leatherback prey. Telemetry data indicate that these offshore waters 
are utilized for foraging by leatherbacks (Benson et al. 2011), 
particularly if foraging opportunities in Area 1 are poor, as evidenced 
by leatherbacks spending more time engaged in ARS behavior in this area 
than in Areas 3, 4, 5,6, 8 or 9. Based upon the best available 
scientific information, the oceanographic features of this area produce 
prey of sufficient condition, distribution, diversity, abundance and 
density to provide for foraging that is essential to the conservation 
of the species. Thus, this area meets the definition of critical 
habitat.
    Area 8. This area has been identified primarily as an area of 
passage for leatherbacks moving from distant offshore waters to 
nearshore foraging Areas 1 and 7. Unlike Area 7, frontal features are 
less abundant and more ephemeral in Area 8. The region is primarily 
characterized by warm, low salinity offshore waters. Due to the great 
distance from the coast, prey species are likely limited to low 
densities of moon jellies (A. labiata) and salps. Recent work by Benson 
et al. (2011) indicates that foraging behavior is rare and inconsistent 
in this area. Additional information from Benson (unpublished data, 
2008) indicated that during a ship-based survey within these waters, an 
offshore front was observed over 100 miles from shore. Brown nettles 
were found in poor condition (small and dying) that were likely 
advected from coastal waters to the offshore front. Although 
leatherbacks could potentially attempt to feed in this area, the 
relatively low densities and poor condition of brown sea nettles in 
this area would likely not provide adequate energy for leatherback 
growth and reproduction. Based upon the best available scientific 
information, the oceanographic features of this area do not produce 
prey of sufficient condition, distribution, diversity, abundance and 
density to provide for foraging that is essential to the conservation 
of the species. Thus, this area does not meet the definition of 
critical habitat.
    Area 9. This area was identified as primarily an area of passage in 
our proposed rule. Therefore, we re-evaluated it in terms of the prey 
PCE. Most of this area is characterized by warm, low salinity waters, 
although upwelling originating from Point Conception creates offshore 
fronts near the northern Santa Barbara Channel Islands and extending 
south to San Nicolas Island. Little information is available regarding 
the presence of jellyfish in the area; however, trawl samples suggest 
that moon jellies are the dominant scyphomedusae. A recent report on 
telemetry work on leatherbacks indicates some limited foraging behavior 
around the Channel Islands, and within the southern California Bight by 
a single individual during spring while moving toward Areas 1 and 7 
(Benson et al. 2011). Area 9 was primarily used for passage to Areas 1 
and 7 by turtles that entered the California Current during the spring. 
We have no information to indicate whether brown sea nettles are found 
in sufficient abundance or density to allow for efficient foraging by 
leatherbacks. Based upon the best available scientific information we 
could not conclude that this area contained the prey PCE. Thus, this 
area does not meet the definition of critical habitat.

Critical Habitat Identification and Designation

    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
the specific areas within the geographical area occupied by the 
species, at the time it is listed * * *, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed * * 
* upon a determination by the Secretary that such areas are essential 
for the conservation of the species.''
    If critical habitat is designated, section 7 of the ESA requires 
Federal agencies to insure they do not fund, authorize, or carry out 
any actions that will result in the adverse modification or destruction 
of that habitat. This requirement is in addition to the section 7 
requirement that Federal agencies insure their actions do not 
jeopardize the continued existence of listed species.
    In the following sections, we describe our methods for evaluating 
the areas considered for designation as critical habitat, our final 
determinations, and the final critical habitat designation. This 
description incorporates the changes described above in response to 
public comments and peer reviewer comments.

Methods and Criteria Used To Identify Critical Habitat

    In accordance with section 4(b)(2) of the ESA and our implementing 
regulations (50 CFR 424.12(a)), this final rule is based on the best 
scientific information available regarding leatherback sea turtles' 
present and historical range, habitat and biology, as well as threats 
to its habitat.
    To assist with the consideration of revising leatherback critical 
habitat, we convened a CHRT consisting of biologists and managers from 
NMFS Headquarters, the Southwest and Northwest Regional Offices, and 
the Southwest Fisheries Science Center. The CHRT members had experience 
and expertise on leatherback biology, distribution and abundance of the 
species along the U.S. West Coast as it relates to oceanography, ESA 
section 7 consultations and management, and/or the critical habitat 
designation process. The CHRT used the best available scientific data 
and their best professional judgment to: (1) Verify the geographical 
area occupied by the leatherbacks at the time of listing; (2) identify 
the physical and biological features essential to the conservation of 
the species that may require special management considerations or 
protection; (3) identify specific areas within the occupied area 
containing those essential physical and biological features; (4) 
evaluate the conservation value of each specific area; and (5) identify 
activities that may affect any designated critical habitat. The CHRT 
evaluation and conclusions are described in detail in the following 
sections.

Physical or Biological Features Essential for Conservation

    Joint NMFS and USFWS regulations (50 CFR 424.12(b)) state that in 
determining what areas are critical habitat, the agencies ``shall 
consider those physical and biological features that are essential to 
the conservation of

[[Page 4191]]

a given species and that may require special management considerations 
or protection.'' Features to consider may include, but are not limited 
to: ``(1) Space for individual and population growth, and for normal 
behavior; (2) Food, water, air, light, minerals, or other nutritional 
or physiological requirements; (3) Cover or shelter; (4) Sites for 
breeding, reproduction, rearing of offspring, germination, or seed 
dispersal; and generally; (5) Habitats that are protected from 
disturbance or are representative of the historic geographical and 
ecological distributions of a species.'' Id. The regulations also 
require agencies to ``focus on the principal biological or physical 
constituent elements'' (i.e., PCEs) within the specific areas 
considered for designation that are essential to conservation of the 
species. PCEs may include, but are not limited to, the following: 
spawning sites, feeding sites, water quality or quantity, geological 
formation, and tide.

Primary Constituent Elements

    We have identified one PCE essential for the conservation of 
leatherbacks in marine waters off the U.S. West Coast: The occurrence 
of prey species, primarily scyphomedusae of the order Semaeostomeae 
(e.g., Chrysaora, Aurelia, Phacellophora, and Cyanea), of sufficient 
condition, distribution, diversity, abundance and density necessary to 
support individual as well as population growth, reproduction, and 
development of leatherbacks.
    As described above in the section ``Summary of changes from the 
proposed designation,'' public comments led us to take a closer look at 
the prey PCE to better describe the characteristics that make the PCE 
essential to the conservation of leatherbacks. Leatherbacks have high 
caloric needs, and their preferred gelatinous prey have low nutritional 
value individually, but consumed in large amounts can satisfy the 
energetic needs of subadult and adult leatherback sea turtles. As noted 
in our proposed rule, leatherbacks must consume 20 to 30 percent of 
their body weight each day, or roughly 50 large jellyfish. Adult 
leatherbacks (250-450 kg) may consume 70-90 kg of jellyfish per day to 
meet their energetic needs (Wallace et al. 2006). Leatherback sea 
turtles may opportunistically feed in areas with low densities of 
jellyfish, but these patches of prey are not sufficient to support the 
energetic needs to promote individual and population growth, 
reproduction and development. Telemetry studies and aerial surveys by 
Benson et al. (2011 and 2007) confirm that leatherbacks are most often 
found foraging in retention areas that are created by points and 
headlands, and at dynamic mesoscale features including fronts, eddies, 
and regions of low eddy kinetic energy.
    Therefore, we have refined our description of the leatherback prey 
PCE to specifically include density, along with sufficient condition, 
distribution, diversity, and abundance described in our proposed rule. 
Our approach is similar to the agency's designation of critical habitat 
for North Pacific right whales. Baleen whales and leatherback turtles 
both forage on relatively small prey. Baleen whales rely on dense 
aggregations of small fish and krill to satisfy their caloric needs, in 
the same way as leatherbacks rely on dense aggregations of jellyfish. 
For the North Pacific right whale critical habitat designation, we 
identified prey as the sole PCE. Although North Pacific right whales' 
preferred prey, copepods, are ubiquitous in the North Pacific, we 
identified the need for a certain density of prey, and located an area 
in the ocean where physical forcing mechanisms concentrate copepods in 
sufficient densities to allow for efficient feeding by whales (79 FR 
19000, April 8, 2008).

Geographical Area Occupied and Specific Areas

    One of the first steps in this critical habitat review process was 
to define the geographical area occupied by the species at the time of 
listing. As described above, leatherbacks are distributed throughout 
the oceans of the world including along the U.S. West Coast within the 
U.S. EEZ. The CHRT reviewed available data sources to identify 
locations within and adjacent to the petitioned area that contain the 
prey PCE. Information reviewed included: Turtle distribution data from 
nearshore aerial surveys (Peterson et al., 2006; Benson et al., 2006; 
2007b; 2008; NMFS unpublished data); offshore ship sightings and 
fishery bycatch records (Bowlby, 1994; Starbird et al., 1993; Bonnell 
and Ford, 2001; NMFS SWR Observer Program, unpublished data); satellite 
telemetry data (Benson et al., 2007a; 2007c; 2008; 2009; NMFS 
unpublished data); distribution and abundance information on the 
preferred prey of leatherbacks (Peterson et al., 2006; Harvey et al., 
2006; Benson et al., 2006; 2008); bathymetry (Benson et al., 2006; 
2008); and regional oceanographic patterns along the U.S. West Coast 
(Parrish et al., 1983; Shenker, 1984; Graham, 1994; Suchman and 
Brodeur, 2005; Benson et al., 2007b).
    Joint NMFS and FWS regulations provide that areas outside of U.S. 
jurisdiction not be designated as critical habitat (50 CR 424.12(h)), 
so any areas outside of the U.S. EEZ were excluded from our analysis. 
Thus, the occupied geographic area under consideration for this 
designation was limited to areas along the U.S. West Coast within the 
U.S. EEZ from the Washington/Canada border to the California/Mexico 
border.

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.'' In our proposed rule we stated that 
we did not identify any specific areas outside the geographic area 
occupied by leatherbacks that may be essential for the conservation of 
the species. We did not receive any public or peer review comments on 
this topic, therefore, no unoccupied areas will be included in this 
analysis.

Special Management Considerations or Protections

    An occupied area may be designated as critical habitat only if it 
contains physical or biological features essential to the conservation 
of the species that ``may require special management considerations or 
protection.'' Joint NMFS and USFWS regulations (50 CFR 424.02(j)) 
define ``special management considerations or protection'' to mean 
``any methods or procedures useful in protecting physical and 
biological features of the environment for the conservation of listed 
species.'' We have identified a number of activities that may threaten 
or adversely impact our identified PCE. In our proposed rule, we 
grouped these activities into eight activity types: Aquaculture, 
pollution from point sources (e.g., National Pollution Discharge 
Elimination System (NPDES)); runoff from agricultural pesticide use; 
oil spill response; power plants; desalination plants; tidal, wave, and 
wind energy projects; and liquefied natural gas (LNG) projects.
    In our proposed rule, aquaculture was described as an activity that 
may adversely impact our migratory pathway PCE. With the removal of 
that PCE, aquaculture is no longer considered an activity that may 
impact this critical habitat designation. As such, the remaining seven 
activity types have been evaluated for their potential to impact the 
prey PCE by altering prey abundance or prey contamination levels with 
Areas 1, 2, and 7. Based on the present and potential impacts from 
these activities, we have determined that the prey feature may require 
special

[[Page 4192]]

management consideration or protection.

  Table 1--Summary of Occupied Specific Areas, Surface Area Covered and
 Activities That May Affect the Prey PCE in Each Area Such That Special
         Management Considerations or Protection May Be Required
         [Please see the economic report for additional details]
------------------------------------------------------------------------
                                  Est. area (sq.    Activities that may
         Specific area                 mi)          impact the PCE Prey
------------------------------------------------------------------------
Area 1........................  3,807 (9,862 sq.   Point pollution
                                 km).               (NPDES permitting),
                                                    pesticide
                                                    application, oil
                                                    spill response,
                                                    power plants,
                                                    desalination plants,
                                                    tidal and wave
                                                    energy projects.
Area 2........................  25,004 (64,760     Point pollution
                                 sq. km).           (NPDES permitting),
                                                    pesticide
                                                    application, oil
                                                    spill response,
                                                    tidal, wave and wind
                                                    energy projects,
                                                    LNG.
Area 7........................  13,102 (33,936     Point pollution
                                 sq. km).           (NPDES permitting),
                                                    pesticide
                                                    application, oil
                                                    spill response,
                                                    power plants,
                                                    desalination plants.
------------------------------------------------------------------------

ESA Section 4(b)(2) Analysis

    Section 4(b)(2) of the ESA requires the Secretary of Commerce 
(Secretary) to designate critical habitat based on the best scientific 
data available, after taking into consideration the economic impact, 
impacts on national security and any other relevant impact, of 
specifying any particular area as critical habitat. Section 4(b)(2) 
further states that the Secretary may exclude any area from critical 
habitat if he determines that the benefits of such exclusion outweigh 
the benefits of designation, unless he determines that failure to 
designate will result in the extinction of the species.
    The ESA does not define what ``particular area'' means in the 
context of section 4(b)(2), or the relationship of particular areas to 
``specific areas'' that meet the statute's definition of critical 
habitat.
    In previous sections of this final rule, we detailed the 9 occupied 
areas, within the geographic range of the species, that were initially 
evaluated for eligibility as critical habitat. Through that process, we 
determined that Areas 1, 2 and 7 are eligible for designation as 
critical habitat. As there was no biological basis to further subdivide 
these three ``specific areas'' into smaller units, we treated these 
areas as the ``particular areas'' for our initial consideration of the 
impacts of designation. The following sections detail the analysis that 
was done to consider economic and other impacts from this designation 
to determine if any particular areas should be excluded.

Benefits of Designation

    As described above, section 4(b)(2) of the ESA requires that we 
balance the benefit of designation against the benefit of exclusion for 
each particular area. The primary benefit of a critical habitat 
designation is the protection afforded under section 7 of the ESA, 
which requires that all Federal agencies insure that any action they 
authorize, fund, or carry out is not likely to result in the 
destruction or adverse modification of designated critical habitat. 
This is in addition to the requirement that all Federal agencies ensure 
that their actions are not likely to jeopardize the continued existence 
of any listed threatened or endangered species. The designation of 
critical habitat also provides other benefits, such as improving 
education and outreach by informing the public about areas and features 
important to species conservation. At this time, we lack information 
that would allow us to quantify or monetize the benefits of designating 
critical habitat for leatherback sea turtles and have instead relied on 
a qualitative review of the potential benefits.
    In our proposed rule, we used the overall conservation value 
ratings that were developed for each area to represent the qualitative 
benefit of designation, and we requested public comments on methods for 
pursuing a quantitative analysis of the benefits of designation. Public 
comments suggested that there are examples of true cost and benefit 
analyses for other species, although the intrinsic value of a 
leatherback sea turtle and its habitat have not been quantified or 
given a specific monetary value. These comments prompted a review of 
the analysis done in the proposed rule to determine the overall benefit 
of designation.
    The benefit of designation depends on several factors, including 
the conservation value of the area to the species, the seriousness of 
the threats to that conservation value, and the extent to which an ESA 
section 7 consultation or the educational aspects of designation will 
address those threats. We began this process by re-examining the 
conservation value of each specific area based upon the new area 
boundaries for Areas 2 and 7, as well as the elimination of the 
migratory pathway PCE. We reviewed the best available information to 
specifically evaluate each particular area in terms of density of prey, 
prey species composition, prey aggregating mechanisms within the area, 
and inter-annual variability (e.g., El Ni[ntilde]o (Barber and Chavez, 
1983), or Pacific Decadal Oscillation cycles (McGowan et al., 1998; 
2003)) to determine the conservation value of each area. Through this 
evaluation (see Table 2), we determined that all three areas have a 
high conservation value for leatherback turtles. We then evaluated the 
extent to which an ESA section 7 consultation and the educational 
aspects of designation will address threats to the PCE from the 
activity types identified as having the potential to impact critical 
habitat. Lastly, we incorporated available information on leatherback 
foraging use of each area to determine our final conservation benefit 
of designation score for each area. The following sections further 
detail this process.

Conservation Value

    As mentioned above, to determine the conservation value of each 
area based on the prey PCE, we scored each area for its importance in 
four main prey categories: Density of prey; composition of prey 
species; aggregation mechanism present; and inter-annual variation. We 
also acknowledge that these categories should be weighted for their 
relative importance in creating optimal foraging habitat. Therefore, 
density of prey was weighted at 40 percent of the total area 
conservation score, while prey species composition, aggregation 
mechanism, and inter-annual variability were weighted at 25 percent, 25 
percent, and 10 percent, respectively.
    We first scored each area from 1 to 5 for each prey category, with 
5 representing a very high conservation value. Then each score was 
weighted based on its particular category. For

[[Page 4193]]

example, in Area 1, prey concentration was given a score of 5, meaning 
that it has a very high concentration of prey. The prey concentration 
category is weighted at 40 percent importance overall, so the weighted 
score for prey concentration in Area 1 is 2. All weighted scores across 
categories were added to calculate a total weighted score for each 
area, as shown in Table 2. Finally, the conservation value was assigned 
to each area based on the total weighted score. Scores from 4.0 to 5.0 
were given a high conservation value, scores from 3.0 to 3.9 were given 
a medium conservation value, and all scores of 2.9 or lower were given 
a low conservation value. All three of our particular areas scored a 
high conservation value, which is consistent with scientific literature 
and observations of a high level of leatherback foraging in these 
areas.

   Table 2--The Scores for Each Area Based on the Four Prey Categories, the Weighted Adjustment to Scores Based on the Overall Importance of Each Prey
                                                          Category, and the Conservation Rating
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Prey species     Aggregating    Inter-annual
                   Area                      Density of      composition      mechanism      variability   Total weighted        Conservation value
                                             prey (0.4)        (0.25)          (0.25)           (0.1)           score
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........................................         5 (2.0)        5 (1.25)        5 (1.25)         4 (0.4)            4.9   High.
2........................................         4 (1.6)        5 (1.25)           4 (1)         4 (0.4)            4.25  High.
7........................................         4 (1.6)           4 (1)           4 (1)         4 (0.4)            4     High.
--------------------------------------------------------------------------------------------------------------------------------------------------------

ESA Section 7 Benefits

    When considering the extent to which an ESA section 7 consultation 
will benefit the species in an area designated as critical habitat, we 
considered the importance of the area and the types of threats to the 
PCE that may be addressed through such consultation. Under ESA section 
7, Federal agencies must insure that their actions will not result in 
destruction or adverse modification of critical habitat.

Educational Benefits

    Educational benefits are included in this analysis to recognize 
that a critical habitat designation may provide educational benefits to 
leatherbacks, especially if it raises the awareness of Federal, state 
and local agencies that engage in or authorize activities that may 
affect the species or its habitat. Such awareness may lead to 
protective regulations or policies at the state or local levels that in 
turn help to educate the general public. After considering the types of 
activities that may affect leatherback habitat we believe that it is 
more likely that nearshore coastal areas would yield greater 
educational benefits than offshore areas simply due to their proximity 
and accessibility to the public.
    U.S. West Coast states maintain jurisdiction offshore to 3 nm 
wherein occurs the vast majority of human activities in the marine 
environment (e.g., fishing, swimming, boating). All three states have 
agencies and entities that provide education and encourage public 
conservation of coastal resources, including marine species habitats. 
For example, the California Coastal Commission has active public 
education and outreach efforts focused on coastal beaches and waters, 
including an ``Adopt-a-Beach'' program and ``California Coastal Cleanup 
Day'' that annually draws tens of thousands of participants. The 
California Department of Fish and Game is actively involved in 
implementing the state's Marine Life Protection Act and the 
identification of Marine Protected Areas. Similar agencies, programs, 
and strategies exist in Washington and Oregon, including: the 
Washington Department of Ecology Coastal Zone Management Program; 
Oregon Division of State Lands Coastal Management Program; Oregon 
Coastal Zone Management Association; and the Oregon Nearshore Marine 
Resources Management Strategy (Oregon Department of Fish and Wildlife, 
2006), which defines the ``nearshore ocean'' as the area from the 
coastal high tide line offshore to the 30-fathom (180 feet or 55 meter) 
depth contour (i.e., well within the Area 2 boundary). All of these 
agencies and entities produce and distribute numerous brochures, maps, 
and educational resources that emphasize actions to protect habitats in 
the nearshore coastal zone used by leatherbacks.

Leatherback Foraging Use

    Leatherbacks in the Pacific expend tremendous time and energy 
migrating to and along the U.S. West Coast to forage on jellyfish. To 
gain insights into potential preferences, we reviewed the available 
data and literature to help quantify the use of each specific area for 
foraging. NOAA's Southwest Fisheries Science Center, (Benson et al. 
2011), has been investigating leatherback use of the coastal waters of 
California, Oregon, and Washington. Satellite transmitters have been 
applied to leatherback sea turtles at western Pacific nesting beaches 
and at California foraging grounds. Benson et al. (2011), modeled the 
daily position estimates for tagged animals and then used movement data 
from each independent transmitter to infer if the turtle was engaged in 
``Area Restricted Search'' (foraging) or ``Transit'' (directed travel 
between areas). This new research, in coordination with other data on 
foraging behavior, has provided additional information regarding the 
usage of each specific area and is summarized below.
    Area 1: Satellite data indicate foraging behavior between Bodega 
Bay and northern Monterey Bay, and between Bodega Bay and Point Arena 
when warmer water extends northward from Point Reyes (usually during 
September). Data were used from individuals that were captured off the 
central California coast, and that returned the following year.
    Area 2: Satellite data indicate foraging in shelf waters between 
the 200 m and 2000 m isobaths. These data come from four individuals 
that moved into this area one year after the transmitters were deployed 
at Jamursba-Medi (Papua Barat, Indonesia). While this is a small sample 
size, it reflects the best available data at this time.
    Area 7: Satellite data indicate that foraging behavior occurred 
near the 2000 meter isobath, west of Monterey Bay and Big Sur, and west 
of Morro and Avila Bays. Foraging typically occurs in Area 7 during the 
spring and early summer, when neritic waters are cool. Turtles that 
foraged in this area eventually moved further east or north, into Area 
1 during the late summer.

Benefit of Designation Summary

    When evaluating the overall Benefit of Designation, we considered 
the three factors outlined above: Conservation Value, Foraging 
Behavior, and Section 7 and Educational Benefits. Each factor was 
scored as high, medium or low for each particular area. We than 
assigned a number to each score, with high = 3, medium = 2 and low = 1. 
Therefore each

[[Page 4194]]

area had a potential total Benefit of Designation between 3 and 9. A 
total score of 3 and 4 indicates a low Benefit of Designation, scores 
from 5 to 7 indicate a medium Benefit of Designation, and scores 8 and 
9 indicate a high Benefit of Designation.
    Areas 1, 2 and 7 all scored high (3) for each factor. These areas 
have a high conservation value, as determined in Table 2, they also 
have a high value for foraging, as documented in the literature, and 
due to their proximity to the coastline and the number of activity 
types that may impact the habitat, and they also have a high section 7 
and educational benefit.

    Table 3--Benefit of Designation Was Determined Based on the Conservation Value of Each Area, Leatherback
   Foraging Behavior, and the Expected Benefits Afforded Through the Designation of Critical Habitat From ESA
                                       Section 7 and Educational Programs
----------------------------------------------------------------------------------------------------------------
                                                                             Section 7 and
              Area                Conservation value   Foraging behavior      educational         Benefit of
                                                                                benefit           designation
----------------------------------------------------------------------------------------------------------------
1...............................  High (3)..........  High (3)..........  High (3)..........  9--High.
2...............................  High (3)..........  High (3)..........  High (3)..........  9--High.
7...............................  High (3)..........  High (3)..........  High (3)..........  9--High.
----------------------------------------------------------------------------------------------------------------

Economic Benefits of Excluding Particular Areas (Economic Impacts of 
Designation)

    The economic report, supplemental to this final rule, details the 
specific costs and calculations used to determine the anticipated 
economic impacts or costs of the critical habitat designation, and 
therefore the economic benefit of excluding particular areas from 
designation. To determine the economic costs associated with the 
designation of each particular area, we first accounted for the 
baseline level of protection afforded to leatherbacks and their 
habitat. To determine the baseline we considered three major factors, 
(1) the overlap of previously designated critical habitat for other 
species within leatherback critical habitat, (2) the presence of other 
listed species and protected marine mammals within leatherback critical 
habitat, and (3) the Federal, State and local protections already in 
place to conserve and protect marine resources. Using these factors we 
assigned a qualitative rating of ``high'', ``medium'' or ``low'' to 
each activity type in each area. The activities in each of the three 
specific areas received either a ``high'' or ``medium'' rating. Further 
discussion of how these ratings were assigned is presented in section 
1.4.3 of our economic report.
    Once we determined the baseline protections for each activity in 
each specific area, we assigned incremental scores to each activity in 
each area to estimate the portion of costs expected to be attributed to 
this critical habitat designation. The incremental scores were assigned 
based on the qualitative estimates of the baseline protections rating 
of high, medium or low. In areas where baseline protections were 
considered to be high, the portion of any project modification costs 
attributable to leatherback critical habitat designation would be low 
and thus the assigned incremental score was low. In areas where lower 
baseline protections exist, it is expected that the majority of any 
project modification costs would be associated with the leatherback 
critical habitat designation; thus the assigned incremental score 
should be high. Given the uncertainty of project modifications and 
associated costs, we used a conservative approach that would 
potentially over rather than under-estimate costs associated with 
leatherback critical habitat. For activities and areas with more 
existing protections (e.g., areas with marine sanctuaries or designated 
critical habitat for other listed species) and thus a ``high'' level of 
baseline protection, we estimated that 30 percent of any project 
modification costs would be attributable to leatherback critical 
habitat. Thus an incremental score of 0.3 was applied to these 
activities. For activities that occur in areas with fewer existing 
protections (e.g., areas overlapping the range of other listed species 
but not their critical habitat), and rated as having a ``medium'' level 
of baseline protections, we assumed that 50 percent of costs would be 
attributable to designation of leatherback critical habitat, and 
assigned an incremental score of 0.5. Sections 1.4.3 and 1.4.4 of our 
economic report provide more detail on incremental scoring.
    For each potentially affected economic activity, we estimated the 
number of potentially affected projects and identified project 
modifications that may be necessary to avoid destruction or adverse 
modification of specific areas considered for designation as 
leatherback critical habitat. Where possible we also estimated the 
costs of potential project modifications. The majority of activity 
costs were projected 20 years into the future and, where applicable, 
costs were adjusted for inflation to reflect $2009 values (with a 3 and 
7 percent discount rates applied to future costs). We then calculated 
low and high cost scenarios based on spatial considerations for 
activities that occur on land (e.g., agriculture pesticide 
application). Where applicable, the high cost scenario estimated costs 
for activities within 5 miles of the coastline; the low cost scenario 
estimated costs for activities within 1 mile of the coastline (i.e., a 
smaller subset of potential activities). Projections of future 
activities were developed using geographic information systems and 
other published data on existing, pending, or future actions (e.g., 
FERC permit license data for LNG projects). Estimated costs were 
calculated for all activities except power plants, wind energy 
projects, and LNG facilities and oil spill response; for these we 
relied on a qualitative assessment. The mid-point value between the 
high and low cost scenarios was used as the estimated incremental cost 
for the designation of each area.

Exclusion of Particular Areas Based on Economic Impacts

    The benefit of designation is not directly comparable to the 
economic benefit of excluding a particular area (i.e., avoiding 
economic costs). We had sufficient information to monetize the 
estimated economic benefits of exclusion, but were not able to monetize 
the conservation benefit of designation. To qualitatively scale the 
economic cost estimates in the same manner as the conservation benefit 
of designation, we created economic thresholds (see Table 4) and 
assigned each area an economic rating based on the mid-point of the 
estimated annualized costs.

[[Page 4195]]



   Table 4--Economic Thresholds and Corresponding Economic Benefit of
                                Exclusion
------------------------------------------------------------------------
                 Threshold                         Economic rating
------------------------------------------------------------------------
$20,000,000 or more........................  High.
$700,000-$19,999,999.......................  Medium.
$25,000-$699,999...........................  Low.
$0-$24,999.................................  Very Low.
------------------------------------------------------------------------

    As shown in Table 4 above, we did not change our economic 
thresholds from the analysis done in our proposed rule; however, the 
calculations behind these thresholds were re-evaluated to make sure 
they remained appropriate.
    The high economic threshold was set at $20 million or more, based 
on an estimate of 3 percent of total revenue for activities associated 
with Area 2, the area with the highest estimated revenues and costs in 
this final designation. The economic threshold between medium and low 
economic costs was set at $700,000 based on the mid-point cost per 
area. A very low cost threshold was set at less than $25,000.
    Each of the three areas evaluated were rated as having a medium 
economic impact (see Table 5). The dollar thresholds do not represent a 
judgment that areas with medium conservation value are worth no more 
than $19,999,999, or that areas with very low conservation value 
ratings are worth no more than $24,999. These thresholds represent the 
levels at which we believe the economic impact associated with a 
particular area would outweigh the conservation benefits of designating 
that area.
    Our selection of dollar thresholds was intended to create an 
efficient process and not because of a judgment about absolute 
equivalence between a certain dollar amount and the benefit of 
designation. The statute directs us to balance dissimilar interests, 
and it emphasizes the discretionary nature of the weight to give any 
impact and the decision to exclude.
    To weigh the benefits of designation against the benefits of 
exclusion, we compared the conservation benefit of designation against 
the economic benefit of exclusion. Areas were determined to be eligible 
for exclusion based on economic impacts using one simple decision rule: 
An area was eligible for exclusion based on economic impacts if the 
economic benefit of exclusion is greater than the conservation benefit 
of designation. The dollar thresholds and decision rule provided a 
relatively simple process for identifying specific areas warranting 
consideration for exclusion. Table 5 below provides information 
regarding each area's eligibility for exclusion based on our analysis.
    As shown in Table 5, Areas 1, 2, and 7 are not eligible for 
exclusion based on economic benefits of exclusion, as these benefits do 
not directly outweigh the conservation benefit of designation. Areas 1, 
2 and 7 all scored a high Benefit of Designation score. Area 1 scored a 
medium Economic Benefit of Exclusion, and Areas 2 and 7 scored a low 
Economic Benefit of Exclusion. Therefore for each of these areas the 
Benefit of Designation outweighs the Economic Benefit of Exclusion. 
NMFS has therefore determined that these 3 areas are not Eligible for 
exclusion based on economic impacts.

     Table 5--Comparison of the Economic Benefits of Exclusion and the Conservation Benefits of Designation,
                  Indicating Which Areas Are Eligible for Exclusion Based on Economic Impacts.
----------------------------------------------------------------------------------------------------------------
                                    Mid-point of                            Conservation         Eligible for
              Areas                  annualized    Economic benefit of       benefit of       exclusion based on
                                        cost            exclusion           designation       economic impacts?
----------------------------------------------------------------------------------------------------------------
1................................      $4,125,000  Medium.............  High...............  No.
2................................         238,000  Low................  High...............  No.
7................................         276,000  Low................  High...............  No.
----------------------------------------------------------------------------------------------------------------
Note: The cost estimates above do not include estimated costs for oil spill response, power plants, LNG or wind
  energy projects. See the economic report for more details.

Exclusions Based on Impacts on National Security

    Section 4(b)(2) of the ESA directs the Secretary to consider 
possible impacts on national security when determining critical 
habitat. Discussions with the DOD indicated that there is an overlap 
between the areas originally proposed as critical habitat and areas off 
the Washington State and Southern California coasts where the U.S. Navy 
conducts training exercises. DOD proposed exclusion of the overlap 
areas from critical habitat designation based on national security. 
During this time frame NMFS revised its critical habitat designation to 
include only one Primary Constituent Element (PCE), the prey PCE. As 
required by section 4(b)(8) of the ESA, NMFS briefly evaluated and 
described in this final rule to the maximum extent practicable, those 
activities that might occur within the areas designated that may 
destroy or adversely modify critical habitat designated or be affected 
by such designation. NMFS concluded that the Navy's present training 
activities are not the types of activities which may adversely modify 
critical habitat designated for the leatherback, specifically the prey 
PCE, or likely to be affected by the designation. As a result, NMFS 
found that the present Navy training activities are not likely to be 
affected by this designation of critical habitat. Because designation 
is not likely to affect Navy activities, NMFS concluded that the 
designation of critical habitat will not cause an appreciable impact on 
national security, and therefore the benefits of exclusion do not 
outweigh the benefits of designation. No exclusion based on impacts to 
national security was warranted.

Exclusions Based on Other Relevant Impacts

    As noted, we are required to consider other relevant impacts of 
designating a particular area as critical habitat before a final 
designation. In the proposed rule, we explained that impacts to tribes, 
particularly those related to tribal sovereignty over management of 
natural resources on tribal lands and maintenance of relationships for 
cooperative conservation of such resources, were relevant impacts for 
evaluation in the ESA 4(b)(2) analysis to determine whether tribal 
lands were eligible for exclusion. We considered the impacts to tribal 
lands and resources and the relationship between the agency and 
affected Tribes. Based on comments from and coordination and 
consultation with federally recognized indian tribes in response to the 
proposed rule, we re-evaluated the potential impacts to affected Tribes 
with a focus on tribal

[[Page 4196]]

lands and access to usual and accustomed areas for fishing in 
accordance with established treaty rights.
    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Tribes and the application of 
fiduciary standards of due care with respect to Indian lands, tribal 
trust resources, and the exercise of tribal rights. Pursuant to these 
authorities lands have been retained by Indian Tribes or have been set 
aside for tribal use. These lands are managed by Indian Tribes in 
accordance with tribal goals and objectives within the framework of 
applicable treaties and laws. Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, outlines the 
responsibilities of the Federal Government in matters affecting tribal 
interests. Indian lands are those defined in the Secretarial Order 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act'' (June 5, 1997), including: (1) Lands 
held in trust by the United States for the benefit of any Indian tribe; 
(2) land held in trust by the United States for any Indian Tribe or 
individual subject to restrictions by the United States against 
alienation; (3) fee lands, either within or outside the reservation 
boundaries, owned by the tribal government; and (4) fee lands within 
the reservation boundaries owned by individual Indians. When we consult 
with Tribes on matters affecting tribal interests including land and 
natural resources, we must do so on a government-to-government basis in 
recognition of the 1997 Secretarial Order.
    As described in the proposed rule and documentation supporting this 
final rule, we acknowledge that the best available information on 
habitat use by leatherback turtles in the northeast Pacific Ocean is 
limited. As such we reviewed maps indicating that some Indian lands 
along the Washington coast likely overlap with areas under 
consideration as critical habitat for leatherback turtles. These 
overlapping areas consist of a narrow intertidal zone associated with 
several coastal Indian reservations, from the line of mean lower low 
water (the shoreward extent of the proposed critical habitat) to the 
extent of tribal land demarcated by the line of extreme low water. In 
consideration of Executive Order 13175 ``Consultation and Coordination 
with Indian Tribal Governments'' and the 1997 Secretarial Order, 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities 
and the Endangered Species Act,'' we made numerous additional attempts 
to meet with members of the Makah and Quileute tribes. A government-to-
government meeting with the Makah tribe was held in June 2011 to 
discuss the designation.
    Between the proposed and final rule, we re-assessed several spatial 
and biological elements of the proposed critical habitat designation 
and determined that the line of extreme low water more accurately 
depicts the shoreward extent of areas occupied by leatherback turtles 
(i.e., they are foraging in these waters and not accessing the 
beaches). Given this boundary change, there is no longer an overlap 
between designated areas and areas that meet the definition of Indian 
lands. Thus, the benefits of exclusion identified in the proposed rule 
related to avoidance of impacts to tribal lands and related tribal 
sovereignty and management of resources are substantially reduced or 
avoided altogether with the absence of tribal lands in the final 
designation.
    NMFS acknowledges the presence of tribal usual and accustomed 
fishing grounds within Area 2. We considered the tribal concerns and 
concluded that the benefits of excluding these particular usual and 
accustomed fishing areas do not outweigh the benefits of designating 
these areas as critical habitat for leatherback turtles. The tribes 
have not identified any treaty-related activities in their usual and 
accustomed fishing areas that are likely to affect jellyfish and 
therefore likely to be affected by a critical habitat designation. 
Moreover, usual and accustomed fishing areas, while vitally important 
to the exercise of treaty-secured fishing rights, are not reserved by 
the United States for the exclusive use of a tribe, nor are they 
subject to the sovereign authority of a tribal government, as is the 
case with Indian lands.
    As required by section 4(b)(8) of the ESA, NMFS briefly evaluated 
and described in this final rule, to the maximum extent practicable, 
those activities that might occur within the areas designated that may 
destroy or adversely modify critical habitat designated or be affected 
by such designation. NMFS concluded that the tribes' present fishing 
activities are not the types of activities that may adversely modify 
critical habitat designated for the leatherback, specifically the prey 
PCE, or likely to be affected by the designation.
    For these reasons, we conclude there is no impact of a critical 
habitat designation to treaty-secured fishing rights, and little impact 
to tribal sovereignty and self-governance. Given the high conservation 
value of Area 2, we have determined that the benefits of excluding the 
area overlapping with usual and accustomed fishing grounds do not 
outweigh the benefits of including this area in the final designation. 
We are making no exclusions under 4(b)(2) based on other relevant 
impacts.

Critical Habitat Designation

    Based on the information provided below, the public comments 
received and the further analysis that was done since the proposed 
rulemaking, we hereby designate as critical habitat for leatherbacks 
Areas 1, 2, and 7, which include approximately 41,913 square miles 
(108,558 square km) of marine habitat in California, Oregon, and 
Washington and offshore Federal waters. The designated critical habitat 
areas contain the physical or biological feature--prey species--
essential to the conservation of the species that may require special 
management considerations or protection. We are not exercising our 
discretion to exclude any areas from this designation based on 
economic, national security or other relevant impacts.

Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires Federal agencies to insure that 
any action authorized, funded, or carried out by the agency (agency 
action) does not jeopardize the continued existence of any threatened 
or endangered species or destroy or adversely modify designated 
critical habitat. When a species is listed or critical habitat is 
designated, Federal agencies must consult with NMFS on any agency 
actions to be conducted in an area where the species is present and 
that may affect the species or its critical habitat. During the 
consultation, we would evaluate the agency action to determine whether 
the action may adversely affect listed species or critical habitat and 
issue our findings in a biological opinion or concurrence letter. If we 
conclude in the biological opinion that the agency action would likely 
result in the destruction or adverse modification of critical habitat, 
we would also recommend any reasonable and prudent alternatives to the 
action. Reasonable and prudent alternatives (defined in 50 CFR 402.02) 
are

[[Page 4197]]

alternative actions identified during formal consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid the destruction or 
adverse modification of critical habitat.
    Regulations (50 CFR 402.16) require Federal agencies that have 
retained discretionary involvement or control over an action, or where 
such discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where: (1) Critical habitat is subsequently designated; or (2) new 
information or changes to the action may result in effects to critical 
habitat not previously considered in the biological opinion. 
Consequently, some Federal agencies may request reinitiation of a 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy critical habitat. 
Activities subject to the ESA section 7 consultation process include 
activities on Federal lands and activities on private or state lands 
requiring a permit from a Federal agency (e.g., an ESA section 
10(a)(1)(B) permit from NMFS) or some other Federal action, including 
funding (e.g., Federal Highway Administration (FHA)). ESA section 7 
consultation would not be required for Federal actions that do not 
affect listed species or critical habitat and for actions on non-
federal and private lands that are not federally funded, authorized, or 
carried out.

Activities That May Be Affected

    Section 4(b)(8) of the ESA requires, to the maximum extent 
practicable, in a final regulation to designate or revise critical 
habitat, an evaluation and brief description of those activities 
(whether public or private) that may destroy or adversely modify such 
habitat or that may be affected by such designation. A variety of 
activities may affect leatherback critical habitat and, when carried 
out, funded, or authorized by a Federal agency, will require an ESA 
section 7 consultation. These Federal actions and/or regulated 
activities (detailed in the economic report and in previous sections of 
this rule) include: regulation of point source pollution, particularly 
NPDES facilities and pesticide application (e.g., EPA); oil spill 
response (e.g., U.S. Coast Guard and EPA have response authorities); 
power plants (e.g., Nuclear Regulatory Commission (NRC) regulates 
commercial nuclear power); desalination plants (e.g., EPA regulates 
discharge/USCG and U.S. Army Corps of Engineers are involved with 
permitting or approving structures or placing fill that may affect 
navigation); tidal/wave/wind energy (e.g., FERC or BOEM permitting, 
licensing or leasing); and LNG projects (e.g., FERC or USCG permitting 
requirement). Private entities' implementation of activities related to 
the foregoing categories could be affected to the extent those 
activities rely on federal funding, permitting or other authorization. 
These activities would need to be evaluated with respect to their 
potential to destroy or adversely modify critical habitat. Formal 
consultation under section 7(a)(2) of the ESA could result in changes 
to the activities to minimize adverse impacts to critical habitat or 
avoid destruction or adverse modification of such habitat. We believe 
this final rule will provide Federal agencies, private entities, and 
the public with clear notification of critical habitat for leatherback 
sea turtles and the boundaries of such habitat. This designation will 
also allow Federal agencies and others to evaluate the potential 
effects of their activities on critical habitat to determine if an ESA 
section 7 consultation with NMFS is needed.

Information Quality Act and Peer Review

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

Classification

Regulatory Planning and Review

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

National Environmental Policy Act

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

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

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis describing the effects 
of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). We have prepared a 
final regulatory flexibility analysis (FRFA). This document is 
available upon request (see ADDRESSES), via our Web site http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents, or via 
the Federal eRulemaking web site at http://www.regulations.gov. The 
results of the FRFA are summarized below. A description of the action, 
why it is being considered, and the objectives of and legal basis for 
this action are contained in the preamble of this rule.
    The impacts to small businesses were assessed for the following six 
activities: NPDES activities; agriculture; oil spills; power plants; 
tidal, wave, and wind energy projects; and LNG projects. The impacts on 
small entities were not assessed for desalination plants facilities due 
to lack of information.
    At the present time, little information exists regarding the cost 
structure and operational procedures and strategies in the sectors 
(noted above) that may be directly affected by the critical habitat 
designation. In addition, a great deal of uncertainty exists with 
regard to how potentially regulated entities will attempt to avoid the 
destruction or adverse modification of critical habitat. This is 
because relatively little data

[[Page 4198]]

exist on the effects to leatherback sea turtles and their prey from 
aspects of the activities identified. With these limitations in mind, 
we considered which of the potential economic impacts we analyzed might 
affect small entities. These estimates should not be considered exact 
estimates of the impacts of potential critical habitat to individual 
businesses.
    Small entities are defined by the Small Business Administration 
size standards for each activity type. We identified a total of 3,385 
entities as small businesses involved in the activities listed above 
that would most likely be affected by the critical habitat designation. 
The majority (> 97 percent) of these entities would be considered small 
entities. The estimated economic impacts on small entities vary 
depending on the activity type and location. The estimated annualized 
costs associated with ESA section 7 consultations incurred per small 
entity range from $0 to $25,350 per area-activity type combination, 
with the largest annualized impacts estimated for entities involved in 
tidal and wave energy projects ($0 to $25,350). These amounts are most 
likely overestimates, as they are based on assumptions that such 
actions may not be able to proceed if a consultation finds that the 
project adversely modified critical habitat.
    As required by the RFA (as amended by the SBREFA), we considered 
various alternatives to the critical habitat designation for the 
leatherback. The first alternative, not designating critical habitat 
for leatherbacks, would impose no economic, national security, or other 
relevant impacts, but would not provide any conservation benefit to the 
species. This alternative was rejected because such an approach does 
not meet the legal requirements of the ESA and would not provide for 
the conservation of the species if such benefits could be gained 
through designation.
    The second alternative, designating a subset of the areas eligible 
as critical habitat, was also rejected. The determination of which 
particular areas to exclude, if any, is subject to the Secretary's 
discretion after consideration of impacts of the designation in 
accordance with section 4(b)(2) of the ESA. After evaluating each of 
our particular areas through a ESA section 4(b)(2) analysis, it was 
determined that the economic benefits of exclusion did not outweigh the 
conservation benefit to the species of designation, therefore, we 
determined that no exclusions would be made.
    The third alternative, our preferred alternative, of designating 
all potential critical habitat areas (i.e., no areas excluded) was 
considered and accepted. We accepted this alternative after conducting 
an ESA section 4(b)(2) analysis, and determining that the economic 
benefits of exclusion did not outweighed the conservation benefit to 
the species. We selected this third alternative because it would result 
in a critical habitat designation that provides for the conservation of 
the species, and meets ESA and joint NMFS and USFWS regulations 
concerning critical habitat at 50 CFR part 424.

Coastal Zone Management Act

    Section 307(c)(1) of the Federal Coastal Zone Management Act of 
1972 requires that all Federal activities that affect land or water use 
or natural resources of the coastal zone be consistent with approved 
state coastal zone management programs to the maximum extent 
practicable. We have determined that this designation of critical 
habitat is consistent to the maximum extent practicable with the 
enforceable policies of approved Coastal Zone Management Programs of 
California, Oregon, and Washington. The determination was submitted for 
review by the responsible agencies in the aforementioned states, and no 
objections were received.

Federalism

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

Paperwork Reduction Act

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

Unfunded Mandates Reform Act

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

Takings

    Under Executive Order 12630, Federal agencies must consider the 
effects of their actions on constitutionally protected private property 
rights and avoid unnecessary takings of property. A taking of property 
includes actions that result in physical invasion or occupancy of 
private property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with Executive 
Order 12630, the critical habitat designation does not pose significant 
takings implications. A takings implication assessment is not required 
here. This designation affects only Federal agency

[[Page 4199]]

actions (i.e., those actions authorized, funded, or carried out by 
Federal agencies). Therefore, the critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits. Additionally, this final critical habitat designation does not 
preclude the development of Habitat Conservation Plans and issuance of 
incidental take permits for non-Federal actions.

Government to Government Relationships With Tribes

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, outlines the responsibilities of the Federal Government in 
matters affecting tribal interests. If NMFS issues a regulation with 
tribal implications (defined as having a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes) we 
must consult with those governments or the Federal Government must 
provide funds necessary to pay direct compliance costs incurred by 
tribal governments.
    The critical habitat designation does not overlap with Indian lands 
(see Exclusions for Indian Lands section above). However, we 
acknowledge the presence of tribal usual and accustomed fishing grounds 
within Area 2. During both the public comment period and the 
government-to-government consultation process we heard the concerns of 
coastal tribes related to the overlap of critical habitat and the 
tribal usual and accustomed fishing areas. NMFS briefly evaluated and 
described in this final rule, to the maximum extent practicable, those 
activities that might occur within the areas designated that may 
destroy or adversely modify critical habitat designated or be affected 
by such designation. NMFS concluded that the tribes, present fishing 
activities are not the types of activities that may adversely modify 
critical habitat designated for the leatherback, specifically the prey 
PCE, or likely to be affected by the designation.
    For these reasons, we considered the tribal concerns and concluded 
that the benefits of excluding these particular usual and accustomed 
fishing areas do not outweigh the benefits of designating these areas 
as critical habitat for leatherback turtles. The tribes have not 
identified any treaty-related activities in their usual and accustomed 
fishing areas that are likely to affect jellyfish and therefore likely 
to be affected by a critical habitat designation. Moreover, usual and 
accustomed fishing areas, while vitally important to the exercise of 
treaty-secured fishing rights, are not reserved by the United States 
for the exclusive use of a tribe, nor are they subject to the sovereign 
authority of a tribal government, as is the case with Indian lands. 
Additionally, other activities may occur within the tribal usual and 
accustomed fishing areas that may require a section 7 consultation for 
leatherback critical habitat; therefore, we conclude there is no impact 
of a critical habitat designation to treaty-secured fishing rights, and 
little impact to tribal sovereignty and self-governance.
    We acknowledge that the Makah Indian Tribe disagrees with our 
assessment and is concerned about potential impacts to the Tribe's 
fishing rights. We will continue to coordinate with the Tribe as we 
implement our responsibilities under section 7 with respect to 
leatherback turtles, in the event a conflict does in fact arise between 
conservation of leatherback critical habitat and the exercise of tribal 
rights.

Energy Effects

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

[[Page 4200]]

13211 and that this rulemaking is, therefore, not a significant energy 
action.

References Cited

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

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: January 11, 2012.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, this final rule amends 
part 226, title 50 of the Code of Federal Regulations as set forth 
below:

PART 226--DESIGNATED CRITICAL HABITAT

0
1. The authority citation of part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.


0
2. Revise Sec.  226.207, to read as follows:


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

    Critical habitat is designated for leatherback turtles as described 
in this section. The textual descriptions of critical habitat in this 
section are the definitive source for determining the critical habitat 
boundaries. The overview map is provided for general guidance purposes 
only and not as a definitive source for determining critical habitat 
boundaries.
    (a) The waters adjacent to Sandy Point, St. Croix, U.S. Virgin 
Islands, up to and inclusive of the waters from the hundred fathom 
curve shoreward to the level of mean high tide with boundaries at 
17[deg]42'12'' N. and 64[deg]50'00'' W.
    (b) All U.S. coastal marine waters within the areas in paragraphs 
(b)(1) and (2) of this section and as described in paragraphs (b)(3) 
and (4) of this section and depicted in paragraph (b)(5) of this 
section:
    (1) California.
    (i) The area bounded by Point Sur (36[deg]18'22'' N./121[deg]54'9'' 
W.) then north along the shoreline following the line of extreme low 
water to Point Arena, California (38[deg]57'14'' N./123[deg]44'26'' W.) 
then west to 38[deg]57'14'' N./123[deg]56'44'' W. then south along the 
200 meter isobath to 36[deg]18'46'' N./122[deg]4'43'' W. then east to 
the point of origin at Point Sur.
    (ii) Nearshore area from Point Arena, California, to Point 
Arguello, California (34[deg]34'33'' N./120[deg]38'41'' W.), exclusive 
of Area 1 (see above) and offshore to a line connecting 38[deg]57'14'' 
N./124[deg]18'36'' W. and 34[deg]34'32'' N./121[deg]39'51'' W along the 
3000 meter isobath.
    (2) Oregon/Washington. The area bounded by Cape Blanco, Oregon 
(42[deg]50'4'' N./124[deg]33'44'' W.) north along the shoreline 
following the line of extreme low water to Cape Flattery, Washington 
(48[deg]23'10'' N./124[deg]43'32'' W.) then north to the U.S./Canada 
boundary at 48[deg]29'38'' N./124[deg]43'32'' W. then west and south 
along the line of the U.S. Exclusive Economic Zone to 47[deg] 57'38'' 
N./126[deg] 22'54'' W. then south along a line approximating the 2,000 
meter isobath that passes through points at 47[deg] 39'55'' N./
126[deg]13'28'' W., 45[deg]20'16'' N./125[deg]21' W. to 42[deg]49'59'' 
N./125[deg]8'10'' W. then east to the point of origin at Cape Blanco.
    (3) Critical habitat extends to a water depth of 80 meters from the 
ocean surface and is delineated along the shoreline at the line of 
extreme low water, except in the case of estuaries and bays where 
COLREGS lines (defined at 33 CFR part 80) shall be used as the 
shoreward boundary of critical habitat.
    (4) Primary Constituent Elements. The primary constituent element 
essential for conservation of leatherback turtles is the occurrence of 
prey species, primarily scyphomedusae of the order Semaeostomeae 
(Chrysaora, Aurelia, Phacellophora, and Cyanea), of sufficient 
condition, distribution, diversity, abundance and density necessary to 
support individual as well as population growth, reproduction, and 
development of leatherbacks.
    (5) A map of critical habitat for leatherback sea turtles follows.

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[FR Doc. 2012-995 Filed 1-20-12; 11:15 am]
BILLING CODE 3510-22-P