[Federal Register Volume 77, Number 107 (Monday, June 4, 2012)]
[Rules and Regulations]
[Pages 32909-32913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13528]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 120521436-2436-01]
RIN 0648-XA998


Listing Endangered and Threatened Wildlife and Designating 
Critical Habitat; 12-Month Determination on How To Proceed With a 
Petition To Revise Designated Critical Habitat for the Endangered 
Leatherback Sea Turtle

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

ACTION: Notice of 12-month determination.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce our 
12-month determination on how to proceed with a petition to revise the 
critical habitat designation for leatherback sea turtles pursuant to 
the Endangered Species Act (ESA) of 1973, as amended. The petition from 
Sierra Club requested a revision of the existing critical habitat 
designation for the leatherback sea turtle by adding the coastline and 
offshore waters of the Northeast Ecological Corridor in Puerto Rico. 
Based on the lack of reasonably

[[Page 32910]]

defined physical or biological features that are essential to the 
leatherback turtle's conservation and that may require special 
management considerations or protection, we are denying the petitioned 
revision.

DATES: The finding announced in this document was made on June 4, 2012.

ADDRESSES: Information and supporting documentation that we used in 
preparing this finding are available for public inspection by 
appointment, during normal business hours (9:00 a.m.-5:00 p.m. EDT) at 
the NMFS, Southeast Regional Office, Protected Resources Division, 263 
13th Ave. South, St. Petersburg, FL 33701-5505.

FOR FURTHER INFORMATION CONTACT: Dennis Klemm, NMFS, Southeast Regional 
Office, at the address above, by phone (727) 824-5312, or email 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On November 3, 2010, we received a petition from Sierra Club to 
revise designated critical habitat for leatherback sea turtles to 
include certain marine areas off the coast of Puerto Rico. This was a 
second, more detailed petition submitted by Sierra Club following our 
finding that a previous petition received on February 23, 2010, did not 
present substantial information indicating the petitioned revision may 
be warranted (negative 90-day finding; 75 FR 41436, July 16, 2010). On 
May 5, 2011, we published a positive 90-day finding concluding that the 
second petition presented substantial scientific information indicating 
the requested revision may be warranted (76 FR 25660).

ESA Statutory and Regulatory Provisions on Petitions To Revise Critical 
Habitat

    Critical habitat is defined in section 3(5)(A) of the ESA (16 
U.S.C. 1532(3)) as: (1) 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 (2) specific areas outside 
the geographical area occupied by the species at the time it is listed 
* * * upon a determination by the Secretary [of Commerce] that such 
areas are essential for the conservation of the species. Section 
4(a)(3)(A)(i) of the ESA (16 U.S.C. 1533(a)(3)(A)(i)) requires that 
critical habitat shall be initially designated at the time of listing a 
species as threatened or endangered. The ESA further provides that NMFS 
may revise critical habitat from time-to-time as appropriate (section 
4(a)(3)(A)(ii); 16 U.S.C. 1533(a)(3)(A)(ii)), and allows interested 
persons to petition for revisions (section 4(b)). Section 4(b)(3)(D) of 
the ESA (16 U.S.C. 1533(b)(3)(D)), requires, to the maximum extent 
practicable, that within 90 days of receiving a petition to revise a 
critical habitat designation, the Secretary of Commerce (Secretary) 
make a finding as to whether the petition presents substantial 
scientific information indicating that the revision may be warranted. 
The Secretary must then determine how he intends to proceed with the 
requested revision within 12 months after receiving the petition and 
promptly publish notice of such intention in the Federal Register. In 
contrast to the ESA's requirements for findings on petitions to list 
species, there are no guidelines or required findings in the ESA or 
implementing regulations that govern the substance of NMFS' decision on 
how to proceed with a petition to revise critical habitat. Thus, NMFS 
has broad discretion in determining when and whether to revise critical 
habitat.

Status and Biology of the Leatherback Sea Turtle

    On June 2, 1970, the leatherback sea turtle was listed as 
endangered throughout its entire range under the Endangered Species 
Conservation Act of 1969, a precursor to the ESA (35 FR 8491). 
Leatherback sea turtles are the largest living turtles and range 
farther than any other sea turtle species. Leatherbacks are widely 
distributed throughout the oceans of the world and are found in waters 
of the Atlantic, Pacific, and Indian Oceans (Ernst and Barbour, 1972). 
The large size of adult leatherbacks and their tolerance of relatively 
low temperatures allows them to occur in northern waters such as off 
Labrador and in the Barents Sea (NMFS and U.S. Fish and Wildlife 
Service (USFWS), 1995). The leatherback is the only sea turtle that 
lacks a hard, bony shell. A leatherback's top shell (carapace) is 
approximately 1.5 inches (4 cm) thick and consists of leathery, oil-
saturated connective tissue overlaying loosely interlocking dermal 
bones. The carapace has seven longitudinal ridges and tapers to a blunt 
point. Adult leatherbacks forage in temperate and subpolar regions from 
71[deg] N to 47[deg] S latitude in all oceans and undergo extensive 
migrations to and from their tropical nesting beaches. Leatherbacks are 
deep divers, with recorded dives to depths in excess of 1,000 m (Eckert 
et al., 1989; Hays et al., 2004). When the hatchlings leave the nesting 
beaches, they move offshore but eventually use both coastal and pelagic 
waters. Very little is known about the pelagic habits of hatchlings and 
juveniles, and they have not been documented to be associated with 
Sargassum areas as are other sea turtle species.
    The most recent assessment of leatherback populations in the 
Atlantic Ocean divided the rookeries into seven stocks based on nesting 
beach: Florida, Northern Caribbean (including Puerto Rico), Western 
Caribbean, Southern Caribbean/Guianas, Brazil, West Africa, and South 
Africa (Turtle Expert Working Group (TEWG), 2007). The population 
estimate derived from the recent assessment for the North Atlantic 
stocks ranges between 34,000 and 90,000 adult turtles, including 20,000 
to 56,000 adult females (TEWG, 2007). While data for leatherbacks in 
much of the Pacific Ocean indicate low population numbers and a 
substantial declining trend, the data for leatherbacks in the Atlantic 
Ocean indicate an overall trend of stable or increasing abundance. The 
data indicate long-term stable or increasing nesting populations for 
all of the stocks except West Africa (no long-term data are available) 
and the Western Caribbean (a slightly-declining post-1990 trend; TEWG, 
2007).

Existing Critical Habitat and the Petition To Revise Leatherback 
Critical Habitat

    Critical habitat for the leatherback sea turtle was designated by 
the USFWS at Sandy Point Beach, St. Croix, U.S. Virgin Islands on March 
23, 1978 (43 FR 12050), and subsequently offshore of that beach on 
March 23, 1979, by NMFS (44 FR 17710). These designations occurred 
without identifying physical or biological features that are essential 
to the leatherback's conservation with specificity, as was the case for 
other early critical habitat designations. More recently, we designated 
critical habitat for leatherback sea turtles in the Pacific Ocean (77 
FR 4170; January 26, 2012). 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 areas designated as critical habitat in the 
Pacific Ocean contain a single identified essential biological 
feature--the leatherback's specific prey,

[[Page 32911]]

primarily scyphomedusae of the order Semaeostomeae (Chrysaora, Aurelia, 
Phacellophora, and Cyanea).
    On February 23, 2010, we received a petition from Sierra Club 
asking us and the USFWS to revise critical habitat for the endangered 
leatherback sea turtle. The portion of the petitioned critical habitat 
under our jurisdiction was described as ``the waters off the coastline 
of the Northeast Ecological Corridor of Puerto Rico, sufficient to 
protect leatherbacks using the Northeast Ecological Corridor, and 
extending at least to the hundred fathom contour, or 9 nautical miles 
offshore, whichever is further, and including the existing marine 
extensions of Espiritu Santo, Cabezas the San Juan, and Arrecifes de la 
Cordillera Nature Reserves.'' The petition also stated that these near 
shore waters ``provide room for turtles to mate and access the beaches, 
and for hatchlings and adults to leave the beaches.'' We found that the 
petition did not present substantial scientific information indicating 
that the petitioned revision may be warranted, in part because in our 
judgment specific qualities were required to explain how the proposed 
open space features in the marine environment off of Puerto Rico are 
essential to the leatherback's conservation, and how or why the 
features themselves may require special management considerations or 
protection (75 FR 41,436; July 16, 2010).
    Sierra Club submitted a second petition on November 3, 2010, that 
contained additional information and incorporated the earlier petition 
by reference. The petition describes the area as containing the 
following three essential features (which the petitioner refers to as 
primary constituent elements (PCEs):
    (i) Migratory pathway conditions to allow for safe and timely 
passage and access to/from/within nesting sites at San Miguel, 
Paulinas, and Convento Beaches in the Northeast Ecological Corridor of 
Puerto Rico.
    (ii) Migratory pathway conditions and open ocean conditions to 
allow for safe and timely passage and access to/from/within breeding 
sites offshore of the nesting sites at San Miguel, Paulinas, and 
Convento Beaches in the Northeast Ecological Corridor of Puerto Rico.
    (iii) Water quality to support normal growth, reproduction, 
development, viability, and health.
    The petition also describes the minimum requested boundaries of the 
critical habitat by the following coordinates:

    (1) 65.807[deg] W, 18.425[deg] N
    (2) 65.697[deg] W, 18.601[deg] N
    (3) 65.489[deg] W, 18.581[deg] N
    (4) 65.435[deg] W, 18.400[deg] N
    (5) 65.631[deg] W, 18.276[deg] N

    The petition states that the identified coastal waters must be 
designated as critical habitat to ``provide room for turtles to mate 
and access the beaches, and for hatchlings and adults to leave the 
beaches.'' The petition also cites our proposed rule to designate 
critical habitat for leatherback sea turtles in the Pacific Ocean (75 
FR 319; January 5, 2010) as support for the existence of similar 
essential features off of Puerto Rico. Specifically, the petition 
states that the ``migratory pathway conditions to allow for safe and 
timely passage and access to/from/within high use foraging areas'' in 
that proposed rule are ``for all intents and purposes, identical to the 
area `sufficient to protect leatherbacks using the Northeast Ecological 
Corridor' which the Sierra Club identified.'' The petition provides 
information on adult leatherback use of the petitioned area consisting 
of satellite tagging data from 1998-2003 on 10 turtles. On May 5, 2011, 
we published our determination that the second petition presented 
substantial information indicating that the revision may be warranted 
and that further review was required to determine how to proceed with 
the petition (76 FR 25660).

Analysis of the Petition

    The ESA provides us with broad discretion with respect to revising 
designated critical habitat, allowing us to determine when revisions 
are appropriate and how to respond to petitions to revise critical 
habitat designations. Consideration of the following threshold factors 
was determinative in our decision on how to proceed with Sierra Club's 
petition: whether the petitioned areas meet the definition of critical 
habitat under the ESA and if so, the potential conservation benefit of 
the petitioned revision; and the time required to complete a revision 
and how that might impact other ongoing or planned conservation 
activities that would also benefit leatherbacks.
    We first considered whether the available information for 
leatherbacks indicates that areas petitioned contain discernible 
physical or biological features that are essential to the leatherback's 
conservation and which may require special management considerations or 
protection. In other words, we looked at whether the petitioned area 
meets the ESA's definition of critical habitat in section 3(5)(A). As 
discussed in further detail below, we determined that there is 
insufficient information to adequately identify essential features 
within the area petitioned for leatherbacks.
    Of the three proposed essential features in the petition, two 
consist of ``migratory pathway conditions,'' to, from and within 
nesting and breeding sites respectively. Sierra Club's argument for 
designation of these essential features is based largely on adult 
leatherback presence in those waters and general information on what 
the leatherbacks may be doing in those areas, rather than on any 
specific qualities of the physical and biological features of the 
habitat. According to the petitioner, the request for revision 
``focuses on protecting migration space, here to allow leatherbacks to 
reach the Corridor nesting beaches. Because, as NOAA acknowledges, 
leatherbacks appear to mate `in areas adjacent to nesting beaches,' it 
also seeks to protect space for these activities.'' The petition then 
cites 50 CFR 424.12(b), which states that NMFS ``shall consider sites 
for breeding, reproduction, [and] rearing of offspring as critical 
habitat.'' As further support for designation of the ``migratory 
pathway'' features, the petition draws an analogy with one of the 
essential features in the proposed critical habitat designation for 
leatherback sea turtles in the Pacific Ocean (75 FR 319,330; January 5, 
2010).
    In the proposed designation of critical habitat in the Pacific 
Ocean, we identified ``migratory pathway conditions to allow for safe 
and timely passage and access to/from/within high use foraging areas'' 
as an essential feature. This essential feature was proposed in 
recognition of the fact that in order to complete their life history 
leatherback turtles must migrate through the offshore areas to access 
nearshore foraging areas. However, the ``migratory pathway conditions'' 
essential feature was removed from the final rule designating critical 
habitat for leatherback sea turtles in the Pacific Ocean (77 FR 4170; 
January 26, 2012). We concluded in the final rule that without further 
data regarding specific, geographically defined migratory corridors or 
the biological or physical features influencing migration to, from and 
among forage areas, we could not identify specific migratory conditions 
in any area under consideration. Based on a lack of information 
received, and on peer review and other comments, we found that there 
was insufficient information to produce a reasonable description of the 
physical and biological feature(s) 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

[[Page 32912]]

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. Similar considerations led to our 
determination not to proceed with Sierra Club's petition, as discussed 
below.
    In their petition, Sierra Club identifies an area off of a known 
nesting beach, delineated by the presence of tagged individual turtles, 
and states the general understanding in the scientific community that 
leatherbacks mate off of or near nesting beaches, and therefore 
concludes that the space within the delineated area is an essential 
feature. We reviewed the available satellite tag data, which 
demonstrate that there is some leatherback use of the waters in the 
area, as would be expected given the proximity to a nesting beach and 
leatherback use of Caribbean waters in general. Sierra Club states that 
the data, from 10 total turtles over a 5-year period, show that areas 
in the vicinity of nesting beaches constitute areas occupied by turtles 
during the internesting period. Sierra Club's comment in the petition 
(footnote 9, page 7) that ``nesting and monitoring data show that 
leatherbacks shift between the Corridor and Culebra beaches indicating 
that ``the utilization area is probably broader than these data 
suggests, extending to embrace both regions,'' indicates that 
leatherback nest site fidelity is not fixed and that internesting areas 
are not confined to the waters immediately off the nesting beach. A 
review of satellite tracking research by Godley et al. (2008) and the 
studies they cited, demonstrates that leatherback sea turtles, more so 
than the hardshell sea turtle species, often use extensive areas 
between each nesting activity (Eckert, 2006; Eckert et al., 2006; 
Georges et al., 2007; Hitipeuw et al., 2007), thus also raising 
questions about the importance of the petitioned area as internesting 
habitat. Leatherback internesting movements, in fact, can cover 
continental shelf waters over several hundred kilometers (Keinath and 
Music, 1993), increasing the difficulty of discerning what physical or 
biological features are associated with the interesting stage or 
interesting behaviors or needs. Witt et al. (2008) specifically cites 
the wide-ranging internesting movements of leatherbacks as a 
significant impediment to designing effective marine protected areas or 
other protective measures for leatherback rookeries. Most importantly, 
while providing occurrence and movement information, the available data 
do not indicate whether there are any physical or biological features 
in the petitioned areas with specific, defining qualities, parameters 
or values that help explain how or why any such features are essential 
to the leatherback's conservation. All the space within an area 
delineated by the presence of tagged adult turtles does not necessarily 
meet the ESA's definition of critical habitat. As with the adult 
leatherbacks, the petition does not indicate what specific feature of 
the habitat utilized by hatchlings is essential to the leatherback's 
conservation and may require special management considerations or 
protections, and thus would constitute critical habitat.
    As support for the third proposed essential feature, ``water 
quality to support normal growth, reproduction, development, viability, 
and health,'' the petitioner cites the prevalence of marine debris 
ingestion by leatherbacks, along with preliminary data showing that 
some leatherbacks have high organochlorine and heavy metal 
concentrations, and speculation that low hatching success on a French 
Guiana beach may be explained by high levels of organochlorines found 
in the sand. While this information indicates that pollutants and 
contaminants can cause harm to leatherbacks, it does not describe 
parameters of water quality itself that are needed for the conservation 
of leatherback sea turtles: we currently lack information to determine 
the relative impact and importance of water quality directly on the 
behavior, growth or health of leatherback sea turtles. We also note 
that habitats used for internesting activities off nesting beaches like 
those in the petition are not long-term residence habitats nor do they 
serve as important foraging grounds (if any foraging occurs at all), 
and therefore the petitioned area would not constitute an area of 
significant exposure to such contaminants. While ingestion of marine 
debris and potential chemical pollutant accumulation is a recognized 
source of adverse impacts to leatherbacks, they are a wide ranging 
species. The problem is more one of accumulation throughout their life 
cycle, especially from foraging on prey that has accumulated the 
pollutants, and not short-term exposure in any given location.
    The existence of leatherback sea turtles in the waters of the 
Northeast Ecological Corridor is not, in and of itself, a physical and 
biological feature essential to the conservation of the species. The 
petition does not indicate the specific, identifiable habitat features 
of these waters that are essential to the leatherback sea turtle's 
conservation, other than their proximity to the nesting beach and the 
need for ``room'' to travel, nor does it identify how any such specific 
features may require special management considerations or protection. 
Given these shortcomings in meeting the ESA's definition of critical 
habitat, we also concluded that little conservation benefit to 
leatherback sea turtles would result from accepting Sierra Club's 
petition; for example, the lack of distinct essential habitat features 
would not provide a basis for meaningful analysis of future federal 
actions under section 7 of the ESA. In light of these factors, we do 
not believe that dedication of ESA program time and resources to 
further work on Sierra Club's petition is appropriate. Further work on 
this petition would divert resources from ongoing work expected to 
provide significant benefits to sea turtle species including 
leatherbacks, such as ongoing scoping and rulemaking to reduce turtle 
capture and mortality in a variety of fisheries.

How We Intend To Proceed With the Petitioned Revision of Critical 
Habitat

    Based on our review as summarized above, we have decided to deny 
the petition. However, we and the USFWS have planned to jointly conduct 
a series of status reviews for each listed sea turtle (except Kemp's 
ridley). As part of these reviews, we will consider whether designation 
or revision of critical habitat (as applicable to the species) is an 
appropriate exercise of our discretion to take these actions. However, 
should the listing classification for leatherbacks be changed through 
rulemaking subsequent to the status review to include distinct 
population segments, we would be required to designate critical habitat 
to the maximum extent prudent and determinable. Conducting a review of 
critical habitat for leatherback sea turtles in this context will allow 
a more holistic, thorough examination of all in-water habitats to 
identify appropriate critical habitat across the species' range.

References Cited

    A complete list of references cited is available upon request from 
the NMFS Southeast Regional Office (see FOR FURTHER INFORMATION 
CONTACT).

    Authority: The authority for this action is the ESA, as amended 
(16 U.S.C. 1533 et seq.).


[[Page 32913]]


    Dated: May 30, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2012-13528 Filed 6-1-12; 8:45 am]
BILLING CODE 3510-22-P