[Federal Register Volume 77, Number 148 (Wednesday, August 1, 2012)]
[Proposed Rules]
[Pages 45571-45574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18768]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 120425024-1024-01]
RIN 0648-XB089


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To Delist the Green Turtle in Hawaii and Notice of Status Review

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

ACTION: Ninety-day petition finding, request for information, and 
initiation of status review.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to identify 
the Hawaiian population of the green turtle (Chelonia mydas) as a 
Distinct Population Segment (DPS) and delist the DPS under the 
Endangered Species Act (ESA). The green turtle was listed under the ESA 
on July 28, 1978. Breeding populations of the green turtle in Florida 
and along the Pacific Coast of Mexico are listed as endangered; all

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other populations are listed as threatened. We find that the petition 
viewed in the context of information readily available in our files 
presents substantial scientific and commercial information indicating 
that the petitioned action may be warranted.
    We are hereby initiating a status review of green turtles as 
currently listed to determine whether the petitioned action is 
warranted and to examine green turtles globally with regard to 
application of the DPS policy in light of significant new information 
since the listing of the species in 1978. To ensure that the status 
review is comprehensive, we are soliciting scientific and commercial 
information pertaining to this species and potential critical habitat 
from any interested party.

DATES: Scientific and commercial information pertinent to the 
petitioned action and the global DPS review must be received by October 
1, 2012.

ADDRESSES: You may submit information or data, identified by ``NOAA-
NMFS-2012-0154,'' by any one of the following methods:
     Electronic Submissions: Submit all electronic information 
via the Federal eRulemaking Portal http://www.regulations.gov. To 
submit information via the e-Rulemaking Portal, first click the 
``submit a comment'' icon, then enter ``NOAA-NMFS-2012-0154'' in the 
keyword search. Locate the document you wish to provide information on 
from the resulting list and click on the ``Submit a Comment'' icon to 
the right of that line.
     Mail or hand-delivery: Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
    Instructions: All information received is a part of the public 
record and may be posted to http://www.regulations.gov without change. 
All personally identifiable information (for example, name, address, 
etc.) voluntarily submitted may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information. NMFS will accept information from anonymous sources. 
Attachments to electronic submissions will be accepted in Microsoft 
Word, Excel, Corel WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Heather Coll, NMFS, Office of 
Protected Resources, (301) 427-8455.

SUPPLEMENTARY INFORMATION:

Background

    On February 16, 2012, NMFS and the U.S. Fish and Wildlife Service 
(USFWS) (together, the Services) received a petition from the 
Association of Hawaiian Civic Clubs to identify the Hawaiian green 
turtle population as a Distinct Population Segment (DPS) and delist the 
DPS under the Endangered Species Act of 1973, as amended (ESA; 16 
U.S.C. 1531 et seq.). Copies of the petition are available upon request 
(see ADDRESSES, above).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    In accordance with section 4(b)(3)(A) of the ESA, to the maximum 
extent practicable and within 90 days of receipt of a petition to list 
a species as threatened or endangered, the Secretary of Commerce is 
required to make a finding on whether that petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted, and to promptly publish such 
finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find 
that substantial scientific or commercial information in a petition 
indicates the petitioned action may be warranted, as is the case here, 
we are required to promptly commence a review of the status of the 
species concerned, during which we will conduct a comprehensive review 
of the best available scientific and commercial information. In such 
cases, within 12 months of receipt of the petition we conclude the 
review with a finding as to whether, in fact, the petitioned action is 
warranted. Because the finding at the 12-month stage is based on a 
comprehensive review of all best available information, as compared to 
the narrow scope of review at the 90-day stage, which focuses on 
information set forth in the petition, this 90-day finding does not 
prejudge the outcome of the status review.
    Under the ESA, the term ``species'' means a species, a subspecies, 
or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-
USFWS policy clarifies the Services' interpretation of the phrase 
``Distinct Population Segment,'' or DPS (61 FR 4722; February 7, 1996). 
The DPS Policy requires the consideration of two elements when 
evaluating whether a vertebrate population segment qualifies as a DPS 
under the ESA: Discreteness of the population segment in relation to 
the remainder of the species; and, if discrete, the significance of the 
population segment to the species.
    A species is ``endangered'' if it is in danger of extinction 
throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether a species is threatened or endangered based on any 
one or a combination of the following section 4(a)(1) factors: (1) The 
present or threatened destruction, modification, or curtailment of 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; and (5) any other natural 
or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    Under section 4(a)(1) of the ESA and the implementing regulations 
at 50 CFR 424.11(d), a species shall be removed from the list if the 
Secretary of Commerce determines, based on the best scientific and 
commercial data available after conducting a review of the species' 
status, that the species is no longer threatened or endangered because 
of one or a combination of the section 4(a)(1) factors. A species may 
be delisted only if such data substantiate that it is neither 
endangered nor threatened for one or more of the following reasons:
    (1) Extinction. Unless all individuals of the listed species had 
been previously identified and located, and were later found to be 
extirpated from their previous range, a sufficient period of time must 
be allowed before delisting to indicate clearly that the species is 
extinct.
    (2) Recovery. The principal goal of the Services is to return 
listed species to a point at which protection under the ESA is no 
longer required. A species may be delisted on the basis of recovery 
only if the best scientific and commercial data available indicate that 
it is no longer endangered or threatened.
    (3) Original data for classification in error. Subsequent 
investigations may show that the best scientific or commercial data 
available when the species was listed, or the interpretation of such 
data, were in error (50 CFR 424.11(d)).
    The ESA requires us to designate critical habitat concurrent with 
final listing rule ``to the maximum extent prudent and determinable'' 
(16 U.S.C. 1533 (a)(3)(A)). The ESA defines ``critical habitat'' as ``* 
* * the specific areas within the geographical area occupied by the 
species at the time it is listed * * * on which are found those

[[Page 45573]]

physical and biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and * * * specific areas outside the 
geographical area occupied by the species at the time it is listed * * 
* upon a determination * * * that such areas are essential for the 
conservation of the species.'' 16 U.S.C. 1532(5)(A). Critical habitat 
was previously designated for the green turtle in coastal waters 
surrounding Culebra Island, Puerto Rico (63 FR 46693; September 2, 
1998).
    ESA-implementing regulations issued jointly by the Services (50 CFR 
424.14(b)) define ``substantial information,'' in the context of 
reviewing a petition to list, delist, or reclassify a species, as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating whether substantial information is contained in a petition, 
the Secretary must consider whether the petition (1) clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (2) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (3) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (4) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)).
    Judicial decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-day finding 
stage, in making a determination that a petitioned action ``may be'' 
warranted. As a general matter, these decisions hold that a petition 
need not establish a ``strong likelihood'' or a ``high probability'' 
that a species is either threatened or endangered to support a positive 
90-day finding.
    To make a 90-day finding on a petition to list, delist, or 
reclassify a species, we evaluate whether the petition presents 
substantial scientific or commercial information indicating the 
petitioned action may be warranted, including its references and the 
information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioners' sources and characterizations of the 
information presented if they appear to be based on accepted scientific 
principles, unless we have specific information in our files that 
indicates the petition's information is incorrect, unreliable, 
obsolete, or otherwise irrelevant to the requested action. Information 
that is susceptible to more than one interpretation or that is 
contradicted by other available information will not be disregarded at 
the 90-day finding stage, so long as it is reliable and a reasonable 
person would conclude it supports the petitioners' assertions. In other 
words, conclusive information indicating the species may meet the ESA's 
requirements for listing is not required to make a positive 90-day 
finding.
    The petition contains information on the species with emphasis on 
the green turtle population in Hawaii, including its biology and 
ecology, population status and trends, and elements for identifying the 
Hawaiian population as a DPS. To support their assertion that the 
Hawaiian population of green turtles is discrete from other green 
turtle populations, they posit that the Hawaiian population is discrete 
due to genetic distinction, spatial disconnectedness, and morphological 
differences, and is derived mostly from the nesting population at 
French Frigate Shoals. Petitioners assert that the Hawaiian population 
of green turtles is significant to the taxon to which it belongs 
because there would be a significant gap in the species' range if the 
Hawaiian population were lost, as there are no other breeding 
populations within the area ranging from approximately 15[deg] to 
30[deg] North latitude and from 180[deg] to 150[deg] West longitude in 
the Central North Pacific Ocean. Further, petitioners provide 
information on the Hawaiian population of the green turtle relative to 
all ESA section 4(a)(1) factors and assert that the Hawaiian green 
turtle population, upon being identified as a DPS, should be delisted.

Petition Finding

    Based on the above information and criteria specified in 50 CFR 
424.14(b)(2), we find that the petitioners present substantial 
scientific and commercial information indicating that identifying the 
Hawaiian population of green turtle as a DPS and delisting this DPS may 
be warranted. Under section 4(b)(3)(A) of the ESA, an affirmative 90-
day finding requires that we promptly commence a status review of the 
petitioned species (16 U.S.C. 1533 (b)(3)(A)). Furthermore, the 
Services completed a 5-year review of the green turtle on August 31, 
2007, as required under Section 4(c)(2) of the ESA, and this review 
revealed that, in the time subsequent to the global listing of the 
green turtle, a substantial amount of information had become available 
on population structure (through genetic studies) and distribution 
(through telemetry, tagging, and genetic studies). The 5-year review 
recommended that a review of the species be conducted in the future.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information on 
whether green turtles should be listed as DPSs, including the 
identification of the Hawaiian population of the green turtle as a DPS, 
and, if so, whether they should be classified as endangered or 
threatened, or delisted based on the above ESA section 4(a)(1) factors. 
Specifically, we are soliciting information in the following areas: (1) 
Historical and current population status and trends; (2) historical and 
current distribution; (3) migratory movements and behavior; (4) genetic 
population structure, including recommendations on a global DPS 
structure; (5) current or planned activities that may adversely impact 
green turtles; and (6) ongoing efforts to conserve green turtles. We 
request that all information and data be accompanied by supporting 
documentation such as (1) maps, bibliographic references, or reprints 
of pertinent publications; and (2) the submitter's name, address, and 
any association, institution, or business that the person represents.
    We are also requesting information on areas within U.S. 
jurisdiction that may qualify as critical habitat for any DPS of green 
turtles that we might consider for listing. Areas that include the 
physical and biological features essential to the conservation of the 
species should be identified, and information regarding the potential 
need for special management considerations for those features should be 
provided. Essential features include, but are not limited to (1) Space 
for individual growth and for normal behavior; (2) food, water, air, 
light, minerals, or other nutritional or physiological requirements; 
(3) cover or shelter; (4) sites for reproduction and development of 
offspring; (5) habitats that are protected from disturbance or are 
representative of the historical, geographical and ecological 
distributions of the species (50 CFR 424.12(b)).

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References Cited

    A complete list of references is available upon request from NMFS 
Protected Resources Headquarters Office (see ADDRESSES).

Authority

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

    Dated: July 26, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2012-18768 Filed 7-31-12; 8:45 am]
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