[Federal Register Volume 82, Number 233 (Wednesday, December 6, 2017)]
[Proposed Rules]
[Pages 57565-57568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26276]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 171004968-7968-01]
RIN 0648-XF748


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To Identify the Northwest Atlantic Leatherback Turtle as a Distinct 
Population Segment and List It as Threatened Under the Endangered 
Species Act

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

ACTION: Notice of 90-day petition finding; request for information; and 
initiation of status review.

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

SUMMARY: We, NMFS, announce a 90-day finding on a petition to identify 
the Northwest Atlantic subpopulation of the leatherback turtle 
(Dermochelys coriacea) as a Distinct Population Segment (DPS) and list 
it as threatened under the Endangered Species Act (ESA). We find that 
the petition and information readily available in our files present 
substantial scientific and commercial information indicating that the 
petitioned action may be warranted. We are hereby initiating a status 
review of the leatherback turtle to determine whether the petitioned 
action is warranted and to examine the species globally with regard to 
application of the DPS Policy in light of significant new information 
since the original listing. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial information 
pertaining to the leatherback turtle from any interested party.

DATES: Information and comments on the subject action must be received 
by February 5, 2018.

ADDRESSES: Copies of the petition and related materials are available 
on NMFS' Web site at https://www.fisheries.noaa.gov/species/leatherback-turtle. You may submit comments, information, or data, by 
either of the following methods:
     Federal eRulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0147, click the ``Comment Now'' icon, 
complete the required fields, and enter or attach your comments.
     Mail or hand-delivery: Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Attn: Jennifer 
Schultz.
    Instructions: NMFS may not consider comments if they are sent by 
any other method, to any other address or individual, or received after 
the comment period ends. All comments received are a part of the public 
record and NMFS will post for public viewing on http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Jennifer Schultz, Office of Protected 
Resources, NMFS (301) 427-8443, or email [email protected]). 
Persons who use a Telecommunications Device for the Deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 
hours a day and 7 days a week.

SUPPLEMENTARY INFORMATION: 

Background

    On September 20, 2017, NMFS received a petition from Blue Water 
Fishermen's Association to identify the Northwest Atlantic leatherback 
turtle as a DPS and list it as threatened under the ESA. The species is 
currently listed as endangered throughout its range under the ESA (35 
FR 8491, June 2, 1970). Copies of the petitions are available upon 
request (see ADDRESSES).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to list a species as threatened or 
endangered, the Secretary of Commerce 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 it is found that substantial scientific or commercial information 
in a petition indicates the petitioned action may be warranted (a 
``positive 90-day finding''), 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, we conclude the review with a 
finding as to whether, in fact, the petitioned action is warranted 
within 12 months of receipt of the petition. Because the finding at the 
12-month stage is based on a more thorough review of the available 
information, as compared to the narrow scope of review at the 90-day 
stage, a ``may be warranted'' finding does not prejudge the outcome of 
the status review.
    Under the ESA, a listing determination may address a species, which 
is defined to also include subspecies and, for any vertebrate species, 
any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint 
NMFS-U.S. Fish and Wildlife Service (USFWS) policy clarifies the 
agencies' interpretation of the phrase ``distinct population segment'' 
for the purposes of listing, delisting, and reclassifying a species 
under the ESA (i.e., ``DPS Policy;'' 61 FR 4722, February 7, 1996). A 
species, subspecies, or DPS is ``endangered'' if it is in danger of 
extinction throughout all or a significant portion of its range, and 
``threatened'' if

[[Page 57566]]

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 species are 
threatened or endangered based on any one or a combination of the 
following five section 4(a)(1) factors: The present or threatened 
destruction, modification, or curtailment of habitat or range; 
overutilization for commercial, recreational, scientific, or 
educational purposes; disease or predation; inadequacy of existing 
regulatory mechanisms; or any other natural or manmade factors 
affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 
424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and USFWS (50 
CFR 424.14(h)(1)(i)) define substantial scientific or commercial 
information in the context of reviewing a petition to list, delist, or 
reclassify a species as credible scientific or commercial information 
in support of the petition's claims such that a reasonable person 
conducting an impartial scientific review would conclude that the 
action proposed in the petition may be warranted. Conclusions drawn in 
the petition without the support of credible scientific or commercial 
information will not be considered ``substantial information.'' In 
reaching the initial finding on the petition, we will consider the 
information described in sections 50 CFR 424.14(c), (d), and (g) (if 
applicable).
    Our determination on whether the petition provides substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted will depend in part on the degree to which the 
petition includes the following types of information: (1) Information 
on current population status and trends and estimates of current 
population sizes and distributions, both in captivity and the wild, if 
available; (2) identification of the factors under section 4(a)(1) of 
the ESA that may affect the species and where these factors are acting 
upon the species; (3) whether and to what extent any or all of the 
factors alone or in combination identified in section 4(a)(1) of the 
ESA may cause the species to be an endangered species or threatened 
species (i.e., the species is currently in danger of extinction or is 
likely to become so within the foreseeable future), and, if so, how 
high in magnitude and how imminent the threats to the species and its 
habitat are; (4) information on adequacy of regulatory protections and 
effectiveness of conservation activities by States as well as other 
parties, that have been initiated or that are ongoing, that may protect 
the species or its habitat; and (5) a complete, balanced representation 
of the relevant facts, including information that may contradict claims 
in the petition. See 50 CFR 424.14(d).
    If the petitioner provides supplemental information before the 
initial finding is made and states that it is part of the petition, the 
new information, along with the previously submitted information, is 
treated as a new petition that supersedes the original petition, and 
the statutory timeframes will begin when such supplemental information 
is received. See 50 CFR 424.14(g).
    We may also consider information readily available at the time the 
determination is made. We are not required to consider any supporting 
materials cited by the petitioner if the petitioner does not provide 
electronic or hard copies, to the extent permitted by U.S. copyright 
law, or appropriate excerpts or quotations from those materials (e.g., 
publications, maps, reports, letters from authorities). See 50 CFR 
424.14(c)(6).
    The ``substantial scientific or commercial information'' standard 
must be applied in light of any prior reviews or findings we have made 
on the listing status of the species that is the subject of the 
petition. Where we have already conducted a finding on, or review of, 
the listing status of that species (whether in response to a petition 
or on our own initiative), we will evaluate any petition received 
thereafter seeking to list, delist, or reclassify that species to 
determine whether a reasonable person conducting an impartial 
scientific review would conclude that the action proposed in the 
petition may be warranted despite the previous review or finding. Where 
the prior review resulted in a final agency action--such as a final 
listing determination, 90-day not-substantial finding, or 12-month, 
not-warranted finding--a petitioned action will generally not be 
considered to present substantial scientific and commercial information 
indicating that the action may be warranted unless the petition 
provides new information or analyses not previously considered.
    At the 90-day finding stage, 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 dismissed at the 90-day finding stage, so long 
as it is reliable and a reasonable person conducting an impartial 
scientific review 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. We will not conclude that a lack of 
specific information alone necessitates a negative 90-day finding if a 
reasonable person conducting an impartial scientific review would 
conclude that the unknown information itself suggests the species may 
be at risk of extinction presently or within the foreseeable future.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. First, we evaluate 
whether the information presented in the petition, along with the 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species faces an extinction risk such that listing, delisting, or 
reclassification may be warranted; this may be indicated in information 
expressly discussing the species' status and trends, or in information 
describing impacts and threats to the species. We evaluate any 
information on specific demographic factors pertinent to evaluating 
extinction risk for the species (e.g., population abundance and trends, 
productivity, spatial structure, age structure, sex ratio, diversity, 
current and historical range, habitat integrity or fragmentation), and 
the potential contribution of identified demographic risks to 
extinction risk for the species. We then evaluate the potential links 
between these demographic risks and the causative impacts and threats 
identified in section 4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized

[[Page 57567]]

threats to the species, or identification of factors that could 
negatively impact a species, do not constitute substantial information 
indicating that listing may be warranted. We look for information 
indicating that not only is the particular species exposed to a factor, 
but that the species may be responding in a negative fashion; then we 
assess the potential significance of that negative response.
    Many petitions identify risk classifications made by 
nongovernmental organizations, such as the International Union on the 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by such organizations or made under other Federal or 
state statutes may be informative, but such classification alone will 
not alone provide sufficient basis for a positive 90-day finding under 
the ESA. For example, as explained by NatureServe, their assessments of 
a species' conservation status do ``not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act'' because 
NatureServe assessments ``have different criteria, evidence 
requirements, purposes and taxonomic coverage than government lists of 
endangered and threatened species, and therefore, these two types of 
lists should not be expected to coincide'' (www.natureserve.org/prodServices/pdf/NatureServeStatusAssessmentsListing-Dec%202008.pdf). 
Additionally, species classifications under IUCN and the ESA are not 
equivalent; data standards, criteria used to evaluate species, and 
treatment of uncertainty are also not necessarily the same. Thus, when 
a petition cites such classifications, we will evaluate the source of 
information that the classification is based upon in light of the 
standards on extinction risk and impacts or threats discussed above.

Analysis of the Petition and Information Readily Available in NMFS' 
Files

    As mentioned above, in analyzing the request of the petitioner, we 
first evaluate whether the information presented in the petition, along 
with information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Because the petition specifically requests listing of a DPS, 
we evaluate whether the information may warrant identification of the 
petitioned entity, the Northwest Atlantic leatherback turtle 
subpopulation, as a DPS pursuant to our DPS Policy.
    When identifying a DPS, our DPS Policy stipulates two elements that 
must be considered: (1) The discreteness of the population segment in 
relation to the remainder of the species (or subspecies) to which it 
belongs; and (2) the significance of the population segment to the 
remainder of the species (or subspecies) to which it belongs. In terms 
of discreteness, the DPS Policy states that a population of a 
vertebrate species may be considered discrete if it satisfies one of 
the following conditions: (1) It is markedly separated from other 
populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors (quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation); or (2) it is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of section 4(a)(1)(D) of the ESA. 
If a population segment is considered discrete under one or more of the 
above conditions, then its biological and ecological significance is 
considered. Significance under the DPS Policy is evaluated in terms of 
the importance of the population segment to the overall welfare of the 
species. Some of the considerations that can be used to determine a 
discrete population segment's significance to the taxon as a whole 
include: (1) Persistence of the population segment in an unusual or 
unique ecological setting; (2) evidence that loss of the population 
segment would result in a significant gap in the range of the taxon; 
(3) evidence that the discrete population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or 
(4) evidence that the population segment differs markedly from other 
populations of the species in its genetic characteristics.
    In evaluating this petition, we looked for information to suggest 
that the petitioned entity, the Northwest Atlantic leatherback turtle, 
may warrant identification as a DPS under both the discreteness and 
significance criteria of our DPS Policy. We next considered if such a 
DPS may warrant listing as a threatened species under the ESA. The 
following is a summary of our findings based on our review of the 
references cited in the petition and those available in our files.

Consideration of the Northwest Atlantic Leatherback Turtle 
Subpopulation as a DPS

    The petition asserts that the Northwest Atlantic leatherback turtle 
qualifies as a DPS under the ESA. The petition defines the Northwest 
Atlantic leatherback turtle subpopulation as those turtles that hatch 
on nesting beaches along the western Atlantic Ocean, north of the 
Equator, and the Caribbean Sea. Their marine habitat extends throughout 
the North Atlantic Ocean.
    The petition asserts that the subpopulation is discrete because it 
is genetically differentiated (e.g., statistically significant genetic 
structure at maternally inherited mitochondrial DNA (mtDNA) haplotypes 
and biparentally inherited nuclear microsatellite DNA loci; Dutton et 
al., 2013) and geographically separated (e.g., northern hemisphere 
residency, as determined by tagging and satellite tracking data; Eckert 
et al., 2013, NMFS and USFWS 2013, and Saba 2013) from other 
leatherback turtle subpopulations. The petition asserts that the 
subpopulation is significant because its loss would create a 
significant gap (i.e., the Northwest Atlantic Ocean) in the range of 
the species.
    In our most recent 5-year review of the species, we found that a 
substantial amount of genetic, tagging, and tracking data has become 
available since the original leatherback turtle listing in 1970 (35 FR 
8491, June 2, 1970; NMFS and USFWS 2013). We found that these data 
warrant additional review but appear to indicate possible separation by 
ocean basin, at a minimum (NMFS and USFWS 2013). For example, Atlantic 
and Pacific leatherback turtles share few mtDNA haplotypes, providing 
evidence for genetic discontinuity (Dutton et al., 1999). Among 
Atlantic Ocean subpopulations, there is statistically significant 
genetic structure at mtDNA and microsatellite DNA loci (Dutton et al., 
2013) that warrants further review. Similarly, tracking and tagging 
data appear to indicate geographic separation between and within ocean 
basins (as reviewed by Eckert et al., 2013; NMFS and USFWS 2013; and 
Saba 2013). However, leatherback turtles nesting off the Indian Ocean 
coastline of southern Africa forage in both southern Atlantic and 
Indian Oceans (Saba 2013). These genetic, tagging, and tracking data 
warrant further consideration in our evaluation of discreteness. If we 
find such population segments to be discrete, there is evidence to 
suggest that their loss may result in a significant gap (e.g.,

[[Page 57568]]

the Northwest Atlantic Ocean) in the species' range. Therefore, based 
on the information included in the petition and our files, we conclude 
that application of the DPS Policy to the petitioned subpopulation, 
and/or other leatherback turtle subpopulations, may be warranted.

Consideration of the Northwest Atlantic Leatherback Turtle DPS as 
Threatened Under the ESA

    The petition asserts that the Northwest Atlantic leatherback turtle 
subpopulation qualifies as threatened under the ESA due to several 
section 4(a)(1) factors. It states that the Northwest Atlantic 
leatherback turtle is threatened by the destruction of habitat, and 
especially of nesting beaches, as a result of urbanization, erosion, 
and beach debris (as reviewed by NMFS and USFWS 2013). The petition 
identifies two anthropogenic threats as having the largest population-
level effects on the Northwest Atlantic leatherback turtle: Climate 
change and fisheries bycatch. The petition states that climate change 
likely impacts terrestrial and marine habitats. It states that bycatch 
in both artisanal and large-scale fisheries likely removes more 
individuals from the subpopulation than any other anthropogenic source. 
The petition asserts that the Northwest Atlantic leatherback turtle is 
threatened but not currently at risk of extinction (i.e., endangered) 
due to its overall population size. For example, based on nesting 
counts from 2004 and 2005, the total estimated adult population size 
ranges between 17,000 and 52,000 turtles (Turtle Expert Working Group 
2007). While the petition identified an overall increase in nesting 
trends (e.g., Turtle Expert Working Group 2007), it also identified 
stalled (e.g., Garner et al., 2017) or decreasing trends (e.g., Eckert 
et al., 2012; Eckert et al., 2013) at some nesting beaches. Finally, 
the petition identifies numerous existing regulatory mechanisms that 
may have contributed to the increase in overall population size.
    We find that the petition contains substantial scientific and 
commercial information describing the threats to the Northwest Atlantic 
leatherback turtle. These threats may contribute to the extinction risk 
of the subpopulation (NMFS and USFWS 2013). Some demographic factors 
(e.g., abundance and trends of nesting females at some beaches) suggest 
improvement, possibly as a result of regulatory mechanisms and 
conservation efforts (Turtle Expert Working Group 2007). However, 
trends at specific nesting beaches warrant further review. Based on the 
information included in the petition and our files, we conclude that 
the Northwest Atlantic leatherback turtle may warrant listing as 
threatened or endangered under the ESA.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we find that the 
petition presents substantial scientific and commercial information 
indicating that the petitioned action to identify the Northwest 
Atlantic leatherback turtle as a DPS and list it as threatened may be 
warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA 
and its implementing regulations (50 CFR 424.14(h)(2)), NMFS and the 
USFWS will jointly commence a status review of the species.
    During the status review, NMFS and USFWS will consider the species 
in light of the DPS Policy and evaluate the extinction risk of any such 
DPS. NMFS and USFWS will then make a 12-month finding regarding the 
identification of DPS(s) and whether an endangered or threatened 
listing is warranted as required by section 4(b)(3)(B) of the ESA. If 
listing is found to be warranted, we will publish a proposed rule and 
solicit public comments before developing and publishing a final rule.

Information Solicited

    To ensure that we base the status review on the best available 
scientific and commercial data, we are soliciting information on the 
leatherback turtle. Specifically, we are soliciting information in the 
following areas: (1) Historical and current distribution; (2) migratory 
movements and behavior; (3) genetic population structure, including 
recommendations on global DPS structure; (4) historical and current 
population status and trends; (5) current or planned activities that 
may adversely impact leatherback turtles; and (6) ongoing efforts to 
conserve leatherback turtles. We request that all information be 
accompanied by: (1) Supporting documentation such as 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 additional critical habitat for 
leatherback turtles. Please identify: Physical and biological features 
essential to the conservation of the species that may require special 
management considerations; areas occupied by the species containing 
those essential features; and unoccupied areas essential for 
conservation of the species (16 U.S.C. 1533(a)(3)(A); 50 CFR 424.12).

References Cited

    A complete list of references, including those submitted with the 
petition and those readily available in NMFS' files, is available upon 
request to the NMFS Office of Protected Resources (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: December 1, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2017-26276 Filed 12-5-17; 8:45 am]
 BILLING CODE 3510-22-P