[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Proposed Rules]
[Pages 25660-25662]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10956]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 110407235-1242-01]
RIN 0648-XA349


Endangered and Threatened Wildlife; Notice of 90-Day Finding on a 
Petition to Revise Critical Habitat for the Endangered Leatherback Sea 
Turtle 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.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to revise 
critical habitat for the endangered

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leatherback sea turtle under the Endangered Species Act (ESA). We find 
that the petition presents substantial scientific information 
indicating that the petitioned action may be warranted for leatherback 
sea turtles and their habitat under our jurisdiction.

FOR FURTHER INFORMATION CONTACT: Dennis Klemm, NMFS, Southeast Regional 
Office, Protected Resources Division, dennis.klemm@noaa.gov, (727) 824-
5312; or Lisa Manning, NMFS, Office of Protected Resources, 
marta.nammack@noaa.gov, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On November 3, 2010, we received a petition, dated November 2, 
2010, from the Sierra Club asking NMFS and the United States Fish and 
Wildlife Service (USFWS) to revise, pursuant to the ESA, critical 
habitat for the endangered leatherback sea turtle. The November 3, 
2010, petition is the second petition submitted by the Sierra Club; the 
first petition submitted by the Sierra Club, dated February 22, 2010, 
was found not to present substantial scientific information indicating 
the petitioned revision may be warranted (75 FR 41436, July 16, 2010).
    Under the ESA, NMFS, and USFWS each have respective areas of 
jurisdiction over sea turtles, as clarified by the 1977 ``Memorandum of 
Understanding Defining the Roles of the U.S. Fish and Wildlife Service 
and the National Marine Fisheries Service in Joint Administration of 
the Endangered Species Act of 1973 as to Marine Turtles.'' NMFS has 
jurisdiction over sea turtles and their associated habitats in the 
marine environment, while USFWS has jurisdiction when sea turtles are 
on land. Thus, if Federal agencies are involved in activities that may 
affect sea turtles involved in nesting behavior, or their nests or 
their nesting habitats, those Federal agencies are required to consult 
with the USFWS under section 7 of the ESA to ensure that their 
activities are not likely to jeopardize the continued existence of the 
sea turtles. If a Federal action may affect sea turtles while they are 
in the marine environment, feeding and migrating for example, the 
Federal agency involved must engage in section 7 consultation with 
NMFS, to ensure that the action is not likely to jeopardize the 
continued existence of the sea turtles. Similarly, if critical habitat 
has been designated, and Federal actions may affect such habitat, an 
ESA section 7 consultation would be required to ensure that the Federal 
action is not likely to destroy or adversely modify the critical 
habitat. If the habitat has been designated on land the consultation 
would be with USFWS, and if the habitat has been designated in the 
marine environment, the consultation would be with NMFS.
    The petitioner requests that we designate critical habitat for 
leatherback turtles in the waters off the coastline of the Northeast 
Ecological Corridor of Puerto Rico,\1\ sufficient to protect 
leatherback turtles 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 the Espiritu Santo, Cabezas de San Juan, and Arreceifes 
de la Cordillera Nature Reserves. This portion of the petitioned 
critical habitat, which falls under NMFS' jurisdiction, is described by 
the petitioner as having three primary constituent elements: (1) 
``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;'' 
(2) ``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;'' and (3) 
``Water quality to support normal growth, reproduction, development, 
viability, and health.'' The petitioner defined the minimum requested 
boundaries of the critical habitat by the following coordinates:
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    \1\ The Northeast Ecological Corridor is an over 3,000 acre 
coastal area along Puerto Rico's northeastern shoreline that 
encompasses nearshore marine habitats as well as forests, wetlands, 
and one of the most important nesting beaches for leatherback 
turtles within the United States.

65.807[deg] W, 18.425[deg] N;
65.697[deg] W, 18.601[deg] N;
65.489[deg] W, 18.581[deg] N;
65.435[deg] W, 18.400[deg] N;
65.631[deg] W, 18.276[deg] N.

    As argued in Sierra Club's first petition dated February 22, 2010, 
this petition asserts, that the beaches of the Northeast Ecological 
Corridor of Puerto Rico, which fall under USFWS' jurisdiction, are 
``centrally important to the U.S. Caribbean leatherback population, and 
should be designated as critical habitat,'' and that the near-shore 
coastal waters off those beaches, which fall under NMFS' jurisdiction, 
``provide room for turtles to mate and access the beaches, and for 
hatchlings and adults to leave the beaches.'' The petition also asserts 
that the coastal zone within the Northeast Ecological Corridor is 
particularly vulnerable to pressure from development and to the growing 
impacts of climate change, and so warrants protection as critical 
habitat. Additional information and details were provided in the 
Petition to Supplement associated with the Sierra Club's February 22, 
2010, petition, which was incorporated by reference.

ESA Statutory Provisions and Policy Considerations

    Section 4(b)(3)(D) of the ESA of 1973, as amended (16 U.S.C. 1533 
et seq.), 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 finding is to be published promptly 
in the Federal Register. 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. Joint ESA-implementing regulations issued by NMFS 
and the USFWS (50 CFR 424.14(b)) define ``substantial information'' as 
the amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted. In 
making this finding on a petition to revise critical habitat to include 
additional areas, the Secretary must consider whether the petition 
contains information indicating that areas petitioned to be added to 
critical habitat contain physical and biological features essential to, 
and that may require special management to provide for, the 
conservation of the species involved (50 CFR 424.14(c)(2)(i)). Thus, in 
reviewing a petition to revise critical habitat we consider the 
information presented on the following three aspects of critical 
habitat as defined in the ESA: The physical or biological features 
identified, the explanation of how such features may be essential to a 
species' conservation, and how those features may require special 
management considerations.

Analysis of Petition

    The petition asserts that the revision of leatherback critical 
habitat to include the waters off the Northeast Ecological Corridor of 
Puerto Rico is necessary to protect leatherback sea turtles. In 
contrast to the February 22, 2010, petition, the Sierra Club's second 
petition proposes three primary constituent elements and specific

[[Page 25662]]

boundaries of the critical habitat, as detailed above. The petition 
also supports the proposed critical habitat revision by reporting what 
is known from existing accounts of leatherback mating behavior: Mating 
seems to occur, at least in part, in areas adjacent to nesting beaches. 
The information from satellite tagging studies of six leatherback 
turtles indicates heavy use by those turtles of the area described in 
the petition. The petitioner also cited the proposed Pacific 
leatherback critical habitat (75 FR 319; January 5, 2010), which has 
some similarities to the ``open space'' feature petitioned for 
designation off Puerto Rico. The petitioner states that the second 
primary constituent element cited in the proposed Pacific leatherback 
critical habitat rule (i.e., migratory pathway conditions to allow for 
safe and timely passage and access to/from/within high use foraging 
areas) is ``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 also states 
that the marine environment in which the proposed critical habitat 
would be designated is subject to ``substantial development and 
degradation threats.'' Thus, the additional information presented in 
this petition supports the required determination that the ``areas 
petitioned to be added to critical habitat contain physical and 
biological features essential to, and that may require special 
management to provide for, the conservation of the species involved.'' 
50 CFR 424.14(c)(2)(i).

Petition Finding

    After considering the petition, the information cited by the 
petitioner, and relevant information readily available in our files, we 
conclude that, with respect to areas under NMFS' jurisdiction, the 
petition presents substantial scientific information indicating that 
the petitioned revision of designated critical habitat for leatherback 
sea turtles may be warranted.

Authority

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

    Dated: April 28, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-10956 Filed 5-4-11; 8:45 am]
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