[Federal Register Volume 73, Number 193 (Friday, October 3, 2008)]
[Proposed Rules]
[Pages 57583-57585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23467]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 0809161218-81253-01]
RIN 0648-AX23


Listing Endangered and Threatened Wildlife and Designating 
Critical Habitat; 90-day Finding for a Petition to Revise the Critical 
Habitat Designation for the Hawaiian Monk Seal

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

ACTION: Notice of petition finding; request for information and 
comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce a 
90-day finding for a petition to revise Hawaiian monk seal (Monachus 
schauinslandi) critical habitat under the Endangered Species Act (ESA) 
of 1973, as amended. The Hawaiian monk seal is listed as endangered 
throughout its range, and currently designated critical habitat 
consists of all beach areas, sand spits, and islets, including all 
beach crest vegetation to its deepest extent inland, lagoon waters, 
inner reef waters, and ocean waters out to a depth of 20 fathoms 
(36.6m) around specific areas in the Northwestern Hawaiian Islands. The 
petition seeks to include key beach areas, sand spits, and islets, 
including all beach crest vegetation to its deepest extent inland, 
lagoon waters, inner reef waters, and ocean waters out to a depth of 
200 meters around the main Hawaiian Islands, and to extend critical 
habitat designation in the Northwestern Hawaiian Islands to Sand Island 
and ocean waters out to a depth of 500 meters. We are initiating a 
review of currently designated critical habitat of the species to 
determine whether revision is warranted. To ensure a comprehensive 
review, we solicit information and comments pertaining to this species' 
essential habitat needs from any interested party.

DATES: Written comments and information related to this petition 
finding must be received [see ADDRESSES] by December 2, 2008.

ADDRESSES: You may submit comments, identified by [0648-AX23], by any 
one of the following methods: (1) Electronic Submissions: Submit all 
electronic public comments via the Federal eRulemaking Portal at http://www.regulations.gov; (2) Fax: 808-973-2941, attention: Krista Graham; 
or (3) mail: addressed to Krista Graham, National Marine Fisheries 
Service, Pacific Islands Regional Office, Protected Resources Division, 
1601 Kapiolani Boulevard Suite 1110, Honolulu, HI 96814.
    All comments received are a part of the public record and will 
generally be posted to httphttp://www.regulations.gov without change. 
All personal identifying information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or otherwise sensitive or 
protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Interested persons may obtain more information about critical 
habitat designated for the Hawaiian monk seal online at the NMFS 
Pacific Islands Regional Office website: http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html

FOR FURTHER INFORMATION CONTACT: Krista Graham by phone 808-944-2238, 
fax 808-973-2941, or e-mail <a href="/cdn-cgi/l/email-protection#1d766f746e697c337a6f7c757c705d73727c7c337a726b"><span class="__cf_email__" data-cfemail="c3a8b1aab0b7a2eda4b1a2aba2ae83adaca2a2eda4acb5">[email protected]</span></a>; Lance Smith by 
phone 808-944-2258, fax 808-973-2941, or e-mail <a href="/cdn-cgi/l/email-protection#c0aca1aea3a5eeb3ada9b4a880aeafa1a1eea7afb6"><span class="__cf_email__" data-cfemail="88e4e9e6ebeda6fbe5e1fce0c8e6e7e9e9a6efe7fe">[email protected]</span></a>; 
Lisa Van Atta by phone 808-944-2257, fax 808-973-2941, or e-mail 
<a href="/cdn-cgi/l/email-protection#9cfdf0f9fff5fdb2eafdf2fde8e8fddcf2f3fdfdb2fbf3ea"><span class="__cf_email__" data-cfemail="65040900060c044b13040b04111104250b0a04044b020a13">[email protected]</span></a>; or Marta Nammack by phone 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    Critical habitat is defined in the ESA (16 U.S.C. 1531 et seq.) as:
    ``(i) the specific areas within the geographical area currently 
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.''
    Our implementing regulations (50 CFR 424.12) describe those 
essential physical and biological features to include, but not limited 
to: (1) space for individual and population growth, and 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; and (5) habitats that are 
protected from disturbance or are representative of the historic 
geographical and ecological distribution of a species. We are required 
to focus on the primary constituent elements (PCEs) which best 
represent the principal biological or physical features. PCEs may 
include, but are not limited to: nesting grounds, feeding sites, water 
quality, tide, and geological formation. Our implementing regulations 
(50 CFR 424.02) define ``special management considerations or 
protection'' as any method or procedure useful in protecting physical 
and biological features of the environment for the conservation of the 
species.
    Section 4(b)(2) of the ESA requires us to designate and make 
revisions to critical habitat for listed species based on the best 
scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical habitat. 
The Secretary may exclude any particular area from critical habitat if 
he determines that the benefits of such exclusion outweigh the benefits 
of specifying such area as part of the critical habitat, unless he 
determines that the failure to designate such area as critical habitat 
will result in the extinction of the species concerned. We are required 
to consider whether the petition contains information indicating that 
areas petitioned contain physical and biological features essential to, 
and that may require special management to provide for, the 
conservation of the species. Section 4(b)(3)(D)(i) of the ESA requires 
us to make a finding as to whether a petition to revise critical 
habitat presents substantial scientific information indicating that the 
revision may be warranted. Our implementing regulations (50 CFR 424.14) 
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 determining whether substantial 
information exists, we take into account several factors, including

[[Page 57584]]

information submitted with, and referenced in, the petition and all 
other information readily available in our files. To the maximum extent 
practicable, this finding is to be made within 90 days of the receipt 
of the petition, and the finding is to be published promptly in the 
Federal Register. If we find that a petition presents substantial 
information indicating that the revision may be warranted, within 12 
months after receiving the petition, we are required to determine how 
we intend to proceed with the requested revision and promptly publish 
notice of such intention in the Federal Register. See ESA Section 
4(b)(3)(D)(ii).

Analysis of Petition

    On July 9, 2008, we received a petition from the Center for 
Biological Diversity, Kahea, and the Ocean Conservancy (Petitioners) to 
revise the Hawaiian monk seal critical habitat designation (Center for 
Biological Diversity et al., 2008). Currently designated critical 
habitat consists of all beach areas, sand spits, and islets, including 
all beach crest vegetation to its deepest extent inland, lagoon waters, 
inner reef waters, and ocean waters out to a depth of 20 fathoms 
(36.6m) around the following areas in the Northwestern Hawaiian 
Islands: Kure Atoll; Midway Islands, except Sand Island and its harbor; 
Pearl and Hermes Reef; Lisianski Island; Laysan Island; Maro Reef; 
Gardner Pinnacles; French Frigate Shoals; Necker Island; and Nihoa 
Island (53 FR 18988; May 26, 1988). The Petitioners seek to revise the 
critical habitat designation to include key beach areas, sand spits, 
and islets, including all beach crest vegetation to its deepest extent 
inland, lagoon waters, inner reef waters, and ocean waters out to a 
depth of 200 meters around the main Hawaiian Islands, and to extend 
critical habitat designation in the Northwestern Hawaiian Islands to 
Sand Island and ocean waters out to a depth of 500 meters.
    The petition contains a detailed description of the species' 
natural history and status, including information on distribution and 
movements, feeding and prey selection, reproduction, population status 
and trends, and factors contributing to the current status of the 
species in the Pacific Ocean. The petition describes the importance of 
the terrestrial and marine habitat for monk seals around the entire 
Hawaiian Archipelago. The Petitioners cite studies indicating that, 
while a significant portion of the species' population is found 
throughout the Northwestern Hawaiian Islands (NMFS, 2007), it is likely 
that monk seals are recolonizing the main Hawaiian Islands (Baker, 
2006) since Hawaiian monk seals have been sighted on each of the eight 
main Hawaiian Islands and their presence is increasing (NMFS, 2007). 
The petition cites studies demonstrating that births have increased on 
the main Hawaiian Islands since the mid-1990s (NMFS, 2007), and that 
pups born on the main Hawaiian Islands have been healthier and more 
likely to survive to adulthood than those born on the Northwestern 
Hawaiian Islands (Baker et al., 2006). The Petitioners further cite 
studies that assert that these larger sizes and healthier physical 
condition reflects greater prey availability and, thus, better foraging 
conditions in the main Hawaiian Islands (Baker et al., 2006; Baker, 
2006; Baker and Johanos, 2004).
    The Petitioners claim that the population of monk seals on the main 
Hawaiian Islands is likely below the carrying capacity of those 
islands. The Petitioners believe that the petitioned habitat area 
contains the PCEs or the physical and biological features essential to 
the conservation of Hawaiian monk seals. The Petitioners claim that the 
petitioned area provides space for population growth and normal 
behavior, and thus the main Hawaiian Islands will provide important 
habitat for recovery of the species. They offer that the habitat 
components essential for feeding, pupping, nursing, resting, molting, 
and migrating include all marine waters, along with associated marine 
aquatic flora and fauna in the water column, as well as the underlying 
marine benthic community, all of which occur in the main Hawaiian 
Islands. The Petitioners assert that this is evidenced by the 
increasing use of the area by monk seals as well as their visibly 
healthier body condition. As for extending the area of designation in 
the Northwestern Hawaiian Islands, the Petitioners cite new studies 
that have contradicted the previous belief that monk seals foraged only 
on shallow reef habitats (Parrish and Littnan, 2007). The Petitioners 
cite from Baker et al. (2007) that monk seals forage in a variety of 
marine habitats within approximately 500 meters of the surface in the 
Northwestern Hawaiian Islands. Thus, the Petitioners suggest that the 
designation of critical habitat for the Hawaiian monk seal in the main 
Hawaiian Islands and the extension of the designation in the 
Northwestern Hawaiian Islands are consistent with the recovery plan for 
the species.
    Finally, the Petitioners request that, if we determine some portion 
of the petitioned area does not meet the criteria for critical habitat, 
we analyze whether some subset of this area should be designated as 
critical habitat.

Petition Finding

    Based on the above information and information readily available in 
our files, and pursuant to criteria specified in 50 CFR 424.14(c), we 
find the Petitioners present substantial scientific information 
indicating that a revision to the critical habitat designation for 
Hawaiian monk seals may be warranted. Our Pacific Islands Fisheries 
Science Center has conducted research on Hawaiian monk seals foraging, 
pupping, nursing, resting, and migrating within the petitioned area, in 
both the main and Northwestern Hawaiian Islands, and the area in 
general represents principal habitat for Hawaiian monk seals. The 
Petitioners have requested broad areas to be considered as critical 
habitat for this species. It is not clear whether such a broad 
designation is warranted at this time, but we will review the best 
scientific information available to determine whether these petitioned 
areas or a subset of these petitioned areas meet the definition of 
critical habitat.
    To ensure that the review of critical habitat for Hawaiian monk 
seals is complete and based on the best available data, we solicit 
information and comments on whether the petitioned area, or some subset 
thereof, qualifies as critical habitat. Areas that include the physical 
and biological features essential to the conservation of the species 
and that may require special management considerations or protection 
should be identified. As stated earlier, essential features include, 
but are not limited to, space for individual growth and for normal 
behavior, food, water, air, light, minerals, or other nutritional or 
physiological requirements, cover or shelter, sites for reproduction 
and development of offspring, and habitats that are protected from 
disturbance or are representative of the historical, geographical, and 
ecological distributions of the species (50 CFR 424.12).
    We request that all data, information, and comments be accompanied 
by supporting documentation such as maps, bibliographic references, or 
reprints of pertinent publications. Comments and materials received 
will be available for public inspection, by appointment, during normal 
business hours at the above address (see ADDRESSES).

[[Page 57585]]

Peer Review

    The Office of Management and Budget issued its Final Information 
Quality Bulletin for Peer Review on December 16, 2004. The Bulletin 
went into effect June 16, 2005, and generally requires that all 
``influential scientific information'' and ``highly influential 
scientific information'' disseminated on or after that date be peer 
reviewed. Because the information used to evaluate this petition may be 
considered ``influential scientific information,'' we solicit the names 
of recognized experts in the field that could serve as peer reviewers 
of such information we may disseminate as we evaluate this petition. 
Independent peer reviewers will be selected from the academic and 
scientific community, applicable tribal and other Native American 
groups, Federal and state agencies, the private sector, and public 
interest groups.

References Cited

    Baker, J.D. 2006. The Hawaiian Monk Seal: Abundance Estimation, 
Patterns in Survival, and Habitat Issues. Unpublished Ph. D. Thesis. 
University of Aberdeen, UK. 182 p.
    Baker, J.D., and T.C. Johanos. 2004. Abundance of the Hawaiian Monk 
Seal in the Main Hawaiian Islands. Biological Conservation 116: 103-
110.
    Baker, J.D., C.L. Littnan, and D.W. Johnston. 2006. Potential 
Effects of Sea Level Rise on the Terrestrial Habitats of Endangered and 
Endemic Megafauna in the Northwestern Hawaiian Islands. Endangered 
Species Research 2:21-30.
    Baker, J.D., J.J. Polovina, and E.A. Howell. 2007. Effect of 
Variable Oceanic Productivity on the Survival of an Upper Trophic 
Predator, the Hawaiian Monk Seal Monachus schauinslandi. Marine Ecology 
Progress Series 346: 277-283.
    Center for Biological Diversity, Kahea, and Ocean Conservancy. 
2008. Petition to Revise Critical Habitat for the Hawaiian Monk Seal 
(Monachus schauinslandi) Under the Endangered Species Act. 41 pp. 
http://www.biologicaldiversity.org/species/mammals/Hawaiian_monk_seal/pdfs/Petition-Monk-Seal-CH-07-02-08.pdf
    National Marine Fisheries Service (``NMFS''). 2007. Recovery Plan 
for the Hawaiian Monk Seal (Monachus schauinslandi). Second Revision. 
National Marine Fisheries Service, Silver Spring, MD. 165 pp.
    Parrish, F.A. and C.L. Littnan. 2007. Changing Perspectives in 
Hawaiian Monk Seal Research Using Animal-Borne Imaging. Marine 
Technology Society Journal 41:30-34.

    Authority: 16 U.S.C. 1531 et seq.

    Dated: September 29, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-23467 Filed 10-2-08; 8:45 am]
BILLING CODE 3510-22-S


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