27988 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules 

5 5 U.S.C. 603(b)(3). 

6 5 U.S.C. 601(6). 

7 5 U.S.C. 601(3) (incorporating by reference the 

definition of ‘‘small business concern’’ in the Small 

Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 

601(3), the statutory definition of a small business 

applies ‘‘unless an agency, after consultation with 

the Office of Advocacy of the Small Business 

Administration and after opportunity for public 

comment, establishes one or more definitions of 

such term which are appropriate to the activities of 

the agency and publishes such definition(s) in the 

Federal Register.’’ 

8 15 U.S.C. 632. 

9See 13 CFR 121.201, NAICS Code 515112 

(changed from 513112 in October 2002). 

10 Id. 

11 Id. 

12 Id. 

13 Id. 14 5 U.S.C. 603(b). 

proposed rules.5 The RFA generally 

defines the term ‘‘small entity’’ as 

encompassing the terms ‘‘small 

business,’’ ‘‘small organization,’’ and 

‘‘small governmental entity.’’ 6 In 

addition, the term ‘‘small business’’ has 

the same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act.7 A small business concern 

is one which: (1) Is independently 

owned and operated; (2) is not 

dominant in its field of operation; and 

(3) satisfies any additional criteria 

established by the Small Business 

Administration (‘‘SBA’’).8 The proposed 

rules and policies potentially will apply 

to all FM radio broadcasting licensees 

and potential licensees. 

7. The SBA defines a radio 

broadcasting station that has $7 million 

or less in annual receipts as a small 

business.9 A radio broadcasting station 

is an establishment primarily engaged in 

broadcasting aural programs by radio to 

the public.10 Included in this industry 

are commercial, religious, educational, 

and other radio stations.11 Radio 

broadcasting stations which primarily 

are engaged in radio broadcasting and 

which produce radio program materials 

are similarly included.12 However, radio 

stations that are separate establishments 

and are primarily engaged in producing 

radio program material are classified 

under a separate NAICS number.13

According to Commission staff review 

of the BIA Financial Network, Inc. 

Media Access Radio Analyzer Database 

as of February 19, 2009, about 10,600 

(96 percent) of 11,050 commercial radio 

stations in the United States have 

revenues of $7 million or less. We note 

that many radio stations are affiliated 

with much larger corporations having 

much higher revenue. Our estimate, 

therefore, likely overstates the number 

of small entities that might be affected 

by our action. 

D. Description of Projected Reporting, 

Recordkeeping and Other Compliance 

Requirements 

8. In the Second Report and Order, 

the Commission declined to establish a 

deadline for radio stations to convert to 

digital broadcasting, 22 FCC Rcd at 

10351. Presently, radio stations may 

choose to commence DAB operation 

pursuant to Section 73.404 of the 

Commission’s rules, 47 CFR 73.404, 

which requires in part that licensees 

provide notification to the Commission 

within 10 days of commencing DAB 

operation. The proposed rule change 

may impose additional reporting or 

recordkeeping requirements on FM 

radio stations choosing to upgrade DAB 

operating power above the current 

limitation of 1 percent of a station’s 

authorized analog power. For example, 

licensees choosing to increase DAB 

operating power above 1 percent of 

authorized analog power could be 

required to notify the Commission of the 

increase in power. 

E. Steps Taken To Minimize Significant 

Impact on Small Entities, and 

Significant Alternatives Considered 

9. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities.14 This document has 

proposed for commenter evaluation the 

issue of taking steps to minimize 

significant impact on small entities, 

focusing on the four issues, enumerated 

supra in paragraph 6, relevant to the 

Joint Parties’ Request, as well as on any 

issues raised by the technical studies 

previously submitted by iBiquity and 

NPR. To assist in the analysis, 

commenters are requested to provide 

information, studies, and/or opinions 

regarding how small entities would be 

affected if the Commission were to 

adopt an increase in maximum digital 

operating power as proposed by the 

Joint Parties or a provisional power 

increase of some lesser extent than that 

requested by the Joint Parties, and 

whether such adoption could result in 

the disparate treatment of small entities 

with limited financial and/or technical 

resources. Commenters should also 

provide information, studies, and/or 

opinions on alternative approaches to 

alleviate any potential burdens on small 

entities. 

F. Federal Rules Which Duplicate, 

Overlap, or Conflict With, the 

Commission’s Proposals 

10. None. 

Federal Communications Commission. 

Robert H. Ratcliffe, 

Acting Chief, Media Bureau. 

[FR Doc. E9–13865 Filed 6–11–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 0809161218–9950–02] 

RIN 0648–AX23 

Endangered and Threatened Species: 

12–Month Finding for a Petition to 

Revise Critical Habitat for Hawaiian 

Monk Seal 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of 12–month finding. 

SUMMARY: On July 9, 2008, we (NMFS) 

received a petition dated July 2, 2008, 

requesting that we revise the present 

critical habitat designation for the 

Hawaiian monk seal (Monachus 

schauinslandi) under the Endangered 

Species Act (ESA) by expanding the 

current critical habitat in the 

Northwestern Hawaiian Islands, and by 

designating additional critical habitat in 

the main Hawaiian Islands. We have 

reviewed, and here provide a summary 

of the best available information 

regarding Hawaiian monk seal biology 

and habitat use. Based on our review, 

we intend to revise the monk seal’s 

critical habitat, and we are providing 

our initial thoughts on the habitat 

features that are essential to the 

conservation of this species and 

describing how we intend to proceed 

with the requested critical habitat 

revision. 

ADDRESSES: Requests for copies of this 

determination should be addressed to 

the Assistant Regional Administrator, 

Protected Resources Division, NMFS, 

1601 Kapiolani Blvd, Honolulu, HI 

96814. 

Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules 27989 

FOR FURTHER INFORMATION CONTACT: 

Lance Smith at (808) 944–2258, e-mail 

lance.smith@noaa.gov; Krista Graham at 

(808) 944–2238, e-mail 

krista.graham@noaa.gov; or Marta 

Nammack, (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background documents on the biology 

of the Hawaiian monk seal, the July 2, 

2008, petition requesting revision of its 

critical habitat, and documents 

explaining the critical habitat 

designation process, can be downloaded 

from http://www.fpir.noaa.gov/PRD/ 

prdlindex.html, or requested by phone 

or e-mail from the NMFS staff in 

Honolulu (area code 808) listed under 

‘‘FOR FURTHER INFORMATION CONTACT’’. 

The October 3, 2008, 90–day finding in 

response to the petition and the 

information received in response to the 

90–day finding can be viewed at 

www.regulations.gov by searching for 

docket number ‘‘NOAA-NMFS–2008– 

0290’’. 

Background 

On July 9, 2008, we received a 

petition dated July 2, 2008, 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) under 

the ESA. Currently designated critical 

habitat is described below in ‘‘Listing 

Status and Existing Critical Habitat 

Under the ESA.’’ The Petitioners seek to 

revise critical habitat by adding the 

following areas in the main Hawaiian 

Islands (MHI): 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. In addition, The Petitioners 

request that currently designated critical 

habitat in the Northwestern Hawaiian 

Islands (NWHI) be extended to include 

Sand Island at Midway, as well as ocean 

waters out to a depth of 500 meters 

(Center for Biological Diversity et al., 

2008). 

On October 3, 2008, we published a 

90–day finding in response to the 

petition, finding that the petition 

presented substantial scientific 

information indicating that a revision to 

the current critical habitat designation 

may be warranted (73 FR 57583; 

October 3, 2008). The 90–day finding 

requested that the public submit 

information by December 2, 2008, to 

help us determine whether a revision of 

critical habitat is warranted for the 

Hawaiian monk seal. The purpose of 

this 12–month finding is to announce 

that we intend to proceed with a 

revision of critical habitat for the monk 

seal and to provide details on the 

revision process. 

In the following sections, we provide 

information on the Hawaiian monk 

seal’s listing status and existing critical 

habitat under the ESA, population 

status and trend, Hawaiian monk seal 

biology, summary of the information 

received from the public in response to 

our 90–day finding (73 FR 57583; 

October 3, 2008), our determination that 

we will proceed with a revision of 

critical habitat, and the criteria we 

intend to use for the revision. 

Listing Status and Existing Critical 

Habitat Under the ESA 

The Hawaiian monk seal (Monachus 

schauinslandi) was listed as endangered 

under the ESA in 1976 (41 FR 33922; 

November 23, 1976). This species 

occurs throughout the Hawaiian 

Archipelago and on Johnston Atoll, and 

has been sighted at other atolls and 

islands to the south of Hawaii. In 1986, 

critical habitat was designated for 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 10 fathoms (18.3 m) 

around Kure Atoll, Midway Islands 

(except Sand Island), Pearl & Hermes 

Reef, Lisianski Island, Laysan Island, 

Gardner Pinnacles, French Frigate 

Shoals, Necker Island, and Nihoa Island 

in the NWHI (51 FR 16047; April 30, 

1986). In 1988, critical habitat was 

extended to include Maro Reef and 

waters around previously recommended 

areas out to the 20 fathom (36.6 m) 

isobath (53 FR 18988; May 26, 1988). A 

recovery plan was completed in 1983 

(NMFS, 1983) and revised in 2007 

(NMFS, 2007a). The species is endemic 

(found nowhere else) to the Hawaiian 

Archipelago, and is one of the most 

endangered marine mammals in the 

United States (NMFS, 2007a). 

Hawaiian Monk Seal Biology 

The Hawaiian monk seal is a mammal 

in the Order Carnivora, Family 

Phocidae, Genus Monachus. Only two 

other species occur in this genus, the 

recently extinct Caribbean monk seal 

(M. tropicalis) and the critically 

endangered Mediterranean monk seal 

(M. monachus). Following is an 

overview of the Hawaiian monk seal’s 

biology, including Range, Population 

Status and Trends, Natural History, 

Habitat, and Northwestern Hawaiian 

Islands vs. Main Hawaiian Islands (a 

description of differences in monk seal 

habitat between these two areas). 

Range 

Hawaiian monk seals are found 

throughout the Hawaiian Archipelago 

and on Johnston Atoll. The six main 

reproductive sites for the species are in 

the NWHI: Kure Atoll, Midway Islands, 

Pearl and Hermes Reef, Lisianski Island, 

Laysan Island, and French Frigate 

Shoals. Smaller reproductive sites also 

occur on Necker Island and Nihoa 

Island, and monk seals have been 

observed at Gardner Pinnacles and Maro 

Reef. Monk seals are found throughout 

the MHI, where births have been 

documented on most of the major 

islands (NMFS, 2001, 2007a). In 1994, 

we relocated 21 adult male monk seals 

from the NWHI to the MHI in order to 

reduce male aggression and female 

deaths at Laysan Island, where males 

greatly outnumbered females at the 

time. We have relocated three female 

monk seals (a juvenile in 1981, a pup in 

1991, and an adult in 2009) from the 

MHI to the NWHI. Thus, we have 

relocated 21 males from the NWHI to 

the MHI, and three females from the 

MHI to the NWHI. 

At Johnston Atoll, a tagged yearling 

male monk seal from Laysan Island was 

first seen in July 1968 (Schreiber and 

Kilder, 1969) and remained until at least 

August 1972. In January 1969, an 

untagged adult female monk seal arrived 

on Sand Island, a secondary island 

within Johnston Atoll, and gave birth to 

a female pup. The mother-pup pair 

remained on or near the pupping beach 

until March 1969, when the pup was 

weaned and the mother disappeared. 

The pup remained until 1971 when it 

died from a deep flesh wound, probably 

from a shark attack (Amerson and 

Shelton, 1976). In July 1999, a tagged 

adult female from French Frigate Shoals 

arrived at Johnston Atoll and remained 

there for about a year (NMFS, 2001). 

In addition to the above reported 

natural occurrences of monk seals at 

Johnston Atoll, a 12 male monk seals 

have been relocated there from the 

Hawaiian Archipelago. In 1984, nine 

adult males were relocated from the 

NWHI to Johnston Atoll, because of 

attacks on adult females and immature 

seals. At least three of these males were 

still at Johnston Atoll the following 

year, and at least one male was still 

there in 1986. In 1989, two adult males 

were relocated from the NWHI to 

Johnston Atoll because they were 

drowning pups. In 2003, an adult male 

was relocated from the MHI to Johnston 

Atoll because it was habituated to 

humans and exhibiting dangerous 

behavior. No sighting history is 

available for the latter three monk seals 

(NMFS unpublished data). 

27990 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules 

Unconfirmed but probable sightings 

of Hawaiian monk seals outside the 

Hawaiian Archipelago and Johnston 

Atoll have been reported from Palmyra 

Atoll (1,800 km south of NWHI) and 

Wake Island (2,000 km southwest of 

NWHI); two seals were sighted on 

Palmyra Atoll in 1990, a seal was 

sighted on Wake Island in early summer 

1966, and a tagged seal was sighted on 

Wake Island in February 1987 (Westlake 

and Gilmartin, 1990, NMFS 

unpublished data). Other more poorlydocumented sightings have also been 

reported from Bikini Atoll and Mejit 

Island in the Marshall Islands (2,400 km 

southwest of NWHI, NMFS unpublished 

data). 

Population Status and Trends 

The best estimate of Hawaiian monk 

seal total population size is 1,208 seals 

in 2006 (1,125 in the NWHI, 83 in the 

MHI; NMFS, 2008a). Additional 

population information can be found in 

the annual Stock Assessment Reports 

(e.g., NMFS, 2006, 2007b, 2008a). The 

first rangewide beach count surveys of 

Hawaiian monk seals were conducted in 

the late 1950s. Beach counts of juveniles 

and adults (i.e., all seals except pups) 

declined by 66 percent between the 

years 1958 and 2006 (Figure I.C.6 in 

NMFS, 2007a). More recently, beach 

counts declined rapidly from 1985 to 

1993, and then became relatively stable 

until the current decline began in 2001. 

Total abundance at the six primary 

NWHI sites (French Frigate Shoals, 

Laysan, Lisianski, Pearl and Hermes, 

Midway, and Kure) is declining at a rate 

of about four percent per year (NMFS 

2007a, 2007b, 2008a). 

Since 2000, many sites have shown 

indications of decline in abundance, 

apparently due to low juvenile survival. 

The decline at French Frigate Shoals is 

of particular consequence to the welfare 

of the overall population because this 

site once accounted for over 50 percent 

of the total non-pup beach counts in the 

NWHI. While that proportion has now 

dropped to approximately 25 percent of 

its observed peak, there are still more 

seals at French Frigate Shoals than any 

other island or atoll. More detail on 

Hawaiian monk seal population status 

and trends in the NWHI is provided in 

the recovery plan (NMFS, 2007a). As 

noted above, in 1994, we relocated 21 

adult male monk seals from the NWHI 

to the MHI in order to reduce male 

aggression and female deaths at Laysan 

Island, where males greatly 

outnumbered females at the time. All 

female monk seals in the MHI occur 

there naturally. In 2008, only five of the 

21 relocated male monk seals remained 

in the MHI. 

Although monk seals historically 

occurred throughout the Hawaiian 

Archipelago, the majority of the 

population now occurs in the NWHI. 

Human settlement appears to have 

largely excluded monk seals from the 

MHI, although seal bones have been 

found at archeological sites dating from 

1400 - 1700 (Rosendahl, 1994). In 1900, 

Hilo residents reported that solitary 

monk seals were seen in the area about 

once every 10 years (Bailey, 1952). From 

1928 to 1956, seven monk seal sightings 

were documented in the MHI (Kenyon 

and Rice, 1959), and Niihau residents 

reported that seals appeared there in the 

1970s. By 1994 there was a small 

naturally-occurring population of male 

and female monk seals in the MHI. This 

population appeared to be growing, and 

at least six pups had been born (one in 

1962, and five between 1988 and 1993). 

Since the mid–1990s, an increasing 

number of documented sightings and 

annual births of monk seal pups have 

occurred in the MHI. Combined aerial 

and ground surveys in the MHI counted 

45 hauled-out monk seals in 2000, and 

52 in 2001 (Baker and Johanos, 2004). 

Sightings in the MHI tallied 77 

individually identifiable monk seals in 

2005 (NMFS, 2007b), and 83 in 2006 

(NMFS, 2008a). Together, these 

observations suggest that monk seals are 

recolonizing the MHI. 

Natural History 

Hawaiian monk seals are wideranging, air-breathing predators that 

forage underwater, preying primarily on 

small benthic fishes, cephalopods (e.g., 

octopus), and crustaceans (GoodmanLowe, 1998). They spend the majority of 

their time in the ocean, where they are 

highly mobile and may have very large 

home ranges (Antonelis et al., 2006). 

Monk seals are typical large predators, 

in that they can rapidly cover large areas 

in search of food. Individuals may travel 

hundreds of miles in a few days (Littnan 

et al., 2007) and dive to 500 m (1,600 

ft; Parrish et al., 2002). Monk seals haul 

out on land to rest, molt, pup (give 

birth), and nurse. Resting may also 

occur at sea or in shallow, submerged 

caves. Monk seals are often solitary, 

both on land and in the water, but may 

congregate in favorable haul-out areas 

(Antonelis et al., 2006). Adult monk 

seals reach a length of 2.3 m (7.5 ft) and 

weigh up to 273 kg (600 lb). Unlike most 

other pinnipeds, monk seals completely 

molt, whereby the entire layer of pelage 

(skin and hair) is shed annually. The old 

pelage strips away, leaving a dark grey 

coat underneath. Pups are black until 

first molt, and mostly grey thereafter, 

although coloration varies by individual 

and with age. When monk seals stay at 

sea for an extensive period, they may 

develop a red or green tinge from algal 

growth on their pelage (Kenyon and 

Rice, 1959). 

It is thought that Hawaiian monk seals 

have a lifespan of up to 30 years. 

Females reach breeding age at about 6 

to 11 years of age, depending on their 

condition, and give birth no more than 

once annually. Mating occurs at sea, and 

gestation is thought to be approximately 

11 months. Monk seal births are most 

common between February and August, 

peaking in March and April at Laysan 

Island. Females give birth to a single 

pup and nurse it for about 6 weeks, 

followed by an abrupt weaning, when 

the mother abandons the pup (Johanos 

et al., 1994). At least several months are 

required for the pup to learn to forage 

successfully on its own, during which 

time it survives on fat stores built up 

during nursing, resulting in 

considerable weight loss. Juveniles (up 

to 3 years old) are typically longer but 

thinner than recently-weaned pups, and 

juveniles in the NWHI typically do not 

regain their weaning weight until 

approximately 2 years of age (Johanos et 

al., 1994). Male aggression, in which a 

single male or multiple males 

repeatedly attempt to mount and mate 

with a female or immature seal, is most 

common where males outnumber 

females, and sometimes results in death 

or severe injury to the targeted seal. 

Individual adult males sometimes attack 

pups in the same manner, also 

sometimes killing the pup (Hiruki et al., 

1993). 

Habitat 

While Hawaiian monk seals spend 

most of their time in the water, they 

frequently haul out on land to rest, molt, 

pup (give birth), and nurse. Monk seals 

may remain at sea for several days or 

more at a time, but resting on land is 

necessary to conserve energy. Resting is 

commonly on sandy beaches, but may 

also occur on rocky shores, rock ledges, 

emergent reefs, and even shipwrecks 

(Antonelis et al., 2006). Monk seals may 

take shelter from wind and rain under 

shoreline vegetation. Resting on land is 

typically done for a few hours to several 

days at a time, after which the monk 

seal returns to the water to continue 

foraging. When ocean conditions are 

rough, monk seals may spend a greater 

proportion of time resting on land. 

Hauling-out on land is also required for 

molting, when old pelage is shed. 

Molting is an annual process taking 1 to 

2 weeks, during which time the monk 

seal usually remains on land (Kenyon 

and Rice, 1959). 

Pupping and nursing areas are usually 

sandy beaches adjacent to shallow 

Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules 27991 

protected water (Westlake and 

Gilmartin, 1990). Individual females 

appear to favor certain pupping 

locations, returning to them year after 

year. Pregnant females come ashore a 

few days before giving birth to a pup 

weighing approximately 16 kg (35 lb). 

Pups nurse for 5 to 6 weeks (Johanos et 

al., 1994), and weigh 50 - 100 kg (110 

- 220 lb) at weaning. During nursing, the 

mother-pup pair remain close to each 

other, and the mother is protective of 

her pup. Although the pup is able to 

swim at birth, nursing is done on land, 

and the mother-pup pair usually remain 

on land for the first few days after the 

pup is born. The mother gradually 

begins swimming with her pup in the 

shallows, returning to the general area 

around the pupping site. As weaning 

approaches, the mother-pup pair spend 

more time in the water, venturing 

further away from the pupping site. 

After weaning, pups typically remain in 

the shallows near their nursing areas for 

several weeks before venturing into 

deeper foraging areas (Kenyon and Rice, 

1959; Henderson and Johanos, 1988). 

Monk seals are generalists that forage 

primarily over low-relief substrates such 

as sand and talus. Live fish are generally 

the preferred prey, and over 150 fish 

species have been recorded in the monk 

seal diet (Iverson et al., 2006). NWHI 

camera studies have shown that adult 

male monk seals forage mainly on sand 

terraces and talus slopes 50 - 100 m (160 

- 325 ft) deep around their home atoll 

and nearby seamounts (Parrish and 

Littnan, 2008). Premium adult foraging 

habitat is comprised of large, loose talus 

fragments, which the seals move to 

reach the hiding prey underneath 

(Parrish et al., 2000). Studies in the 

NWHI (Parrish et al., 2002; Stewart et 

al., 2006) have shown that adult monk 

seals may forage at 300 - 500 m (1,000 

- 1,600 ft), sometimes visiting patches of 

deep corals (Parrish et al., 2002). Recent 

surveys of deep fish assemblages across 

seamounts of the NWHI show a pattern 

of reduced fish biomass at sites close to 

colonies of monk seals (Parrish, 2009). 

Juvenile monk seals (1 - 3 years old) 

forage both within shallow atoll lagoons 

10 - 30 m (30 - 100 ft) and on deep reef 

slopes (50 - 100 m/160 - 325 ft), usually 

over sand rather than talus. Juvenile 

seals likely do not yet have the size or 

experience to engage in the large talusforaging behavior exhibited by adults 

(Parrish et al., 2005). 

Although much less information is 

available for monk seals in the MHI, 11 

juvenile and adult monk seals were 

tracked there in 2005 using satellitelinked radio transmitters showing 

location but not depth. This study 

indicated that seals usually remained in 

nearshore waters within the 200 m (650 

ft) isobath. As in the NWHI, this study 

suggested that monk seals in the MHI 

forage mainly in deeper, low-relief 

(talus, sand) areas, commuting over 

shallower, high-relief (coral reefs, rock 

outcrops) without foraging (Littnan et 

al., 2007). However, as in the NWHI, 

shallow areas adjacent to pupping areas 

are important for pups to develop 

foraging behavior. Otherwise, coral reefs 

and other high-relief shallows are not 

usually primary monk seal foraging 

habitat. Generally, juvenile and adult 

monk seals bypass these shallow highrelief substrates in transit to their 

primary foraging areas over low-relief 

substrates in deeper water, sometimes 

making no attempt to hunt the same fish 

species in the shallows that they were 

actively hunting in the deep (Parrish 

and Littnan, 2008). 

In summary, the physical and 

biological habitat features that support 

resting, reproduction, and foraging are 

essential for the conservation of this 

species. For the Hawaiian monk seal, 

essential habitat includes terrestrial and 

marine areas. Terrestrial areas include 

both resting and reproductive habitat. 

Resting habitat consists of nearshore or 

emergent surfaces where monk seals can 

haul out, whereas reproductive habitat 

consists of a subset of resting habitat on 

sandy beaches that are also suitable for 

pupping and nursing. Marine areas 

include foraging habitat for pups, 

juveniles, and adults. Pup foraging 

habitat consists of shallow areas 

adjacent to pupping beaches where 

pups become accustomed to the marine 

environment and begin learning to 

forage on their own. Juveniles and 

adults forage widely, primarily in 

deeper areas. 

Northwestern Hawaiian Islands vs. Main 

Hawaiian Islands 

The Hawaiian monk seal consists of 

one population distributed throughout 

the Hawaiian Archipelago. That is, there 

is no evidence that monk seals 

occurring in any part of the archipelago 

are genetically distinct from those 

elsewhere in the archipelago (Schultz et 

al., 2008). This suggests that the 

population is genetically well-mixed, 

with individual seals sometimes moving 

between the NWHI and the MHI, which 

has been confirmed with resightings of 

flipper-tagged or otherwise identifiable 

(e.g., scar patterns; Littnan et al., 2007). 

However, monk seals in the MHI are 

typically in better physical condition 

than those in the NWHI. For example, 

weaned pups in the MHI are larger and 

fatter than those in the NWHI, which is 

thought to reflect better foraging 

conditions in the MHI (Baker and 

Johanos, 2004; Baker et al., 2006). 

Although the NWHI is one of the largest 

and best-protected natural areas in the 

world, and the MHI are populated by 

over a million people, the latter appears 

to currently provide superior monk seal 

foraging conditions. 

Despite its large human population, 

the MHI may currently provide better 

monk seal foraging conditions than the 

NWHI because: (1) There are only about 

one-tenth the number of seals in the 

MHI than in the NWHI, thus the 

availability of prey may be higher per 

seal in the MHI than the NWHI (Baker 

and Johanos, 2004); and (2) Large 

sharks, jacks and other demersal fish 

compete directly with monk seals, but 

are much less abundant in the MHI than 

the NWHI (Parrish et al., 2008). 

Competition is limited between humans 

and monk seals in the MHI because 

seals prefer small (usually < 20 cm/8 in) 

eels, wrasses, and other benthic species 

not commonly sought by fishermen, 

(Parrish et al., 2000). However, while 

foraging conditions are currently better 

in the MHI than the NWHI for monk 

seals, pollution and runoff pose health 

hazards to the species in the MHI not 

found in the NWHI (Littnan et al., 2007). 

As described above in Population 

Status and Trends, since 1990, the total 

number of Hawaiian monk seals has 

decreased, while simultaneously the 

number of monk seals in the MHI 

appear to have increased (NMFS, 2006, 

2007b, 2008a). As described in the 

above paragraph, foraging conditions 

currently appear better in the MHI than 

in the NWHI (Parrish et el., 2000, 2008), 

likely resulting in better physical 

condition and higher survival of seals in 

the MHI than in the NWHI (Baker and 

Johanos; 2004; NMFS, 2007a). In 

addition, sea level rise may reduce or 

eliminate monk seal haul-out habitat 

more rapidly in the low-lying NWHI 

than the MHI (Baker et al., 2006). Given 

the overall downward trend of the 

species (see Population Status and 

Trends above), generally poor physical 

condition and survival of seals in the 

NWHI, and proportionally greater sea 

level effects on the NWHI than the MHI, 

the MHI appears essential for the 

survival and recovery of this species. 

Summary of Information Received 

In our 90–day finding (73 FR 5l7583; 

October 3, 2008) in response to the 

petition (Center for Biological Diversity 

et al., 2008), we solicited information 

from the public pertaining to the 

Hawaiian monk seal’s essential habitat 

needs. The 90–day finding, and the 

information we received in response to 

it, can be viewed at 

www.regulations.gov by searching for 

27992 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules 

docket number ‘‘NOAA-NMFS–2008– 

0290’’. The great majority of the monk 

seal habitat-related information received 

was based on programs and studies 

conducted, funded, or supported by 

NMFS; therefore, we did not receive any 

new information on the monk seal’s 

essential habitat needs. The information 

received is summarized below. 

Comment 1: Over 100 comments 

argued that the MHI provide essential 

habitat for the Hawaiian monk seal 

because: (1) the MHI component of the 

monk seal population has increased in 

recent years while simultaneously the 

overall population has decreased; (2) 

monk seals in the MHI are in better 

physical condition than those in the 

NWHI; and (3) monk seal habitat loss is 

likely to be much more rapid in the 

NWHI than in the MHI in the near 

future due to sea level rise. 

Response: We concur that the MHI 

component of the monk seal population 

appears to have increased in recent 

years while simultaneously the overall 

population has decreased (see 

‘‘Population Size and Trends’’ above), 

that monk seals in the MHI are in better 

physical condition than those in the 

NWHI, and that monk seal haul-out 

habitat loss is likely to be more rapid in 

the NWHI than in the MHI in the future 

due to sea level rise (see ‘‘Northwestern 

Hawaiian Islands vs. Main Hawaiian 

Islands’’ above). For these three reasons, 

and also because of the current 

precarious state of the Hawaiian monk 

seal, we agree that monk seal habitat 

within the MHI is essential for the 

survival and recovery of the species. 

Comment 2: Several comments argued 

that the MHI do not provide essential 

habitat for the Hawaiian monk seal, 

because: (1) monk seals are not 

indigenous to the MHI; and (2) various 

human threats to monk seals in the MHI 

outweigh benefits to the species of MHI 

habitat. 

Response: Little evidence has been 

found that monk seals occurred in the 

MHI before the arrival of humans 

approximately 2,000 years ago, or 

during pre-European times before the 

late 1700s. However, before the arrival 

of humans, monk seal remains would 

typically have occurred on or near 

coastlines where wave action and 

erosion likely would have prevented 

preservation of remains. After the 

arrival of humans, monk seals may have 

been consumed by humans, in which 

case monk seal bones would likely 

occur in middens. However, if the seals 

were quickly extirpated after the arrival 

of humans, this would reduce the 

likelihood of finding bone fragment 

evidence in middens. An archeological 

dig of a midden on the Big Island 

identified monk seal bones, and 

estimated that the bones were deposited 

during the years 1400 to 1700 

(Rosendahl, 1994). Furthermore, monk 

seals commonly travel long distances 

between atolls or islands, and even 

between the NWHI and MHI (Littnan et 

al., 2007). Thus, before the arrival of 

humans, it is highly unlikely that monk 

seals occurred only in the NWHI, while 

the MHI were vacant of both monk seals 

and humans. Finally, large, easilyhunted animals such as seals are 

typically extirpated or driven to 

extinction when humans arrive in an 

area for the first time (Grayson, 2001). 

Arrival of humans in Hawaii likely 

resulted in a rapid reduction in monk 

seal numbers in the MHI, such that the 

species was mostly restricted to the 

NWHI until recently (Baker and 

Johanos, 2004). For these reasons, we 

believe that the Hawaiian monk seal 

commonly occurred in the MHI before 

the arrival of humans, and that this 

species is indigenous to at least the 

entire Hawaiian Archipelago. 

We agree that the Hawaiian monk seal 

faces a multitude of human threats in 

the MHI. The recovery plan identifies 

the most serious human threats to monk 

seals in the MHI as infectious diseases, 

fisheries interactions, habitat loss, and 

human interactions (NMFS, 2007a). In 

the MHI, monk seals forage near shore, 

and they haul out on beaches near 

sources of pathogens associated with 

human population centers, sewage 

spills, and stream mouths. Of 12 dead 

monk seals that were thoroughly 

necropsied in the MHI between 1996 

and 2006, four appeared to have died of 

infectious disease (Littnan et al., 2007). 

In the MHI from 1989 to 2007, 44 monk 

seals were confirmed to be hooked by 

fishing gear (one of which died, possibly 

from the hooking), another five 

entangled in lay gillnets (three of which 

drowned in the gillnets), and one seal 

hooked and entangled (but survived). 

Many hooks are removed from monk 

seals by the monk seal response 

program, most often resulting in healing 

of the wound and recovery of the monk 

seal. However, entanglement in lay 

gillnets often results in the drowning of 

the monk seal (NMFS, 2008b). Monk 

seal haul-out beaches in the MHI are 

being degraded or lost by development 

adjacent to the beaches, and increasing 

human activity on the beaches. The high 

and ever-increasing human use of MHI 

beaches and coastlines results in 

humans frequently interacting with 

monk seals, both unintentionally and 

intentionally (NMFS, 2007a). However, 

despite the numerous anthropogenic 

threats to monk seals in the MHI, the 

MHI component of the monk seal 

population appears to have increased in 

recent years, and monk seals in the MHI 

are generally in good physical 

condition. In contrast, the NWHI 

component of the monk seal population 

continues to decrease, and monk seals 

in the NWHI are often in poor physical 

condition (see ‘‘Population Size and 

Trends’’ and ‘‘Northwestern Hawaiian 

Islands vs. Main Hawaiian Islands’’ 

above). Thus, although monk seals are 

more often exposed to infectious 

diseases in the MHI than in the NWHI, 

the MHI appear to currently provide a 

favorable environment for monk seals. 

In addition, the loss of monk seal haulout habitat is likely to occur more 

rapidly in the NWHI than the MHI due 

to sea level rise (see ‘‘Northwestern 

Hawaiian Islands vs. Main Hawaiian 

Islands’’ above). For these reasons, we 

believe that the benefits of MHI habitat 

to the monk seal outweigh the various 

human threats to monk seals in the 

MHI. 

Comment 3: Over 100 comments 

argued that areas out to a depth of 500 

m (1,625 ft) in the NWHI provide 

essential foraging habitat for the 

Hawaiian monk seal. 

Response: As discussed above in 

‘‘Habitat,’’ studies in the NWHI have 

documented adult monk seal foraging to 

a maximum depth of approximately 500 

m (1,600 ft; Parrish et al., 2002; Stewart 

et al., 2006). The relative importance of 

these deep foraging areas, compared to 

more frequently-used shallower areas, is 

currently unknown. 

Comment 4: Several comments did 

not provide any information about 

habitat use by the Hawaiian monk seal, 

but rather expressed opinions about the 

effects of revising monk seal critical 

habitat on various human activities, 

such as beach use, fishing, economics, 

national security, and natural resource 

management. 

Response: The economic, national 

security, and other effects of revising 

monk seal critical habitat will be 

addressed in the forthcoming proposed 

rule. 

12–Month Determination on Revision of 

Critical Habitat 

Since critical habitat for the Hawaiian 

monk seal was designated in 1986 (51 

FR 16047; April 30, 1986) and revised 

in 1988 (53 FR 18988; May 26, 1988), a 

great deal of new information has 

become available regarding habitat use 

by this species, such as the literature 

cited in the petition (Center for 

Biological Diversity et al., 2008) and in 

the Recovery Plan (NMFS, 2007a). For 

example, studies of monk seal foraging 

made possible by new technology (e.g., 

Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules 27993 

Parrish et al. 2000, 2002, 2005, 2008; 

Littnan et al., 2007) have resulted in 

substantial progress since 1988 in 

understanding how this species uses 

foraging habitat (Parrish and Littnan, 

2008). Also, since critical habitat was 

designated in 1988, monk seals appear 

to have begun recolonizing the MHI 

(Baker and Johanos, 2004; Baker et al., 

2006; NMFS, 2007a). Other information 

has also become available about other 

aspects of monk seal life history and 

habitat use (summarized in NMFS, 

2007a). Because of this new information 

regarding habitat use by the Hawaiian 

monk seal that has become available 

since critical habitat for the species was 

revised in 1988 (53 FR 18988; May 26, 

1988), we will proceed with a revision 

of critical habitat for the species. 

How Does NMFS Intend To Proceed? 

We intend to undertake rulemaking to 

revise critical habitat for the Hawaiian 

monk seal. Critical habitat is defined by 

section 3 of the ESA as ‘‘(i) the specific 

areas within the geographical area 

occupied by the species, at the time it 

is listed in accordance with the 

provisions of section 1533 of this title, 

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 in accordance with the 

provisions of section 1533 of this title, 

upon a determination by the Secretary 

that such areas are essential for the 

conservation of the species.’’ Further, 

our critical habitat regulations (50 CFR 

424.12(c)) state that critical habitat will 

be defined by specific limits using 

reference points and lines on standard 

topographic maps of the area. Finally, 

section 4(b)(2) of the ESA requires that 

we consider economic, national 

security, and other impacts of 

designating critical habitat before 

designating critical habitat. 

Based on the above definition and 

guidance, the following steps will be 

followed to propose the revision of 

designated critical habitat for the 

Hawaiian monk seal: (1) Determine the 

geographical area occupied by the 

species at the time of listing; (2) Identify 

the physical or biological features 

essential to the conservation of the 

species; (3) Delineate areas within the 

geographical area occupied by the 

species that contain these features, and 

that may require special management 

considerations or protections; (4) 

Delineate any areas outside of the 

geographical area occupied by the 

species that are essential for the 

conservation of the species; and (5) 

Conduct economic, national security, 

and other analyses to determine if any 

areas identified in steps 3 and 4 could 

be excluded from critical habitat 

consideration under section 4(b)(2) of 

the ESA. Steps 1 and 2 above are 

included in this 12–month finding, as 

described below. Steps 3 - 5 will be 

completed in the forthcoming proposed 

rule. 

Step 1: Determine Geographical Area 

Occupied by the Species at the Time of 

Listing: The final rule listing the 

Hawaiian monk seal as endangered, 

published on November 23, 1976 (41 FR 

51611), stated that the ‘‘Hawaiian monk 

seal is found throughout the Hawaiian 

Archipelago,’’ with no mention of areas 

outside the archipelago. For reasons 

described above in ‘‘Range,’’ in 2001, 

we determined that Johnston Atoll is 

within the range of the Hawaiian monk 

seal (NMFS, 2001). Therefore, the 

geographical area occupied by the 

Hawaiian monk seal at the time of 

listing (1976) is considered to be the 

Hawaiian Archipelago and Johnston 

Atoll. 

Step 2: Identify Physical or Biological 

Features Essential to Conservation: In 

this step, the physical and biological 

features essential to conservation are 

identified (hereafter referred to as 

‘‘essential features’’). Section 3 of the 

ESA (16 U.S.C. 1532(3)) defines the 

terms ‘‘conserve,’’ ‘‘conserving,’’ and 

‘‘conservation’’ to mean: ‘‘to use, and 

the use of, all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to this 

chapter are no longer necessary.’’ Our 

critical habitat regulations (50 CFR 

424.12(b)) state that essential features 

‘‘include, but are not limited to the 

following: (1) Space for individual and 

population growth, and for 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, 

germination, or seed dispersal; and 

generally; (5) Habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species.’’ 

The regulations also instruct us to 

‘‘focus on the principal biological or 

physical constituent elements within 

the defined area that are essential to the 

conservation of the species. Known 

primary constituent elements shall be 

listed with the critical habitat 

description’’ (50 CFR 424.12(b)). Thus, 

the essential features will be defined 

here in terms of primary constituent 

elements (PCEs). The PCEs can include 

sites used by the listed species for 

resting, reproduction, and feeding 

(examples given in the regulations 

include ‘‘nesting grounds, spawning 

sites, feeding sites’’), and physical 

features of the species’ habitat 

(examples given in the regulations 

include ‘‘geological formation, 

vegetation type, tide, and specific soil 

types’’; 50 CFR 424.12(b)). 

As described above in ‘‘Habitat,’’ the 

physical and biological habitat features 

that support resting, molting, 

reproduction, and foraging are essential 

for the conservation of this species. For 

the Hawaiian monk seal, essential 

habitat includes terrestrial and marine 

areas. Terrestrial areas include resting, 

molting, and reproductive habitat. 

Resting and molting habitat consists of 

nearshore or emergent surfaces where 

monk seals can haul out, whereas 

reproductive habitat consists of a subset 

of resting and molting habitat (i.e., 

sandy beaches suitable for pupping and 

nursing). Marine areas include foraging 

habitat for pups, juveniles, and adults. 

Pup foraging habitat consists of shallow 

areas adjacent to pupping beaches 

where pups become accustomed to the 

marine environment and begin learning 

to forage on their own. Juveniles and 

adults forage widely, primarily in 

deeper areas. Thus, at this time, we 

believe that the following PCEs 

constitute the physical and biological 

features essential to conservation of the 

Hawaiian monk seal: (1) sandy beaches 

preferred by monk seals for pupping 

and nursing; (2) marine areas less than 

20 m depth adjacent to pupping and 

nursing beaches where young pups 

learn to forage; (3) marine areas 

approximately 20 - 200 m depth in the 

MHI, and approximately 20–500 m 

depth in the NWHI, preferred by 

juvenile and adult monk seals for 

foraging; (4) low levels of unnatural 

disturbance; and (5) high prey quantity 

and quality. 

Steps 3 - 5: Steps 3 - 5 of the critical 

habitat proposed revision process will 

be completed in the forthcoming 

proposed rule. In the proposed rule, the 

PCEs could differ slightly from the PCEs 

identified above, but these identified 

PCEs will give the public an idea of 

what we are considering. When we 

publish our proposed rule, we will 

solicit public comments on it and 

incorporate comments as appropriate. 

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All references are available upon 

request (see FOR FURTHER INFORMATION

CONTACT). 

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

Dated: June 8, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. E9–13880 Filed 6–11–09; 8:45 am] 

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