        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [CA-311-0481; FRL-7892-8]
        Revisions to the California State Implementation Plan; San Joaquin Valley Unified Air Pollution Control District

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District's portion of the California State Implementation Plan (SIP). These revisions concern particulate matter emissions from agricultural operations. We are proposing to approve a local rule to regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

          DATES:
          Any comments must arrive by April 29, 2005.

          ADDRESSES:

          Send comments to Andrew Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901 or e-mail to steckel.andrew@epa.gov, or submit comments at http://www.regulations.gov.

          You can inspect copies of the submitted SIP revisions, EPA's technical support document (TSD), and public comments at our Region IX office during normal business hours by appointment. You may also see copies of the submitted SIP revisions by appointment at the following locations:

            California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” Street, Sacramento, CA 95814.
            San Joaquin Valley Unified Air Pollution Control District, 1990 E. Gettysburg Avenue, Fresno, CA 93726-0244.

          A copy of the rule may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is not an EPA Web site and may not contain the same version of the rule that was submitted to EPA.

          FOR FURTHER INFORMATION CONTACT:
          Andrew Steckel, EPA Region IX, (415)947-4115, steckel.andrew@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document, “we,” “us” and “our” refer to EPA.

          Table of Contents
          I. The State's Submittal
          A. What Rule Did the State Submit?
          B. Are There Other Versions of This Rule?
          C. What Is the Purpose of the Submitted Rule?
          II. EPA's Evaluation and Action
          A. How Is EPA Evaluating the Rule?
          B. Does the Rule Meet the Evaluation Criteria?
          C. EPA Recommendations To Further Improve the Rule.
          D. Public Comment and Final Action.
          III. Statutory and Executive Order Reviews

        I. The State's Submittal
        A. What Rule Did the State Submit?
        Rule 4550, Conservation Management Practices, and the List of Conservation Management Practices (CMP List), were adopted by the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) on May 20, 2004. Rule 4550 and the CMP List were readopted without change on August 19, 2004, and submitted by the California Air Resources Board (CARB) to EPA on September 23, 2005. On October 18, 2004, this submittal was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.
        B. Are There Other Versions of This Rule?
        There are no previous versions of Rule 4550 or the CMP List in the SIP. Rule 4550 and the CMP List were readopted without change on August 19, 2004, to ensure a full and complete public notice process.
        C. What Is the Purpose of the Submitted Rule?
        Small particulate matter (PM-10) harms human health and the environment. CAA section 110(a) requires States to submit regulations that control PM-10 emissions. The San Joaquin Valley area (SJV) is a serious PM-10 nonattainment area. 40 CFR 81.305. As such, under CAA section 189(b)(1)(B), the nonattainment plan for the area must, among other things, provide for the expeditious implementation of best available control measures (BACM).

        Because the SJV failed to attain the 24-hour and annual National Ambient Air Quality Standard (NAAQS) for PM-10 by the December 31, 2001, statutory deadline, pursuant to CAA section 189(d), California was required to submit a plan that provides for expeditious attainment and, from the date of the plan submission until attainment, for an annual reduction in PM-10 or PM-10 precursor emissions within the area of not less than 5% of the amount of such emissions as reported in the most recent inventory prepared for the area. 67 FR 48039 (July 23, 2002).
        One of the control strategies in the SJVUAPCD's 2003 PM-10 Plan 1
           is the Conservation Management Practices (CMP) Program. SJVUAPCD adopted Rule 4550, Conservation Management Practices, the CMP List, and Rule 3190, Conservation Management Practices Plan Fee,2
           to implement the CMP Program. Rule 4550 contains requirements to control fugitive dust emissions from agricultural operations. It establishes the CMP Program that requires agricultural operation sites to select and implement CMPs, and submit these to the SJVUAPCD Air Pollution Control Officer (APCO) for approval. For each agricultural parcel of an agricultural operation site, the owner/operator is to select one CMP from the CMP List for each applicable category. Rule 4550 contains exemptions for several types of sources, including sites with total acreage less than 100 acres, parcels used for forestry, and animal feeding operations that meet specific size-based limits. The TSD has more information about this rule.

            1 On August 19, 2003, CARB submitted the “2003 PM10 Plan, San Joaquin Valley Plan to Attain Federal Standards for Particulate Matter 10 Microns and Smaller.” On December 30, 2003, CARB submitted the Amendment to the 2003 PM-10 Plan. CARB and the SJVUAPCD developed and adopted these SIP revisions in order to address the CAA requirements in § 189(b)-(d). EPA approved the 2003 PM-10 Plan and Amendment (collectively, 2003 PM-10 Plan) on May 26, 2004. 69 FR 30006.

            2 SJVUAPCD Rule 3190 was not submitted for inclusion into the SIP. Rule 3190 establishes fees and fee schedules to recover the costs related to the review, approval, and enforcement of CMP applications and plans in accordance with Rule 4550. These fee provisions are not SIP-related economic incentives and are not designed to replace or relax an emission limit in the SIP. Therefore, it is unnecessary to include this rule in the SIP.

        II. EPA's Evaluation and Action
        A. How Is EPA Evaluating the Rule?
        Generally, SIP rules must be enforceable (see section 110(a) of the Act), and must not relax existing requirements (see sections 110(l) and 193). Pursuant to section 189(b) of the CAA and EPA guidance, serious PM-10 areas must submit SIPs that provide for the expeditious implementation of BACM for significant sources of PM-10 emissions. The activities regulated by SJVUAPCD Rule 4550 are significant sources of PM-10 emissions according to the emission inventory estimates for the SJV. SJVUAPCD 2003 PM-10 Plan. Therefore, SJVUAPCD Rule 4550 must meet the CAA's BACM requirements. Guidance and policy documents that we used to help evaluate enforceability and BACM requirements are described in the TSD.
        B. Does the Rule Meet the Evaluation Criteria?

        We believe Rule 4550 and the CMP List are consistent with the relevant policy and guidance regarding enforceability, BACM, and SIP criteria. EPA has issued a General Preamble and Addendum to the General Preamble describing our preliminary views on how the Agency intends to review SIPs submitted to meet the CAA's requirements for PM-10 plans. See “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” (General Preamble) 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992) and “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” (Addendum) 59 FR 41998 (August 16, 1994). The General Preamble defines a significant source category as one which contributes significantly to nonattainment of the PM-10 NAAQS. 57 FR at 13540. The Addendum provides that BACM is considered to be a higher level of control than RACM and is defined as being, among other things, the maximum degree of emissions reduction achievable from a source or source category which is determined on a case-by-case basis, considering energy, economic and environmental impacts. Addendum at 42010-42014.3

            3 CAA section 189(a)(1)(C) requires implementation of reasonably available control measures (RACM) for moderate PM-10 nonattainment areas. A serious area PM-10 plan must also provide for the implementation of RACM to the extent that the RACM requirement has not been satisfied in the area's moderate area plan. There is no federally approved moderate area PM-10 plan for the SJV. However, we do not normally conduct a separate evaluation to determine if a serious area plan's measures meet the RACM as well as BACM requirements as interpreted by us in the General Preamble at 13540. This is because in our serious area guidance (Addendum at 42010), we interpret the BACM requirement as generally subsuming the RACM requirement (i.e., if we determine that the measures are indeed the “best available,” we have necessarily concluded that they are “reasonably available”). Consequently, our proposed approval of Rule 4550 and the CMP List relating to the implementation of BACM also constitutes a proposed finding that the rule and list provide for the implementation of RACM and references to BACM in the discussion below are intended to include RACM.

        SJVUAPCD's staff report associated with Rule 4550 (dated August 19, 2004) provides detailed analyses of various CMPs and an assessments of costs, feasibility, and impacts associated with them. SJVUAPCD also considered farm census data, economic impacts, and per farm emissions in selecting the 100-acre threshold for cropland, and the size-based exemptions for animal feeding operations that are contained in Rule 4550. As discussed in the Addendum, energy and environmental impacts of control measures and the cost of control should be considered in determining BACM. Economic feasibility considers the cost of reducing emissions and costs incurred by similar sources. Addendum at 42012 and 42013. The SJVUAPCD's analyses have also determined that application of BACM at these small operations would produce an insignificant regulatory benefit. As a result, the exemption of these smaller operations is considered reasonable and consistent with general procedures for making BACM determinations. The TSD discusses the evaluation of these exemptions in more detail.
        The CMP List is attached as an Appendix to the Rule 4550 staff report, and is also included in a CMP Handbook that is available to affected sources. The CMP List was submitted for inclusion into the SIP. The CMP List contains over 100 practices that are grouped into 18 CMP categories. The CMP List for the SJV is more comprehensive than any similar lists existing in other serious nonattainment areas. When no feasible CMP can be used from the CMP List for a certain category, Rule 4550 allows an owner/operator to select a substitute CMP from another category. An owner/operator may also use a CMP not on the CMP List if approval from the APCO is obtained. To obtain approval, the owner/operator must demonstrate that the new CMP achieves PM-10 emission reductions that are at least equivalent to other appropriate CMPs on the CMP List. The APCO is required to perform an independent analysis to evaluate the PM-10 emission reductions. CMPs that are not shown to achieve equivalent reductions will be disapproved. SJVUAPCD will maintain a list of any new CMPs that are approved. It is expected that the CMP List will be periodically updated into the SIP.

        A requirement that an individual source select one control method from a list, but allowing the source to select which is most appropriate for its situation, is a common and accepted practice for the control of dust. See, e.g., 66 FR 50252, 50269 (October 2, 2001).4
           Allowing sources the discretion to choose from a range of specified options is particularly important for the agricultural sector because of the variable nature of farming. Moreover, the economic circumstances of farmers vary considerably. As a result, it is imperative that flexibility be built into any PM-10 control measure for the agricultural source category. Id. The TSD has more information on our evaluation.

            4 The U.S. Court of Appeals for the Ninth Circuit recently upheld EPA's approval of such a regulatory scheme in Vigil v. Leavitt, 366 F.3d 1025 (9th Cir. 2004).

        C. EPA Recommendations To Further Improve the Rule
        The TSD describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rule.
        D. Public Comment and Final Action
        Because EPA believes Rule 4550 and the CMP List fulfill all relevant requirements, we are proposing to fully approve them under CAA section 110(k)(3) as meeting the requirements of section 189(a)(1)(C) and (b)(1)(B) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate Rule 4550 and the CMP List into the federally enforceable SIP.
        III. Statutory and Executive Order Reviews

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. Law 104-4).
        This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

        In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

          Authority:
          42 U.S.C. 7401 et seq.

          Dated: March 15, 2005.
          Wayne Nastri,
          Regional Administrator, Region IX.

      [FR Doc. 05-6298 Filed 3-29-05; 8:45 am]
      BILLING CODE 6560-50-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 90
        [PS Docket 12-94, PS Docket 06-229, WT Docket No. 06-150, DA 15-1253]
        Public Safety and Homeland Security Bureau Seeks Comment on FirstNet's Incumbent Relocation Proposal

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          This document seeks comment on the ex parte proposal made by the First Responder Network Authority (FirstNet) to facilitate the relocation of incumbent public safety communications systems operating in the 758-769/788-799 MHz spectrum band (Band 14) in advance of the deployment and operation of FirstNet's nationwide broadband public safety network (NPSBN).

          DATES:
          Comments are due on or before December 9, 2015.

          ADDRESSES:
          See the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:
          Brian Marenco, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-0838.

        SUPPLEMENTARY INFORMATION:

        This is a summary of the Commission's document, DA 15-1253, released on November 5, 2015. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).
        1. On October 20, 2015, FirstNet filed an ex parte letter stating that its Board recently approved a Spectrum Relocation Grant Program designed to facilitate the relocation of Band 14 incumbents, and that it expects a Federal Funding Opportunity for the grant program to be released in early 2016. FirstNet further requests “that the continuation of Commission licenses or other authorizations under Band 14 by any incumbent be conditioned upon the requirement that no operation on Band 14 be permitted without the express consent of FirstNet after July 31, 2017.” FirstNet also requests that “[i]n addition or in the alternative, . . . the Commission consider conditioning any continued operation on Band 14 on the cessation of all operations on Band 14 within 90 days written notice to the Band 14 incumbent(s) from FirstNet that deployment of the NPSBN is to begin in its State.”
        2. In its 2013 Notice of Proposed Rulemaking in these dockets, the Commission sought comment “on the appropriate mechanism to transition incumbent narrowband operators out of [Band 14] and on the timeframe by which such a transition should be accomplished,” 78 FR 24138, April 24, 2013. Specifically, the Commission asked whether it could require FirstNet to manage this transition process, or to provide funds for the process, and whether the Commission should establish a hard deadline by which relocation should be accomplished. While the Commission has already received comments on these issues, it believes that seeking expedited comment on FirstNet's more specific request will help ensure a complete and comprehensive record, and is consistent with FirstNet's expectation of release of a Federal Funding Opportunity for its related grant program in early 2016. Accordingly, the Commission seeks comment on FirstNet's request in light of the 2013 Notice and the associated record.

        3. Interested parties may file comments until fourteen days after the publication of this document in the Federal Register. All pleadings are to reference PS Docket 12-94, PS Docket 06-229 and WT Docket No. 06-150. This proceeding is a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
        4. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

        • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

        • Paper Filers: Parties that choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
        5. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
        • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
        • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
        • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.

        6. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

        7. For further information, contact: Roberto Mussenden, Policy Division, Public Safety and Homeland Security Bureau, at (202) 418-1428 or Roberto.Mussenden@fcc.gov.

          Federal Communications Commission.
          David L. Furth,
          Deputy Bureau Chief, Public Safety and Homeland Security Bureau.

      [FR Doc. 2015-30111 Filed 11-24-15; 8:45 am]
       BILLING CODE 6712-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R4-ES-2011-0045; MO 92210-0-0008-B2]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding and 12-Month Determination on a Petition To Revise Critical Habitat for the Leatherback Sea Turtle

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding and notice of 12-month determination.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce our 90-day finding and 12-month determination on how to proceed in response to a petition to revise critical habitat for the leatherback sea turtle (Dermochelys coriacea) pursuant to the Endangered Species Act of 1973, as amended (Act). The petition asks the Service and the National Marine Fisheries Service (NMFS) (Services) to revise the existing critical habitat designation for the leatherback sea turtle by adding the coastline and offshore waters of the Northeast Ecological Corridor of Puerto Rico to the critical habitat designation. Our 90-day finding is that the petition, in conjunction with the information readily available in our files, presents substantial scientific information indicating that the requested revision may be warranted. Our 12-month determination is that we intend to proceed with processing the petition by assessing critical habitat during the future planned status review for the leatherback sea turtle.

          DATES:
          The finding announced in this document was made on August 4, 2011.

          ADDRESSES:
          This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2011-0045. Information and supporting documentation that we received and used in preparing this finding is available for public inspection by appointment, during normal business hours at the North Florida Ecological Services Office, U.S. Fish and Wildlife Service, 7915 Baymeadows Way, Suite 200, Jacksonville, FL 32256 and at the U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office, Road 301, Km. 5.1, Boquerón, Puerto Rico 00622. Please submit any new information, materials, comments, or questions concerning this finding to the above mailing address or the contact as listed under FOR FURTHER INFORMATION CONTACT.

          FOR FURTHER INFORMATION CONTACT:

          Dave Hankla, Field Supervisor, North Florida Ecological Services Office, U.S. Fish and Wildlife Service, Attn: Leatherback CH Review; by mail at 7915 Baymeadows Way, Suite 200, Jacksonville, FL 32256; by telephone (904-731-3336); by facsimile (904-731-3045); or by e-mail at northflorida@fws.gov. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Background

        Section 4(b)(3)(D) of the Act of 1973, as amended (16 U.S.C. 1531 et seq.) requires that we make a finding on whether a petition to revise critical habitat for a species presents substantial scientific information indicating that the revision may be warranted. In determining whether substantial information exists, we take into account several factors, including information submitted with, and referenced in, the petition and all other information readily available in our files. Our listing regulations at 50 CFR 424.14(c)(2) further require that, in making a finding on a petition to revise critical habitat, we consider whether the petition contains information indicating that areas petitioned to be added to critical habitat contain the physical and biological features essential to, and that may require special management to provide for, the conservation of the species; or information indicating that areas currently designated as critical habitat do not contain resources essential to, or do not require special management to provide for, the conservation of the species involved.

        To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. If we find that a petition presents substantial information indicating that the revision may be warranted, we are required to determine how we intend to proceed with the requested revision within 12 months after receiving the petition and promptly publish notice of such intention in the Federal Register.

        Critical habitat is defined under section 3(5)(A) of the Act as:

        (i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, 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 that such areas are essential for the conservation of the species.
        Our implementing regulations at 50 CFR 424.12 describe our criteria for designating critical habitat. We are to consider physical and biological features essential to the conservation of the species. Those features include, but are 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, or rearing of offspring; and (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distribution of a species. Essential physical and biological features may include, but are not limited to, nesting grounds, feeding sites, water quality, geological formations, tides, and specific soil types. Our implementing regulations at 50 CFR 424.02 define “special management considerations or protection” as any methods or procedures useful in protecting physical and biological features of the environment for the conservation of the species.
        Section 4(b)(2) of the Act requires us to designate and make revisions to critical habitat for listed species on the basis of 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.
        Previous Federal Actions
        In 1970, the leatherback sea turtle was listed as endangered (35 FR 8491; June 2, 1970) in accordance with the Endangered Species Conservation Act of 1969 (Pub. L. 91-135; 83 Stat. 275), a precursor to the Act. The Service designated critical habitat for the leatherback sea turtle on March 23, 1978 (43 FR 12050), in the U.S. Virgin Islands to include: “A strip of land 0.2 miles wide (from mean high tide inland) at Sandy Point Beach on the western end of the island of St. Croix beginning at the southwest cape to the south and running 1.2 miles northwest and then northeast along the western and northern shoreline, and from the southwest cape 0.7 miles east along the southern shoreline.” This critical habitat designation appears in our regulations at 50 CFR 17.95(c). NMFS designated critical habitat for the leatherback sea turtle on March 23, 1979 (44 FR 17710), in the U.S. Virgin Islands to include: “The waters adjacent to Sandy Point, St. Croix, U.S. Virgin Islands, up to and inclusive of the waters from the hundred fathom curve shoreward to the level of mean high tide with boundaries at 17°42′12″ North and 64°50′00″ West.” This critical habitat designation appears in the NMFS regulations at 50 CFR 226.207. In 1984, the Sandy Point National Wildlife Refuge was established; the refuge completely encompasses the stretch of beach that was designated as critical habitat in 1978.
        On October 2, 2007, NMFS received a petition from the Center for Biological Diversity, Oceana, and Turtle Island Restoration Network to revise the leatherback sea turtle critical habitat designation. The petitioners sought to revise the critical habitat designation to include the area NMFS was already managing under the authority of the Magnuson-Stevens Fishery Conservation and Management Act to reduce leatherback sea turtle interactions in the California-Oregon drift gillnet fishery targeting swordfish and thresher shark. This area encompasses roughly 200,000 square miles (321,870 square kilometers (km)) of the Exclusive Economic Zone from 45 degrees North latitude about 100 miles (160 km) south of the Washington-Oregon border southward to Point Sur and along a diagonal line due west of Point Conception, CA, and west to 129 degrees West longitude.
        On December 28, 2007, NMFS published a 90-day finding that the petition presented substantial scientific information indicating that the petitioned action may be warranted and initiated a review of the critical habitat of the species to determine whether the petitioned action was warranted (72 FR 73745). On January 5, 2010, NMFS proposed regulations to designate specific areas within the Pacific Ocean as critical habitat (75 FR 319). The areas proposed for designation encompass approximately 70,600 square miles (182,854 square km) of marine habitat. Specific areas proposed for designation include two adjacent areas covering 46,100 square miles (119,400 square km) stretching along the California coast from Point Arena to Point Vincente and an area covering 24,500 square miles (63,455 square km) stretching from Cape Flattery, WA, to the Umpqua River (Winchester Bay), OR, east of a line approximating the 6,562-ft (2,000-meter) depth contour. A final determination has not yet been published by NMFS.
        Petition History

        On February 22, 2010, the Service and NMFS received a petition dated February 22, 2010, from Craig Segall of the Sierra Club, requesting that we revise critical habitat for the leatherback sea turtle (Dermochelys coriacea) to include nesting beaches and offshore marine habitats in Puerto Rico pursuant to the Act and the Administrative Procedure Act (APA). Section 553 of the APA states that, “Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule” (5 U.S.C. 553(e)).
        The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required by 50 CFR 424.14(a). The petition asserted that the beaches of the Northeast Ecological Corridor (NEC) of Puerto Rico (which would fall under the jurisdiction of the Service) are “centrally important to the U.S. Caribbean leatherback population, and should be designated as critical habitat.” The petition also maintained that the near-shore coastal waters off those beaches (which would fall under the jurisdiction of NMFS) “provide room for turtles to mate and to access the beaches, and for hatchlings and adults to leave the beaches.” It likewise asserted that the coastal zone within the NEC is particularly vulnerable to developmental pressure and to the growing impacts of climate change, and so warrants protection as critical habitat.

        The petition also requested that the agencies revise the recovery plan for the leatherback sea turtle at the earliest possible time, and that the agencies issue no Atlantic leatherback-related incidental take permits (save for permits supporting pure conservation research), issue no Atlantic leatherback-related habitat conservation plan, issue no Atlantic leatherback-related biological opinion, and take no other final agency action that could affect the Atlantic population of the leatherback sea turtle or its habitat, until the petition to revise critical habitat was ruled on and without taking climate change fully into account. However, none of these additional requests are petitionable under the Act and, therefore, they are not addressed in this 90-day finding and 12-month determination.
        Under the Act, the Service and NMFS 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. The Service has jurisdiction over sea turtles and their associated habitats when they are on land, while NMFS has jurisdiction over sea turtles and their associated habitats in the marine environment. Thus, if Federal agencies are involved in activities that may affect sea turtles involved in nesting behavior, or may affect their nests or their nesting habitats, those Federal agencies are required to consult with the Service under section 7 of the Act 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, the Federal agency involved must engage in a 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, a section 7 consultation under the Act would be required to ensure that the Federal action is not likely to destroy or adversely modify the critical habitat. If the critical habitat has been designated on land, the consultation would be with the Service; if the critical habitat has been designated in the marine environment, the consultation would be with NMFS.
        On April 1, 2010, the Service sent a letter to the petitioner acknowledging receipt of the petition. On April 28, 2010, the Service received an e-mail from the Sierra Club transmitting a letter from 36 nonprofit organizations and conservation interests outlining the importance of the NEC of Puerto Rico and recommending that it be designated as critical habitat for the endangered leatherback sea turtle. On June 2, 2010, the Sierra Club sent a Notice of Intent To Sue over the alleged failure of the Service and NMFS to make a 90-day finding.
        On July 16, 2010, NMFS published in the Federal Register its 90-day finding on the portion of the petition that falls under its jurisdiction and determined that the petition did not present substantial scientific information indicating that the petitioned action may be warranted (75 FR 41436). On November 2, 2010, the Sierra Club submitted to NMFS a second petition that included additional data supporting the requested action. In response to the second petition, NMFS made a 90-day finding that the petition presented substantial information indicating that the petitioned revision of designated critical habitat for leatherback sea turtles may be warranted (May 5, 2011; 76 FR 25660).
        On February 23, 2011, the Sierra Club sent a Notice of Intent To Sue over the alleged failure of the Service and NMFS to make both the 90-day and 12-month findings. On March 18, 2011, we sent a letter to the Sierra Club acknowledging receipt of the February 23, 2011, Notice of Intent To Sue. On May 27, 2011, the Sierra Club filed a complaint over the alleged failure of the Service to respond to the petition dated February 22, 2010, to revise critical habitat. This finding addresses the portion of the petition under the Service's jurisdiction.
        This 90-day finding and 12-month determination is responsive only to aspects of the petition that fall under the Service's jurisdiction, the terrestrial portion of the area as identified in the petition as “The coastline of the Northeast Ecological Corridor of Puerto Rico, running from Luquillo, Puerto Rico, to Fajardo, Puerto Rico, including the beaches known as San Miguel, Paulinas, and Convento, and extending at least .025 mile (132 feet) inland from the mean high tide line.”
        Species Information
        Worldwide Distribution

        Leatherback sea turtles have the widest distribution of sea turtles, nesting on beaches in the tropics and subtropics and foraging into higher-latitude subpolar waters. In the Pacific, they extend from the waters of British Columbia (McAlpine et al. 2004, entire) and the Gulf of Alaska (Hodge and Wing 2000, entire) to the waters of Chile and South Island (New Zealand), and nesting occurs in both the eastern and western Pacific (Márquez M. 1990, pp. 54-55; Gill 1997, entire; Brito M. 1998, entire). They also occur throughout the Indian Ocean (Hamann et al. 2006, entire). In the Atlantic, they are found as far north as the waters of the North Sea, Barents Sea, Newfoundland, and Labrador (Threlfall 1978, p. 287; Goff and Lien 1988, entire; Márquez M. 1990, pp. 54-55; James et al. 2005, entire) and as far south as Argentina and the Cape of Good Hope, South Africa (Márquez M. 1990, pp. 54-55; Hughes et al. 1998, entire; Luschi et al. 2003, entire; Luschi et al. 2006, pp. 53-54), and nesting occurs in both the eastern and western Atlantic. Although leatherback sea turtles occur in Mediterranean waters, no nesting is known to take place in this region (Casale et al. 2003, pp. 136-138).

        Historical descriptions of leatherback sea turtles are rarely found in the accounts of early sailors, and the size of their population before the mid-20th century is speculative (NMFS and Service 2007, p. 26). Even for large nesting assemblages like French Guiana and Suriname, nesting records prior to the 1950s are lacking (Rivalan et al. 2006, p. 2). By the 1960s, several nesting sites were being discovered in the western Atlantic, in Pacific Mexico, and in Malaysia. Soon after, other populations in Pacific Costa Rica and Mexico were identified. Today, nesting beaches are known in all major ocean basins with catastrophic declines observed in the eastern Pacific (Spotila et al. 2000, entire) and Malaysia (Chan and Liew 1996, pp. 196-197).

        In the eastern Pacific, important nesting beaches occur in Mexico and Costa Rica, with scattered nesting along the Central American coast (Márquez M. 1990, pp. 54-55). Nesting is very rare in the Gulf of California, Mexico (Seminoff and Dutton 2007, p. 139). In the western Pacific, the main nesting beaches occur in the Solomon Islands, Papua, Indonesia, and Papua New Guinea (Limpus 2002, p. 44; Dutton et al. 2007, pp. 49-50). Minor nesting occurs in Vanuatu (Petro et al. 2007, entire), Fiji (Rupeni et al. 2002, p. 122), and southeastern Australia (Dobbs 2002, p. 81; Hamann et al. 2006, p. 20); and it is very rare in the North Pacific (Eckert 1993, p. 73). In the Indian Ocean, major nesting beaches occur in South Africa, Sri Lanka, and Andaman and Nicobar islands, with smaller populations in Mozambique, Java, and Malaysia (Hamann et al. 2006, p. 8).

        In the eastern Atlantic, a globally significant nesting population is concentrated in Gabon, Africa, with widely dispersed but fairly regular nesting between Mauritania in the north and Angola in the south (Fretey et al. 2007, entire). Important nesting areas in the western Atlantic Ocean occur in Florida (USA); St. Croix, VI; Puerto Rico; Costa Rica; Panamá; Colombia; Trinidad and Tobago; Guyana; Suriname; French Guiana; and southern Brazil (Márquez M. 1990, pp. 54-55; Spotila et al. 1996, pp. 212-213; Bräutigam and Eckert 2006, p. 8). Other minor nesting beaches are scattered throughout the Caribbean, Brazil, and Venezuela (Mast 2005-2006, pp. 18-19; Hernández et al. 2007, p. 81).

        For additional information on the biology, status, and habitat needs of the leatherback sea turtle, refer to the Leatherback Sea Turtle (Dermochelys coriacea) 5-Year Review (NMFS and Service 2007, entire); the Recovery Plan for Leatherback Turtles (Dermochelys coriacea) in the U.S. Caribbean, Atlantic, and Gulf of Mexico (NMFS and Service 1992, entire); and the Recovery Plan for U.S. Pacific Populations of the Leatherback Turtle (Dermochelys coriacea) (NMFS and Service 1998, entire), available on the Internet at http://www.regulations.gov.
        Evaluation of Information for the 90-Day Finding
        In making this finding, we relied on information provided by the petitioners, sources cited by the petitioners, and information readily available in the Service's files. We evaluated the information in accordance with 50 CFR 24.14(c). Our process for making this 90-day finding under section 4(b)(3)(D) of the Act and 50 CFR 424.14(c) of our regulations is limited to a determination of whether the information in the petition meets the “substantial scientific information” threshold. In making a finding, we consider whether the petition provides the following in accordance with 50 CFR 424.14(c)(2):
        (i) Information indicating that areas petitioned to be added to critical habitat contain physical or biological features essential to, and that may require special management to provide for, the conservation of the species involved; or
        (ii) Information indicating that areas currently designated as critical habitat do not contain resources essential to, or do not require special management to provide for, the conservation of the species involved.
        The Service's evaluation of this information is presented below. We have organized the petition's claims into four categories relative to 50 CFR 424.14(c)(2)(i) as described above:.

          (1) Petition claims the leatherback sea turtle nesting sites in Puerto Rico represent the second most significant nesting activity in the United States, and that the beaches of the Northeast Ecological Corridor are the most important leatherback sea turtle nesting sites on the main island of Puerto Rico.

        The petition claims “[t]he United States contains at least three significant leatherback nesting areas: Sandy Point on St. Croix in the U.S. Virgin Islands, which hosted 1,008 nests in 2001, Brava and Resaca Beaches on Puerto Rico's island of Culebra, and the beaches around Fajardo and Luquillo in the Northeast Ecological Corridor of Puerto Rico. The Puerto Rican beaches cumulatively hosted a minimum of 469-882 nests each year between 2000 and 2005.” The petition cites a Puerto Rico Department of Natural and Environmental Resources (PRDNER) management plan that describes the Corridor's beaches as ” `one of the most important leatherback nesting areas in Puerto Rico and in the jurisdiction of the United States,' noting that from 1993 to 2007, 3,188 nests have been recorded, for an average of 213 nests annually.” The petition asserts that revision of leatherback sea turtle critical habitat to include the beaches of the NEC of Puerto Rico is necessary to protect leatherback sea turtles. The petition states that the NEC, including its coastal waters, is “a centrally important space for `individual and population growth,' because it is also a site for `breeding, reproduction, [and] rearing of offspring.' ” It asserts that “[a]s two decades of data demonstrate, it is a `nesting ground' or `reproduction [site]' which includes the sandy beaches and open access to the ocean that constitute the `soil type' and `physical constituent elements' that leatherbacks need to survive.”
        The Service assessed information provided by the petitioner and available in our files. The Service agrees with the petitioner that Sandy Point in the U.S. Virgin Islands, Brava and Resaca Beaches on Puerto Rico's Island of Culebra and the Northeast Ecological Corridor on the main island of Puerto Rico are important nesting areas for leatherback sea turtles in the United States. However, important leatherback sea turtle nesting habitat also occurs in Florida, as well as elsewhere in Puerto Rico on the Island of Vieques and in the Maunabo area on the main island. A summary of key leatherback nesting beaches in the United States is provided below.

        In Florida, the majority of leatherback sea turtle nesting occurs along the Southeast Atlantic coastline in Brevard through Broward Counties. These counties encompass approximately 206 miles (332 km) of sandy coastline fronting the Atlantic Ocean (Clark 1993, p. 17). Within these counties, approximately 89 miles (143 km) have been identified as conservation lands (NMFS and Service 2008, pp. V-36-V-39). Conservation lands are defined as public ownership (Federal, State, or local government) and privately owned lands (e.g., nonprofit conservation foundations) that are generally managed in a way to benefit sea turtle conservation (NMFS and Service 2008, p. V-33). Therefore, beaches identified as conservation lands in Brevard through Broward Counties represent approximately 43 percent of all oceanfront beaches in these counties.

        The Florida Statewide Nesting Beach Survey (SNBS) program documented an increase in leatherback sea turtle nesting numbers from 98 nests in 1989 to between 453 and 1,747 nests per season in the 2000s, with the highest number of nests recorded in 2009 (Florida Fish and Wildlife Conservation Commission SNBS data). Although the SNBS program provides information on distribution and total abundance of sea turtle nesting statewide, it cannot be used to assess trends because of variable survey effort. Therefore, leatherback nesting trends are best assessed using standardized nest counts made at Index Nesting Beach Survey (INBS) sites surveyed with constant effort over time (1989-2010). Under the INBS program, approximately 30 percent of Florida's SNBS beach length is surveyed. The INBS nest counts represent approximately 34 percent of known leatherback nesting in Florida. An analysis of the INBS data has shown an exponential increase in leatherback sea turtle nesting in Florida since 1989. From 1989 through 2010, the annual number of leatherback sea turtle nests at the core set of index beaches ranged from 27 to 615 (Florida Fish and Wildlife Conservation Commission INBS data). Using the numbers of nests recorded from 1979 through 2009, Stewart et al. (in press) estimated a population growth of approximately 10.2 percent per year.

        In the U.S. Virgin Islands, leatherback sea turtle nesting has been reported on the islands of St. Croix, St. Thomas, and St. John. However, the most significant leatherback sea turtle nesting activity occurs on Sandy Point, St. Croix (NMFS and Service 1992, p. 2). Leatherback sea turtle nesting on Sandy Point was first brought to the attention of biologists in the mid-1970s (Boulon et al. 1996, p. 141), and flipper tagging of nesting turtles began in 1977 (Dutton et al. 2005, p. 186). Since 1982, the Sandy Point beach has been consistently monitored each nesting season. In 1984, the Sandy Point National Wildlife Refuge was established and encompassed the Sandy Point beach. Between 1982 and 2010, the number of nests recorded on Sandy Point ranged from a low of 82 in 1986 to a high of 1,008 in 2001 (Garner and Garner 2010, pp. 18-20). Dutton et al. (2005, p. 189) estimated a population growth of approximately 13 percent per year from 1994 through 2001 for this nesting population. Using the number of observed females at Sandy Point from 1986 to 2004, the Turtle Expert Working Group (2007, pp. 48-49) estimated a population growth of approximately 10 percent per year.
        In Puerto Rico, the main nesting areas are at Fajardo (NEC) and Maunabo on the main island, and on the islands of Culebra and Vieques. Between 1993 and 2010, the number of nests recorded in the NEC in the Fajardo area ranged from a low of 51 in 1995 to a high of 456 in 2009 (C. Diez, PRDNER, unpublished data). In the Maunabo area, the number of nests recorded between 2001 and 2010 ranged from a low of 53 in 2002 to a high of 260 in 2009 (C. Diez, PRDNER, unpublished data). On the island of Culebra, the number of nests recorded between 1993 and 2010 ranged from a low of 41 in 1996 to a high of 395 in 1997 (C. Diez, PRDNER, unpublished data). Approximately two-thirds of Vieques Island was occupied by the U.S. Navy beginning in the early 1940s and was used by the U.S. Department of Defense for military practices until 2002, when most of the U.S. Navy lands on Vieques Island were transferred to the Department of the Interior to form part of the Service's National Wildlife Refuge System.
        Monitoring of sea turtle nesting beaches on Vieques Island has been challenging due to access restrictions imposed during military operations and the presence of unexploded ordnance throughout most of the areas formerly used for military training by the U.S. Navy. On beaches managed by the Commonwealth of Puerto Rico on the island of Vieques, PRDNER recorded annually 14-61 leatherback nests between 1991 and 2000; 145 nests in 2002; 24 in 2003; and 37 in 2005 (C. Diez, PRDNER, unpublished data). The number of leatherback sea turtle nests recorded on Vieques Island beaches managed by the Service were as follows:

        • 32 in 2001;
        • 163 in 2002;
        • 13 in 2003;
        • 28 in 2004;
        • 88 in 2005;
        • 92 in 2006;
        • 93 in 2007;
        • 52 in 2008;
        • 155 in 2009; and
        • 132 in 2010.

        Nesting data for 2006 and 2010 include nests found on beaches off Service lands (8 and 6 nests, respectively). Since several beaches on Vieques' eastern portion are not regularly monitored for sea turtle nesting activity due to logistical difficulties and presence of unexploded ordnance, the average yearly number of sea turtle nests on Vieques Island is likely to be greater. Using the numbers of nests recorded in Puerto Rico between 1984 and 2005, the Turtle Expert Working Group (2007, p. 47) estimated a population growth of approximately 10 percent per year.
        Fajardo (NEC) and Maunabo are the primary leatherback sea turtle nesting areas on the main island of Puerto Rico. The NEC of Puerto Rico, running from Luquillo to Fajardo, PR, includes approximately 3,200 “cuerdas” (3,108 acres or 1,259 hectares) within the properties referred to as San Miguel I and II, Las Paulinas, El Convento Norte, and Seven Seas. Three of these properties (Las Paulinas, El Convento Norte, and Seven Seas) are owned by the Puerto Rico Industrial Development Company (PRIDCO) and the National Parks Company (NPC), while the remaining properties are privately owned.
        Beaches within the NEC comprise approximately 5.43 miles (8.74 km) of sandy beaches that support leatherback nesting. Maunabo is located on the southeastern coast and has approximately 3.93 miles (6.32 km) of sandy beaches suitable for leatherback sea turtle nesting. Although beaches in Maunabo are public domain, uplands adjacent to these beaches are privately owned with the potential for future development. On the island of Culebra, the majority of leatherback sea turtle nesting occurs on Brava and Resaca beaches. Brava Beach is approximately 0.78 mile (1.25 km) in length, while Resaca Beach is 0.62 mile (1.00 km) in length. All of the land surrounding Resaca Beach and part of the land surrounding Brava Beach is owned by the Service as part of the Culebra National Wildlife Refuge. Therefore, Resaca Beach is relatively protected from development.
        Although at present there is no development on the private land near Brava Beach, there is the potential for future development. On the island of Vieques, leatherback sea turtles nest on both the southern and northern beaches on the eastern portion of the island within the Vieques National Wildlife Refuge. The refuge encompasses approximately 18.09 miles (29.11 km) of sandy beaches that may support leatherback sea turtle nesting. These beaches are protected from development.
        Although other important leatherback sea turtle nesting beaches occur in the United States besides those identified in the petition, the Service believes the information submitted by the petitioner about the importance of the NEC to leatherback sea turtle nesting in the United States is substantial for this claim.

          (2) Petition claims that leatherback sea turtles in the Atlantic Ocean have declined and could experience a similar decline as those in the Pacific Ocean if their habitat is not protected.

        The petition cites a number of studies about the population decline of leatherback sea turtles in the Pacific Ocean, and concludes that leatherback sea turtles in the Atlantic Ocean could experience a similar decline if their habitat is not protected. The petition also states that conditions in the Atlantic and Caribbean are relatively more stable than those in the Pacific, but that some declines in nesting have been documented or are believed likely to have occurred based on estimates on nesting declines for other sea turtle species. However, the petition did not cite or provide information about the status of leatherback sea turtle populations in the Atlantic Ocean.
        In 2007, the Turtle Expert Working Group published An Assessment of the Leatherback Turtle Population in the Atlantic Ocean and estimated a population size of 34,000-94,000 adult leatherback sea turtles in the North Atlantic (Turtle Expert Working Group 2007, p. 59). An increasing or stable population trend was seen in all regions of the Atlantic except West Africa for which no long-term data were available (Turtle Expert Working Group 2007, pp. 48-51). The nesting trend for the North Caribbean population, which includes Puerto Rico, was characterized as increasing. Furthermore, a near record number of leatherback nests (1,330 nests) was laid on Florida index beaches in 2010. Leatherback nest counts have been increasing exponentially in Florida (http://myfwc.com/research/wildlife/sea-turtles/nesting/beach-survey-totals-1989-2010/).
        The petition does not provide information to support the claim that leatherback sea turtle populations have substantially declined in the Atlantic since the 1978 critical habitat designation in St. Croix, VI. Thus, the Service does not believe the petition or information in our files presents substantial information to support this claim. The Service also does not believe the petition or information available in our files presents substantial information to support the claim that the leatherback sea turtles in the Atlantic Ocean are likely to experience declines similar to those in the Pacific if critical habitat is not revised to include the beaches of the NEC. Therefore, the Service finds that the petition does not present substantial information for this claim.

          (3) Petition claims that the evidence supporting designation of the Northeast Ecological Corridor as critical habitat is stronger than the evidence used by the Service to designate critical habitat for Sandy Point, St. Croix, VI.

        The petition cites the 1978 critical habitat designation of the nesting beaches of Sandy Point, St. Croix, as a rationale for likewise designating the beaches of the NEC of Puerto Rico as critical habitat. The petition indicates that the current level of leatherback sea turtle nesting within the NEC is greater than the level of nesting that was observed at Sandy Point in 1977, which was used as justification for its designation as critical habitat.

        At the time of the 1978 critical habitat designation, Sandy Point in the U.S. Virgin Islands was the only known beach under U.S. jurisdiction used extensively for nesting by leatherback sea turtles. Its designation as critical habitat was “taken to insure the integrity of the only major nesting beach used by leatherbacks in the United States or its territories” (43 FR 43688; September 26, 1978). Since that time, as described in the Species Information section above, additional beaches have been identified in the United States as important for leatherback sea turtle nesting, including beaches in Puerto Rico and Florida. Therefore, the rationale used for the Sandy Point critical habitat designation is not applicable for the NEC. Therefore, the Service finds that the petition does not present substantial information for this claim.

          (4) Petition claims that threats on the nesting beach are substantial and that global climate change is exacerbating the situation.

        The petition claims threats to leatherback sea turtle nesting beaches, exacerbated by global climate change, further justify the need for designation of the NEC as critical habitat. The Service agrees there are substantial threats affecting leatherback sea turtle nesting habitat in the U.S. Atlantic. Leatherback nesting habitat is affected by development, including the construction of buildings, beach armoring, renourishment, and sand mining (Crain et al. 1995, entire; Lutcavage et al. 1997, pp. 388-391; Witherington 1999, pp. 180-181). These factors may directly, through loss of beach habitat, or indirectly, through changing thermal profiles and increasing erosion, serve to decrease the amount of nesting area available to nesting females, and may evoke a change in the natural behaviors of adults and hatchlings (Ackerman 1997, pp. 102-103; Mosier 1998, pp. 42-47; Witherington et al. 2003, pp. 7-10). In addition, coastal development is usually accompanied by artificial lighting. The presence of lights on or adjacent to nesting beaches alters the behavior of nesting adults and is often fatal to emerging hatchlings as they are attracted to light sources and drawn away from the water (McFarlane 1963, p. 153; Philibosian 1976, p. 824; Ehrhart and Witherington 1987, pp. 66-67; Witherington and Bjorndal 1991, pp. 146-147; Witherington 1992, pp. 36-38; Villanueva-Mayor et al. 2003, entire).
        In 1990, a major part of the NEC was included as part of the coastal barrier system under the Coastal Barrier Resources Act (CBRA), as requested by the Puerto Rico Planning Board (PRPB). The CBRA encourages the conservation of hurricane-prone, biologically rich coastal barriers by restricting Federal expenditures that encourage development, such as federally subsidized flood insurance (16 U.S.C. 3501-3510). In 1996, the PRPB rezoned the lands within the NEC as a tourist-residential development zone, allowing for recreational and tourism development of the area. Although the NEC had been designated as a Natural Reserve by the former Puerto Rico Governor in 2007, the new administration repealed the designation in October 2009. Thus, lands within the NEC continue under private and Commonwealth (PRIDCO, NPC) ownership, and are subject to potential future development. The NEC remains a unit within the CBRA system.
        Between 2007 and 2008, the Service awarded more than $4,000,000 for the acquisition of over 400 acres in the San Miguel area, and continues to support acquisition in the area to ensure long-term conservation of these lands, particularly for leatherback sea turtle nesting. However, development pressures exist, and there are no lighting codes or regulations in Puerto Rico. Therefore, development could threaten leatherback nesting within the NEC.
        As indicated in the petition, another factor that may affect leatherback sea turtle nesting habitat is climate change. Impacts from climate change, especially due to global warming, are likely to become more apparent in future years (Intergovernmental Panel on Climate Change 2007, pp. 12-17). The global mean temperature has risen 0.76 degrees Celsius over the last 150 years, and the linear trend over the last 50 years is nearly twice that for the last 100 years (Intergovernmental Panel on Climate Change 2007, p. 5). One of the most certain consequences of climate change is sea level rise (Titus and Narayanan 1995, pp. 123-132), which will result in increased erosion rates along nesting beaches.

        On some undeveloped beaches, shoreline migration will have limited effects on the suitability of nesting habitat. Bruun (1962, pp. 123-126) hypothesized that during sea level rise, a typical beach profile will maintain its configuration but will be translated landward and upward. However, along developed coastlines, and especially in areas where erosion control structures have been constructed to limit shoreline movement, rising sea levels are likely to cause severe effects on nesting females and their eggs (Hawkes et al. 2009, p. 139; Poloczanska et al. 2009, pp. 164, 174). Erosion control structures can result in the permanent loss of dry nesting beach or deter nesting females from reaching suitable nesting sites (National Research Council 1990, p. 77). Nesting females may deposit eggs seaward of the erosion control structures potentially subjecting them to repeated tidal inundation.

        For additional information on threats affecting leatherback sea turtle nesting beaches, refer to the Leatherback Sea Turtle (Dermochelys coriacea) 5-Year Review (NMFS and Service 2007, pp. 32-34); the Recovery Plan for Leatherback Turtles (Dermochelys coriacea) in the U.S. Caribbean, Atlantic, and Gulf of Mexico (NMFS and Service 1992, pp. 9-14); and the Recovery Plan for U.S. Pacific Populations of the Leatherback Turtle (Dermochelys coriacea) (NMFS and Service 1998, pp. 21-23), available on the Internet at http://www.regulations.gov.

        The Service agrees with the petition that threats to leatherback sea turtle nesting habitat are substantial. We find the information submitted by the petitioner related to this claim to be substantial information for this claim.
        90-Day Finding
        Based on the above information and information readily available in our files, and pursuant to criteria specified in 50 CFR 424.14(b), we find the petition presents substantial scientific information indicating that revision of the critical habitat designation for the leatherback sea turtle may be warranted.
        12-Month Determination

        Pursuant to the provisions of the Act regarding revision of critical habitat and petitions for revision, we find that revisions to critical habitat for the leatherback sea turtle under the Act should be made. As described in the How the Service Intends to Proceed section below, we intend to fully assess critical habitat during the future planned status review for the leatherback sea turtle.

        The Service intends that any revisions to critical habitat for the leatherback sea turtle be as accurate as possible. To ensure that the status review is comprehensive, the Service will request scientific and commercial data and other information regarding the leatherback sea turtle from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding when we initiate the review.
        Until the Service is able to revise the critical habitat designation for the leatherback sea turtle, the currently designated critical habitat, as well as areas that support leatherback sea turtles but are outside of the current critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act. Federal agency actions are subject to the regulatory protections afforded by section 7(a)(2), which requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat.
        How the Service Intends To Proceed
        One of the recommendations contained in the 5-year reviews for listed sea turtle species, completed in 2007, was that the Service and NMFS conduct an analysis and review for each listed sea turtle (except the Kemp's ridley sea turtle) to determine the application of the distinct population segment policy. After completing the reviews, the Service and NMFS made a decision to conduct the recommended sea turtle status reviews in the following order: (1) Loggerhead sea turtle, (2) Green sea turtle, (3) Olive ridley sea turtle, (4) Leatherback sea turtle, and (5) Hawksbill sea turtle.
        The loggerhead status review was selected to be conducted first because the species is listed as threatened worldwide, and there were substantial concerns about the status of some nesting populations. The green and olive ridley turtles were selected to be the second and third status reviews conducted because they have multiple vertebrate populations listed under the Act, some listed as threatened and some as endangered, and an assessment is needed to determine if these populations qualify as individual distinct population segments (DPSs) or are part of larger DPSs. The leatherback and hawksbill sea turtles were selected as the last two status reviews to be conducted because both species are listed as endangered worldwide and receive the fullest protection under the Act; therefore, the need for status reviews for these two species was deemed not to be as urgent as for the other species.

        Once a status review is completed for each species, a rulemaking process would be conducted, if appropriate, to revise the species' status, list a DPS of the species, or designate or revise critical habitat if prudent and determinable. The status review for the loggerhead sea turtle has been completed (Conant et al., 2009) and rulemaking is in progress (75 FR 12598; March 16, 2010); status reviews for the other species have not been initiated because they have been precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. It is our intention to assess leatherback sea turtle critical habitat as part of the future planned status review for the leatherback sea turtle.
        References Cited

        A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the North Florida Ecological Services Office, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).
        Author

        The primary authors of this notice are the staff members of the U.S. Fish and Wildlife Service, North Florida Ecological Services Office (see FOR FURTHER INFORMATION CONTACT) and the Caribbean Ecological Services Field Office (P.O. Box 491, Boquerón, PR 00622; telephone 787-851-7297).

          Authority:

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

          Dated: July 26, 2011.
           Eileen Sobeck,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2011-19676 Filed 8-3-11; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 191105-0075]
        RIN 0648-BJ28
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Red Snapper Management Measures

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to implement management measures described in a framework action to the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico (Gulf), as prepared by the Gulf of Mexico Fishery Management Council (Council). This proposed rule would modify the red snapper Federal charter vessel/headboat (for-hire) component's annual catch target (ACT) for the 2020 and subsequent fishing years. The purpose of the framework action is to allow for greater harvest of red snapper by the Federal for-hire component.

          DATES:
          Written comments must be received by December 12, 2019.

          ADDRESSES:
          You may submit comments on the proposed rule identified by “NOAA-NMFS-2019-0108” by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0108, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit all written comments to Peter Hood, NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on 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).

          Electronic copies of the framework action, which includes an environmental assessment, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis may be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/framework-action-fishery-management-plan-reef-fish-resources-gulf-mexico-modification.

          FOR FURTHER INFORMATION CONTACT:

          Peter Hood, NMFS Southeast Regional Office, telephone: 727-824-5305, email: peter.hood@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        NMFS and the Council manage the Gulf reef fish fishery under the FMP. The FMP, which includes red snapper, was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.).
        The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield from federally managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.
        All weights described in this proposed rule are in round (whole) weight.
        Background
        The current red snapper stock ACL is equal to the acceptable biological catch (ABC) of 13.74 million lb (6.23 million kg); 51 percent is allocated to the commercial sector and 49 percent to the recreational sector. The recreational sector's ACL is further divided into the private angling component (57.7 percent) and Federal for-hire component (42.3 percent). In addition, ACTs are in place for the recreational sector and its respective components. The ACT is a level of catch reduced from the ACL to account for management uncertainty. The separate recreational component ACLs and ACTs were implemented in 2015 and are currently set to expire in 2022 (81 FR 86971, December 2, 2016). However, if approved and implemented, Amendment 50A to the FMP would continue the separation of the private angling and Federal for-hire components. The notice of availability for Amendment 50A published on August 6, 2019 (84 FR 38198) and the proposed rule to implement Amendment 50A published on October 2, 2019 (84 FR 52438).
        The regulations require NMFS to project the component fishing seasons based on the respective ACTs. The ACTs were implemented to reduce the likelihood of exceeding the private angling or Federal for-hire component ACLs, as well as the total recreational ACL. The commercial sector does not have an ACT because it is managed under an individual fishing quota program that effectively constrains landings to the commercial ACL.
        Because the Federal for-hire component has not exceeded its ACL, the Council developed a framework action in 2018 to reduce the 20 percent buffer between the Federal for-hire component ACL and ACT for 2019 only (84 FR 7828, March 5, 2019). The 2018 framework action set the Federal for-hire component ACT 9 percent less than the component ACL. This buffer was based on the application of the Council's ACL/ACT Control Rule, which recommends a buffer based on factors such as recent harvest overages, the percent standard error in Federal for-hire landing estimates, stock status, and whether in-season accountability measures are used.
        The reduction in the Federal for-hire component's ACL/ACT buffer was effective only for 2019 to coincide with the second year of temporary changes to the management of the private angling component. All five Gulf states received exempted fishing permits (EFPs) from NMFS for the 2018 and 2019 fishing years to allow them to test limited state management of the private angling component. Each state was allocated a percentage of the private angling ACL and each state determined whether to manage to a reduced portion of its ACL. The Council determined that the reduction in the Federal for-hire component ACT buffer should be limited to 2019 because of the increased risk of the recreational sector ACL being exceeded after the EFPs are no longer in effect. Under the EFPs, any overages by the private-angling component are deducted from the subsequent year's state ACL.

        In the current framework action, the Council did not consider decreasing the private angling component ACT buffer because the Council recently submitted to NMFS for review Amendments 50A-F to the FMP. These amendments, if implemented, would delegate authority to each of the Gulf states to establish specific management measures applicable to private anglers in Gulf Federal waters who are landing red snapper in that state, including the length of the fishing season. Similar to the EFPs, these amendments would allocate a percentage of the private angling ACL and each state would determine whether to manage to a reduced portion of its ACL. As stated previously, Amendment 50A would also continue the separation of the private angling and Federal for-hire components that is set to end after the 2022 fishing year. Given the proposed changes in private recreational component management described in Amendments 50A-F, the Council determined that it is appropriate to keep the 9 percent Federal for-hire ACL/ACT buffer beyond 2019.
        Management Measures Contained in This Proposed Rule
        For red snapper, this proposed rule would maintain the Federal for-hire component ACL/ACT buffer at 9 percent below the component ACL. Currently, the buffer would return to 20 percent on January 1, 2020, and the Federal for-hire component ACT would be 2.504 million lb (1.136 million kg). This framework action would maintain the ACT at 2.848 million lb (1.292 million kg). Using the 9 percent buffer results in a Federal for-hire component ACT that is 344,000 lb (156,036 kg) more than if the 20 percent buffer were used. NMFS expects this increase in the ACT to result in a Federal for-hire season that is approximately 7 to 8 days longer in 2020 than if the lower ACT were used to project the season.
        NMFS assumes that if Amendments 50A-F are approved, they will be implemented first. Therefore, the regulatory text in this proposed rule reflects certain measures contained in the proposed regulatory text for those amendments. Specifically, the proposed rule for Amendments 50A-F would remove paragraph 50 CFR 622.41(q)(2)(iii)(A), which specifies the red snapper total recreational ACT, because the total recreational ACT would serve no management purpose under the delegation. The proposed rule for Amendments 50A-F would also remove text in 50 CFR 622.41(q)(2)(iii)(B) that would end the separation of the recreational sector components and would add text clarifying the harvest restrictions for the Federal for-hire component when the Federal season in closed. If Amendments 50A-F are not implemented, or this proposed rule is implemented first, the regulatory text in the final rule would be revised accordingly.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the applicable FMP, the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this proposed rule and its purpose and need are contained in the SUMMARY section of the preamble.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows.
        The rule concerns recreational fishing for red snapper in the Gulf exclusive economic zone (EEZ). Anglers (recreational fishers) who fish for red snapper in the Gulf EEZ would be directly affected; however, anglers are not considered small entities as that term is defined in 5 U.S.C. 601(6). The rule would indirectly impact Federal for-hire fishing vessels if it causes changes in angler demand for Federal for-hire fishing services; however, the RFA does not consider indirect impacts. Hence, it is concluded that the rule would not have a significant economic impact on a substantial number of small entities and an initial regulatory flexibility analysis is not required and none has been prepared.

          List of Subjects in 50 CFR Part 622
          Fisheries, Fishing, Gulf, Recreational, Red snapper.

          Dated: November 6, 2019.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

          PART 622—FISHERIES OF THE CARIBBEAN, GULF of MEXICO, AND SOUTH ATLANTIC

        1. The authority citation for part 622 continues to read as follows:

          Authority:
           16 U.S.C. 1801 et seq.

        2. In § 622.41, revise paragraph (q)(2)(iii)(B) to read as follows:

          § 622.41
          Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).

          (q) * * *
          (2) * * *
          (iii) * * *
          (B) Federal charter vessel/headboat component ACT. The Federal charter vessel/headboat component ACT applies to vessels that have been issued a valid Federal charter vessel/headboat permit for Gulf reef fish any time during the fishing year. A person aboard a vessel that has been issued a charter vessel/headboat permit for Gulf reef fish any time during the fishing year may not harvest or possess red snapper in or from the Gulf EEZ when the Federal charter vessel/headboat component is closed. The component ACT is 2.848 million lb (1.292 million kg), round weight.

      [FR Doc. 2019-24519 Filed 11-8-19; 8:45 am]
       BILLING CODE 3510-22-P