        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 226
        [Docket No. 110407235-1242-01]
        RIN 0648-XA349
        Endangered and Threatened Wildlife; Notice of 90-Day Finding on a Petition to Revise Critical Habitat for the Endangered Leatherback Sea Turtle Under the Endangered Species Act

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

          ACTION:
          Notice of 90-day petition finding.

          SUMMARY:

          We, NMFS, announce a 90-day finding on a petition to revise critical habitat for the endangered leatherback sea turtle under the Endangered Species Act (ESA). We find that the petition presents substantial scientific information indicating that the petitioned action may be warranted for leatherback sea turtles and their habitat under our jurisdiction.

          FOR FURTHER INFORMATION CONTACT:

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

        SUPPLEMENTARY INFORMATION:
        Background
        On November 3, 2010, we received a petition, dated November 2, 2010, from the Sierra Club asking NMFS and the United States Fish and Wildlife Service (USFWS) to revise, pursuant to the ESA, critical habitat for the endangered leatherback sea turtle. The November 3, 2010, petition is the second petition submitted by the Sierra Club; the first petition submitted by the Sierra Club, dated February 22, 2010, was found not to present substantial scientific information indicating the petitioned revision may be warranted (75 FR 41436, July 16, 2010).
        Under the ESA, NMFS, and USFWS each have respective areas of jurisdiction over sea turtles, as clarified by the 1977 “Memorandum of Understanding Defining the Roles of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service in Joint Administration of the Endangered Species Act of 1973 as to Marine Turtles.” NMFS has jurisdiction over sea turtles and their associated habitats in the marine environment, while USFWS has jurisdiction when sea turtles are on land. Thus, if Federal agencies are involved in activities that may affect sea turtles involved in nesting behavior, or their nests or their nesting habitats, those Federal agencies are required to consult with the USFWS under section 7 of the ESA to ensure that their activities are not likely to jeopardize the continued existence of the sea turtles. If a Federal action may affect sea turtles while they are in the marine environment, feeding and migrating for example, the Federal agency involved must engage in section 7 consultation with NMFS, to ensure that the action is not likely to jeopardize the continued existence of the sea turtles. Similarly, if critical habitat has been designated, and Federal actions may affect such habitat, an ESA section 7 consultation would be required to ensure that the Federal action is not likely to destroy or adversely modify the critical habitat. If the habitat has been designated on land the consultation would be with USFWS, and if the habitat has been designated in the marine environment, the consultation would be with NMFS.
        The petitioner requests that we designate critical habitat for leatherback turtles in the waters off the coastline of the Northeast Ecological Corridor of Puerto Rico,1
           sufficient to protect leatherback turtles using the Northeast Ecological Corridor, and extending at least to the hundred fathom contour, or 9 nautical miles offshore, whichever is further, and including the existing marine extensions of the Espiritu Santo, Cabezas de San Juan, and Arreceifes de la Cordillera Nature Reserves. This portion of the petitioned critical habitat, which falls under NMFS' jurisdiction, is described by the petitioner as having three primary constituent elements: (1) “Migratory pathway conditions to allow for safe and timely passage and access to/from/within nesting sites at San Miguel, Paulinas, and Convento Beaches in the Northeast Ecological Corridor of Puerto Rico;” (2) “Migratory pathway conditions and open ocean conditions to allow for safe and timely passage and access to/from/within breeding sites offshore of the nesting sites at San Miguel, Paulinas, and Convento Beaches in the Northeast Ecological Corridor of Puerto Rico;” and (3) “Water quality to support normal growth, reproduction, development, viability, and health.” The petitioner defined the minimum requested boundaries of the critical habitat by the following coordinates:

            1 The Northeast Ecological Corridor is an over 3,000 acre coastal area along Puerto Rico's northeastern shoreline that encompasses nearshore marine habitats as well as forests, wetlands, and one of the most important nesting beaches for leatherback turtles within the United States.

          65.807° W, 18.425° N;
          65.697° W, 18.601° N;
          65.489° W, 18.581° N;
          65.435° W, 18.400° N;
          65.631° W, 18.276° N.

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

        Section 4(b)(3)(D) of the ESA of 1973, as amended (16 U.S.C. 1533 et seq.), requires, to the maximum extent practicable, that within 90 days of receiving a petition to revise a critical habitat designation, the Secretary of Commerce (Secretary) make a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted. The finding is to be published promptly in the Federal Register. The Secretary must then determine how he intends to proceed with the requested revision within 12 months after receiving the petition and promptly publish notice of such intention in the Federal Register. Joint ESA-implementing regulations issued by NMFS and the USFWS (50 CFR 424.14(b)) define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In making this finding on a petition to revise critical habitat to include additional areas, the Secretary must consider whether the petition contains information indicating that areas petitioned to be added to critical habitat contain physical and biological features essential to, and that may require special management to provide for, the conservation of the species involved (50 CFR 424.14(c)(2)(i)). Thus, in reviewing a petition to revise critical habitat we consider the information presented on the following three aspects of critical habitat as defined in the ESA: The physical or biological features identified, the explanation of how such features may be essential to a species' conservation, and how those features may require special management considerations.
        Analysis of Petition

        The petition asserts that the revision of leatherback critical habitat to include the waters off the Northeast Ecological Corridor of Puerto Rico is necessary to protect leatherback sea turtles. In contrast to the February 22, 2010, petition, the Sierra Club's second petition proposes three primary constituent elements and specific boundaries of the critical habitat, as detailed above. The petition also supports the proposed critical habitat revision by reporting what is known from existing accounts of leatherback mating behavior: Mating seems to occur, at least in part, in areas adjacent to nesting beaches. The information from satellite tagging studies of six leatherback turtles indicates heavy use by those turtles of the area described in the petition. The petitioner also cited the proposed Pacific leatherback critical habitat (75 FR 319; January 5, 2010), which has some similarities to the “open space” feature petitioned for designation off Puerto Rico. The petitioner states that the second primary constituent element cited in the proposed Pacific leatherback critical habitat rule (i.e., migratory pathway conditions to allow for safe and timely passage and access to/from/within high use foraging areas) is “for all intents and purposes, identical to the area `sufficient to protect leatherbacks using the Northeast Ecological Corridor' which the Sierra Club identified.” The petition also states that the marine environment in which the proposed critical habitat would be designated is subject to “substantial development and degradation threats.” Thus, the additional information presented in this petition supports the required determination that the “areas petitioned to be added to critical habitat contain physical and biological features essential to, and that may require special management to provide for, the conservation of the species involved.” 50 CFR 424.14(c)(2)(i).
        Petition Finding
        After considering the petition, the information cited by the petitioner, and relevant information readily available in our files, we conclude that, with respect to areas under NMFS' jurisdiction, the petition presents substantial scientific information indicating that the petitioned revision of designated critical habitat for leatherback sea turtles may be warranted.
        Authority

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

          Dated: April 28, 2011.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2011-10956 Filed 5-4-11; 8:45 am]
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