Endangered and Threatened Species: 12-Month Finding for a Petition to Revise Critical Habitat for Hawaiian Monk Seal, 27988-27994 [E9-13880]

Download as PDF 27988 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules proposed rules.5 The RFA generally defines the term ‘‘small entity’’ as encompassing the terms ‘‘small business,’’ ‘‘small organization,’’ and ‘‘small governmental entity.’’ 6 In addition, the term ‘‘small business’’ has the same meaning as the term ‘‘small business concern’’ under the Small Business Act.7 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (‘‘SBA’’).8 The proposed rules and policies potentially will apply to all FM radio broadcasting licensees and potential licensees. 7. The SBA defines a radio broadcasting station that has $7 million or less in annual receipts as a small business.9 A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public.10 Included in this industry are commercial, religious, educational, and other radio stations.11 Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included.12 However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under a separate NAICS number.13 According to Commission staff review of the BIA Financial Network, Inc. Media Access Radio Analyzer Database as of February 19, 2009, about 10,600 (96 percent) of 11,050 commercial radio stations in the United States have revenues of $7 million or less. We note that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action. 55 U.S.C. 603(b)(3). U.S.C. 601(6). 7 5 U.S.C. 601(3) (incorporating by reference the definition of ‘‘small business concern’’ in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies ‘‘unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.’’ 8 15 U.S.C. 632. 9 See 13 CFR 121.201, NAICS Code 515112 (changed from 513112 in October 2002). 10 Id. 11 Id. 12 Id. 13 Id. 65 VerDate Nov<24>2008 16:52 Jun 11, 2009 Jkt 217001 D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 8. In the Second Report and Order, the Commission declined to establish a deadline for radio stations to convert to digital broadcasting, 22 FCC Rcd at 10351. Presently, radio stations may choose to commence DAB operation pursuant to Section 73.404 of the Commission’s rules, 47 CFR 73.404, which requires in part that licensees provide notification to the Commission within 10 days of commencing DAB operation. The proposed rule change may impose additional reporting or recordkeeping requirements on FM radio stations choosing to upgrade DAB operating power above the current limitation of 1 percent of a station’s authorized analog power. For example, licensees choosing to increase DAB operating power above 1 percent of authorized analog power could be required to notify the Commission of the increase in power. E. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered 9. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.14 This document has proposed for commenter evaluation the issue of taking steps to minimize significant impact on small entities, focusing on the four issues, enumerated supra in paragraph 6, relevant to the Joint Parties’ Request, as well as on any issues raised by the technical studies previously submitted by iBiquity and NPR. To assist in the analysis, commenters are requested to provide information, studies, and/or opinions regarding how small entities would be affected if the Commission were to adopt an increase in maximum digital operating power as proposed by the Joint Parties or a provisional power increase of some lesser extent than that requested by the Joint Parties, and whether such adoption could result in 14 5 PO 00000 U.S.C. 603(b). Frm 00044 Fmt 4702 Sfmt 4702 the disparate treatment of small entities with limited financial and/or technical resources. Commenters should also provide information, studies, and/or opinions on alternative approaches to alleviate any potential burdens on small entities. F. Federal Rules Which Duplicate, Overlap, or Conflict With, the Commission’s Proposals 10. None. Federal Communications Commission. Robert H. Ratcliffe, Acting Chief, Media Bureau. [FR Doc. E9–13865 Filed 6–11–09; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 226 [Docket No. 0809161218–9950–02] RIN 0648–AX23 Endangered and Threatened Species: 12–Month Finding for a Petition to Revise Critical Habitat for Hawaiian Monk Seal AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of 12–month finding. SUMMARY: On July 9, 2008, we (NMFS) received a petition dated July 2, 2008, requesting that we revise the present critical habitat designation for the Hawaiian monk seal (Monachus schauinslandi) under the Endangered Species Act (ESA) by expanding the current critical habitat in the Northwestern Hawaiian Islands, and by designating additional critical habitat in the main Hawaiian Islands. We have reviewed, and here provide a summary of the best available information regarding Hawaiian monk seal biology and habitat use. Based on our review, we intend to revise the monk seal’s critical habitat, and we are providing our initial thoughts on the habitat features that are essential to the conservation of this species and describing how we intend to proceed with the requested critical habitat revision. ADDRESSES: Requests for copies of this determination should be addressed to the Assistant Regional Administrator, Protected Resources Division, NMFS, 1601 Kapiolani Blvd, Honolulu, HI 96814. E:\FR\FM\12JNP1.SGM 12JNP1 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules FOR FURTHER INFORMATION CONTACT: Lance Smith at (808) 944–2258, e-mail lance.smith@noaa.gov; Krista Graham at (808) 944–2238, e-mail krista.graham@noaa.gov; or Marta Nammack, (301) 713–1401. SUPPLEMENTARY INFORMATION: Background documents on the biology of the Hawaiian monk seal, the July 2, 2008, petition requesting revision of its critical habitat, and documents explaining the critical habitat designation process, can be downloaded from http://www.fpir.noaa.gov/PRD/ prdlindex.html, or requested by phone or e-mail from the NMFS staff in Honolulu (area code 808) listed under ‘‘FOR FURTHER INFORMATION CONTACT’’. The October 3, 2008, 90–day finding in response to the petition and the information received in response to the 90–day finding can be viewed at www.regulations.gov by searching for docket number ‘‘NOAA-NMFS–2008– 0290’’. Background On July 9, 2008, we received a petition dated July 2, 2008, from the Center for Biological Diversity, Kahea, and the Ocean Conservancy (Petitioners) to revise the Hawaiian monk seal critical habitat designation (Center for Biological Diversity et al., 2008) under the ESA. Currently designated critical habitat is described below in ‘‘Listing Status and Existing Critical Habitat Under the ESA.’’ The Petitioners seek to revise critical habitat by adding the following areas in the main Hawaiian Islands (MHI): key beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 200 meters. In addition, The Petitioners request that currently designated critical habitat in the Northwestern Hawaiian Islands (NWHI) be extended to include Sand Island at Midway, as well as ocean waters out to a depth of 500 meters (Center for Biological Diversity et al., 2008). On October 3, 2008, we published a 90–day finding in response to the petition, finding that the petition presented substantial scientific information indicating that a revision to the current critical habitat designation may be warranted (73 FR 57583; October 3, 2008). The 90–day finding requested that the public submit information by December 2, 2008, to help us determine whether a revision of critical habitat is warranted for the Hawaiian monk seal. The purpose of this 12–month finding is to announce that we intend to proceed with a VerDate Nov<24>2008 16:52 Jun 11, 2009 Jkt 217001 revision of critical habitat for the monk seal and to provide details on the revision process. In the following sections, we provide information on the Hawaiian monk seal’s listing status and existing critical habitat under the ESA, population status and trend, Hawaiian monk seal biology, summary of the information received from the public in response to our 90–day finding (73 FR 57583; October 3, 2008), our determination that we will proceed with a revision of critical habitat, and the criteria we intend to use for the revision. Listing Status and Existing Critical Habitat Under the ESA The Hawaiian monk seal (Monachus schauinslandi) was listed as endangered under the ESA in 1976 (41 FR 33922; November 23, 1976). This species occurs throughout the Hawaiian Archipelago and on Johnston Atoll, and has been sighted at other atolls and islands to the south of Hawaii. In 1986, critical habitat was designated for all beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 10 fathoms (18.3 m) around Kure Atoll, Midway Islands (except Sand Island), Pearl & Hermes Reef, Lisianski Island, Laysan Island, Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa Island in the NWHI (51 FR 16047; April 30, 1986). In 1988, critical habitat was extended to include Maro Reef and waters around previously recommended areas out to the 20 fathom (36.6 m) isobath (53 FR 18988; May 26, 1988). A recovery plan was completed in 1983 (NMFS, 1983) and revised in 2007 (NMFS, 2007a). The species is endemic (found nowhere else) to the Hawaiian Archipelago, and is one of the most endangered marine mammals in the United States (NMFS, 2007a). Hawaiian Monk Seal Biology The Hawaiian monk seal is a mammal in the Order Carnivora, Family Phocidae, Genus Monachus. Only two other species occur in this genus, the recently extinct Caribbean monk seal (M. tropicalis) and the critically endangered Mediterranean monk seal (M. monachus). Following is an overview of the Hawaiian monk seal’s biology, including Range, Population Status and Trends, Natural History, Habitat, and Northwestern Hawaiian Islands vs. Main Hawaiian Islands (a description of differences in monk seal habitat between these two areas). PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 27989 Range Hawaiian monk seals are found throughout the Hawaiian Archipelago and on Johnston Atoll. The six main reproductive sites for the species are in the NWHI: Kure Atoll, Midway Islands, Pearl and Hermes Reef, Lisianski Island, Laysan Island, and French Frigate Shoals. Smaller reproductive sites also occur on Necker Island and Nihoa Island, and monk seals have been observed at Gardner Pinnacles and Maro Reef. Monk seals are found throughout the MHI, where births have been documented on most of the major islands (NMFS, 2001, 2007a). In 1994, we relocated 21 adult male monk seals from the NWHI to the MHI in order to reduce male aggression and female deaths at Laysan Island, where males greatly outnumbered females at the time. We have relocated three female monk seals (a juvenile in 1981, a pup in 1991, and an adult in 2009) from the MHI to the NWHI. Thus, we have relocated 21 males from the NWHI to the MHI, and three females from the MHI to the NWHI. At Johnston Atoll, a tagged yearling male monk seal from Laysan Island was first seen in July 1968 (Schreiber and Kilder, 1969) and remained until at least August 1972. In January 1969, an untagged adult female monk seal arrived on Sand Island, a secondary island within Johnston Atoll, and gave birth to a female pup. The mother-pup pair remained on or near the pupping beach until March 1969, when the pup was weaned and the mother disappeared. The pup remained until 1971 when it died from a deep flesh wound, probably from a shark attack (Amerson and Shelton, 1976). In July 1999, a tagged adult female from French Frigate Shoals arrived at Johnston Atoll and remained there for about a year (NMFS, 2001). In addition to the above reported natural occurrences of monk seals at Johnston Atoll, a 12 male monk seals have been relocated there from the Hawaiian Archipelago. In 1984, nine adult males were relocated from the NWHI to Johnston Atoll, because of attacks on adult females and immature seals. At least three of these males were still at Johnston Atoll the following year, and at least one male was still there in 1986. In 1989, two adult males were relocated from the NWHI to Johnston Atoll because they were drowning pups. In 2003, an adult male was relocated from the MHI to Johnston Atoll because it was habituated to humans and exhibiting dangerous behavior. No sighting history is available for the latter three monk seals (NMFS unpublished data). E:\FR\FM\12JNP1.SGM 12JNP1 27990 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules Unconfirmed but probable sightings of Hawaiian monk seals outside the Hawaiian Archipelago and Johnston Atoll have been reported from Palmyra Atoll (1,800 km south of NWHI) and Wake Island (2,000 km southwest of NWHI); two seals were sighted on Palmyra Atoll in 1990, a seal was sighted on Wake Island in early summer 1966, and a tagged seal was sighted on Wake Island in February 1987 (Westlake and Gilmartin, 1990, NMFS unpublished data). Other more poorlydocumented sightings have also been reported from Bikini Atoll and Mejit Island in the Marshall Islands (2,400 km southwest of NWHI, NMFS unpublished data). Population Status and Trends The best estimate of Hawaiian monk seal total population size is 1,208 seals in 2006 (1,125 in the NWHI, 83 in the MHI; NMFS, 2008a). Additional population information can be found in the annual Stock Assessment Reports (e.g., NMFS, 2006, 2007b, 2008a). The first rangewide beach count surveys of Hawaiian monk seals were conducted in the late 1950s. Beach counts of juveniles and adults (i.e., all seals except pups) declined by 66 percent between the years 1958 and 2006 (Figure I.C.6 in NMFS, 2007a). More recently, beach counts declined rapidly from 1985 to 1993, and then became relatively stable until the current decline began in 2001. Total abundance at the six primary NWHI sites (French Frigate Shoals, Laysan, Lisianski, Pearl and Hermes, Midway, and Kure) is declining at a rate of about four percent per year (NMFS 2007a, 2007b, 2008a). Since 2000, many sites have shown indications of decline in abundance, apparently due to low juvenile survival. The decline at French Frigate Shoals is of particular consequence to the welfare of the overall population because this site once accounted for over 50 percent of the total non-pup beach counts in the NWHI. While that proportion has now dropped to approximately 25 percent of its observed peak, there are still more seals at French Frigate Shoals than any other island or atoll. More detail on Hawaiian monk seal population status and trends in the NWHI is provided in the recovery plan (NMFS, 2007a). As noted above, in 1994, we relocated 21 adult male monk seals from the NWHI to the MHI in order to reduce male aggression and female deaths at Laysan Island, where males greatly outnumbered females at the time. All female monk seals in the MHI occur there naturally. In 2008, only five of the 21 relocated male monk seals remained in the MHI. VerDate Nov<24>2008 16:52 Jun 11, 2009 Jkt 217001 Although monk seals historically occurred throughout the Hawaiian Archipelago, the majority of the population now occurs in the NWHI. Human settlement appears to have largely excluded monk seals from the MHI, although seal bones have been found at archeological sites dating from 1400 - 1700 (Rosendahl, 1994). In 1900, Hilo residents reported that solitary monk seals were seen in the area about once every 10 years (Bailey, 1952). From 1928 to 1956, seven monk seal sightings were documented in the MHI (Kenyon and Rice, 1959), and Niihau residents reported that seals appeared there in the 1970s. By 1994 there was a small naturally-occurring population of male and female monk seals in the MHI. This population appeared to be growing, and at least six pups had been born (one in 1962, and five between 1988 and 1993). Since the mid–1990s, an increasing number of documented sightings and annual births of monk seal pups have occurred in the MHI. Combined aerial and ground surveys in the MHI counted 45 hauled-out monk seals in 2000, and 52 in 2001 (Baker and Johanos, 2004). Sightings in the MHI tallied 77 individually identifiable monk seals in 2005 (NMFS, 2007b), and 83 in 2006 (NMFS, 2008a). Together, these observations suggest that monk seals are recolonizing the MHI. Natural History Hawaiian monk seals are wideranging, air-breathing predators that forage underwater, preying primarily on small benthic fishes, cephalopods (e.g., octopus), and crustaceans (GoodmanLowe, 1998). They spend the majority of their time in the ocean, where they are highly mobile and may have very large home ranges (Antonelis et al., 2006). Monk seals are typical large predators, in that they can rapidly cover large areas in search of food. Individuals may travel hundreds of miles in a few days (Littnan et al., 2007) and dive to 500 m (1,600 ft; Parrish et al., 2002). Monk seals haul out on land to rest, molt, pup (give birth), and nurse. Resting may also occur at sea or in shallow, submerged caves. Monk seals are often solitary, both on land and in the water, but may congregate in favorable haul-out areas (Antonelis et al., 2006). Adult monk seals reach a length of 2.3 m (7.5 ft) and weigh up to 273 kg (600 lb). Unlike most other pinnipeds, monk seals completely molt, whereby the entire layer of pelage (skin and hair) is shed annually. The old pelage strips away, leaving a dark grey coat underneath. Pups are black until first molt, and mostly grey thereafter, although coloration varies by individual and with age. When monk seals stay at PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 sea for an extensive period, they may develop a red or green tinge from algal growth on their pelage (Kenyon and Rice, 1959). It is thought that Hawaiian monk seals have a lifespan of up to 30 years. Females reach breeding age at about 6 to 11 years of age, depending on their condition, and give birth no more than once annually. Mating occurs at sea, and gestation is thought to be approximately 11 months. Monk seal births are most common between February and August, peaking in March and April at Laysan Island. Females give birth to a single pup and nurse it for about 6 weeks, followed by an abrupt weaning, when the mother abandons the pup (Johanos et al., 1994). At least several months are required for the pup to learn to forage successfully on its own, during which time it survives on fat stores built up during nursing, resulting in considerable weight loss. Juveniles (up to 3 years old) are typically longer but thinner than recently-weaned pups, and juveniles in the NWHI typically do not regain their weaning weight until approximately 2 years of age (Johanos et al., 1994). Male aggression, in which a single male or multiple males repeatedly attempt to mount and mate with a female or immature seal, is most common where males outnumber females, and sometimes results in death or severe injury to the targeted seal. Individual adult males sometimes attack pups in the same manner, also sometimes killing the pup (Hiruki et al., 1993). Habitat While Hawaiian monk seals spend most of their time in the water, they frequently haul out on land to rest, molt, pup (give birth), and nurse. Monk seals may remain at sea for several days or more at a time, but resting on land is necessary to conserve energy. Resting is commonly on sandy beaches, but may also occur on rocky shores, rock ledges, emergent reefs, and even shipwrecks (Antonelis et al., 2006). Monk seals may take shelter from wind and rain under shoreline vegetation. Resting on land is typically done for a few hours to several days at a time, after which the monk seal returns to the water to continue foraging. When ocean conditions are rough, monk seals may spend a greater proportion of time resting on land. Hauling-out on land is also required for molting, when old pelage is shed. Molting is an annual process taking 1 to 2 weeks, during which time the monk seal usually remains on land (Kenyon and Rice, 1959). Pupping and nursing areas are usually sandy beaches adjacent to shallow E:\FR\FM\12JNP1.SGM 12JNP1 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules protected water (Westlake and Gilmartin, 1990). Individual females appear to favor certain pupping locations, returning to them year after year. Pregnant females come ashore a few days before giving birth to a pup weighing approximately 16 kg (35 lb). Pups nurse for 5 to 6 weeks (Johanos et al., 1994), and weigh 50 - 100 kg (110 - 220 lb) at weaning. During nursing, the mother-pup pair remain close to each other, and the mother is protective of her pup. Although the pup is able to swim at birth, nursing is done on land, and the mother-pup pair usually remain on land for the first few days after the pup is born. The mother gradually begins swimming with her pup in the shallows, returning to the general area around the pupping site. As weaning approaches, the mother-pup pair spend more time in the water, venturing further away from the pupping site. After weaning, pups typically remain in the shallows near their nursing areas for several weeks before venturing into deeper foraging areas (Kenyon and Rice, 1959; Henderson and Johanos, 1988). Monk seals are generalists that forage primarily over low-relief substrates such as sand and talus. Live fish are generally the preferred prey, and over 150 fish species have been recorded in the monk seal diet (Iverson et al., 2006). NWHI camera studies have shown that adult male monk seals forage mainly on sand terraces and talus slopes 50 - 100 m (160 - 325 ft) deep around their home atoll and nearby seamounts (Parrish and Littnan, 2008). Premium adult foraging habitat is comprised of large, loose talus fragments, which the seals move to reach the hiding prey underneath (Parrish et al., 2000). Studies in the NWHI (Parrish et al., 2002; Stewart et al., 2006) have shown that adult monk seals may forage at 300 - 500 m (1,000 - 1,600 ft), sometimes visiting patches of deep corals (Parrish et al., 2002). Recent surveys of deep fish assemblages across seamounts of the NWHI show a pattern of reduced fish biomass at sites close to colonies of monk seals (Parrish, 2009). Juvenile monk seals (1 - 3 years old) forage both within shallow atoll lagoons 10 - 30 m (30 - 100 ft) and on deep reef slopes (50 - 100 m/160 - 325 ft), usually over sand rather than talus. Juvenile seals likely do not yet have the size or experience to engage in the large talusforaging behavior exhibited by adults (Parrish et al., 2005). Although much less information is available for monk seals in the MHI, 11 juvenile and adult monk seals were tracked there in 2005 using satellitelinked radio transmitters showing location but not depth. This study indicated that seals usually remained in VerDate Nov<24>2008 16:52 Jun 11, 2009 Jkt 217001 27991 Johanos, 2004; Baker et al., 2006). Although the NWHI is one of the largest and best-protected natural areas in the world, and the MHI are populated by over a million people, the latter appears to currently provide superior monk seal foraging conditions. Despite its large human population, the MHI may currently provide better monk seal foraging conditions than the NWHI because: (1) There are only about one-tenth the number of seals in the MHI than in the NWHI, thus the availability of prey may be higher per seal in the MHI than the NWHI (Baker and Johanos, 2004); and (2) Large sharks, jacks and other demersal fish compete directly with monk seals, but are much less abundant in the MHI than the NWHI (Parrish et al., 2008). Competition is limited between humans and monk seals in the MHI because seals prefer small (usually < 20 cm/8 in) eels, wrasses, and other benthic species not commonly sought by fishermen, (Parrish et al., 2000). However, while foraging conditions are currently better in the MHI than the NWHI for monk seals, pollution and runoff pose health hazards to the species in the MHI not found in the NWHI (Littnan et al., 2007). As described above in Population Status and Trends, since 1990, the total number of Hawaiian monk seals has decreased, while simultaneously the number of monk seals in the MHI appear to have increased (NMFS, 2006, 2007b, 2008a). As described in the above paragraph, foraging conditions currently appear better in the MHI than in the NWHI (Parrish et el., 2000, 2008), likely resulting in better physical condition and higher survival of seals in the MHI than in the NWHI (Baker and Johanos; 2004; NMFS, 2007a). In addition, sea level rise may reduce or Northwestern Hawaiian Islands vs. Main eliminate monk seal haul-out habitat Hawaiian Islands more rapidly in the low-lying NWHI The Hawaiian monk seal consists of than the MHI (Baker et al., 2006). Given one population distributed throughout the overall downward trend of the the Hawaiian Archipelago. That is, there species (see Population Status and is no evidence that monk seals Trends above), generally poor physical occurring in any part of the archipelago condition and survival of seals in the are genetically distinct from those NWHI, and proportionally greater sea elsewhere in the archipelago (Schultz et level effects on the NWHI than the MHI, al., 2008). This suggests that the the MHI appears essential for the population is genetically well-mixed, survival and recovery of this species. with individual seals sometimes moving between the NWHI and the MHI, which Summary of Information Received In our 90–day finding (73 FR 5l7583; has been confirmed with resightings of October 3, 2008) in response to the flipper-tagged or otherwise identifiable petition (Center for Biological Diversity (e.g., scar patterns; Littnan et al., 2007). et al., 2008), we solicited information However, monk seals in the MHI are from the public pertaining to the typically in better physical condition Hawaiian monk seal’s essential habitat than those in the NWHI. For example, needs. The 90–day finding, and the weaned pups in the MHI are larger and information we received in response to fatter than those in the NWHI, which is it, can be viewed at thought to reflect better foraging www.regulations.gov by searching for conditions in the MHI (Baker and nearshore waters within the 200 m (650 ft) isobath. As in the NWHI, this study suggested that monk seals in the MHI forage mainly in deeper, low-relief (talus, sand) areas, commuting over shallower, high-relief (coral reefs, rock outcrops) without foraging (Littnan et al., 2007). However, as in the NWHI, shallow areas adjacent to pupping areas are important for pups to develop foraging behavior. Otherwise, coral reefs and other high-relief shallows are not usually primary monk seal foraging habitat. Generally, juvenile and adult monk seals bypass these shallow highrelief substrates in transit to their primary foraging areas over low-relief substrates in deeper water, sometimes making no attempt to hunt the same fish species in the shallows that they were actively hunting in the deep (Parrish and Littnan, 2008). In summary, the physical and biological habitat features that support resting, reproduction, and foraging are essential for the conservation of this species. For the Hawaiian monk seal, essential habitat includes terrestrial and marine areas. Terrestrial areas include both resting and reproductive habitat. Resting habitat consists of nearshore or emergent surfaces where monk seals can haul out, whereas reproductive habitat consists of a subset of resting habitat on sandy beaches that are also suitable for pupping and nursing. Marine areas include foraging habitat for pups, juveniles, and adults. Pup foraging habitat consists of shallow areas adjacent to pupping beaches where pups become accustomed to the marine environment and begin learning to forage on their own. Juveniles and adults forage widely, primarily in deeper areas. PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 E:\FR\FM\12JNP1.SGM 12JNP1 27992 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules docket number ‘‘NOAA-NMFS–2008– 0290’’. The great majority of the monk seal habitat-related information received was based on programs and studies conducted, funded, or supported by NMFS; therefore, we did not receive any new information on the monk seal’s essential habitat needs. The information received is summarized below. Comment 1: Over 100 comments argued that the MHI provide essential habitat for the Hawaiian monk seal because: (1) the MHI component of the monk seal population has increased in recent years while simultaneously the overall population has decreased; (2) monk seals in the MHI are in better physical condition than those in the NWHI; and (3) monk seal habitat loss is likely to be much more rapid in the NWHI than in the MHI in the near future due to sea level rise. Response: We concur that the MHI component of the monk seal population appears to have increased in recent years while simultaneously the overall population has decreased (see ‘‘Population Size and Trends’’ above), that monk seals in the MHI are in better physical condition than those in the NWHI, and that monk seal haul-out habitat loss is likely to be more rapid in the NWHI than in the MHI in the future due to sea level rise (see ‘‘Northwestern Hawaiian Islands vs. Main Hawaiian Islands’’ above). For these three reasons, and also because of the current precarious state of the Hawaiian monk seal, we agree that monk seal habitat within the MHI is essential for the survival and recovery of the species. Comment 2: Several comments argued that the MHI do not provide essential habitat for the Hawaiian monk seal, because: (1) monk seals are not indigenous to the MHI; and (2) various human threats to monk seals in the MHI outweigh benefits to the species of MHI habitat. Response: Little evidence has been found that monk seals occurred in the MHI before the arrival of humans approximately 2,000 years ago, or during pre-European times before the late 1700s. However, before the arrival of humans, monk seal remains would typically have occurred on or near coastlines where wave action and erosion likely would have prevented preservation of remains. After the arrival of humans, monk seals may have been consumed by humans, in which case monk seal bones would likely occur in middens. However, if the seals were quickly extirpated after the arrival of humans, this would reduce the likelihood of finding bone fragment evidence in middens. An archeological dig of a midden on the Big Island VerDate Nov<24>2008 16:52 Jun 11, 2009 Jkt 217001 identified monk seal bones, and estimated that the bones were deposited during the years 1400 to 1700 (Rosendahl, 1994). Furthermore, monk seals commonly travel long distances between atolls or islands, and even between the NWHI and MHI (Littnan et al., 2007). Thus, before the arrival of humans, it is highly unlikely that monk seals occurred only in the NWHI, while the MHI were vacant of both monk seals and humans. Finally, large, easilyhunted animals such as seals are typically extirpated or driven to extinction when humans arrive in an area for the first time (Grayson, 2001). Arrival of humans in Hawaii likely resulted in a rapid reduction in monk seal numbers in the MHI, such that the species was mostly restricted to the NWHI until recently (Baker and Johanos, 2004). For these reasons, we believe that the Hawaiian monk seal commonly occurred in the MHI before the arrival of humans, and that this species is indigenous to at least the entire Hawaiian Archipelago. We agree that the Hawaiian monk seal faces a multitude of human threats in the MHI. The recovery plan identifies the most serious human threats to monk seals in the MHI as infectious diseases, fisheries interactions, habitat loss, and human interactions (NMFS, 2007a). In the MHI, monk seals forage near shore, and they haul out on beaches near sources of pathogens associated with human population centers, sewage spills, and stream mouths. Of 12 dead monk seals that were thoroughly necropsied in the MHI between 1996 and 2006, four appeared to have died of infectious disease (Littnan et al., 2007). In the MHI from 1989 to 2007, 44 monk seals were confirmed to be hooked by fishing gear (one of which died, possibly from the hooking), another five entangled in lay gillnets (three of which drowned in the gillnets), and one seal hooked and entangled (but survived). Many hooks are removed from monk seals by the monk seal response program, most often resulting in healing of the wound and recovery of the monk seal. However, entanglement in lay gillnets often results in the drowning of the monk seal (NMFS, 2008b). Monk seal haul-out beaches in the MHI are being degraded or lost by development adjacent to the beaches, and increasing human activity on the beaches. The high and ever-increasing human use of MHI beaches and coastlines results in humans frequently interacting with monk seals, both unintentionally and intentionally (NMFS, 2007a). However, despite the numerous anthropogenic threats to monk seals in the MHI, the PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 MHI component of the monk seal population appears to have increased in recent years, and monk seals in the MHI are generally in good physical condition. In contrast, the NWHI component of the monk seal population continues to decrease, and monk seals in the NWHI are often in poor physical condition (see ‘‘Population Size and Trends’’ and ‘‘Northwestern Hawaiian Islands vs. Main Hawaiian Islands’’ above). Thus, although monk seals are more often exposed to infectious diseases in the MHI than in the NWHI, the MHI appear to currently provide a favorable environment for monk seals. In addition, the loss of monk seal haulout habitat is likely to occur more rapidly in the NWHI than the MHI due to sea level rise (see ‘‘Northwestern Hawaiian Islands vs. Main Hawaiian Islands’’ above). For these reasons, we believe that the benefits of MHI habitat to the monk seal outweigh the various human threats to monk seals in the MHI. Comment 3: Over 100 comments argued that areas out to a depth of 500 m (1,625 ft) in the NWHI provide essential foraging habitat for the Hawaiian monk seal. Response: As discussed above in ‘‘Habitat,’’ studies in the NWHI have documented adult monk seal foraging to a maximum depth of approximately 500 m (1,600 ft; Parrish et al., 2002; Stewart et al., 2006). The relative importance of these deep foraging areas, compared to more frequently-used shallower areas, is currently unknown. Comment 4: Several comments did not provide any information about habitat use by the Hawaiian monk seal, but rather expressed opinions about the effects of revising monk seal critical habitat on various human activities, such as beach use, fishing, economics, national security, and natural resource management. Response: The economic, national security, and other effects of revising monk seal critical habitat will be addressed in the forthcoming proposed rule. 12–Month Determination on Revision of Critical Habitat Since critical habitat for the Hawaiian monk seal was designated in 1986 (51 FR 16047; April 30, 1986) and revised in 1988 (53 FR 18988; May 26, 1988), a great deal of new information has become available regarding habitat use by this species, such as the literature cited in the petition (Center for Biological Diversity et al., 2008) and in the Recovery Plan (NMFS, 2007a). For example, studies of monk seal foraging made possible by new technology (e.g., E:\FR\FM\12JNP1.SGM 12JNP1 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules Parrish et al. 2000, 2002, 2005, 2008; Littnan et al., 2007) have resulted in substantial progress since 1988 in understanding how this species uses foraging habitat (Parrish and Littnan, 2008). Also, since critical habitat was designated in 1988, monk seals appear to have begun recolonizing the MHI (Baker and Johanos, 2004; Baker et al., 2006; NMFS, 2007a). Other information has also become available about other aspects of monk seal life history and habitat use (summarized in NMFS, 2007a). Because of this new information regarding habitat use by the Hawaiian monk seal that has become available since critical habitat for the species was revised in 1988 (53 FR 18988; May 26, 1988), we will proceed with a revision of critical habitat for the species. How Does NMFS Intend To Proceed? We intend to undertake rulemaking to revise critical habitat for the Hawaiian monk seal. Critical habitat is defined by section 3 of the ESA as ‘‘(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.’’ Further, our critical habitat regulations (50 CFR 424.12(c)) state that critical habitat will be defined by specific limits using reference points and lines on standard topographic maps of the area. Finally, section 4(b)(2) of the ESA requires that we consider economic, national security, and other impacts of designating critical habitat before designating critical habitat. Based on the above definition and guidance, the following steps will be followed to propose the revision of designated critical habitat for the Hawaiian monk seal: (1) Determine the geographical area occupied by the species at the time of listing; (2) Identify the physical or biological features essential to the conservation of the species; (3) Delineate areas within the geographical area occupied by the species that contain these features, and that may require special management considerations or protections; (4) Delineate any areas outside of the geographical area occupied by the species that are essential for the VerDate Nov<24>2008 16:52 Jun 11, 2009 Jkt 217001 conservation of the species; and (5) Conduct economic, national security, and other analyses to determine if any areas identified in steps 3 and 4 could be excluded from critical habitat consideration under section 4(b)(2) of the ESA. Steps 1 and 2 above are included in this 12–month finding, as described below. Steps 3 - 5 will be completed in the forthcoming proposed rule. Step 1: Determine Geographical Area Occupied by the Species at the Time of Listing: The final rule listing the Hawaiian monk seal as endangered, published on November 23, 1976 (41 FR 51611), stated that the ‘‘Hawaiian monk seal is found throughout the Hawaiian Archipelago,’’ with no mention of areas outside the archipelago. For reasons described above in ‘‘Range,’’ in 2001, we determined that Johnston Atoll is within the range of the Hawaiian monk seal (NMFS, 2001). Therefore, the geographical area occupied by the Hawaiian monk seal at the time of listing (1976) is considered to be the Hawaiian Archipelago and Johnston Atoll. Step 2: Identify Physical or Biological Features Essential to Conservation: In this step, the physical and biological features essential to conservation are identified (hereafter referred to as ‘‘essential features’’). Section 3 of the ESA (16 U.S.C. 1532(3)) defines the terms ‘‘conserve,’’ ‘‘conserving,’’ and ‘‘conservation’’ to mean: ‘‘to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.’’ Our critical habitat regulations (50 CFR 424.12(b)) state that essential features ‘‘include, but are not limited to the following: (1) Space for individual and population growth, and for normal behavior; (2) Food, water, air, light, minerals or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally; (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.’’ The regulations also instruct us to ‘‘focus on the principal biological or physical constituent elements within the defined area that are essential to the conservation of the species. Known primary constituent elements shall be listed with the critical habitat description’’ (50 CFR 424.12(b)). Thus, the essential features will be defined here in terms of primary constituent PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 27993 elements (PCEs). The PCEs can include sites used by the listed species for resting, reproduction, and feeding (examples given in the regulations include ‘‘nesting grounds, spawning sites, feeding sites’’), and physical features of the species’ habitat (examples given in the regulations include ‘‘geological formation, vegetation type, tide, and specific soil types’’; 50 CFR 424.12(b)). As described above in ‘‘Habitat,’’ the physical and biological habitat features that support resting, molting, reproduction, and foraging are essential for the conservation of this species. For the Hawaiian monk seal, essential habitat includes terrestrial and marine areas. Terrestrial areas include resting, molting, and reproductive habitat. Resting and molting habitat consists of nearshore or emergent surfaces where monk seals can haul out, whereas reproductive habitat consists of a subset of resting and molting habitat (i.e., sandy beaches suitable for pupping and nursing). Marine areas include foraging habitat for pups, juveniles, and adults. Pup foraging habitat consists of shallow areas adjacent to pupping beaches where pups become accustomed to the marine environment and begin learning to forage on their own. Juveniles and adults forage widely, primarily in deeper areas. Thus, at this time, we believe that the following PCEs constitute the physical and biological features essential to conservation of the Hawaiian monk seal: (1) sandy beaches preferred by monk seals for pupping and nursing; (2) marine areas less than 20 m depth adjacent to pupping and nursing beaches where young pups learn to forage; (3) marine areas approximately 20 - 200 m depth in the MHI, and approximately 20–500 m depth in the NWHI, preferred by juvenile and adult monk seals for foraging; (4) low levels of unnatural disturbance; and (5) high prey quantity and quality. Steps 3 - 5: Steps 3 - 5 of the critical habitat proposed revision process will be completed in the forthcoming proposed rule. In the proposed rule, the PCEs could differ slightly from the PCEs identified above, but these identified PCEs will give the public an idea of what we are considering. When we publish our proposed rule, we will solicit public comments on it and incorporate comments as appropriate. References Cited Amerson, A.B., Jr., and P.C. Shelton. 1976. The natural history of Johnston Atoll, Central Pacific Ocean: Hawaiian Monk Seal. Atoll Research Bulletin 192: 384. E:\FR\FM\12JNP1.SGM 12JNP1 27994 Federal Register / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules Antonelis, G.A., J.D. Baker, T.C. Johanos, R.C. Braun, and A.L. Harting. 2006. Hawaiian monk seal ((Monachus schauinslandi): Status and conservation issues. Atoll Research Bulletin 543:75– 101. Bailey, A.M. 1952. The Hawaiian monk seal. Denver Museum of Natural History, Museum Pictorial 7:1–32. Baker, J.D., and T.C. Johanos. 2004. Abundance of the Hawaiian monk seal in the main Hawaiian Islands. Biological Conservation 116: 103–110. Baker, J.D., C.L. Littnan, and D.W. Johnston. 2006. Potential effects of sea level rise on the terrestrial habitats of endangered and endemic megafauna in the Northwestern Hawaiian Islands. Endangered Species Research 2:21–30. Center for Biological Diversity, Kahea, and Ocean Conservancy. 2008. Petition to revise critical habitat for the Hawaiian monk seal (Monachus schauinslandi) under the Endangered Species Act. 41 pp. Available at: http:// www.fpir.noaa.gov/Library/PRD/ Critical%20Habitat/Petition-Monk-SealCH–07–02–08.pdf Goodman-Lowe, G.D. 1998. Diet of the Hawaiian monk seal (Monachus schauinslandi) from the Northwestern Hawaiian Islands during 1991–1994. Marine Biology 132:535–546. Grayson, D.K. 2001. The archaeological record of human impacts on animal populations. Journal of World Prehistory 15:1–68. Henderson, J.R. and Johanos T.C. 1988. Effects of tagging on weaned Hawaiian monk seal pups. Wildlife Society Bulletin 16:312–317. Hiruki, L.M., W.G. Gilmartin, B.L. Becker, and I. Stirling. 1993. Wounding in Hawaiian monk seals (Monachus schauinslandi). Canadian Journal of Zoology 71:458–468. Iverson, S., J. Piche, and W. Blanchard. 2006. Hawaiian monk seals and their prey in the Northwestern Hawaiian Islands: Assessing characteristics of prey species fatty acid signatures and consequences for estimating monk seal diets using quantitative fatty acid signature analysis (QFASA). Unpublished report. Pacific Islands Fisheries Science Center, Honolulu, HI. 134 p. Johanos, T.C., B.L. Becker, and T.J. Ragen. 1994. Annual reproductive cycle of the female Hawaiian monk seal (Monachus schauinslandi). Marine Mammal Science 10:13–30. VerDate Nov<24>2008 16:52 Jun 11, 2009 Jkt 217001 Kenyon, K.W. and D.W. Rice. 1959. Life history of the Hawaiian monk seal. Pacific Science 13:215–252. Littnan, C.L., B.S. Stewart, P.K. Yochem, and R. Braun. 2007. Survey of selected pathogens and evaluation of disease risk factors for endangered Hawaiian monk seals in the main Hawaiian Islands. EcoHealth 3:232–244. National Marine Fisheries Service (NMFS). 1983. Recovery Plan for the Hawaiian Monk Seal (Monachus schauinslandi). NMFS, Silver Spring, MD. National Marine Fisheries Service (NMFS). 2001. May 31, 2001, letter from Rebecca Lent, Regional Administrator, Southwest Region, and attachment ‘‘Johnston Atoll and Range of the Hawaiian Monk Seal’’, 8 p. National Marine Fisheries Service (NMFS). 2006. 2006 Stock Assessment Report for the Hawaiian Monk Seal (Monachus schauinslandi). Revised 12/ 15/2006. NMFS, Silver Spring, MD. Available at: http://www.nmfs.noaa.gov/ pr/pdfs/sars/po2006sehm-hi.pdf National Marine Fisheries Service (NMFS). 2007a. Recovery Plan for the Hawaiian Monk Seal (Monachus schauinslandi). Revision. NMFS, Silver Spring, MD. 165 pp. Available at: http:// www.nmfs.noaa.gov/pr/pdfs/recovery/ hawaiianmonkseal.pdf National Marine Fisheries Service (NMFS). 2007b. 2007 Stock Assessment Report for the Hawaiian Monk Seal (Monachus schauinslandi). Revised 10/ 30/2007. NMFS, Silver Spring, MD. Available at: http://www.nmfs.noaa.gov/ pr/pdfs/sars/po2007sehm-hi.pdf National Marine Fisheries Service (NMFS). 2008a. 2008 Stock Assessment Report for the Hawaiian Monk Seal (Monachus schauinslandi). Revised 12/ 15/2008. NMFS, Silver Spring, MD. National Marine Fisheries Service (NMFS). 2008b. March 18, 2008, biological opinion on effects of Implementation of Bottomfish Fishing Regulations within Federal Waters of the Main Hawaiian Islands on ESAlisted marine species. Pacific Islands Regional Office, 35 p. Parrish, F.A., M.P. Craig, T.J. Ragen, G.J. Marshall, and B.M. Buhleier. 2000. Identifying diurnal foraging habitat of endangered Hawaiian monk seals using a seal-mounted video camera. Marine Mammal Science 16:392–412. Parrish, F.A., K. Abernathy, G.J. Marshall, and B.M. Buhleier. 2002. Hawaiian monk seals (Monachus PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 schauinslandi) foraging in deepwater coral beds. Marine Mammal Science 18:244 258. Parrish, F.A., G.J. Marshall, C.L. Littnan, M. Heithaus, S. Canja, B.L. Becker, R.C. Braun, and G.A. Antonelis. 2005. Foraging of juvenile monk seals at French Frigate Shoals, Hawaii. Marine Mammal Science. 21:93–107. Parrish, F.A., G.J. Marshall, B. Buhleier, and G.A. Antonelis. 2008. Foraging interaction between monk seals and large predatory fish in the Northwestern Hawaiian Islands. Endangered Species Research 4:299– 3078. Parrish, F.A. and C.L. Littnan. 2008. Changing perspectives in Hawaiian monk seal research using animal-borne imaging. Marine Technology Society Journal 41:30–34. Parrish, F.A. 2009. Do monk seals exert top-down pressure in subphotic ecosystems? Marine Mammal Science 25:91–106. Rosendahl, P.H. 1994. Aboriginal Hawaiian structural remains and settlement patterns in the upland archeological zone at Lapakahi, Island of Hawaii. Journal of Hawaiian Archeology (3): 14 - 70. Schreiber, R.W. and E. Kridler. 1969. Occurrence of an Hawaiian monk seal (Monachus schauinslandi) at Johnston Atoll, Pacific Ocean. Journal of Mammalogy 50:841–842. Schultz, J.K., J.D. Baker, R.J. Toonen, and B.W. Bowen. 2008. Extremely low genetic diversity in the endangered Hawaiian monk seal (Monachus schauinslandi). Journal of Heredity doi:10.1093/jhered/esn077. Stewart, B.S., G.A. Antonelis, J.D. Baker, and P.K.Yochem. 2006. Foraging biogeography of Hawaiian monk seals in the Northwestern Hawaiian Islands. Atoll Research Bulletin 543:131–146. Westlake, R.L. and W.G. Gilmartin. 1990. Hawaiian monk seal pupping locations in the Northwestern Hawaiian Islands. Pacific Science 44:366–383. All references are available upon request (see FOR FURTHER INFORMATION CONTACT). Authority: 16 U.S.C. 1531 et seq. Dated: June 8, 2009. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E9–13880 Filed 6–11–09; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\12JNP1.SGM 12JNP1

Agencies

[Federal Register Volume 74, Number 112 (Friday, June 12, 2009)]
[Proposed Rules]
[Pages 27988-27994]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13880]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 0809161218-9950-02]
RIN 0648-AX23


Endangered and Threatened Species: 12-Month Finding for a 
Petition to Revise Critical Habitat for Hawaiian Monk Seal

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

ACTION: Notice of 12-month finding.

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SUMMARY:  On July 9, 2008, we (NMFS) received a petition dated July 2, 
2008, requesting that we revise the present critical habitat 
designation for the Hawaiian monk seal (Monachus schauinslandi) under 
the Endangered Species Act (ESA) by expanding the current critical 
habitat in the Northwestern Hawaiian Islands, and by designating 
additional critical habitat in the main Hawaiian Islands. We have 
reviewed, and here provide a summary of the best available information 
regarding Hawaiian monk seal biology and habitat use. Based on our 
review, we intend to revise the monk seal's critical habitat, and we 
are providing our initial thoughts on the habitat features that are 
essential to the conservation of this species and describing how we 
intend to proceed with the requested critical habitat revision.

ADDRESSES: Requests for copies of this determination should be 
addressed to the Assistant Regional Administrator, Protected Resources 
Division, NMFS, 1601 Kapiolani Blvd, Honolulu, HI 96814.

[[Page 27989]]


FOR FURTHER INFORMATION CONTACT:  Lance Smith at (808) 944-2258, e-mail 
lance.smith@noaa.gov; Krista Graham at (808) 944-2238, e-mail 
krista.graham@noaa.gov; or Marta Nammack, (301) 713-1401.

SUPPLEMENTARY INFORMATION: Background documents on the biology of the 
Hawaiian monk seal, the July 2, 2008, petition requesting revision of 
its critical habitat, and documents explaining the critical habitat 
designation process, can be downloaded from http://www.fpir.noaa.gov/PRD/prd_index.html, or requested by phone or e-mail from the NMFS 
staff in Honolulu (area code 808) listed under ``FOR FURTHER 
INFORMATION CONTACT''. The October 3, 2008, 90-day finding in response 
to the petition and the information received in response to the 90-day 
finding can be viewed at www.regulations.gov by searching for docket 
number ``NOAA-NMFS-2008-0290''.

Background

    On July 9, 2008, we received a petition dated July 2, 2008, from 
the Center for Biological Diversity, Kahea, and the Ocean Conservancy 
(Petitioners) to revise the Hawaiian monk seal critical habitat 
designation (Center for Biological Diversity et al., 2008) under the 
ESA. Currently designated critical habitat is described below in 
``Listing Status and Existing Critical Habitat Under the ESA.'' The 
Petitioners seek to revise critical habitat by adding the following 
areas in the main Hawaiian Islands (MHI): key beach areas, sand spits 
and islets, including all beach crest vegetation to its deepest extent 
inland, lagoon waters, inner reef waters, and ocean waters out to a 
depth of 200 meters. In addition, The Petitioners request that 
currently designated critical habitat in the Northwestern Hawaiian 
Islands (NWHI) be extended to include Sand Island at Midway, as well as 
ocean waters out to a depth of 500 meters (Center for Biological 
Diversity et al., 2008).
    On October 3, 2008, we published a 90-day finding in response to 
the petition, finding that the petition presented substantial 
scientific information indicating that a revision to the current 
critical habitat designation may be warranted (73 FR 57583; October 3, 
2008). The 90-day finding requested that the public submit information 
by December 2, 2008, to help us determine whether a revision of 
critical habitat is warranted for the Hawaiian monk seal. The purpose 
of this 12-month finding is to announce that we intend to proceed with 
a revision of critical habitat for the monk seal and to provide details 
on the revision process.
    In the following sections, we provide information on the Hawaiian 
monk seal's listing status and existing critical habitat under the ESA, 
population status and trend, Hawaiian monk seal biology, summary of the 
information received from the public in response to our 90-day finding 
(73 FR 57583; October 3, 2008), our determination that we will proceed 
with a revision of critical habitat, and the criteria we intend to use 
for the revision.

Listing Status and Existing Critical Habitat Under the ESA

    The Hawaiian monk seal (Monachus schauinslandi) was listed as 
endangered under the ESA in 1976 (41 FR 33922; November 23, 1976). This 
species occurs throughout the Hawaiian Archipelago and on Johnston 
Atoll, and has been sighted at other atolls and islands to the south of 
Hawaii. In 1986, critical habitat was designated for all beach areas, 
sand spits and islets, including all beach crest vegetation to its 
deepest extent inland, lagoon waters, inner reef waters, and ocean 
waters out to a depth of 10 fathoms (18.3 m) around Kure Atoll, Midway 
Islands (except Sand Island), Pearl & Hermes Reef, Lisianski Island, 
Laysan Island, Gardner Pinnacles, French Frigate Shoals, Necker Island, 
and Nihoa Island in the NWHI (51 FR 16047; April 30, 1986). In 1988, 
critical habitat was extended to include Maro Reef and waters around 
previously recommended areas out to the 20 fathom (36.6 m) isobath (53 
FR 18988; May 26, 1988). A recovery plan was completed in 1983 (NMFS, 
1983) and revised in 2007 (NMFS, 2007a). The species is endemic (found 
nowhere else) to the Hawaiian Archipelago, and is one of the most 
endangered marine mammals in the United States (NMFS, 2007a).

Hawaiian Monk Seal Biology

    The Hawaiian monk seal is a mammal in the Order Carnivora, Family 
Phocidae, Genus Monachus. Only two other species occur in this genus, 
the recently extinct Caribbean monk seal (M. tropicalis) and the 
critically endangered Mediterranean monk seal (M. monachus). Following 
is an overview of the Hawaiian monk seal's biology, including Range, 
Population Status and Trends, Natural History, Habitat, and 
Northwestern Hawaiian Islands vs. Main Hawaiian Islands (a description 
of differences in monk seal habitat between these two areas).

Range

    Hawaiian monk seals are found throughout the Hawaiian Archipelago 
and on Johnston Atoll. The six main reproductive sites for the species 
are in the NWHI: Kure Atoll, Midway Islands, Pearl and Hermes Reef, 
Lisianski Island, Laysan Island, and French Frigate Shoals. Smaller 
reproductive sites also occur on Necker Island and Nihoa Island, and 
monk seals have been observed at Gardner Pinnacles and Maro Reef. Monk 
seals are found throughout the MHI, where births have been documented 
on most of the major islands (NMFS, 2001, 2007a). In 1994, we relocated 
21 adult male monk seals from the NWHI to the MHI in order to reduce 
male aggression and female deaths at Laysan Island, where males greatly 
outnumbered females at the time. We have relocated three female monk 
seals (a juvenile in 1981, a pup in 1991, and an adult in 2009) from 
the MHI to the NWHI. Thus, we have relocated 21 males from the NWHI to 
the MHI, and three females from the MHI to the NWHI.
    At Johnston Atoll, a tagged yearling male monk seal from Laysan 
Island was first seen in July 1968 (Schreiber and Kilder, 1969) and 
remained until at least August 1972. In January 1969, an untagged adult 
female monk seal arrived on Sand Island, a secondary island within 
Johnston Atoll, and gave birth to a female pup. The mother-pup pair 
remained on or near the pupping beach until March 1969, when the pup 
was weaned and the mother disappeared. The pup remained until 1971 when 
it died from a deep flesh wound, probably from a shark attack (Amerson 
and Shelton, 1976). In July 1999, a tagged adult female from French 
Frigate Shoals arrived at Johnston Atoll and remained there for about a 
year (NMFS, 2001).
    In addition to the above reported natural occurrences of monk seals 
at Johnston Atoll, a 12 male monk seals have been relocated there from 
the Hawaiian Archipelago. In 1984, nine adult males were relocated from 
the NWHI to Johnston Atoll, because of attacks on adult females and 
immature seals. At least three of these males were still at Johnston 
Atoll the following year, and at least one male was still there in 
1986. In 1989, two adult males were relocated from the NWHI to Johnston 
Atoll because they were drowning pups. In 2003, an adult male was 
relocated from the MHI to Johnston Atoll because it was habituated to 
humans and exhibiting dangerous behavior. No sighting history is 
available for the latter three monk seals (NMFS unpublished data).

[[Page 27990]]

    Unconfirmed but probable sightings of Hawaiian monk seals outside 
the Hawaiian Archipelago and Johnston Atoll have been reported from 
Palmyra Atoll (1,800 km south of NWHI) and Wake Island (2,000 km 
southwest of NWHI); two seals were sighted on Palmyra Atoll in 1990, a 
seal was sighted on Wake Island in early summer 1966, and a tagged seal 
was sighted on Wake Island in February 1987 (Westlake and Gilmartin, 
1990, NMFS unpublished data). Other more poorly-documented sightings 
have also been reported from Bikini Atoll and Mejit Island in the 
Marshall Islands (2,400 km southwest of NWHI, NMFS unpublished data).

Population Status and Trends

    The best estimate of Hawaiian monk seal total population size is 
1,208 seals in 2006 (1,125 in the NWHI, 83 in the MHI; NMFS, 2008a). 
Additional population information can be found in the annual Stock 
Assessment Reports (e.g., NMFS, 2006, 2007b, 2008a). The first 
rangewide beach count surveys of Hawaiian monk seals were conducted in 
the late 1950s. Beach counts of juveniles and adults (i.e., all seals 
except pups) declined by 66 percent between the years 1958 and 2006 
(Figure I.C.6 in NMFS, 2007a). More recently, beach counts declined 
rapidly from 1985 to 1993, and then became relatively stable until the 
current decline began in 2001. Total abundance at the six primary NWHI 
sites (French Frigate Shoals, Laysan, Lisianski, Pearl and Hermes, 
Midway, and Kure) is declining at a rate of about four percent per year 
(NMFS 2007a, 2007b, 2008a).
    Since 2000, many sites have shown indications of decline in 
abundance, apparently due to low juvenile survival. The decline at 
French Frigate Shoals is of particular consequence to the welfare of 
the overall population because this site once accounted for over 50 
percent of the total non-pup beach counts in the NWHI. While that 
proportion has now dropped to approximately 25 percent of its observed 
peak, there are still more seals at French Frigate Shoals than any 
other island or atoll. More detail on Hawaiian monk seal population 
status and trends in the NWHI is provided in the recovery plan (NMFS, 
2007a). As noted above, in 1994, we relocated 21 adult male monk seals 
from the NWHI to the MHI in order to reduce male aggression and female 
deaths at Laysan Island, where males greatly outnumbered females at the 
time. All female monk seals in the MHI occur there naturally. In 2008, 
only five of the 21 relocated male monk seals remained in the MHI.
    Although monk seals historically occurred throughout the Hawaiian 
Archipelago, the majority of the population now occurs in the NWHI. 
Human settlement appears to have largely excluded monk seals from the 
MHI, although seal bones have been found at archeological sites dating 
from 1400 - 1700 (Rosendahl, 1994). In 1900, Hilo residents reported 
that solitary monk seals were seen in the area about once every 10 
years (Bailey, 1952). From 1928 to 1956, seven monk seal sightings were 
documented in the MHI (Kenyon and Rice, 1959), and Niihau residents 
reported that seals appeared there in the 1970s. By 1994 there was a 
small naturally-occurring population of male and female monk seals in 
the MHI. This population appeared to be growing, and at least six pups 
had been born (one in 1962, and five between 1988 and 1993). Since the 
mid-1990s, an increasing number of documented sightings and annual 
births of monk seal pups have occurred in the MHI. Combined aerial and 
ground surveys in the MHI counted 45 hauled-out monk seals in 2000, and 
52 in 2001 (Baker and Johanos, 2004). Sightings in the MHI tallied 77 
individually identifiable monk seals in 2005 (NMFS, 2007b), and 83 in 
2006 (NMFS, 2008a). Together, these observations suggest that monk 
seals are recolonizing the MHI.

Natural History

    Hawaiian monk seals are wide-ranging, air-breathing predators that 
forage underwater, preying primarily on small benthic fishes, 
cephalopods (e.g., octopus), and crustaceans (Goodman-Lowe, 1998). They 
spend the majority of their time in the ocean, where they are highly 
mobile and may have very large home ranges (Antonelis et al., 2006). 
Monk seals are typical large predators, in that they can rapidly cover 
large areas in search of food. Individuals may travel hundreds of miles 
in a few days (Littnan et al., 2007) and dive to 500 m (1,600 ft; 
Parrish et al., 2002). Monk seals haul out on land to rest, molt, pup 
(give birth), and nurse. Resting may also occur at sea or in shallow, 
submerged caves. Monk seals are often solitary, both on land and in the 
water, but may congregate in favorable haul-out areas (Antonelis et 
al., 2006). Adult monk seals reach a length of 2.3 m (7.5 ft) and weigh 
up to 273 kg (600 lb). Unlike most other pinnipeds, monk seals 
completely molt, whereby the entire layer of pelage (skin and hair) is 
shed annually. The old pelage strips away, leaving a dark grey coat 
underneath. Pups are black until first molt, and mostly grey 
thereafter, although coloration varies by individual and with age. When 
monk seals stay at sea for an extensive period, they may develop a red 
or green tinge from algal growth on their pelage (Kenyon and Rice, 
1959).
    It is thought that Hawaiian monk seals have a lifespan of up to 30 
years. Females reach breeding age at about 6 to 11 years of age, 
depending on their condition, and give birth no more than once 
annually. Mating occurs at sea, and gestation is thought to be 
approximately 11 months. Monk seal births are most common between 
February and August, peaking in March and April at Laysan Island. 
Females give birth to a single pup and nurse it for about 6 weeks, 
followed by an abrupt weaning, when the mother abandons the pup 
(Johanos et al., 1994). At least several months are required for the 
pup to learn to forage successfully on its own, during which time it 
survives on fat stores built up during nursing, resulting in 
considerable weight loss. Juveniles (up to 3 years old) are typically 
longer but thinner than recently-weaned pups, and juveniles in the NWHI 
typically do not regain their weaning weight until approximately 2 
years of age (Johanos et al., 1994). Male aggression, in which a single 
male or multiple males repeatedly attempt to mount and mate with a 
female or immature seal, is most common where males outnumber females, 
and sometimes results in death or severe injury to the targeted seal. 
Individual adult males sometimes attack pups in the same manner, also 
sometimes killing the pup (Hiruki et al., 1993).

Habitat

    While Hawaiian monk seals spend most of their time in the water, 
they frequently haul out on land to rest, molt, pup (give birth), and 
nurse. Monk seals may remain at sea for several days or more at a time, 
but resting on land is necessary to conserve energy. Resting is 
commonly on sandy beaches, but may also occur on rocky shores, rock 
ledges, emergent reefs, and even shipwrecks (Antonelis et al., 2006). 
Monk seals may take shelter from wind and rain under shoreline 
vegetation. Resting on land is typically done for a few hours to 
several days at a time, after which the monk seal returns to the water 
to continue foraging. When ocean conditions are rough, monk seals may 
spend a greater proportion of time resting on land. Hauling-out on land 
is also required for molting, when old pelage is shed. Molting is an 
annual process taking 1 to 2 weeks, during which time the monk seal 
usually remains on land (Kenyon and Rice, 1959).
    Pupping and nursing areas are usually sandy beaches adjacent to 
shallow

[[Page 27991]]

protected water (Westlake and Gilmartin, 1990). Individual females 
appear to favor certain pupping locations, returning to them year after 
year. Pregnant females come ashore a few days before giving birth to a 
pup weighing approximately 16 kg (35 lb). Pups nurse for 5 to 6 weeks 
(Johanos et al., 1994), and weigh 50 - 100 kg (110 - 220 lb) at 
weaning. During nursing, the mother-pup pair remain close to each 
other, and the mother is protective of her pup. Although the pup is 
able to swim at birth, nursing is done on land, and the mother-pup pair 
usually remain on land for the first few days after the pup is born. 
The mother gradually begins swimming with her pup in the shallows, 
returning to the general area around the pupping site. As weaning 
approaches, the mother-pup pair spend more time in the water, venturing 
further away from the pupping site. After weaning, pups typically 
remain in the shallows near their nursing areas for several weeks 
before venturing into deeper foraging areas (Kenyon and Rice, 1959; 
Henderson and Johanos, 1988).
    Monk seals are generalists that forage primarily over low-relief 
substrates such as sand and talus. Live fish are generally the 
preferred prey, and over 150 fish species have been recorded in the 
monk seal diet (Iverson et al., 2006). NWHI camera studies have shown 
that adult male monk seals forage mainly on sand terraces and talus 
slopes 50 - 100 m (160 - 325 ft) deep around their home atoll and 
nearby seamounts (Parrish and Littnan, 2008). Premium adult foraging 
habitat is comprised of large, loose talus fragments, which the seals 
move to reach the hiding prey underneath (Parrish et al., 2000). 
Studies in the NWHI (Parrish et al., 2002; Stewart et al., 2006) have 
shown that adult monk seals may forage at 300 - 500 m (1,000 - 1,600 
ft), sometimes visiting patches of deep corals (Parrish et al., 2002). 
Recent surveys of deep fish assemblages across seamounts of the NWHI 
show a pattern of reduced fish biomass at sites close to colonies of 
monk seals (Parrish, 2009). Juvenile monk seals (1 - 3 years old) 
forage both within shallow atoll lagoons 10 - 30 m (30 - 100 ft) and on 
deep reef slopes (50 - 100 m/160 - 325 ft), usually over sand rather 
than talus. Juvenile seals likely do not yet have the size or 
experience to engage in the large talus-foraging behavior exhibited by 
adults (Parrish et al., 2005).
    Although much less information is available for monk seals in the 
MHI, 11 juvenile and adult monk seals were tracked there in 2005 using 
satellite-linked radio transmitters showing location but not depth. 
This study indicated that seals usually remained in nearshore waters 
within the 200 m (650 ft) isobath. As in the NWHI, this study suggested 
that monk seals in the MHI forage mainly in deeper, low-relief (talus, 
sand) areas, commuting over shallower, high-relief (coral reefs, rock 
outcrops) without foraging (Littnan et al., 2007). However, as in the 
NWHI, shallow areas adjacent to pupping areas are important for pups to 
develop foraging behavior. Otherwise, coral reefs and other high-relief 
shallows are not usually primary monk seal foraging habitat. Generally, 
juvenile and adult monk seals bypass these shallow high-relief 
substrates in transit to their primary foraging areas over low-relief 
substrates in deeper water, sometimes making no attempt to hunt the 
same fish species in the shallows that they were actively hunting in 
the deep (Parrish and Littnan, 2008).
    In summary, the physical and biological habitat features that 
support resting, reproduction, and foraging are essential for the 
conservation of this species. For the Hawaiian monk seal, essential 
habitat includes terrestrial and marine areas. Terrestrial areas 
include both resting and reproductive habitat. Resting habitat consists 
of nearshore or emergent surfaces where monk seals can haul out, 
whereas reproductive habitat consists of a subset of resting habitat on 
sandy beaches that are also suitable for pupping and nursing. Marine 
areas include foraging habitat for pups, juveniles, and adults. Pup 
foraging habitat consists of shallow areas adjacent to pupping beaches 
where pups become accustomed to the marine environment and begin 
learning to forage on their own. Juveniles and adults forage widely, 
primarily in deeper areas.

Northwestern Hawaiian Islands vs. Main Hawaiian Islands

    The Hawaiian monk seal consists of one population distributed 
throughout the Hawaiian Archipelago. That is, there is no evidence that 
monk seals occurring in any part of the archipelago are genetically 
distinct from those elsewhere in the archipelago (Schultz et al., 
2008). This suggests that the population is genetically well-mixed, 
with individual seals sometimes moving between the NWHI and the MHI, 
which has been confirmed with resightings of flipper-tagged or 
otherwise identifiable (e.g., scar patterns; Littnan et al., 2007). 
However, monk seals in the MHI are typically in better physical 
condition than those in the NWHI. For example, weaned pups in the MHI 
are larger and fatter than those in the NWHI, which is thought to 
reflect better foraging conditions in the MHI (Baker and Johanos, 2004; 
Baker et al., 2006). Although the NWHI is one of the largest and best-
protected natural areas in the world, and the MHI are populated by over 
a million people, the latter appears to currently provide superior monk 
seal foraging conditions.
    Despite its large human population, the MHI may currently provide 
better monk seal foraging conditions than the NWHI because: (1) There 
are only about one-tenth the number of seals in the MHI than in the 
NWHI, thus the availability of prey may be higher per seal in the MHI 
than the NWHI (Baker and Johanos, 2004); and (2) Large sharks, jacks 
and other demersal fish compete directly with monk seals, but are much 
less abundant in the MHI than the NWHI (Parrish et al., 2008). 
Competition is limited between humans and monk seals in the MHI because 
seals prefer small (usually < 20 cm/8 in) eels, wrasses, and other 
benthic species not commonly sought by fishermen, (Parrish et al., 
2000). However, while foraging conditions are currently better in the 
MHI than the NWHI for monk seals, pollution and runoff pose health 
hazards to the species in the MHI not found in the NWHI (Littnan et 
al., 2007).
    As described above in Population Status and Trends, since 1990, the 
total number of Hawaiian monk seals has decreased, while simultaneously 
the number of monk seals in the MHI appear to have increased (NMFS, 
2006, 2007b, 2008a). As described in the above paragraph, foraging 
conditions currently appear better in the MHI than in the NWHI (Parrish 
et el., 2000, 2008), likely resulting in better physical condition and 
higher survival of seals in the MHI than in the NWHI (Baker and 
Johanos; 2004; NMFS, 2007a). In addition, sea level rise may reduce or 
eliminate monk seal haul-out habitat more rapidly in the low-lying NWHI 
than the MHI (Baker et al., 2006). Given the overall downward trend of 
the species (see Population Status and Trends above), generally poor 
physical condition and survival of seals in the NWHI, and 
proportionally greater sea level effects on the NWHI than the MHI, the 
MHI appears essential for the survival and recovery of this species.

Summary of Information Received

    In our 90-day finding (73 FR 5l7583; October 3, 2008) in response 
to the petition (Center for Biological Diversity et al., 2008), we 
solicited information from the public pertaining to the Hawaiian monk 
seal's essential habitat needs. The 90-day finding, and the information 
we received in response to it, can be viewed at www.regulations.gov by 
searching for

[[Page 27992]]

docket number ``NOAA-NMFS-2008-0290''. The great majority of the monk 
seal habitat-related information received was based on programs and 
studies conducted, funded, or supported by NMFS; therefore, we did not 
receive any new information on the monk seal's essential habitat needs. 
The information received is summarized below.
    Comment 1: Over 100 comments argued that the MHI provide essential 
habitat for the Hawaiian monk seal because: (1) the MHI component of 
the monk seal population has increased in recent years while 
simultaneously the overall population has decreased; (2) monk seals in 
the MHI are in better physical condition than those in the NWHI; and 
(3) monk seal habitat loss is likely to be much more rapid in the NWHI 
than in the MHI in the near future due to sea level rise.
    Response: We concur that the MHI component of the monk seal 
population appears to have increased in recent years while 
simultaneously the overall population has decreased (see ``Population 
Size and Trends'' above), that monk seals in the MHI are in better 
physical condition than those in the NWHI, and that monk seal haul-out 
habitat loss is likely to be more rapid in the NWHI than in the MHI in 
the future due to sea level rise (see ``Northwestern Hawaiian Islands 
vs. Main Hawaiian Islands'' above). For these three reasons, and also 
because of the current precarious state of the Hawaiian monk seal, we 
agree that monk seal habitat within the MHI is essential for the 
survival and recovery of the species.
    Comment 2: Several comments argued that the MHI do not provide 
essential habitat for the Hawaiian monk seal, because: (1) monk seals 
are not indigenous to the MHI; and (2) various human threats to monk 
seals in the MHI outweigh benefits to the species of MHI habitat.
    Response: Little evidence has been found that monk seals occurred 
in the MHI before the arrival of humans approximately 2,000 years ago, 
or during pre-European times before the late 1700s. However, before the 
arrival of humans, monk seal remains would typically have occurred on 
or near coastlines where wave action and erosion likely would have 
prevented preservation of remains. After the arrival of humans, monk 
seals may have been consumed by humans, in which case monk seal bones 
would likely occur in middens. However, if the seals were quickly 
extirpated after the arrival of humans, this would reduce the 
likelihood of finding bone fragment evidence in middens. An 
archeological dig of a midden on the Big Island identified monk seal 
bones, and estimated that the bones were deposited during the years 
1400 to 1700 (Rosendahl, 1994). Furthermore, monk seals commonly travel 
long distances between atolls or islands, and even between the NWHI and 
MHI (Littnan et al., 2007). Thus, before the arrival of humans, it is 
highly unlikely that monk seals occurred only in the NWHI, while the 
MHI were vacant of both monk seals and humans. Finally, large, easily-
hunted animals such as seals are typically extirpated or driven to 
extinction when humans arrive in an area for the first time (Grayson, 
2001). Arrival of humans in Hawaii likely resulted in a rapid reduction 
in monk seal numbers in the MHI, such that the species was mostly 
restricted to the NWHI until recently (Baker and Johanos, 2004). For 
these reasons, we believe that the Hawaiian monk seal commonly occurred 
in the MHI before the arrival of humans, and that this species is 
indigenous to at least the entire Hawaiian Archipelago.
    We agree that the Hawaiian monk seal faces a multitude of human 
threats in the MHI. The recovery plan identifies the most serious human 
threats to monk seals in the MHI as infectious diseases, fisheries 
interactions, habitat loss, and human interactions (NMFS, 2007a). In 
the MHI, monk seals forage near shore, and they haul out on beaches 
near sources of pathogens associated with human population centers, 
sewage spills, and stream mouths. Of 12 dead monk seals that were 
thoroughly necropsied in the MHI between 1996 and 2006, four appeared 
to have died of infectious disease (Littnan et al., 2007). In the MHI 
from 1989 to 2007, 44 monk seals were confirmed to be hooked by fishing 
gear (one of which died, possibly from the hooking), another five 
entangled in lay gillnets (three of which drowned in the gillnets), and 
one seal hooked and entangled (but survived). Many hooks are removed 
from monk seals by the monk seal response program, most often resulting 
in healing of the wound and recovery of the monk seal. However, 
entanglement in lay gillnets often results in the drowning of the monk 
seal (NMFS, 2008b). Monk seal haul-out beaches in the MHI are being 
degraded or lost by development adjacent to the beaches, and increasing 
human activity on the beaches. The high and ever-increasing human use 
of MHI beaches and coastlines results in humans frequently interacting 
with monk seals, both unintentionally and intentionally (NMFS, 2007a). 
However, despite the numerous anthropogenic threats to monk seals in 
the MHI, the MHI component of the monk seal population appears to have 
increased in recent years, and monk seals in the MHI are generally in 
good physical condition. In contrast, the NWHI component of the monk 
seal population continues to decrease, and monk seals in the NWHI are 
often in poor physical condition (see ``Population Size and Trends'' 
and ``Northwestern Hawaiian Islands vs. Main Hawaiian Islands'' above). 
Thus, although monk seals are more often exposed to infectious diseases 
in the MHI than in the NWHI, the MHI appear to currently provide a 
favorable environment for monk seals. In addition, the loss of monk 
seal haul-out habitat is likely to occur more rapidly in the NWHI than 
the MHI due to sea level rise (see ``Northwestern Hawaiian Islands vs. 
Main Hawaiian Islands'' above). For these reasons, we believe that the 
benefits of MHI habitat to the monk seal outweigh the various human 
threats to monk seals in the MHI.
    Comment 3: Over 100 comments argued that areas out to a depth of 
500 m (1,625 ft) in the NWHI provide essential foraging habitat for the 
Hawaiian monk seal.
    Response: As discussed above in ``Habitat,'' studies in the NWHI 
have documented adult monk seal foraging to a maximum depth of 
approximately 500 m (1,600 ft; Parrish et al., 2002; Stewart et al., 
2006). The relative importance of these deep foraging areas, compared 
to more frequently-used shallower areas, is currently unknown.
    Comment 4: Several comments did not provide any information about 
habitat use by the Hawaiian monk seal, but rather expressed opinions 
about the effects of revising monk seal critical habitat on various 
human activities, such as beach use, fishing, economics, national 
security, and natural resource management.
    Response: The economic, national security, and other effects of 
revising monk seal critical habitat will be addressed in the 
forthcoming proposed rule.

12-Month Determination on Revision of Critical Habitat

    Since critical habitat for the Hawaiian monk seal was designated in 
1986 (51 FR 16047; April 30, 1986) and revised in 1988 (53 FR 18988; 
May 26, 1988), a great deal of new information has become available 
regarding habitat use by this species, such as the literature cited in 
the petition (Center for Biological Diversity et al., 2008) and in the 
Recovery Plan (NMFS, 2007a). For example, studies of monk seal foraging 
made possible by new technology (e.g.,

[[Page 27993]]

Parrish et al. 2000, 2002, 2005, 2008; Littnan et al., 2007) have 
resulted in substantial progress since 1988 in understanding how this 
species uses foraging habitat (Parrish and Littnan, 2008). Also, since 
critical habitat was designated in 1988, monk seals appear to have 
begun recolonizing the MHI (Baker and Johanos, 2004; Baker et al., 
2006; NMFS, 2007a). Other information has also become available about 
other aspects of monk seal life history and habitat use (summarized in 
NMFS, 2007a). Because of this new information regarding habitat use by 
the Hawaiian monk seal that has become available since critical habitat 
for the species was revised in 1988 (53 FR 18988; May 26, 1988), we 
will proceed with a revision of critical habitat for the species.

How Does NMFS Intend To Proceed?

    We intend to undertake rulemaking to revise critical habitat for 
the Hawaiian monk seal. Critical habitat is defined by section 3 of the 
ESA as ``(i) the specific areas within the geographical area occupied 
by the species, at the time it is listed in accordance with the 
provisions of section 1533 of this title, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 1533 of this title, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species.'' Further, our critical habitat 
regulations (50 CFR 424.12(c)) state that critical habitat will be 
defined by specific limits using reference points and lines on standard 
topographic maps of the area. Finally, section 4(b)(2) of the ESA 
requires that we consider economic, national security, and other 
impacts of designating critical habitat before designating critical 
habitat.
    Based on the above definition and guidance, the following steps 
will be followed to propose the revision of designated critical habitat 
for the Hawaiian monk seal: (1) Determine the geographical area 
occupied by the species at the time of listing; (2) Identify the 
physical or biological features essential to the conservation of the 
species; (3) Delineate areas within the geographical area occupied by 
the species that contain these features, and that may require special 
management considerations or protections; (4) Delineate any areas 
outside of the geographical area occupied by the species that are 
essential for the conservation of the species; and (5) Conduct 
economic, national security, and other analyses to determine if any 
areas identified in steps 3 and 4 could be excluded from critical 
habitat consideration under section 4(b)(2) of the ESA. Steps 1 and 2 
above are included in this 12-month finding, as described below. Steps 
3 - 5 will be completed in the forthcoming proposed rule.
    Step 1: Determine Geographical Area Occupied by the Species at the 
Time of Listing: The final rule listing the Hawaiian monk seal as 
endangered, published on November 23, 1976 (41 FR 51611), stated that 
the ``Hawaiian monk seal is found throughout the Hawaiian 
Archipelago,'' with no mention of areas outside the archipelago. For 
reasons described above in ``Range,'' in 2001, we determined that 
Johnston Atoll is within the range of the Hawaiian monk seal (NMFS, 
2001). Therefore, the geographical area occupied by the Hawaiian monk 
seal at the time of listing (1976) is considered to be the Hawaiian 
Archipelago and Johnston Atoll.
    Step 2: Identify Physical or Biological Features Essential to 
Conservation: In this step, the physical and biological features 
essential to conservation are identified (hereafter referred to as 
``essential features''). Section 3 of the ESA (16 U.S.C. 1532(3)) 
defines the terms ``conserve,'' ``conserving,'' and ``conservation'' to 
mean: ``to use, and the use of, all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this chapter are no 
longer necessary.'' Our critical habitat regulations (50 CFR 424.12(b)) 
state that essential features ``include, but are not limited to the 
following: (1) Space for individual and population growth, and for 
normal behavior; (2) Food, water, air, light, minerals or other 
nutritional or physiological requirements; (3) Cover or shelter; (4) 
Sites for breeding, reproduction, rearing of offspring, germination, or 
seed dispersal; and generally; (5) Habitats that are protected from 
disturbance or are representative of the historic geographical and 
ecological distributions of a species.''
    The regulations also instruct us to ``focus on the principal 
biological or physical constituent elements within the defined area 
that are essential to the conservation of the species. Known primary 
constituent elements shall be listed with the critical habitat 
description'' (50 CFR 424.12(b)). Thus, the essential features will be 
defined here in terms of primary constituent elements (PCEs). The PCEs 
can include sites used by the listed species for resting, reproduction, 
and feeding (examples given in the regulations include ``nesting 
grounds, spawning sites, feeding sites''), and physical features of the 
species' habitat (examples given in the regulations include 
``geological formation, vegetation type, tide, and specific soil 
types''; 50 CFR 424.12(b)).
    As described above in ``Habitat,'' the physical and biological 
habitat features that support resting, molting, reproduction, and 
foraging are essential for the conservation of this species. For the 
Hawaiian monk seal, essential habitat includes terrestrial and marine 
areas. Terrestrial areas include resting, molting, and reproductive 
habitat. Resting and molting habitat consists of nearshore or emergent 
surfaces where monk seals can haul out, whereas reproductive habitat 
consists of a subset of resting and molting habitat (i.e., sandy 
beaches suitable for pupping and nursing). Marine areas include 
foraging habitat for pups, juveniles, and adults. Pup foraging habitat 
consists of shallow areas adjacent to pupping beaches where pups become 
accustomed to the marine environment and begin learning to forage on 
their own. Juveniles and adults forage widely, primarily in deeper 
areas. Thus, at this time, we believe that the following PCEs 
constitute the physical and biological features essential to 
conservation of the Hawaiian monk seal: (1) sandy beaches preferred by 
monk seals for pupping and nursing; (2) marine areas less than 20 m 
depth adjacent to pupping and nursing beaches where young pups learn to 
forage; (3) marine areas approximately 20 - 200 m depth in the MHI, and 
approximately 20-500 m depth in the NWHI, preferred by juvenile and 
adult monk seals for foraging; (4) low levels of unnatural disturbance; 
and (5) high prey quantity and quality.
    Steps 3 - 5: Steps 3 - 5 of the critical habitat proposed revision 
process will be completed in the forthcoming proposed rule. In the 
proposed rule, the PCEs could differ slightly from the PCEs identified 
above, but these identified PCEs will give the public an idea of what 
we are considering. When we publish our proposed rule, we will solicit 
public comments on it and incorporate comments as appropriate.

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monk seal (Monachus schauinslandi) at Johnston Atoll, Pacific Ocean. 
Journal of Mammalogy 50:841-842.
    Schultz, J.K., J.D. Baker, R.J. Toonen, and B.W. Bowen. 2008. 
Extremely low genetic diversity in the endangered Hawaiian monk seal 
(Monachus schauinslandi). Journal of Heredity doi:10.1093/jhered/
esn077.
    Stewart, B.S., G.A. Antonelis, J.D. Baker, and P.K.Yochem. 2006. 
Foraging biogeography of Hawaiian monk seals in the Northwestern 
Hawaiian Islands. Atoll Research Bulletin 543:131-146.
    Westlake, R.L. and W.G. Gilmartin. 1990. Hawaiian monk seal pupping 
locations in the Northwestern Hawaiian Islands. Pacific Science 44:366-
383.
    All references are available upon request (see FOR FURTHER 
INFORMATION CONTACT).

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

    Dated: June 8, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-13880 Filed 6-11-09; 8:45 am]
BILLING CODE 3510-22-S