Endangered and Threatened Wildlife; Notice of 90-Day Finding on a Petition to Revise Critical Habitat for the Endangered Leatherback Sea Turtle Under the Endangered Species Act (ESA), 41436-41438 [2010-17531]
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Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices
currently being suspended pursuant to
the court’s injunction order in effect, the
Department does not need to order U.S.
Customs and Border Protection to
suspend liquidation of affected entries.
The Department will not order the
lifting of the suspension of liquidation
on applicable entries of ball bearings
and parts thereof from Germany made
during the review period before a court
decision in this lawsuit becomes final
and conclusive.
We are issuing and publishing this
notice in accordance with section
516A(c)(1) of the Tariff Act of 1930, as
amended.
Decision Not in Harmony
In SKF Germany, the CIT ruled that
the Department acted contrary to law in
drawing an inference adverse for SKF
Germany based upon the failure of an
unaffiliated supplier to make a timely
submission of the requested COP data
without a finding that SKF Germany
had failed to act to the best of its ability.
As a result of changes to calculations
in our remand results, the weightedaverage margin for SKF Germany for the
period May 1, 2006, through April 30,
2007, changed from 4.15 percent to 1.97
percent. Accordingly, absent an appeal
or, if appealed, upon a ‘‘conclusive’’
court decision, we will amend our final
results of this review to reflect the
recalculation of the margin for SKF
Germany.
srobinson on DSKHWCL6B1PROD with NOTICES
without a finding that SKF Germany
had failed to act to the best of its ability.
See SKF Germany, 675 F. Supp. 2d at
1268.
In its remand order, the CIT directed
the Department to ‘‘recalculate SKF
{Germany’s} margin after redetermining
the constructed value of the subject
merchandise SKF {Germany} obtained
from the unaffiliated supplier’’ using
information that is not adverse to SKF
Germany. See SKF Germany, 675 F.
Supp. 2d at 1278. In accordance with
the CIT’s remand order, the Department
filed its redetermination on remand of
the final results (remand results) on
March 16, 2010, in which the
Department recalculated the margin for
SKF Germany without use of an adverse
inference. On July 7, 2010, the CIT
affirmed the Department’s remand
results. See SKF USA Inc., v. United
States, Slip Op. 10–76 (CIT July 7,
2010).
DEPARTMENT OF COMMERCE
Suspension of Liquidation
The United States Court of Appeals
for Federal Circuit (CAFC) has held that
the Department must publish notice of
a decision of the CIT or the CAFC which
is not in harmony with the Department’s
determination. See The Timken
Company v. United States, 893 F.2d
337, 341 (Fed. Cir. 1990). Publication of
this notice fulfills that obligation. The
CAFC also held that, in such a case, the
Department must suspend liquidation
until there is a ‘‘conclusive’’ decision in
the action. Id. Therefore, the
Department must suspend liquidation
pending the expiration of the period to
appeal the CIT’s July 7, 2010, decision
or, if appealed, pending a final decision
of the CAFC.
Because entries of ball bearings and
parts thereof from Germany produced
by, exported to, or imported into the
United States by SKF Germany are
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Dated: July 12, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2010–17427 Filed 7–15–10; 8:45 am]
BILLING CODE 3510–DS–P
National Oceanic and Atmospheric
Administration
[Docket No. 100625269–0269–02]
RIN 0648–XW94
Endangered and Threatened Wildlife;
Notice of 90–Day Finding on a Petition
to Revise Critical Habitat for the
Endangered Leatherback Sea Turtle
Under the Endangered Species Act
(ESA)
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Department of Commerce.
ACTION: Notice of 90–day petition
finding.
SUMMARY: We, NMFS announce a 90–
day finding on a petition to revise
critical habitat for the endangered
leatherback sea turtle under the
Endangered Species Act (ESA). We find
that the petition does not present
substantial scientific information
indicating that the petitioned action
may be warranted for leatherback sea
turtles and their habitat under our
jurisdiction.
FOR FURTHER INFORMATION CONTACT:
Dennis Klemm, NMFS, Southeast
Regional Office, Protected Resources
Division, dennis.klemm@noaa.gov,
(727)824–5312; or Marta Nammack,
NMFS, Office of Protected Resources,
marta.nammack@noaa.gov, (301)713
1401.
SUPPLEMENTARY INFORMATION:
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Background
On February 23, 2010, we received a
petition from the Sierra Club asking us
and the United States Fish and Wildlife
Service (USFWS) to revise, pursuant to
the ESA, critical habitat for the
endangered leatherback sea turtle.
Under the ESA, NMFS and USFWS each
have respective areas of jurisdiction
over sea turtles, as clarified by the 1977
Memorandum of Understanding
Defining the Roles of the U.S. Fish and
Wildlife Service and the National
Marine Fisheries Service in Joint
Administration of the Endangered
Species Act of 1973 as to Marine
Turtles. NMFS has jurisdiction over sea
turtles and their associated habitats in
the marine environment, while USFWS
has jurisdiction when sea turtles are on
land. Thus, if Federal agencies are
involved in activities that may affect sea
turtles involved in nesting behavior, or
may affect their nests or their nesting
habitats, those Federal agencies are
required to consult with the USFWS
under section 7 of the ESA to ensure
that their activities are not likely to
jeopardize the continued existence of
the sea turtles. If a Federal action may
affect sea turtles while they are in the
marine environment, feeding and
migrating for example, the Federal
agency involved must engage in a
section 7 consultation with NMFS, to
ensure that the action is not likely to
jeopardize the continued existence of
the sea turtles. Similarly, if critical
habitat has been designated, and Federal
actions may affect such habitat, an ESA
section 7 consultation would be
required to ensure that the Federal
action is not likely to destroy or
adversely modify the critical habitat; if
the habitat has been designated on land
the consultation would be with USFWS,
and if the habitat has been designated in
the marine environment, the
consultation would be with NMFS. This
90–day finding is responsive only to
aspects of the petition that fall under
our jurisdiction.
The portion of the petitioned critical
habitat that falls under NMFS’
jurisdiction is described in the petition
as: ‘‘the waters off the coastline of the
Northeast Ecological Corridor of Puerto
Rico, sufficient to protect leatherbacks
using the Northeast Ecological Corridor,
and extending at least to the hundred
fathom contour, or 9 nautical miles
offshore, whichever is further, and
including the existing marine
extensions of Espiritu Santo, Cabezas de
San Juan, and Arrecifes de la Cordillera
Nature Reserves.’’ The petition also
asserts that the beaches of the Northeast
Ecological Corridor of Puerto Rico
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Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices
(which would fall under the separate
jurisdiction of USFWS) are ‘‘centrally
important to the U.S. Caribbean
leatherback population, and should be
designated as critical habitat,’’ and also
maintains that the near-shore coastal
waters off those beaches (which would
fall under NMFS’ jurisdiction) ‘‘provide
room for turtles to mate and access the
beaches, and for hatchlings and adults
to leave the beaches.’’ It likewise asserts
that the coastal zone within the
Northeast Ecological Corridor (the
‘‘corridor’’) is particularly vulnerable to
developmental pressure and to the
growing impacts of climate change, and
so warrants protection as critical
habitat.
srobinson on DSKHWCL6B1PROD with NOTICES
ESA Statutory Provisions and Policy
Considerations
Section 4(b)(3)(D) of the ESA of 1973,
as amended (16 U.S.C. 1533 et seq.),
requires, to the maximum extent
practicable, that within 90 days of
receiving a petition to revise a critical
habitat designation, the Secretary of
Commerce (Secretary) make a finding as
to whether the petition presents
substantial scientific information
indicating that the revision may be
warranted. The finding is to be
published promptly in the Federal
Register. If it is found that substantial
information indicating that the
petitioned action may be warranted is
presented in the petition, the Secretary
shall determine how he intends to
proceed with the requested revision
within 12 months after receiving the
petition and shall promptly publish
notice of such intention in the Federal
Register. Joint ESA-implementing
regulations issued by NMFS and the
USFWS (50 CFR 424.14(b)) define
‘‘substantial information’’ as the amount
of information that would lead a
reasonable person to believe that the
measure proposed in the petition may
be warranted. In making this finding on
a petition to revise critical habitat to
include additional areas, the Secretary
must consider whether the petition
contains information indicating that
areas petitioned to be added to critical
habitat contain physical and biological
features essential to, and that may
require special management to provide
for, the conservation of the species
involved (50 CFR 424.14(c)(2)(i)). Thus,
in reviewing a petition to revise critical
habitat we consider the information
presented on three aspects of critical
habitat as defined in the ESA: the
physical or biological features
identified; the explanation of how such
features may be essential to a species’
conservation; and how those features
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may require special management
considerations.
Analysis of Petition
The petition asserts that the revision
of leatherback critical habitat to include
the waters off the Northeast Ecological
Corridor of Puerto Rico is necessary to
protect leatherback sea turtles. The
petitioner cites a number of studies
about the population status of
leatherback sea turtles in the Pacific
Ocean, and concludes that populations
of leatherback sea turtles in the Atlantic
Ocean could experience a similar
decline if their habitat is not protected.
The petition identifies the nesting
beaches and the open water space off
the nesting beaches as the essential
features of critical habitat. The petition
accurately states what little is known
from a few accounts of leatherback
mating behavior, that it seems to occur,
at least in part, in areas adjacent to
nesting beaches. The petition states ‘‘ the
near-shore coastal waters provide room
for turtles to mate and to access the
beaches, and for hatchlings and adults
to leave the beaches after nesting. If
these waters are disturbed, reproductive
success is likely to decline.’’ Open
marine space to access beaches for the
purposes of nesting may be relevant to
USFWS’ review of the petition because
nesting activities, and section 7
consultations regarding impacts to such
activities are under their jurisdiction.
For leatherback sea turtles, we cannot
identify, nor has the petitioner
presented, any specific values, ranges,
or qualities of ‘‘open space,’’ or any
thresholds for the quantity of ‘‘open
space’’ necessary for hatchling access to
open water or for courtship and mating
by adults that explains how such space
is ‘‘essential’’ to the conservation of the
species. The petition merely identifies
an area and suggests that all the space
therein that could be occupied by
leatherback sea turtles should be
included in the critical habitat
designation. As explained below, this
lack of differentiation of habitat used by
leatherback sea turtles does not provide
substantial information to either
identify physical or biological features,
or explain how such features could be
essential to the species’ conservation.
The petition describes the open space
feature as all of the marine environment
from the coastline of the Northeast
Ecological Corridor of Puerto Rico
extending to the hundred fathom
contour or 9 nautical miles, whichever
is further. The 9 nautical mile boundary
is based simply on the political
boundary of Puerto Rico’s territorial
waters but has no demonstrated
scientific/ecological basis as defining a
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41437
boundary for a biological or physical
feature to be included in a critical
habitat designation. The ‘‘space’’ within
this area is too varied and undefined to
comprise a tangible physical feature,
and instead seems to comprise simply
all of the space that leatherback sea
turtles could theoretically occupy
between the shore and the 9 nautical
mile or 100 fathom boundary. A critical
habitat designation requires the
identification of some parameters or
values for physical or biological features
included in a designation, so that the
features can be effectively and
meaningfully protected by a
designation, including through section 7
consultations evaluating the effects of
Federal agency actions on critical
habitat through application of the
destruction or adverse modification
standard. This petition, however,
includes no information that would
provide a basis for implementing
section 7 consultations on impacts to
designated critical habitat, because no
sufficiently defined features of the
habitat have been identified, so there is
no habitat aspect that could be
identified as being impacted by a
proposed Federal action, and thus no
trigger for section 7 consultation. As
discussed above, our regulations at 50
CFR 424.14(c)(2) specifically direct us to
consider whether a petition contains
this information.
The petition also cites our 1979
designation of critical habitat off the
nesting beaches of Sandy Point, St.
Croix (50 CFR 226.207; 44 FR 17711,
March 23, 1979) as rationale for likewise
designating the waters off the Northeast
Ecological Corridor of Puerto Rico.
However, that designation did not
identify physical or biological features
that are essential to the leatherback’s
conservation with any degree of
specificity. As explained in our
consultation handbook (USFWS NMFS
1998, at 4–39), many early critical
habitat designations were issued
without identification of constituent
elements or habitat qualities essential to
a species’ conservation. The 1979
critical habitat designation off of St.
Croix did not identify essential features
for the leatherback’s conservation, and
thus that designation alone does not
provide substantial information
establishing that features meeting the
ESA’s definition of critical habitat exist
in the nearshore waters off the Northeast
Ecological Corridor of Puerto Rico.
Even if open space in the nearshore
waters off the Northeast Ecological
corridor out to either the 9 nautical mile
or 100–fathom boundary could be
viewed as a tangible physical feature,
there is not substantial scientific or
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Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices
commercial information to indicate that
this feature is essential to the
conservation of leatherback sea turtles.
In other words, there is not substantial
information to indicate that the
successful conservation of leatherback
sea turtles requires including this open
space feature in a designation of critical
habitat. The petition’s discussions of the
status of leatherback sea turtles rely
primarily on Pacific population
assessments to illustrate the precarious
situation for leatherback sea turtles.
More recent, readily available sources of
information specific to Atlantic
populations were not cited. The Turtle
Expert Working Group published An
Assessment of the Leatherback Turtle
Population in the Atlantic Ocean in
2007 (NOAA Technical Memorandum
NMFS-SEFSC–555) that characterizes
the Atlantic population as stable or
increasing overall. That assessment
characterizes the nesting trend for the
North Caribbean stock, which includes
Puerto Rico, as increasing. Further, this
assessment concludes that inter-nesting
threats throughout the North Caribbean
for those rookeries are generally ‘‘low’’
in a range including ‘‘low,’’ ‘‘medium,’’
and ‘‘high.’’ No new or substantial
information is presented to support the
petitioner’s assertions that leatherback
populations in the Atlantic, or in the
North Caribbean, have seriously
declined in the years since the original
critical habitat designation in St. Croix,
or that the Atlantic populations are
likely to follow the Pacific population
trajectory if critical habitat is not revised
to include open marine space off the
Northeast Ecological corridor.
As discussed above, the petitioner
provided no information, nor is any
available in the literature and other
material readily available in our files, to
prescribe some parameters of an open
space feature off the Northeast
Ecological Corridor that is essential to
the leatherback sea turtle’s conservation,
thus there is not substantial scientific
information indicating that habitat
features may exist that meet the first two
criteria of the definition of critical
habitat. Without such parameters there
is no basis on which to conclude that
such a feature may require special
management considerations or
protections, to address potential threats
or impacts to the feature, or
management needs of the feature, to
provide for the conservation of
leatherback sea turtles. Thus, there is
not substantial scientific information
indicating the third aspect of the
definition of critical habitat may be met
that special management considerations
may be required to protect essential
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18:00 Jul 15, 2010
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physical or biological features to
provide for the conservation of the
species.
Petition Finding
After considering the petition, the
information cited by the petitioner, and
relevant information readily available in
our files, we conclude that, with respect
to areas under NMFS’ jurisdiction, the
petition does not present substantial
scientific information indicating that the
petitioned revision of designated critical
habitat for leatherback sea turtles may
be warranted.
Authority
The authority for this action is the
ESA, as amended (16 U.S.C. 1533 et
seq.).
Dated: July 14, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries,
National Marine Fisheries Service.
[FR Doc. 2010–17531 Filed 7–15–10; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
International Trade Administration
[A–533–810]
Stainless Steel Bar from India:
Extension of Time Limit for the Final
Results of the 2008–2009 Antidumping
Duty Administrative Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: July 16, 2010.
FOR FURTHER INFORMATION CONTACT:
Austin Redington or Brandon Farlander,
AD/CVD Operations, Office 1, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone (202) 482–1664 and (202)
482–0182, respectively.
SUPPLEMENTARY INFORMATION:
Background
On February 21, 1995, the Department
of Commerce (‘‘Department’’) published
the antidumping duty order on stainless
steel bar (‘‘SSB’’) from India. See
Antidumping Duty Orders: Stainless
Steel Bar from Brazil, India and Japan,
60 FR 9661 (February 21, 1995). On
March 24, 2009, in accordance with
section 751(a) of the Tariff Act of 1930,
as amended (‘‘the Act’’), the Department
initiated an administrative review of the
order for two companies. See Initiation
of Antidumping and Countervailing
Duty Administrative Reviews, Request
PO 00000
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Sfmt 9990
for Revocation in Part, and Deferral of
Administrative Review, 74 FR 12310
(March 24, 2009). On March 15, 2010,
the Department published its
preliminary results of the 2008–2009
antidumping duty administrative
review. See Stainless Steel Bar from
India: Preliminary Results of
Antidumping Duty Administrative
Review, 75 FR 12199 (March 15, 2010).
The final results for this review are
currently due no later than July 13,
2010.
Extension of Time Limit of Final
Results
Section 751(a)(3)(A) of the Act
requires the Department to issue final
results within 120 days after the date on
which the preliminary results are
published. However, if it is not
practicable to complete the review
within this time period, section
751(a)(3)(A) of the Act allows the
Department to extend the time period to
a maximum of 180 days.
Completion of the final results of the
administrative review within the 120day period in this case is not practicable
because, following the preliminary
results, the Department received
additional cost information from Venus,
as requested by the Department, which
required the Department to produce a
post–preliminary analysis involving a
comprehensive cost analysis,
significantly delaying the briefing
schedule. See Memorandum from Susan
Kuhbach, Senior Office Director to
Ronald K Lorentzen, Assistant
Secretary, entitled ‘‘Post–Preliminary
Analysis Calculation Memorandum for
Venus Wire Industries Pvt. Ltd.,’’ dated
May 19, 2010. Further, the Department
requires additional time to review and
address the detail and complexity of the
cost accounting issues and arguments
brought forward in the case and rebuttal
briefs from both Venus Wire Industries
Pvt. Ltd. and the domestic interested
parties. Thus, we have determined it is
not practicable to complete this review
within the time specified under the Act,
we are extending the time period for
issuing the final reand sults of the
administrative review by 45 days in
accordance with section 751(a)(3)(A) of
the Act. Therefore, the final results are
now due no later than August 27, 2010.
This notice is published pursuant to
sections 751(a) and 777(i) of the Act.
Dated: July 12, 2010.
Edward C. Yang,
Acting Deputy Assistant Secretary for
Antidumping and Countervailing Duty
Operations.
[FR Doc. 2010–17423 Filed 7–15–10; 8:45 am]
BILLING CODE 3510–DS–S
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]]>Agencies
[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Notices]
[Pages 41436-41438]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-17531]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 100625269-0269-02]
RIN 0648-XW94
Endangered and Threatened Wildlife; Notice of 90-Day Finding on a
Petition to Revise Critical Habitat for the Endangered Leatherback Sea
Turtle Under the Endangered Species Act (ESA)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Notice of 90-day petition finding.
-----------------------------------------------------------------------
SUMMARY: We, NMFS announce a 90-day finding on a petition to revise
critical habitat for the endangered leatherback sea turtle under the
Endangered Species Act (ESA). We find that the petition does not
present substantial scientific information indicating that the
petitioned action may be warranted for leatherback sea turtles and
their habitat under our jurisdiction.
FOR FURTHER INFORMATION CONTACT: Dennis Klemm, NMFS, Southeast
Regional Office, Protected Resources Division, dennis.klemm@noaa.gov,
(727)824-5312; or Marta Nammack, NMFS, Office of Protected Resources,
marta.nammack@noaa.gov, (301)713 1401.
SUPPLEMENTARY INFORMATION:
Background
On February 23, 2010, we received a petition from the Sierra Club
asking us and the United States Fish and Wildlife Service (USFWS) to
revise, pursuant to the ESA, critical habitat for the endangered
leatherback sea turtle. Under the ESA, NMFS and USFWS each have
respective areas of jurisdiction over sea turtles, as clarified by the
1977 Memorandum of Understanding Defining the Roles of the U.S. Fish
and Wildlife Service and the National Marine Fisheries Service in Joint
Administration of the Endangered Species Act of 1973 as to Marine
Turtles. NMFS has jurisdiction over sea turtles and their associated
habitats in the marine environment, while USFWS has jurisdiction when
sea turtles are on land. Thus, if Federal agencies are involved in
activities that may affect sea turtles involved in nesting behavior, or
may affect their nests or their nesting habitats, those Federal
agencies are required to consult with the USFWS under section 7 of the
ESA to ensure that their activities are not likely to jeopardize the
continued existence of the sea turtles. If a Federal action may affect
sea turtles while they are in the marine environment, feeding and
migrating for example, the Federal agency involved must engage in a
section 7 consultation with NMFS, to ensure that the action is not
likely to jeopardize the continued existence of the sea turtles.
Similarly, if critical habitat has been designated, and Federal actions
may affect such habitat, an ESA section 7 consultation would be
required to ensure that the Federal action is not likely to destroy or
adversely modify the critical habitat; if the habitat has been
designated on land the consultation would be with USFWS, and if the
habitat has been designated in the marine environment, the consultation
would be with NMFS. This 90-day finding is responsive only to aspects
of the petition that fall under our jurisdiction.
The portion of the petitioned critical habitat that falls under
NMFS' jurisdiction is described in the petition as: ``the waters off
the coastline of the Northeast Ecological Corridor of Puerto Rico,
sufficient to protect leatherbacks using the Northeast Ecological
Corridor, and extending at least to the hundred fathom contour, or 9
nautical miles offshore, whichever is further, and including the
existing marine extensions of Espiritu Santo, Cabezas de San Juan, and
Arrecifes de la Cordillera Nature Reserves.'' The petition also asserts
that the beaches of the Northeast Ecological Corridor of Puerto Rico
[[Page 41437]]
(which would fall under the separate jurisdiction of USFWS) are
``centrally important to the U.S. Caribbean leatherback population, and
should be designated as critical habitat,'' and also maintains that the
near-shore coastal waters off those beaches (which would fall under
NMFS' jurisdiction) ``provide room for turtles to mate and access the
beaches, and for hatchlings and adults to leave the beaches.'' It
likewise asserts that the coastal zone within the Northeast Ecological
Corridor (the ``corridor'') is particularly vulnerable to developmental
pressure and to the growing impacts of climate change, and so warrants
protection as critical habitat.
ESA Statutory Provisions and Policy Considerations
Section 4(b)(3)(D) of the ESA of 1973, as amended (16 U.S.C. 1533
et seq.), requires, to the maximum extent practicable, that within 90
days of receiving a petition to revise a critical habitat designation,
the Secretary of Commerce (Secretary) make a finding as to whether the
petition presents substantial scientific information indicating that
the revision may be warranted. The finding is to be published promptly
in the Federal Register. If it is found that substantial information
indicating that the petitioned action may be warranted is presented in
the petition, the Secretary shall determine how he intends to proceed
with the requested revision within 12 months after receiving the
petition and shall promptly publish notice of such intention in the
Federal Register. Joint ESA-implementing regulations issued by NMFS and
the USFWS (50 CFR 424.14(b)) define ``substantial information'' as the
amount of information that would lead a reasonable person to believe
that the measure proposed in the petition may be warranted. In making
this finding on a petition to revise critical habitat to include
additional areas, the Secretary must consider whether the petition
contains information indicating that areas petitioned to be added to
critical habitat contain physical and biological features essential to,
and that may require special management to provide for, the
conservation of the species involved (50 CFR 424.14(c)(2)(i)). Thus, in
reviewing a petition to revise critical habitat we consider the
information presented on three aspects of critical habitat as defined
in the ESA: the physical or biological features identified; the
explanation of how such features may be essential to a species'
conservation; and how those features may require special management
considerations.
Analysis of Petition
The petition asserts that the revision of leatherback critical
habitat to include the waters off the Northeast Ecological Corridor of
Puerto Rico is necessary to protect leatherback sea turtles. The
petitioner cites a number of studies about the population status of
leatherback sea turtles in the Pacific Ocean, and concludes that
populations of leatherback sea turtles in the Atlantic Ocean could
experience a similar decline if their habitat is not protected.
The petition identifies the nesting beaches and the open water
space off the nesting beaches as the essential features of critical
habitat. The petition accurately states what little is known from a few
accounts of leatherback mating behavior, that it seems to occur, at
least in part, in areas adjacent to nesting beaches. The petition
states `` the near-shore coastal waters provide room for turtles to
mate and to access the beaches, and for hatchlings and adults to leave
the beaches after nesting. If these waters are disturbed, reproductive
success is likely to decline.'' Open marine space to access beaches for
the purposes of nesting may be relevant to USFWS' review of the
petition because nesting activities, and section 7 consultations
regarding impacts to such activities are under their jurisdiction.
For leatherback sea turtles, we cannot identify, nor has the
petitioner presented, any specific values, ranges, or qualities of
``open space,'' or any thresholds for the quantity of ``open space''
necessary for hatchling access to open water or for courtship and
mating by adults that explains how such space is ``essential'' to the
conservation of the species. The petition merely identifies an area and
suggests that all the space therein that could be occupied by
leatherback sea turtles should be included in the critical habitat
designation. As explained below, this lack of differentiation of
habitat used by leatherback sea turtles does not provide substantial
information to either identify physical or biological features, or
explain how such features could be essential to the species'
conservation.
The petition describes the open space feature as all of the marine
environment from the coastline of the Northeast Ecological Corridor of
Puerto Rico extending to the hundred fathom contour or 9 nautical
miles, whichever is further. The 9 nautical mile boundary is based
simply on the political boundary of Puerto Rico's territorial waters
but has no demonstrated scientific/ecological basis as defining a
boundary for a biological or physical feature to be included in a
critical habitat designation. The ``space'' within this area is too
varied and undefined to comprise a tangible physical feature, and
instead seems to comprise simply all of the space that leatherback sea
turtles could theoretically occupy between the shore and the 9 nautical
mile or 100 fathom boundary. A critical habitat designation requires
the identification of some parameters or values for physical or
biological features included in a designation, so that the features can
be effectively and meaningfully protected by a designation, including
through section 7 consultations evaluating the effects of Federal
agency actions on critical habitat through application of the
destruction or adverse modification standard. This petition, however,
includes no information that would provide a basis for implementing
section 7 consultations on impacts to designated critical habitat,
because no sufficiently defined features of the habitat have been
identified, so there is no habitat aspect that could be identified as
being impacted by a proposed Federal action, and thus no trigger for
section 7 consultation. As discussed above, our regulations at 50 CFR
424.14(c)(2) specifically direct us to consider whether a petition
contains this information.
The petition also cites our 1979 designation of critical habitat
off the nesting beaches of Sandy Point, St. Croix (50 CFR 226.207; 44
FR 17711, March 23, 1979) as rationale for likewise designating the
waters off the Northeast Ecological Corridor of Puerto Rico. However,
that designation did not identify physical or biological features that
are essential to the leatherback's conservation with any degree of
specificity. As explained in our consultation handbook (USFWS NMFS
1998, at 4-39), many early critical habitat designations were issued
without identification of constituent elements or habitat qualities
essential to a species' conservation. The 1979 critical habitat
designation off of St. Croix did not identify essential features for
the leatherback's conservation, and thus that designation alone does
not provide substantial information establishing that features meeting
the ESA's definition of critical habitat exist in the nearshore waters
off the Northeast Ecological Corridor of Puerto Rico.
Even if open space in the nearshore waters off the Northeast
Ecological corridor out to either the 9 nautical mile or 100-fathom
boundary could be viewed as a tangible physical feature, there is not
substantial scientific or
[[Page 41438]]
commercial information to indicate that this feature is essential to
the conservation of leatherback sea turtles. In other words, there is
not substantial information to indicate that the successful
conservation of leatherback sea turtles requires including this open
space feature in a designation of critical habitat. The petition's
discussions of the status of leatherback sea turtles rely primarily on
Pacific population assessments to illustrate the precarious situation
for leatherback sea turtles. More recent, readily available sources of
information specific to Atlantic populations were not cited. The Turtle
Expert Working Group published An Assessment of the Leatherback Turtle
Population in the Atlantic Ocean in 2007 (NOAA Technical Memorandum
NMFS-SEFSC-555) that characterizes the Atlantic population as stable or
increasing overall. That assessment characterizes the nesting trend for
the North Caribbean stock, which includes Puerto Rico, as increasing.
Further, this assessment concludes that inter-nesting threats
throughout the North Caribbean for those rookeries are generally
``low'' in a range including ``low,'' ``medium,'' and ``high.'' No new
or substantial information is presented to support the petitioner's
assertions that leatherback populations in the Atlantic, or in the
North Caribbean, have seriously declined in the years since the
original critical habitat designation in St. Croix, or that the
Atlantic populations are likely to follow the Pacific population
trajectory if critical habitat is not revised to include open marine
space off the Northeast Ecological corridor.
As discussed above, the petitioner provided no information, nor is
any available in the literature and other material readily available in
our files, to prescribe some parameters of an open space feature off
the Northeast Ecological Corridor that is essential to the leatherback
sea turtle's conservation, thus there is not substantial scientific
information indicating that habitat features may exist that meet the
first two criteria of the definition of critical habitat. Without such
parameters there is no basis on which to conclude that such a feature
may require special management considerations or protections, to
address potential threats or impacts to the feature, or management
needs of the feature, to provide for the conservation of leatherback
sea turtles. Thus, there is not substantial scientific information
indicating the third aspect of the definition of critical habitat may
be met that special management considerations may be required to
protect essential physical or biological features to provide for the
conservation of the species.
Petition Finding
After considering the petition, the information cited by the
petitioner, and relevant information readily available in our files, we
conclude that, with respect to areas under NMFS' jurisdiction, the
petition does not present substantial scientific information indicating
that the petitioned revision of designated critical habitat for
leatherback sea turtles may be warranted.
Authority
The authority for this action is the ESA, as amended (16 U.S.C.
1533 et seq.).
Dated: July 14, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 2010-17531 Filed 7-15-10; 8:45 am]
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