Billing Code 3510-22-P DEPARTMENT of the INTERIOR
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This document is scheduled to be published in the Federal Register on 08/10/2020 and available online at federalregister.gov/d/2020-16277, and on govinfo.gov Billing Code 3510-22-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 200717-0190] RIN 0648-XF748 Endangered and Threatened Wildlife; 12-Month Finding on a Petition to Identify the Northwest Atlantic Leatherback Turtle as a Distinct Population Segment and List It as Threatened Under the Endangered Species Act AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce; U.S. Fish and Wildlife Service (USFWS), Interior. ACTION: Notification of 12-month petition finding. SUMMARY: We, NMFS and USFWS, announce a 12-month finding on a petition to identify the Northwest Atlantic population of the leatherback turtle (Dermochelys coriacea) as a distinct population segment (DPS) and list it as threatened under the Endangered Species Act (ESA). In response to the petition, we completed a comprehensive status review of the species, which also constitutes the 5-year review of the species, to determine potential DPSs following the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the ESA and to perform extinction risk analyses. Based on the best scientific and commercial data available, including the Status Review Report, and after taking into account efforts made to protect the species, we conclude that seven populations would meet the discreteness and significance criteria for recognition as DPSs, including the Northwest Atlantic population. However, even if we were to list them separately, all seven DPSs would meet the definition for endangered species (i.e., they are in danger of extinction throughout all or a significant portion of their range). The species is already listed as endangered throughout its range. We have determined that the listing of DPSs is not warranted, and therefore we do not propose any changes to the existing global listing. DATES: This finding was made on [insert date of publication in the FEDERAL REGISTER]. ADDRESSES: The Status Review Report are available on NMFS’ website at https://www.fisheries.noaa.gov/species/leatherback-turtle. FOR FURTHER INFORMATION CONTACT: Jennifer Schultz, NMFS Office of Protected Resources, (301) 427-8443, [email protected]. Persons who use a Telecommunications Device for the Deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day and 7 days a week. SUPPLEMENTARY INFORMATION: Background The leatherback turtle species as a whole was listed as an endangered species (one determined to be threatened with worldwide extinction) (35 FR 8491; June 2, 1970), under the Endangered Species Conservation Act of 1969, the precursor statute to the ESA (16 U.S.C. 1531 et seq). When the ESA was enacted in 1973, it specifically provided for continuity with the lists previously in effect under the Endangered Species Conservation Act. Section 4(c)(3) of the ESA directed that species on the lists of endangered foreign or native wildlife at the time the ESA took effect would be deemed “endangered species” under the ESA without interruption. See 39 FR 1444 (January 9, 1974) (explaining transition provisions); 39 FR 1158, 1172 (January 4, 1974) (setting out the final list of “endangered foreign wildlife,” including “Turtle, Leatherback” at 50 CFR 17.11). On September 20, 2017, the Blue Water Fishermen’s Association petitioned NMFS and USFWS (together, the Services) to identify the Northwest (NW) Atlantic leatherback turtle population as a DPS and to list it as threatened under the ESA. On December 6, 2017, NMFS published a “positive” 90-day finding in the Federal Register (82 FR 57565) announcing the determination that the petition presented substantial information indicating that the petitioned action may be warranted. At that time, NMFS also solicited information on leatherback turtles and announced that it would commence, jointly with USFWS, a status review of the entire listed species, pursuant to ESA section 4(b)(3)(A) and 50 CFR 424.14. The resulting Status Review Report includes all information used to evaluate the petitioned actions and explains the process followed by the Status Review Team (i.e., the Team). The following summarizes that information; for additional details, please see the Status Review Report (see ADDRESSES). ESA Statutory, Regulatory, and Policy Provisions and Evaluation Framework Under the ESA, the term “species” includes any subspecies of fish or wildlife or plants, and any DPS of any vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). The Services adopted a joint policy clarifying their interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act,” 61 FR 4722 (Feb. 7, 1996; “DPS Policy”). The DPS Policy stipulates two elements that must be considered: (1) discreteness of the population segment in relation to the remainder of the species to which it belongs; and (2) the significance of the population segment to the species to which it belongs. Section 3 of the ESA defines an endangered species as any species which is in danger of extinction throughout all or a significant portion of its range and a threatened species as one which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(6) and (20)). Thus, we interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so within the foreseeable future (that is, within a specified later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or within the foreseeable future (threatened). The ESA uses the term “foreseeable future” to refer to the time over which identified threats are likely to impact the biological status of the species. The duration of the “foreseeable future” in any circumstance is inherently fact-specific and depends on the particular kinds of threats, the life-history characteristics, and the specific habitat requirements for the species under consideration. The existence of threats to a species and the species’ response to such threats are not, in general, equally predictable or foreseeable. Hence, in some cases, the ability to foresee a threat to a species is greater than the ability to foresee the species’ exact response, or the timeframe of such a response, to that threat. For purposes of making this 12- month finding, the relevant consideration is whether the species’ population response (i.e., abundance, productivity, spatial distribution, diversity) is foreseeable, not merely whether the emergence of a threat is foreseeable. The foreseeable future extends only as far as we are able to reliably predict the species’ population response to threats. Pursuant to the ESA and our implementing regulations, we determine whether a species is threatened or endangered based on any one or a combination of the following ESA section 4(a)(1) factors or threats (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)): 1. The present or threatened destruction, modification, or curtailment of its habitat or range; 2. Overutilization for commercial, recreational, scientific, or educational purposes; 3. Disease or predation; 4. Inadequacy of existing regulatory mechanisms; or 5. Other natural or manmade factors affecting its continued existence, which could include but are not limited to: fisheries bycatch; vessel strikes; pollution (including marine debris and plastics, contaminants, oil and gas activities, and derelict fishing gear); natural disasters; climate change; and oceanographic regime shifts. Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made by any State or foreign nation or political subdivision thereof to protect the species’ existence (16 U.S.C. 1533(b)(1)(A)). Approach to the Status Review The Services convened a team of NMFS and USFWS biologists (i.e., the Team) to gather and review the best available scientific and commercial data on the leatherback turtle, assess the discreteness and significance of populations by applying the DPS Policy, evaluate the extinction risk of any population segments that meet the DPS criteria, and document all findings in a report (i.e., the Status Review Report). Although the petitioner requested evaluation only of the NW Atlantic leatherback population, we instructed the Team to perform a comprehensive status review to identify and evaluate the status of all potential DPSs. The Team compiled information on leatherback turtle life history, biology, ecology, demographic factors, and threats. This included the information received in the petition and in response to the Federal Register request associated with the 90-day finding (82 FR 57565; December 6, 2017). The Team also requested leatherback nesting data from beach monitoring programs. To evaluate recent abundance and trends, unpublished nesting beach monitoring datasets were often the best available data (i.e., most recent and relevant). The Team assessed these data in terms of standardization (i.e., the use of standardized methodology), consistency (i.e., consecutive seasonal data collection), and duration of data collection (i.e., the number of years that data were collected). When evaluating threats, peer-reviewed information, specifically primary research with large sample sizes and long-term sampling duration, was often the best available data.