[Federal Register Volume 79, Number 132 (Thursday, July 10, 2014)]
[Rules and Regulations]
[Pages 39855-39912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15748]



[[Page 39855]]

Vol. 79

Thursday,

No. 132

July 10, 2014

Part IV





Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Part 226





 Endangered and Threatened Species: Critical Habitat for the Northwest 
Atlantic Ocean Loggerhead Sea Turtle Distinct Population Segment (DPS) 
and Determination Regarding Critical Habitat for the North Pacific 
Ocean Loggerhead DPS; Final Rule

Federal Register / Vol. 79 , No. 132 / Thursday, July 10, 2014 / 
Rules and Regulations

[[Page 39856]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 130513467-4401-02]
RIN 0648-BD27


Endangered and Threatened Species: Critical Habitat for the 
Northwest Atlantic Ocean Loggerhead Sea Turtle Distinct Population 
Segment (DPS) and Determination Regarding Critical Habitat for the 
North Pacific Ocean Loggerhead DPS

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

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule to designate critical habitat for the Northwest Atlantic 
Ocean Distinct Population Segment (DPS) of the loggerhead sea turtle 
(Caretta caretta) within the Atlantic Ocean and the Gulf of Mexico 
pursuant to the Endangered Species Act of 1973, as amended (ESA). 
Specific areas for designation include 38 occupied marine areas within 
the range of the Northwest Atlantic Ocean DPS. These areas contain one 
or a combination of habitat types: Nearshore reproductive habitat, 
winter area, breeding areas, constricted migratory corridors, and/or 
Sargassum habitat. The U.S. Fish and Wildlife Service (USFWS) is 
issuing a final rule for loggerhead critical habitat for terrestrial 
areas (nesting beaches) in a separate document. No marine areas meeting 
the definition of critical habitat were identified within the 
jurisdiction of the United States for the North Pacific Ocean DPS, and 
therefore we are not designating critical habitat for that DPS.

DATES: This rule becomes effective August 11, 2014.

ADDRESSES: The final rule and final Economic Analysis (including the 
Regulatory Flexibility Analysis) used in preparation of this final 
rule, as well as comments and information received, and accompanying 
documents are available at http://www.nmfs.noaa.gov/pr/species/turtles/loggerhead.htm or by contacting Susan Pultz, NMFS, Office of Protected 
Resources, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Susan Pultz, NMFS, Office of Protected 
Resources 301-427-8472 or susan.pultz@noaa.gov; or Angela Somma, NMFS, 
Office of Protected Resources, 301-427-8474 or angela.somma@noaa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

    The following topics are discussed in this final rule:

I. Background
II. Summary of Changes From the Proposed Critical Habitat 
Designation
III. Public Comments and Responses
    A. Comments on ESA Requirements and Process
    B. Comments on Prudent and Determinable
    C. Comments on Coastal Zone Management Act
    D. Comments on North Pacific Ocean DPS
    E. Comments on Northwest Atlantic Ocean DPS
    Comments on Use of Best Available Data
    Comments on Sargassum Habitat
    Comments on Foraging Habitat
    Comments on Nearshore Reproductive Habitat
    Comments on Wintering Habitat
    Comments on Constricted Migratory Corridors
    Comments on Special Management Considerations
    Additional Comments
    F. Comments on Draft 4(b)(2) Report and Economic Analysis Report 
(DEA)
    Comments on Construction and Dredging Activities
    Comments on Oil And Gas Activities
    Comments on Fisheries
    Comments on Other Activities or Issues
IV. Critical Habitat Identification
    A. Geographical Area Occupied by the Species
    1. Northwest Atlantic Ocean DPS
    2. North Pacific Ocean DPS
    B. Description of Physical or Biological Features and Primary 
Constituent Elements, and Identification of Specific Areas
    1. Northwest Atlantic Ocean DPS
    Nearshore Reproductive Habitat
    Foraging Habitat
    Winter Habitat
    Breeding Habitat
    Constricted Migratory Habitat
    Sargassum Habitat
    2. North Pacific Ocean DPS
    Central North Pacific Ocean
    Eastern Pacific/U.S. West Coast
    C. Special Management Considerations
    1. Northwest Atlantic Ocean DPS
    Nearshore Reproductive Habitat
    Winter Habitat
    Breeding Habitat
    Constricted Migratory Habitat
    Sargassum Habitat
    2. North Pacific Ocean DPS
    D. Unoccupied Areas
V. Military Lands: Application of ESA Section 4(a)(3)
VI. Exclusions: ESA Section 4(b)(2) Analysis
    A. Benefits of Designation
    B. Economic Benefits of Exclusion
    C. Exclusions of Particular Areas Based on Economic Impacts
    D. Exclusions Based on Impacts to National Security
    E. Exclusions for Tribal Lands
VII. Final Determinations and Critical Habitat Designations
VIII. Effects of Critical Habitat Designation
IX. Activities That May Be Affected
X. Information Quality Act and Peer Review
XI. Classification
    A. Regulatory Planning and Review
    B. National Environmental Policy Act
    C. Regulatory Flexibility Act
    D. Coastal Zone Management Act
    E. Federalism
    F. Paperwork Reduction Act
    G. Unfunded Mandates Reform Act
    H. Takings
    I. Government to Government Relationships With Tribes
    J. Energy Effects
XII. References Cited

I. Background

    The loggerhead sea turtle was originally listed under the ESA 
worldwide as a threatened species on July 28, 1978 (43 FR 32800). No 
critical habitat was designated for the loggerhead sea turtle at that 
time. Pursuant to a joint memorandum of understanding signed on July 
18, 1977, the USFWS has jurisdiction over sea turtles on land and we, 
the National Oceanic and Atmospheric Administration's (NOAA's) NMFS, 
have jurisdiction over sea turtles in the marine environment. On 
September 22, 2011, NMFS and USFWS jointly published a final rule 
revising the loggerhead's listing from a single worldwide threatened 
species to nine DPSs (76 FR 58868). Five DPSs were listed as endangered 
(North Pacific Ocean, South Pacific Ocean, North Indian Ocean, 
Northeast Atlantic Ocean, and Mediterranean Sea), and four DPSs were 
listed as threatened (Northwest Atlantic Ocean, South Atlantic Ocean, 
Southeast Indo-Pacific Ocean, and Southwest Indian Ocean). Critical 
habitat cannot be designated in areas outside of U.S. jurisdiction (50 
CFR 424.12). Two DPSs occur within U.S. jurisdiction: The Northwest 
Atlantic Ocean DPS (range defined as north of the equator, south of 
60[deg] N. lat., and west of 40[deg] W. long.), and the North Pacific 
Ocean DPS (range defined as north of the equator and south of 60[deg] 
N. lat.). At the time the final listing rule was developed, we lacked 
comprehensive data and information necessary to identify and describe 
physical or biological features (PBFs) of the terrestrial and marine 
habitats. As a result, we found designation of critical habitat to be 
``not determinable'' (see 16 U.S.C. 1533(b)(6)(C)(ii)). In the final 
rule we stated that we would consider designating critical habitat for 
the two DPSs within U.S. jurisdiction in future rulemakings.
    Following the 2011 listing, NMFS and USFWS convened a critical 
habitat

[[Page 39857]]

review team (CHRT) to assist in the assessment and evaluation of 
critical habitat areas for the Northwest Atlantic Ocean and North 
Pacific Ocean DPSs. Based on their biological report, the initial 
Regulatory Flexibility Analysis and section 4(b)(2) analysis (which 
considers exclusions to critical habitat based on economic, national 
security and other relvant impacts), we published a proposed rule (78 
FR 43006, July 18, 2013) to designate critical habitat for the 
threatened Northwest Atlantic Ocean DPS and determined that there are 
no areas meeting the definition of critical habitat for the endangered 
North Pacific Ocean DPS.
    We proposed designating 36 marine areas within the Northwest 
Atlantic Ocean DPS as critical habitat. Each of these areas consists of 
one or a combination of the following habitat types: nearshore 
reproductive habitat (directly off nesting beaches to 1.6 km (1 mile)), 
wintering habitat, breeding habitat, and constricted migratory 
corridors. In the proposed rule, we also asked for comment on whether 
to include as critical habitat in the final rule some areas that 
contain foraging habitat and two large areas that contain Sargassum 
habitat.
    In the proposed rule we requested public comment through September 
16, 2013. In response to requests, we extended the public comment 
period through November 29, 2013 (78 FR 59907) and held three public 
hearings.
    The USFWS proposed terrestrial critical habitat (nesting beaches) 
in a separate rulemaking on March 25, 2013 (78 FR 18000). The proposed 
designations complement each other as the nearshore reproductive 
habitat we proposed is directly offshore of the nesting beaches 
proposed by the USFWS.
    For a complete description of our proposed action, including the 
natural history of the loggerhead sea turtle, we refer the reader to 
the proposed rule (78 FR 43006, July 18, 2013).

II. Summary of Changes From the Proposed Critical Habitat Designation

    We evaluated the comments submitted and new information received 
from public comments and hearings following the proposed rulemaking, 
and made the following changes from the proposed rule to the final 
rule:
    (1) To the first PCE for Nearshore Reproductive Habitat (IV.B.1. 
and in the textual description), we added ``and their adjacent 
beaches'' and replaced the reference to the USFWS proposed rule for 
terrestrial critical habitat for the loggerhead sea turtle Northwest 
Atlantic Ocean DPS (78 FR 18000, March 25, 2013) to the appropriate 
place in the Code of Federal Regulations to read, ``Nearshore waters 
directly off the highest density nesting beaches and their adjacent 
beaches, as identified in 50 CFR 17.95(c), to 1.6 km offshore;
    (2) To the PBFs, PCEs and Special Management Considerations for 
Concentrated Breeding areas (IV.B.1 and IV.C.1), we changed 
``concentrations'' to ``densities.''
    (3) To Special Management Considerations for Sargassum (section 
IV.C.1.), we added ``levels of ocean acidity'' to (5), which now reads, 
``Global climate change, which can alter the conditions (such as 
currents and other oceanographic features, temperature, and levels of 
ocean acidity) that allow Sargassum habitat and communities to thrive 
in abundance and locations suitable for loggerhead developmental 
habitat.''
    (4) Under VII. Final Determinations and Critical Habitat 
Designations, we added Sargassum habitat to the list of habitat areas.
    (5) In the textual description for LOGG-N-4, we deleted reference 
to ``Onslow Beach (Marine Corps Base Camp Lejeune)'' as well as 
``Browns Inlet'' because it was determined that the base's Integrated 
Natural Resources Management Plan (INRMP) benefited loggerheads and 
therefore the area should not be designated in accordance with section 
4(a)(3) of the ESA.
    (6) We added textual descriptions for two units of Sargassum 
habitat (LOGG-S-1 and LOGG-S-2) with associated regulatory text and 
map.

III. Public Comments and Responses

    In response to the request for comments in the proposed rule and 
our public hearings, we received over 200 individual comment letters, 
one with 5,552 signatures. At least 42 individual comments consisted of 
general statements supporting the designation, many noting that they 
would like loggerheads to receive as much protection as possible, and 
some noting that they would be in favor of ``protecting more habitat,'' 
although they were not specific as to where. Two commenters expressed 
general statements opposing the designation but without reference to 
specific areas or issues. We received additional comments either 
expressing support or opposition with specific information regarding 
areas or issues. For the responses to comments, we do not include 
comments expressing general support or general opposition; only 
comments that are accompanied by specific details. We also did not 
respond to comments that were specific to terrestrial habitat, but did 
share those comments with USFWS so they could respond. We only include 
comments that are germane to the proposed rule and we sort our 
responses below by major topic area.

A. Comments on ESA Requirements and Process

    Comment 1: Several commenters felt that NMFS took an 
inappropriately narrow reading of its conservation mandate for in-water 
designation of critical habitat. Commenters note that the ESA and its 
implementing regulations require the designation of critical habitat to 
focus on the biological features of the habitat that make it essential 
to the conservation of the species. The commenters said that NMFS 
declined to designate critical habitat in all areas where the PCEs are 
present and essential to the conservation of the species, instead 
repeatedly narrowing its proposed designation to include only a subset 
of these areas. The commenters argued if an area is essential for the 
conservation of the species, including both its survival and recovery, 
it must be designated unless the economic costs outweigh the benefits 
of designation.
    Response: The ESA requires that in designating critical habitat, we 
identify ``physical or biological features (I) essential to the 
conservation of the species and (II) which may require special 
management consideration or protection'' (section 3(5)(A)(i)). Section 
3(5)(C) of the ESA states that ``Except under those circumstances 
determined by the Secretary, critical habitat shall not include the 
entire geographical area which can be occupied by the . . . species.'' 
This species is naturally wide-ranging and a generalist forager. As 
such, it occurs throughout the east coast of the U.S. We identified 
Physical Biological Features (PBFs) and Primary Constituent Elements 
(PCEs) that help us identify habitat essential to the conservation of 
the species (as defined in the ESA), and not the entire historical 
range of the species.
    Comment 2: Several commenters emphasized that NMFS should subject 
any requests for critical habitat exclusion to a thorough public 
review, including notice and opportunity for comment, just as it has 
its critical habitat proposal.
    Response: While we appreciate the commenters' concern with 
transparency and public review, we do not request public comment on 
requests for exclusions. We do make all comments available on 
regulations.gov and we address them in this final rulemaking so

[[Page 39858]]

the public can see any requests that were made and our response.
    Comment 3: Several commenters felt NMFS was obligated to prepare an 
environmental impact statement in connection with designating critical 
habitat pursuant to the National Environmental Policy Act, 42 U.S.C. 
4321, et seq. (``NEPA''). Designation of critical habitat for the 
loggerhead sea turtle significantly affects the quality of the human 
environment, and NMFS is required to determine the extent of these 
impacts in compliance with NEPA.
    Response: We have determined that an environmental analysis as 
provided for under NEPA for critical habitat designations made pursuant 
to the ESA is not required. See Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
    Comment 4: Several commenters cited data indicating that the 
loggerhead population is increasing and questioned whether designation 
of critical habitat in marine areas is in fact essential to the 
conservation of this species according to the requirements of the ESA.
    Response: Whether the loggerhead population is increasing could 
have a bearing on whether and how it is listed (endangered or 
threatened), but does not have a bearing on whether critical habitat 
should be designated. Habitat is a key ingredient to the well-being of 
any species, and Congress determined that a species that is listed 
under the ESA should have critical habitat protected except in the very 
limited circumstances in which it is determined not to be prudent (see 
response to comment 5).
    Comment 5: A number of commenters expressed concern about whether 
the critical habitat designation would add information requirements, or 
reasonable and prudent alternatives, to current and future Section 7 
consultations, including whether consideration of additional risk 
factors would be required.
    Response: NMFS anticipates that it is unlikely that this critical 
habitat designation will alter the factors considered in, or result in 
additional management efforts resulting from, future section 7 
consultations. Regardless of whether critical habitat is designated, 
all listed species undergo section 7 consultation. Loggerhead sea 
turtles have been protected under the ESA since 1978, with Section 7 
consultations proceeding regularly since that listing.
    NMFS has engaged in a large number of consultations with Federal 
agencies that resulted in implementation of a suite of conservation 
measures that are used to avoid jeopardizing the continued existence of 
the species. In preparing the critical habitat designation, NMFS 
considered whether Section 7 consultations would need to consider 
additional or different conservation measures or risk factors to avoid 
destruction or adverse modification of the primary constituent elements 
that support the physical and biological features of critical habitat 
above and beyond those measures already taken to avoid jeopardizing the 
continued existence of the species. For example, NMFS has issued 
several biological opinions to the Bureau of Ocean Energy Management 
(BOEM) regarding authorized activities in the Gulf of Mexico and 
Atlantic that may affect Sargassum habitat. This long consultation 
history with BOEM has allowed NMFS and the action agency to identify 
direct and indirect effects of BOEM actions that may adversely affect 
the species (e.g., authorization of routine activities such as vessel 
traffic, drilling, dredging and surveys; and accidental events 
reasonably certain to occur, such as small oil spills from vessels or 
platforms) and measures to minimize and mitigate those impacts on the 
species. Conservation measures required by NMFS in biological opinions 
issued to BOEM include, but are not limited to, marine debris 
minimization guidance and training. Although the risk factors evaluated 
in the BOEM consultations and the conservation measures resulting from 
them were for the effects to the species, NMFS anticipates that they 
would be equally applicable to the determination of whether there is 
likely to be an adverse impact to, or an adverse modification of, 
critical habitat as designated in this final rule. Therefore, NMFS does 
not expect additional risk factors or conservation measures to be 
required as a result of this critical habitat designation, because the 
protection accorded the species through the Section 7 process has 
included consideration of measures necessary to protect its habitat 
from destruction or adverse modification.

B. Comments on Prudent and Determinable

    Comment 6: Several commenters noted the ESA only allows critical 
habitat designations when special management considerations may be 
necessary, when designation is prudent, and where critical habitat is 
determinable. They believe the areas proposed for critical habitat 
designation do not meet these requirements. Several of these commenters 
specifically identified the Sargassum habitat discussed in the proposed 
rule as an example, due to the large uncertainties associated with 
those areas as described in the proposed rule.
    Response: The commenters are correct that critical habitat is 
designated when special management considerations may be necessary, 
when designation is prudent, and where critical habitat is 
determinable. With regard to special management considerations, we have 
determined that Sargassum habitat is essential to loggerheads and may 
require special management considerations. In the proposed rule, we 
recognized that the Sargassum PCEs can be affected by the following 
activities which may require special management: Commercial harvest of 
Sargassum, oil and gas activities, vessel operations that result in the 
disposal of trash and wastes, ocean dumping, and global climate change.
    With regard to the prudency of critical habitat designations, our 
implementing regulations for critical habitat designations (50 CFR 
424.12(a)(1)) state that designating critical habitat is not prudent 
when (1) the species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of such threat to the species (not the case for loggerheads); or 
(2) such designation would not be beneficial to the species. In the 
case of loggerhead sea turtles, identification of critical habitat 
would not increase the degree of threat to the species. Further, 
because there is value in highlighting critical habitat, including for 
planning and educational purposes, designation of critical habitat does 
contribute to the conservation of the species. Uncertainty in 
information does not mean a designation is not prudent.
    Critical habitat is now determinable. At the time we listed the 
nine DPSs of loggerhead sea turtles in 2011, critical habitat was not 
determinable. If critical habitat is not determinable at the time of 
listing, the ESA allows the Secretary to extend the timeframe to 
designate, but only by one additional year. After this year, she must 
publish a final regulation based on such data as may be available at 
that time.

C. Comments on Coastal Zone Management Act

    Comment 7: Several commenters were concerned that that our 
consistency determination submitted to the North Carolina Division of 
Coastal Management in connection with designating critical habitat is 
incomplete and does not meet the requirements of the Coastal Zone 
Management Act, 16 U.S.C. 1451, et seq. (CZMA) and its implementing 
regulations. Some requested that we

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revisit this Federal consistency submission and include additional 
analysis of potential impacts, and that we include additional 
information on potential economic impacts and the data used to 
determine critical habitat boundaries.
    Response: Upon further review of our proposed designation of 
critical habitat for the threatened loggerhead sea turtle Northwest 
Atlantic Ocean DPS and its supporting analysis, by letter dated January 
23, 2014, we withdrew our consistency determination for North Carolina 
and instead provided a negative determination. While we recognize the 
State's goals of coastal resource protection and economic development, 
we determined that any effects of the proposed action on North 
Carolina's coastal uses and resources are not reasonably foreseeable at 
this time. As indicated in our negative determination, this designation 
of critical habitat will not restrict any coastal uses, affect land 
ownership, or establish a refuge or other conservation area; rather, 
the designation only affects the ESA section 7 consultation process. 
Through the ESA consultation process, we will receive information on 
proposed Federal actions and their effects on listed species and this 
critical habitat upon which we base our biological opinions. It will 
then be up to the Federal action agencies to decide how to comply with 
the ESA in light of our opinion, as well as to ensure that their 
actions comply with the CZMA's Federal consistency requirement. At this 
time, we do not anticipate that this designation is likely to result in 
any additional management measures by other Federal agencies.

D. Comments on the North Pacific Ocean DPS

    Comment 8: Numerous commenters suggested that the designation 
should include migratory pathways for the North Pacific Ocean DPS 
between North American foraging grounds and/or their nesting grounds in 
Japan. They also raised concern about areas used by loggerheads along 
the U.S. west coast not being proposed for designation. One of these 
commenters went on to add that the Southern California Loggerhead 
Conservation Area and areas within the U.S. EEZ northwest of the 
Hawaiian Islands are occupied by loggerheads and contain PBFs essential 
to loggerhead conservation that may require special management 
considerations.
    Response: Loggerheads are wide-ranging, opportunistic foragers, 
with individuals traveling long distances between nesting and foraging 
sites, and Pacific loggerheads are no exception. We closely examined 
whether migratory pathways should be included, particularly with 
respect to physical and biological features that are associated with 
loggerhead movement between foraging and nesting grounds in the Pacific 
Ocean. While loggerheads are known to migrate between foraging areas in 
the eastern Pacific and nesting areas in Japan, those migratory 
pathways overlap very minimally with U.S. waters in the EEZ northwest 
of Hawaii and off the U.S. west coast. Satellite telemetry data that 
currently exists is not sufficient to identify migration corridors to, 
from, or within the U.S. EEZ of either location. Loggerhead turtles 
transiting to the Eastern Pacific head primarily into Mexican waters. 
Indeed, there is a significant foraging ``hotspot'' at Ulloa Bay, Baja 
California peninsula at approximately 114[deg] W. long. and 25[deg] N. 
lat. (Wingfield et al. 2013), and turtle migratory habitat appears to 
dip south around 130[deg] W. long. (which is outside of the California 
EEZ and runs south to Baja) where turtles follow optimal temperature to 
foraging grounds in Mexico (Abecassis et al. 2013).
    With regard to the Southern California Loggerhead Conservation 
Area, the oceanographic feature thought to be correlated with 
loggerhead movements and the trigger for a drift gillnet time/area 
closure during the summer months off southern California is the El 
Ni[ntilde]o-Southern Oscillation (ENSO). However, both tagging and 
stable isotope data have brought the ENSO-driven movement hypothesis 
into question. For example, no loggerheads that were tracked while 
foraging along the Pacific coast of Baja California, Mexico from 1996 
to 2007 moved north into U.S. California EEZ waters (Peckham et al. 
2011). This is particularly relevant considering that this time period 
encompassed at least one major ENSO event (1997-1998). The results of 
Peckham et al. (2011) underscore the strong tendency for loggerheads to 
maintain their presence in the waters off Mexico. The apparent absence 
of northward movements of tracked turtles may be due to the equatorial 
flow of the California Current, which would require northbound turtles 
off the Baja California peninsula to swim directly into the southerly 
currents (Allen et al. 2013). Allen et al. (2013) also compared skin 
samples from loggerheads captured in the California drift gillnet 
fishery with loggerheads from the central North Pacific (incidentally 
caught in the Hawaii-based longline fishery) and from turtles sampled 
during in-water research along the Baja California Peninsula, Mexico. 
The authors concluded that turtles in California most likely came from 
the central North Pacific and not from the Baja California peninsula, 
as was initially believed when the drift gillnet time/area closure was 
put in place off the Southern California Bight in 2003. In addition, 
Allen et al. (2013) note that loggerhead turtles, while rarely 
encountered in the Southern California Bight have been observed taken 
in small numbers by the CA drift gillnet fishery or found stranded 
during non-ENSO years.
    Comment 9: One comment stated that the agencies did not propose 
designation of any critical habitat for the North Pacific Ocean DPS 
because of the lack of nesting in U.S. Pacific waters.
    Response: Our decision not to propose designation of critical 
habitat in the EEZ around Hawaii and off the coast of southern 
California is not because there is no nesting adjacent to U.S. Pacific 
waters. A species does not have to nest within U.S. waters to have 
critical habitat designated. An occupied area only need contain the 
physical and biological features essential to the conservation of the 
species and which may require special management consideration or 
protection, and in the case of unoccupied habitat be essential to the 
conservation of the species in order for it to be designated as 
critical habitat. The U.S. waters around Hawaii and off the coast of 
southern California do not contain the physical and biological features 
essential to the conservation of the species and therefore do not meet 
the requirements for designation.
    Comment 10: One commenter expressed the importance of using the 
best available information in designating critical habitat in Hawaii 
and California.
    Response: As required by Section 4(b)(2) of the ESA we evaluated 
whether to designate critical habitat on the basis of the best 
scientific data available. The loggerhead habitat within the U.S. EEZ 
of the central North Pacific Ocean does not provide suitable conditions 
in sufficient quantity and frequency to support meaningful foraging, 
development, and/or transiting opportunities and, therefore, was not 
deemed to be essential to the conservation of the species.
    Comment 11: Several commenters suggested that critical habitat 
should be designated for the North Pacific Ocean DPS simply because of 
the presence of loggerheads.
    Response: The mere presence of a listed species in an area does not 
mean that the area qualifies as critical habitat. The ESA defines 
critical habitat as '' the

[[Page 39860]]

specific areas within the geographical area occupied by the species . . 
. on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management consideration or protection'' (section 3(5)(A)(i)). 
It further states, ``Except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire geographical 
area which can be occupied by the threatened or endangered species'' 
(section 3(5)(C)). Habitat used by loggerheads within the U.S. EEZ of 
the central North Pacific Ocean does not provide suitable conditions in 
sufficient quantity and frequency to support meaningful foraging, 
development, and/or transiting opportunities and, therefore, could not 
be deemed to be essential to the conservation of the species.
    Comment 12: Several commenters supported our decision not to 
designate critical habitat for the North Pacific Ocean DPS. One 
commenter also suggested that there is ``no data establishing that 
modification of the pelagic environment is a significant contributing 
factor to the risks faced by the North Pacific DPS'' and further added 
that ``longline fisheries that operate in those waters have, at best, 
negligible effects on the North Pacific DPS.'' Another commenter cited 
sea turtle interaction rates with U.S. fisheries, and also suggested 
that the U.S. fisheries around Hawaii have, at most, negligible effects 
on the species. The commenter also supplied information on conservation 
efforts, such as nesting beach projects at foreign beaches.
    Response: We agree that based on the best available information no 
marine areas meeting the definition of critical habitat were 
identifiable within the jurisdiction of the United States for the North 
Pacific Ocean DPS. However, because we did not identify PBFs within the 
U.S. EEZs, we did not need to look further into the issues raised in 
these comments.
    Comment 13: One commenter suggested that the agency use metrics 
when defining the foraging habitats as functional habitats (including 
the North Pacific Ocean DPS).
    Response: The Biological Report uses both general and specific 
metrics when it describes the PBF deemed essential to loggerhead 
oceanic habitat in the North Pacific as well as the PCEs for both the 
central North Pacific and the eastern North Pacific. We describe the 
PBF of loggerhead turtle oceanic habitat in the North Pacific Ocean as 
waters that support suitable conditions in sufficient quantity and 
frequency to provide meaningful foraging, development, and/or 
transiting opportunities to the populations in the North Pacific. PCEs 
in the central North Pacific Ocean that support this habitat are (1) 
currents and circulation patterns of the North Pacific (Kuroshoi 
Extension Bifurcation Region, and the southern edge of the Kuroshio 
Extension Current characterized by the Transition Zone Chlorophyll 
Front) where physical and biological oceanography combine to promote 
high productivity (chlorophyll a = 0.11-0.31 mg/m 3) and sufficient 
prey quality (energy density >=11.2 kJ/g) of species; and (2) 
appropriate sea surface temperatures (14.45[deg] to 19.95 [deg]C 
(58.01[deg] to 67.91[emsp14][deg]F)), primarily concentrated at the 
17[deg] to 18 [deg]C (63[deg] to 64[emsp14][deg]F) isotherm. PCEs in 
the eastern North Pacific Ocean that support this habitat include the 
following: (1) Sites that support meaningful aggregations of foraging 
juveniles, and (2) sufficient prey densities of neustonic and oceanic 
organisms.

E. Comments on Northwest Atlantic Ocean DPS

Comments on Use of Best Available Data
    Comment 14: One commenter felt that we failed to access and compile 
all the available data and, as a result, the proposed rule was not 
based on the best scientific data available. The commenter argued that 
NMFS did not include the synthesis of aerial survey and telemetry data 
for surfacing times collected seasonally in the Atlantic Ocean through 
the Atlantic Marine Assessment Program for Protected Species (AMAPPS) 
and in the Gulf of Mexico through the Deep Water Horizon Natural 
Resource Damage Assessment (NRDA) surveys.
    Response: We did review available data from the AMAPPS project but 
did not note this in the preamble to the proposed rule. However, the 
telemetry data from AMAPPS has not been analyzed in a way similar to 
that done by the Loggerhead Turtle Expert Working Group (TEWG), which 
synthesized information for turtle presence based on satellite 
telemetry in the Gulf of Mexico and Atlantic Ocean and was therefore 
particularly useful for our analysis. Incorporation of the AMAPPS data 
would not alter the already known pattern of habitat use in the U.S. 
Atlantic as the tracks from the AMAPPS turtles overlay the areas 
already known to be extensively used by turtles from the TEWG report 
(NMFS 2011; NMFS 2012a; Richards 2012, pers. comm.). With regard to 
surveys conducted in response to the Deep Water Horizon incident, 
satellite tracks in the Gulf of Mexico were collected by the NMFS 
Southeast Fishery Science Center but not funded by NRDA. As with the 
AMAPPS data, review of these data did not yield any new or unknown 
patterns of habitat use by loggerheads in the Gulf of Mexico.
    Comment 15: One commenter felt it was imperative for USFWS to 
include readily available data from the 2012 nesting season into their 
final analysis and critical habitat designation. Because NMFS' 
designation of nearshore reproductive habitat is based on the USFWS 
proposal, the commenter argued these must be closely coordinated and 
both agencies must examine the science relevant to their designation.
    Response: Critical habitat is defined in section 3 of the Act as 
the specific areas within the geographical area occupied by the species 
at the time it was listed and contain physical or biological features 
(1) which are essential to the conservation of the species and (2) 
which may require special management considerations or protection. The 
Northwest Atlantic Ocean loggerhead sea turtle DPS was listed in 2011 
(50 CFR 17.11(h)). USFWS defined the terrestrial portion of the 
geographical area occupied for the loggerhead sea turtle as those U.S. 
areas in the Northwest Atlantic Ocean DPS where nesting has been 
documented for the most part annually for the 10-year period from 2002 
to 2011 as this time period represents the most consistent and 
standardized nest count surveys. NMFS defined the nearshore 
reproductive habitat as waters off those nesting beaches to 1.6 km. In 
addition, the proposed rule for this designation was being prepared in 
2012 and early 2013, and not all of the nesting survey results from 
2012 were available for all areas at the time. Thus, to insure data 
quality and consistency our determination of critical habitat used 
nesting data through the 2011 nesting season.
    Comment 16: One commenter was concerned that much of the proposal 
was based on the 2009 assessment of loggerhead sea turtles in the 
Western North Atlantic Ocean conducted by the Turtle Expert Working 
Group (TEWG, 2009). The commenter noted that the TEWG's 2009 assessment 
presents considerable data which have been compiled and analyzed over 
the past 30 years, but is careful to point out significant shortcomings 
in current data and the need to improve and increase data collection in 
the future to better understand the population. The

[[Page 39861]]

commenter questioned the manner in which the collected data and its 
analysis was used by the NMFS and concluded the proposal falsely leads 
one to believe that considerable statistical data are available on 
which accurate population counts and spatial distribution can be 
determined. The commenter characterized the spatial distribution in the 
TEWG report as being driven by where studies were conducted rather than 
an attempt to consider the likely spatial distribution as a starting 
point in a comprehensive analysis.
    The commenter further stated that the Florida east coast, between 
Ponce Inlet and Golden Beach/Miami, account for 79 percent of 
loggerhead nests within the DPS and stated that this should be used as 
the foundation for studying spatial distribution of the species.
    Response: We recognize that there are limitations to the TEWG data, 
but it represents much of the best available science for loggerheads. 
Where we were able to supplement that data, we did. We did not infer 
that the TEWG report is a statistical accounting of accurate population 
counts. We do believe the TEWG report represents the best compilation 
of numerous data sets through 2007/2008 and we clearly identified the 
methods used in the TEWG report. The TEWG data can be used as a 
starting point for general distribution, but we recognize that the 
spatial distribution is largely based upon where studies were 
conducted. We considered those limitations in our analysis.
    We do not disagree that further study for peninsular Florida 
loggerheads is warranted; however, while the Florida coast does contain 
the highest density of loggerhead nests, the basic tenets of 
conservation biology dictate the importance of conserving the range of 
habitats and individuals utilizing them in order to preserve both the 
adaptive capability of turtles (turtles that have adapted to different 
conditions, exhibit different life history strategies (such as 
overwintering off of North Carolina as opposed to migrating south) and/
or those whose genetic makeup may reflect such adaptations), and a 
range of habitat options as conditions change, such as loss of habitat 
in low lying areas due to sea level rise.
    Comment 17: One commenter claimed major shortcomings exist in the 
quantity and quality of the data relied upon by NMFS and particularly 
that associated with the marine population and distribution of 
loggerheads. They argued that these shortcomings make it impossible to 
accurately identify areas that are critical to the survival of the 
species, and that designation of critical habit requires more 
comprehensive data and analysis of the marine population than what is 
currently available. The commenter concluded that as a result, 
wintering, migratory and breeding habitats as well as foraging and 
Sargassum locations should not be designated as critical habitat until 
adequate data and analyses are available to correctly identify their 
importance to the survival of the species and their economic and social 
impact to the public.
    Response: We conducted a comprehensive analysis of all the 
available information in identifying areas proposed for critical 
habitat designation. While we appreciate the commenter's desire to have 
comprehensive studies before assessing whether and where to designate 
critical habitat, the standard for data under the ESA is ``best 
scientific and commercial data available.'' We are required to base our 
designation on data that is the best available at the time we designate 
habitat. Further, we believe the record supports our decision to 
designate certain areas as loggerhead critical habitat based upon the 
best available data.
    Comment 18: One commenter felt that NMFS had consulted the most 
appropriate studies in preparing the proposed rule, which accurately 
describe the current state of knowledge of population trends, habitat 
utilization, and distribution of habitats important to the survival of 
the threatened population segment of this species. However, this 
commenter encouraged NMFS to continue to collect data and consider the 
potential inclusion of foraging grounds in the designation in the 
future.
    Response: We will endeavor to collect and support research that 
allows us to identify additional areas, including foraging habitat, in 
the future.
    Comment 19: One commenter stated that NMFS has an obligation to 
make available the studies that form the basis of its proposed critical 
habitat designation.
    Response: All information used to formulate the proposed rule was 
cited in the ``References'' document posted under the same docket as 
the proposed rule under `Supporting Documents' on Regulations.gov. A 
``References'' document is also available for the final rule (see 
ADDRESSES section above).
Comments on Sargassum Habitat
    Comment 20: Several commenters argued that the fact that Sargassum 
habitat moves and changes should not be a reason to exclude it from 
designation. The commenters noted that the nature of habitat is 
inherently dynamic and there is nothing in the ESA that requires PCEs 
to be static. They presented the USFWS designation of vernal pools 
(seasonal wetlands) as an example of this practice, and noted that 
Sargassum habitat also has been identified in the Recovery Plan as 
essential to the survival of post-hatchlings.
    Response: We appreciate the concern that Sargassum habitat be 
designated, and agree that it is possible to designate ephemeral and/or 
dynamic habitat. We also agree that Sargassum habitat is important to 
various loggerhead life stages, particularly post-hatchlings, hence our 
consideration of this habitat type in the critical habitat designation. 
This case was challenging as Sargassum basically occurs throughout the 
U.S. EEZ south of 40[deg]N. We solicited comments to identify more 
accurately those areas where the highest use or value of Sargassum is 
most likely to occur. We have identified an area of Sargassum habitat 
that we believe is most beneficial to the species and included it in 
the final designation under Section IV., Critical Habitat 
Identification. Generally, the Sargassum habitat included in the 
designation consists of the western Gulf of Mexico to the eastern edge 
of the loop current, through the Straits of Florida and along the 
Atlantic coast from the western edge of the Gulf Stream eastward.
    Comment 21: Several commenters noted the importance of Sargassum as 
developmental habitat for loggerhead sea turtles, but had concerns with 
the large area described in the proposed rule and recommended defining 
the area as discretely as practical. Some noted that, given the dynamic 
nature of Sargassum habitat, it is likely that at various times much of 
the suggested critical habitat area based on Sargassum would contain 
densities of Sargassum below that which would concentrate loggerhead 
sea turtles. They recommended designating Sargassum itself rather than 
designating a specified area, in much the same manner as polar ice is 
designated as critical habitat for polar bears.
    Response: We recognize the Sargassum habitat identified in the 
proposed rule is a large area. It is precisely the dynamic and 
widespread nature of Sargassum habitat that made it a challenge to 
consider, and why we did not propose to designate but rather requested 
comments on where to designate in the proposed rule. We have identified 
an area of Sargassum habitat that we believe is most beneficial to the 
species and this is included in the final designation under Section 
IV., Critical

[[Page 39862]]

Habitat Identification. Generally, the Sargassum habitat included in 
the designation consists of the western Gulf of Mexico to the eastern 
edge of the loop current, through the Straits of Florida and along the 
Atlantic coast from the western edge of the Gulf Stream eastward.
    With regard to the notion of designating Sargassum itself rather 
than a specific area, the ESA requires us to designate specific areas 
as critical habitat, not features or components of areas. While we 
recognize that it is possible that in any given portion of the critical 
habitat area at any given time Sargassum may not provide adequate cover 
and forage opportunities for loggerhead turtles, it is not necessary 
that PCEs of Sargassum habitat be present in the designated area at all 
times.
    With regard to the polar bear critical habitat designation, the 
polar ice in that designation is treated much the same as we have 
treated Sargassum. Recognizing that it is dynamic in nature, 
particularly with the season, the entire U.S. area within which the 
polar bears use the ice was designated, knowing that they do not use 
all areas in all seasons or even all years. The sea ice habitat area 
identified in the final rule designating polar bear critical habitat 
includes all contiguous waters from the mean high tide line of the 
mainland coast of Alaska to the 300 m bathymetry depth contour or the 
EEZ (75 FR 76086, December 7, 2010).
    Comment 22: One commenter was concerned with the high level of 
uncertainty of the location of Sargassum habitat at any point in time 
and noted that the designation of essentially the entire continental 
shelf of the northern Gulf of Mexico as loggerhead critical habitat 
appears to be based on an almost complete lack of knowledge of the 
natural variability in Sargassum distribution and concentration. 
Further, the first PCE of Sargassum habitat is ``Convergence zones, 
surface-water downwelling areas, and other locations where there are 
concentrated components of the Sargassum community in water 
temperatures suitable for the optimal growth of Sargassum and 
inhabitance of loggerheads.'' Yet Witherington et al. (2012) concludes 
that because they captured most turtles in Sargassum outside dense 
convergence zones, a direct correlation between strong convergences and 
essential loggerhead habitat cannot be made.
    Response: We acknowledge it is difficult to forecast when Sargassum 
will be in a particular location on a particular date, given the 
variability of eddies, currents and weather; however, some trends may 
be anticipated (see Gower and King 2011). Sargassum moves with the 
currents so that Sargassum originating in the western Gulf typically 
spreads to the eastern Gulf and into the Atlantic, resulting in a 
dynamic habitat that is important to loggerheads wherever it occurs.
    The section of the proposed rule that is quoted in this comment 
refers specifically to a correlation between density of convergence 
zones and that of loggerheads, but does not refute the importance of 
Sargassum to loggerheads. Read in its entirety, the proposed rule (and 
Witherington et al. 2012) clearly states that young loggerheads are 
indeed strongly associated with Sargassum, but a direct correlation 
between the strength of convergences and the density of loggerheads 
cannot be made. As we noted in the proposed rule, ``Witherington et al. 
(2012) found that the distribution of post-hatchling and early juvenile 
loggerheads was determined by the presence of Sargassum. Indeed, in 
surveys in which they measured the relative abundance of sea turtles in 
transects of surface-pelagic habitat across areas with and without 
Sargassum, Witherington et al. (2012) found that 89 percent of 1,884 
post-hatchling and juvenile turtles were initially observed within 1 m 
of floating Sargassum. Sargassum rafts are likely not the only habitat 
of this life stage, as young turtles move through other areas where 
Sargassum does not occur (Carr and Meylan 1980); however, loggerheads 
may be actively selecting these habitats for shelter and foraging 
opportunities.'' (78 FR 43103, July 18, 2013). The proposed rule also 
notes that, while it has been suggested that turtle density increases 
with Sargassum density and consolidation, especially when Sargassum 
consolidation is linear (Witherington et al. 2012), ``Witherington et 
al. (2012) captured most turtles in Sargassum outside these dense 
convergence zones (i.e., in scattered patches, weak convergences, 
windrows), so a direct correlation between strong convergences and 
essential loggerhead habitat cannot be made'' (78 FR 43104, July 18, 
2013).
    Comment 23: One letter with 5,552 signatures supported the 
designation of Sargassum as discussed in the proposed rule, and 
encouraged NMFS to explore using existing methods of remote sensing to 
track the wide distribution and dynamic nature of Sargassum. Examples 
of ways to provide guidance on the near real-time distribution of 
Sargassum included Moderate Resolution Imaging Spectroradiometer 
(MODIS) and the newly launched Landsat-8. They also recommended NMFS 
elevate the need for remote-sensing science as a restoration funding 
priority for this species through the various funding mechanisms aimed 
at applied research for restoration and marine conservation.
    Response: We appreciate the commenters' recommendation about 
elevating the need for remote-sensing as a funding priority. During the 
development of the proposed rule, we explored various ways to detect 
and predict Sargassum occurrence in the Atlantic and Gulf of Mexico, 
including the satellite imagery sources identified in the comment. In 
the biological report, we acknowledged that near-real time detection of 
Sargassum concentrations is possible using daily satellite imagery 
(MODIS) and the higher resolution Landsat imagery, but future 
predictions must rely on current systems to identify concentrations of 
possible habitat. Real time detection and tracking is currently 
available through some public sources like University of South Florida 
Optical Oceanography Laboratory. We agree that further high resolution 
imagery of specific Sargassum habitat from multiple years would be 
beneficial, but even with that information, it is probable that the 
habitat would continue to shift and exhibit variable patterns in the 
future. It is necessary to identify critical habitat areas in advance 
and give public notification of the designated area. That is why we 
identified a large area where Sargassum occurs, although in the final 
rule we were able to identify a more specific area that we believe is 
most beneficial to the species (see Section V., Critical Habitat 
Identification). Following the designation of Sargassum critical 
habitat, we will continue to explore options for real time monitoring 
of Sargassum and sources of funding for this work.
    Comment 24: One commenter stated there is no basis for the claim 
that the designation will benefit loggerheads given the large 
uncertainties in habitat location and extent, loggerhead use and 
specific habitat needs. Further, if natural baseline conditions are not 
established, valid management criteria cannot be formulated and the 
effectiveness of management actions cannot be ascertained. Finally, 
they felt there are no management actions that can ``provide'' 
Sargassum habitat.
    Response: While the habitat is dynamic and the specific location of 
Sargassum on any given day cannot be predicted, the benefit of this 
habitat to loggerheads is well established. Numerous references have 
explored the

[[Page 39863]]

relationship between sea turtles and Sargassum (Mellgren et al. 1994; 
Mellgren and Mann 1996; Witherington et al. 2002; Smith and Salmon 
2009; Witherington et al. 2012), and it is known to be important forage 
and shelter habitat for multiple life stages. The magnitude of 
Sargassum in the Atlantic and Gulf of Mexico may vary from year to 
year, so it is difficult to establish natural baseline conditions that 
would calculate a biomass that needs to be protected. However, critical 
habitat designation is not dependent upon establishing a baseline 
condition. The PCEs were identified based upon the best available 
information and qualities that would support Sargassum habitat and be 
beneficial to loggerheads. Management actions will be evaluated via ESA 
section 7 consultations on a case by case basis considering these PCEs 
and in consideration of the magnitude of the project and potential 
impacts. This process does not differ from other section 7 
consultations on other ESA listed species and their designated critical 
habitat. Finally, while we agree there are no management actions that 
can provide Sargassum habitat, there are management actions that can 
conserve Sargassum and thus essential forage, cover and transport 
habitat for a particularly vulnerable life stage.
    Comment 25: Some commenters were concerned with NMFS' inability to 
determine suitable concentrations of Sargassum, including patch size or 
abundance of its associated loggerhead prey. Some felt the proposed 
rule did not present methods for determining what would be a natural, 
healthy Sargassum habitat condition. Some also noted that NMFS concedes 
that the specific density of Sargassum that may result in a high 
concentration of loggerhead turtles is unknown. The implication is that 
``high concentration'' is the desired condition, but this concept is 
not directly addressed anywhere in the proposed rule, and the range of 
abundances for loggerheads that constitute ``high'' numbers is never 
defined.
    Response: We agree that it would be ideal to have a scientific 
study that conclusively states the concentration of Sargassum that 
would congregate loggerheads or their prey. However, such a study is 
not currently available, nor is it necessary to designate critical 
habitat. While a specific prey concentration cannot be determined, the 
PCEs include ``Sargassum in concentrations that support adequate prey 
abundance and cover'' to address the question of whether the critical 
habitat designation applies to a small piece of Sargassum wherever it 
may occur. It was not our intent to classify every piece of Sargassum 
as critical habitat, only the habitat that provides shelter and forage.
    We have not identified a ``high'' concentration target for 
loggerheads in Sargassum in part because ``high concentration'' of 
loggerheads is not a PCE, and in part because it is unknown. The best 
information on concentrations of turtles in Sargassum can be found in 
Witherington et al. (2012). That study found that relative densities of 
post-hatchling loggerheads in Sargassum were higher in the Atlantic 
(~267 turtles per km\2\) compared to the Gulf of Mexico (~2 turtles per 
km\2\). However, given the limitations in sampling, these numbers 
cannot necessarily be translated into a target ``high'' concentration 
of turtles.
    Comment 26: Some commenters noted that NMFS acknowledged that 
``Sargassum rafts are likely not the only habitat of this life stage, 
as young turtles move through other areas where Sargassum does not 
occur.'' The commenters believe the science shows that there are other 
significant factors that influence loggerhead use of Sargassum, 
including time of year, nesting intensity and cohort size, migration 
behaviors, and the vagaries of habitat location.
    Response: The most recent and comprehensive study on this topic 
(Witherington et al. 2012) found that turtle densities were 100 times 
higher in targeted Sargassum patches than in open water between 
consolidated patches. Certainly there are other factors that may 
influence the loggerhead's use of Sargassum, but those factors are not 
necessarily features of the habitat. PBFs and PCEs refer to the 
elements of the habitat type (e.g., Sargassum) that are essential to 
the conservation of the species, and may require special management 
considerations. Time of year, nesting intensity and cohort size, 
migration behavior and vagaries of habitat location are not features of 
the Sargassum habitat, per se, although they may allow us to anticipate 
whether special management considerations may be required.
    Comment 27: Several commenters provided detailed information on the 
crucial role Sargassum plays in the loggerhead's life cycle. They noted 
why this habitat fits the ``may require special management'' 
definition, including the fact that currents that aggregate Sargassum 
also facilitate the accumulation of synthetic marine debris and 
petroleum or petroleum-contaminated debris within the convergence lines 
that aggregate Sargassum. They noted that in the aftermath of the 2010 
Deepwater Horizon spill, rescuers collected nearly 500 juvenile turtles 
from lines of oil and Sargassum. They also identified direct harvest of 
the habitat and fishing activities that could predictably remove 
Sargassum.
    Response: We agree that Sargassum habitat is important to 
loggerheads and meets the ``may require special management 
considerations'' portion of the critical habitat definition. In the 
proposed rule, we recognized that the PCEs can be affected by the 
following activities which may require special management: Commercial 
harvest of Sargassum, oil and gas activities, vessel operations that 
result in the disposal of trash and wastes, ocean dumping, and global 
climate change. Commercial fishing gear may have some interactions with 
Sargassum during deployment and retrieval, but these effects are 
temporary and isolated in nature and because of the fluid nature of the 
pelagic environment, recovery time is rapid. It is important to point 
out that we also believe that additional management--beyond that 
already required--is not anticipated.
    Comment 28: One commenter stated that not only would designation of 
the Sargassum habitat cause the proposed critical habitat designation 
to be the largest in the history of the ESA, it would be based on 
physical and biological features that are poorly understood, ephemeral, 
and largely disconnected from the post-hatchling populations it is 
intended to protect. The commenter requested the entire proposed 
critical habitat designation be withdrawn as unnecessary and 
impermissible under the ESA and its implementing regulations, or 
narrowly delineate critical habitat and exclude from the designation 
all existing and proposed oil and gas development areas, as well as the 
areas containing industry's support infrastructure.
    Response: Numerous references have explored the relationship 
between sea turtles and Sargassum (Mellgren et al. 1994; Mellgren and 
Mann 1996; Witherington et al. 2002; NMFS and USFWS, 2008; Smith and 
Salmon 2009; Witherington et al. 2012, Mansfield et al. 2014), and it 
is known to be important forage and shelter habitat for multiple life 
stages. Given the available literature, we disagree that the 
designation of Sargassum critical habitat is disconnected from post-
hatchling populations. We also disagree that the features of the 
Sargassum habitat are poorly understood. The physical and biological 
feature of Sargassum (developmental and foraging

[[Page 39864]]

habitat for young loggerheads where surface waters form accumulations 
of floating material, especially Sargassum) is clear, we just do not 
know exactly when and where it will occur in future years. We 
acknowledge that the Sargassum critical habitat area is large, but 
there is no reason this is not permissible under the ESA, and the 
features are dynamic and not present at all times in all areas. 
Nonetheless, based on public comment and new information we were able 
to identify a more specific area that we believe is most beneficial to 
the species (see Section IV., Critical Habitat Identification). 
Finally, we completed a 4(b)(2) analysis that considered economic, 
national security and other impacts, and did not identify any 
additional impacts to oil and gas development areas, and thus do not 
have a basis to exclude existing and proposed oil and gas development 
areas (see Section VIII, ESA Section 4(b)(2) Analysis).
    Comment 29: Several commenters noted the designation of a large 
critical habitat area will not pose an undue regulatory burden, 
especially given the unique Sargassum ecosystem. One commenter 
specifically stated that agency consultations concerning Sargassum 
critical habitat would be made easier because (1) Sargassum's seasonal 
presence and consistency from year to year makes its general location 
predictable, and (2) scientists are able to track the movement of large 
aggregations of Sargassum through satellite telemetry data.
    Response: We agree that the designation of critical habitat will 
not pose an undue regulatory burden, given the few special management 
considerations that might affect the habitat and lack of any 
foreseeable activities that would rise to the scale of significant 
impacts. Although there is some consistency, it is generally difficult 
to predict specific Sargassum occurrence for a given location and time, 
and we are only able to forecast a general area where Sargassum may be 
present. This is the reason we identified a large geographical area 
where Sargassum is likely to occur. We agree that real time detection 
through satellite telemetry is possible in some areas however.
    Comment 30: Several commenters were concerned that designation of 
Sargassum as critical habitat is likely to present significant new 
regulatory and compliance hurdles for Federal actions in the Gulf of 
Mexico. They felt it would be virtually impossible and most certainly 
impracticable for commercial fishing, oil and gas activities, and other 
types of regulated Federal actions to monitor for Sargassum presence, 
or to ascertain in real time a need for impact avoidance and 
minimization requirements which have yet to be promulgated.
    Response: We do not believe that this rule will cause significant 
new regulatory and management measures for Federal actions. The 
loggerhead turtle has been listed since 1978 and, during this time, 
consultations on Federal activities have addressed habitat needs of the 
species. Further, when we identified the possible activities that may 
require special management considerations, commercial fishing 
activities were not included. While commercial fishing gear may have 
some interactions with Sargassum during deployment and retrieval, we 
anticipate that these effects will be temporary and isolated in nature 
and, because of the fluid nature of the pelagic environment, recovery 
time is rapid.
    Comment 31: Two commenters raised the issue of how climate change 
may affect Sargassum. One commenter supported the inclusion of 
potential impacts of global climate change on the ecological 
relationships between climate, oceanographic features, Sargassum 
abundance, and location, with the evaluation of required habitat for 
loggerhead development. The commenter also noted that impacts of global 
climate change are expected to increase the acidification of the 
world's oceans, which is still an unknown factor in the health of the 
Sargassum community and the resulting effects on loggerhead 
development. Another commenter had concerns about including global 
climate change as an ``activity'' potentially affecting Sargassum 
habitat, including through related changes in currents and other 
oceanographic features. That commenter stated that decades of research 
show that it is the reverse, that climate is greatly influenced by 
oceanic currents. The commenter strongly urged NMFS to avoid any 
management considerations of global warming effects on Sargassum 
habitat.
    Response: In the proposed rule, climate change was included as a 
special management consideration for Sargassum habitat, as this list 
includes various anthropogenic factors that may affect one or more PBF 
or PCE. We agree that global climate change should not be called an 
``activity'' and changed that wording in the final rule. However, we 
must consider global climate change, which could have significant 
impacts on a variety of oceanographic features, including ocean 
temperature (and resulting stratification), currents, and ocean 
acidification. In response to one comment, we added ocean acidification 
to the list of impacts from climate change in the final rule. In 
response to the other, we note that while we agree that climate is 
influenced by oceanic currents, the opposite is also true. For example, 
changes in sea surface temperature and large-scale global wind patterns 
(influenced by climate change) may create divergences in surface 
currents (which may affect Sargassum distribution and consolidation). 
Climate change may also increase the frequency and magnitude of storm 
events, which could then lead to increased disruption of Sargassum 
consolidation. While the direct impacts are still unknown, global 
climate change may indeed affect Sargassum habitat.
    Comment 32: Several commenters noted the existing Federal Sargassum 
Fishery Management Plan (FMP) which restricts harvest of Sargassum in 
the South Atlantic Region in the U.S. EEZ. Some noted that, while 
Sargassum is currently afforded minimum protection as essential fish 
habitat and harvest is limited in the South Atlantic under the current 
FMP, these designations do not sufficiently reflect the critical role 
this habitat plays in the development and survival of long-lived 
loggerhead sea turtles. One commenter also cited a court decision 
(Natural Resources Defense Council v. United States Department of the 
Interior) that the existence of management plans is indisputable proof 
that the area qualifies as critical habitat and that the existence of 
other protections for listed species' habitat, even if equal to or 
allegedly greater than the protection that critical habitat provides, 
cannot excuse the service's failure to designate critical habitat.
    Response: We recognize that there is a Sargassum FMP in place that 
could assist in conserving turtles. As some commenters noted, the 
existence of an FMP is considered indicative of the fact that 
management measures may be required, a condition indicating the need 
for critical habitat designation (and certainly does not preclude the 
need for designation). Moreover, that is not the only activity which 
may require special management. The release of hydrocarbons, trash and 
toxic waste, and synthetic debris are among other threats to turtles in 
Sargassum, as they would also be likely to accumulate in Sargassum due 
to the same oceanographic features that form Sargassum mats and 
windrows.
Comments on Foraging Habitat
    Comment 33: Several commenters felt NMFS was obligated to designate

[[Page 39865]]

foraging areas as critical habitat because such areas were identified 
in the proposed rule as occupied by loggerhead sea turtles and are 
essential for the conservation of the species. They felt NMFS' 
inability to identify specific high value sites as foraging critical 
habitat for loggerheads was not a reason to exclude foraging areas from 
consideration. Many felt that NMFS should not require information on 
specific prey density as a PCE before identifying foraging habitat as 
critical habitat. Some commenters noted that prioritization of specific 
habitats was not a requirement of the ESA; that if the PCEs are 
identified and the area is essential to the conservation of the 
species, it should be designated regardless of its relative 
``priority.''
    Commenters asserted that the ESA does not allow a lack of 
information concerning PCEs to preclude critical habitat designation. 
Such designations must be made on the basis of the best available 
scientific data. The commenters stated that where sufficient scientific 
data exist to enable NMFS to determine critical habitat through the 
identification of physical and biological features and corresponding 
PCEs, NMFS is obligated to designate critical habitat to the maximum 
extent prudent and determinable.
    Response: We agree that foraging areas are important to loggerhead 
conservation. Sites were identified in the proposed rule as known 
foraging areas based upon a review of the available literature. 
However, we do not have information that shows those areas to be any 
more important or essential than much of the rest of the continental 
shelf and associated bays and sounds. The existing data identifies 
foraging areas that have been documented through research. However, 
because loggerhead sea turtles are generalist foragers, it is unknown 
whether these specific foraging areas are essential to loggerhead 
conservation or if those areas are simply where research has been 
conducted. As explained in the proposed rule, the potential PCEs of 
foraging habitat--(1) Sufficient prey availability and quality, such as 
benthic invertebrates, including crabs (spider, rock, lady, hermit, 
blue, horseshoe), mollusks, echinoderms and sea pens; and (2) Water 
temperatures to support loggerhead inhabitance, generally above 10 
[deg]C--do not differentiate any particular area of the continental 
shelf from other areas. Loggerheads are generalist foragers that have 
been shown to forage on a wide variety of prey organisms, among a wide 
variety of habitat types, throughout the continental shelf and 
associated bays and sounds in the Gulf of Mexico and western North 
Atlantic. However, we were unable to identify any specific areas that 
meet the definition of critical habitat under section 3(5)(A)(i) of the 
ESA. Given the wide distribution of loggerhead prey items, we could not 
identify ``specific areas'' where the essential features are found 
within areas believed to be occupied by loggerheads. The entire 
continental shelf basically serves as foraging areas for loggerheads.
    Comment 34: One commenter suggested that NMFS should examine the 
most recent Recovery Plan updates, which note the need to evaluate the 
foraging habitats most important to the species' survival and recovery.
    Response: We appreciate the importance of foraging habitat, and are 
aware that the Recovery Plan calls for identification and protection of 
marine habitats important to loggerheads. The Recovery Plan itself, 
however, does not identify the most important loggerhead foraging 
grounds but calls for further work to identify and then protect such 
habitat if it can be determined. The CHRT's efforts in this regard are 
discussed in the proposed rule.
    Comment 35: One commenter recommended that NMFS designate as 
foraging habitat Delaware Bay, Chesapeake Bay, off the Outer Banks, 
Pamlico and Core Sounds, Savannah Harbor ocean bar channel, Charleston 
Harbor entrance channel, and Brunswick Harbor ocean bar channel. NMFS 
specifically identifies these areas as foraging habitat supported by 
the best available science. The Recovery Plan includes an entire 
section on the Pamlico-Albemarle Estuarine Complex, noting that it is 
the largest estuarine system in the southeast U.S. and the third 
largest in North America, and that it is important developmental 
habitat for loggerheads. The Recovery Plan also notes that long-term 
in-water studies indicate that juvenile loggerheads reside in 
particular developmental foraging areas for many years. This same area 
has also been recognized in multiple scientific studies regarding the 
capture of loggerheads in North Carolina state gillnet fisheries (e.g., 
McClellan 2011 and Byrd 2011).
    Response: Sites, including those noted in the comment, were 
identified in the proposed rule as known foraging areas (and thus 
potential critical habitat candidates) based upon a review of the 
available literature. We agree that foraging areas are important to 
loggerhead conservation. However, we do not have information showing 
those areas to have unique habitat features that would result in them 
being any more important or essential than much of the rest of the 
continental shelf and associated bays and sounds. While individual 
studies may highlight specific areas, such areas are often reflective 
of where research is being conducted due to access or because of 
concerns due to fisheries in the areas. When looking at the information 
more holistically, both considering all of the individual studies 
together, and looking at broader datasets such as AMAPPS aerial surveys 
and the TEWG report, the widespread use of the vast majority of the 
continental shelf and inshore bays and sounds by adult and juvenile 
loggerheads stands out. Additionally, the generalist nature of 
loggerhead foraging and the lack of any specific habitat feature, prey 
type, or prey concentration that is deemed essential to loggerheads 
precludes the identification of specific habitat to be protected. We 
were concerned about the inability to prioritize foraging habitats, but 
perhaps more so about the inability to draw a box (as is the 
requirement for critical habitat) around any one area with unique PCEs 
that may represent critical loggerhead foraging habitat compared to 
another neighboring area.
    Comment 36: One commenter provided the most recent study by Griffin 
et al. (2013) which identifies four areas of concentrated foraging use 
within the Mid Atlantic Bight. The commenter felt the information was 
sufficient for NMFS to propose these four areas as critical habitat.
    Response: While we carefully considered the Griffin et al. (2013) 
study and its identification of foraging areas in the mid-Atlantic 
Bight--one of the few studies that identified ``hot spots'' in a larger 
study area--those areas do not represent any specific habitat feature, 
prey type, or prey concentration on which to base a designation.
    Comment 37: Several commenters felt that foraging areas should not 
be designated as critical habitat until adequate data and analysis are 
available to correctly identify their importance to the survival of the 
species. They felt the data are inadequate particularly for Delaware 
Bay, Chesapeake Bay, Pamlico and Core Sounds, Savannah Harbor, 
Charleston Harbor and Brunswick Harbor.
    Response: While we appreciate the commenter's desire to have 
comprehensive studies before assessing whether and where to designate 
critical habitat, the ESA requires us to designate critical habitat 
based on the best scientific and commercial data available. While 
individual studies may highlight specific areas, such areas are often 
reflective of where research is being conducted due to access or

[[Page 39866]]

because of concerns due to fisheries in the areas. When looking at the 
information more holistically, both considering all of the individual 
studies together and looking at broader datasets such as the TEWG data, 
it is clear that adult and juvenile loggerheads use not just inshore 
bays and sounds as foraging areas, but the vast majority of the 
continental shelf as well. Additionally, as noted above, loggerhead sea 
turtles are generalist feeders. No specific habitat feature, prey type, 
prey concentration, or area has been identified as essential to their 
conservation.
    Comment 38: Two commenters recommended NMFS adopt a strategy to 
designate representative areas to ensure that at least some portion of 
the population in each of the neritic life stages and subpopulations 
will benefit from protected foraging habitat. One argued that this is 
similar to the approach used by USFWS to designate terrestrial habitat 
on some low density beaches, and recommended NMFS convene a group of 
experts to synthesize available data to select the appropriate size and 
location for foraging habitats based on this strategy in order to 
designate representative nearshore/inshore juvenile foraging critical 
habitat areas.
    Response: First, while we do appreciate the commenters' desire to 
identify a means to designate foraging critical habitat, the ESA does 
not allow us to designate ``representative'' areas. We must designate 
those specific areas that are essential to the conservation of the 
species based on specific physical or biological features and 
associated PCEs. We could not identify specific areas that are 
essential to the species.
    Second, the USFWS strategy for designating nesting habitat is not 
analogous to what is being suggested. The USFWS selection of nesting 
beaches to be proposed as critical habitat was based on a near complete 
understanding of which beaches loggerheads use for nesting and in what 
densities. As such, the most important/high density beaches for each 
major nesting region could be identified to ensure the maintenance of 
genetic diversity. With regard to foraging, we cannot identify high 
density foraging areas or specific habitat features, prey type, or prey 
concentrations essential to loggerhead conservation. While there are 
some areas where concentrated foraging has been identified, the PBFs 
and PCEs in those areas are not necessarily different than those in 
nearby areas.
    Comment 39: The proposed rule identifies several notable foraging 
aggregations, some of which are occupied on a seasonal basis. Several 
of these sites have been the subject of multi-decadal mark-recapture 
studies that demonstrate consistent aggregations of juvenile and sub-
adult loggerhead turtles with year-round or seasonal residency, i.e., 
in Florida: Indian River Lagoon (University of Central Florida); in 
North Carolina: Core-Pamlico-Albemarle Sound Complex (National Marine 
Fisheries Service Beaufort Lab); and in Virginia: Chesapeake Bay 
(Virginia Institute of Marine Science). The commenter noted a number of 
papers that provide quantitative data on foraging distributions of 
post-nesting females from the northern recovery unit (Griffin et al. 
2013, Hawkes et al. 2007, Hawkes et al. 2011), foraging areas for adult 
male loggerheads (Arendt et al. 2011), and foraging areas for post-
nesting adult females for the Peninsular Florida and Northern Gulf 
recovery units (Foley et al. 2013 and Hart et al. 2012), and noted that 
satellite telemetry and/or stable isotope analysis have corroborated 
the value of these sites, as well as identifying additional foraging 
areas for both juvenile and adult loggerhead turtles (McClellan et al. 
2010). The commenter believes that representative sites could be 
selected on the southwest, central and northern Florida shelf based on 
these data.
    Moreover, in many of these neritic loggerhead foraging grounds 
(i.e., Florida, North Carolina, Virginia) special management 
consideration and protection is already in place (i.e., fisheries 
bycatch reduction measures). The commenter believes that sites where 
juvenile loggerheads may reside warrant designation despite the lack of 
particular physical or biological features that might be used in 
modelling approaches. The commenter felt that presence of loggerheads 
was proof of importance. Therefore, the commenter encourages NMFS to 
include the neritic foraging grounds identified in the proposed rule as 
part of their designation of critical loggerhead habitat and to use the 
wealth of information on known sites as part of this process.
    Response: All of the studies cited were reviewed by the CHRT. While 
individual studies may highlight specific areas, such areas are often 
reflective of where research is being conducted due to access or 
because of concerns due to fisheries in the areas. When looking at the 
information more holistically, both considering all of the individual 
studies together and looking at broader datasets such as the TEWG data, 
it is clear that adult and juvenile loggerheads use not just inshore 
bays and sounds as foraging areas, but the vast majority of the 
continental shelf as well. Additionally, as noted above, loggerhead sea 
turtles are generalist feeders. No specific habitat feature, prey type, 
prey concentration, or area has been identified as essential to their 
conservation. With regard to identifying ``representative sites,'' 
please see Response 37.
    Comment 40: One commenter felt that the omission of loggerhead 
foraging grounds in the proposed rule is inconsistent with NMFS' 
designation of critical habitat for the leatherback in the North 
Pacific Ocean (77 FR 4170; January 26, 2012) and with Canada DFO's 
(Fisheries and Oceans Canada) designation of critical habitat for the 
leatherback in the Northwest Atlantic Ocean. In those designations, 
both countries identified only leatherback foraging grounds as critical 
habitat in their territorial waters. No nesting or breeding occurs in 
the territorial waters of either region. In both cases, the foraging 
grounds designated were but a small proportion of the total foraging 
grounds of the species, but nevertheless the country-specific foraging 
grounds were recognized as essential. Further the commenter recommended 
that NMFS base the designation of critical foraging habitat for 
loggerheads in the Northwest Atlantic Ocean on the Atlantic Strategy 
Steering Committee's synthesis, and include the Gulf of Mexico. NMFS 
should define the foraging habitats as functional habitats with some 
metrics (available prey, depth <200m, etc.).
    Response: A comparison of foraging habitat for the leatherback 
turtle in the North Pacific Ocean with foraging habitat for the 
loggerhead, whether in the North Pacific or Northwest Atlantic Ocean, 
is not analogous. The leatherback turtle has very specific preferred 
prey, Scyphomedusae, and critical habitat units were identified, in 
large part, on areas where their prey concentrate. Loggerheads do not 
have a preferred prey and there are no habitat features necessary for 
foraging beyond water temperature and sufficient prey availability and 
quality. These factors make it much more difficult to identify foraging 
critical habitat for loggerheads than Pacific leatherbacks. Indeed, in 
the Northwest Atlantic Ocean DPS, both adequate water temperature and 
sufficient prey occur year-round in the Gulf of Mexico and the Atlantic 
coast up to North Carolina, and as far north as Massachusetts in the 
summer. The CHRT considered defining critical foraging habitat by some 
metric such as prey or depth. However, the extensive foraging 
throughout the continental

[[Page 39867]]

shelf, bays and sounds, and the generalist foraging habits of 
loggerheads did not allow us to identify metrics that would 
differentiate any particular, essential foraging habits or habitat 
features from the entire foraging habitat.
    Comment 41: One commenter was concerned that NMFS defined the 
physical or biological features of loggerhead foraging habitat as areas 
``frequently used by large numbers of juveniles or adults.'' They 
argued that the lack of comprehensive shelf-wide surveys makes it 
impossible to define high use areas. In addition, the consideration of 
only high use areas may not be an appropriate strategy for aspecies 
that occurs in a uniform distribution across the foraging habitat (no 
definable high use area). The commenter recommended that NMFS modify 
the PBF by removing the ``frequently used by large numbers of juveniles 
or adults'' language from the definition for foraging habitat.
    Response: We focused on areas frequently used by large numbers of 
juveniles or adults as a means of identifying habitat that is essential 
to the species. If we removed that portion of the definition for the 
PBF, we would be left with ``specific sites on the continental shelf or 
in estuarine waters used as foraging areas'' but we would likely have 
maintained the PCEs as they are (sufficient prey availability and 
quality, and water temperatures above 10 [deg]C). This would not assist 
in identifying areas essential to the conservation of the species.
    Comment 42: One commenter pointed out that the TEWG's 2009 analysis 
of habitat usage resulted in the identification of relatively high use 
areas ``which served as a proxy for identifying important habitat 
areas, especially as there is little quantitative data on loggerhead 
use of offshore waters.'' Thus, NMFS admits that the best available 
science uses species use as a surrogate for identification of specific 
habitat characteristics. Where the agency knows that areas are 
important, highly used, and may be in need of special management 
considerations, these should be designated as critical habitat, 
bolstered by PCEs to the extent and with the specificity that can be 
identified.
    Response: While we used the TEWG analysis to make an initial 
identification of high use areas to consider as possible foraging 
critical habitat, we can only designate occupied areas as critical 
habitat if they contain PBFs essential to the conservation of the 
species. We were unable to identify PBFs and PCEs associated with the 
high use foraging areas because we could not identify any specific 
habitat feature, prey type, prey concentration, or area as essential to 
their conservation.
    Comment 43: One commenter recommended that NMFS designate as 
foraging habitat Delaware Bay, Chesapeake Bay, off the Outer Banks, 
Pamlico and Core Sounds, Savannah Harbor ocean bar channel, Charleston 
Harbor entrance channel, and Brunswick Harbor ocean bar channel. NMFS 
specifically identifies these areas as foraging habitat supported by 
the best available science. The Recovery Plan includes an entire 
section on the Pamlico-Albemarle Estuarine Complex, noting that it is 
the largest estuarine system in the southeast U.S. and the third 
largest in North America, and that it is important developmental 
habitat for loggerheads. The Recovery Plan also notes that long-term 
in-water studies indicate that juvenile loggerheads reside in 
particular developmental foraging areas for many years. This same area 
has also been recognized in multiple scientific studies regarding the 
capture of loggerheads in North Carolina state gillnet fisheries (e.g., 
McClellan 2011 and Byrd 2011).
    Response: Sites, including those noted in the comment, were 
identified in the proposed rule as known foraging areas (and thus 
potential critical habitat candidates) based upon a review of the 
available literature. We agree that foraging areas are important to 
loggerhead conservation. However, we do not have information showing 
those areas to have unique habitat features that would result in them 
being any more important or essential than much of the rest of the 
continental shelf and associated bays and sounds. While individual 
studies may highlight specific areas, such areas are often reflective 
of where research is being conducted due to access or because of 
concerns due to fisheries in the areas. When looking at the information 
more holistically, both considering all of the individual studies 
together, and looking at broader datasets such as AMAPPS aerial surveys 
and the TEWG report, the widespread use of the vast majority of the 
continental shelf and inshore bays and sounds by adult and juvenile 
loggerheads stands out. Additionally, the generalist nature of 
loggerhead foraging and the lack of any specific habitat feature, prey 
type, or prey concentration that is deemed essential to loggerheads 
precludes the identification of specific habitat to be protected. We 
were concerned about the inability to prioritize foraging habitats, but 
perhaps more so about the inability to draw a box (as is the 
requirement for critical habitat) around any one area with unique PCEs 
that may represent critical loggerhead foraging habitat compared to 
another neighboring area.
    Comment 44: One commenter requested NMFS to designate the neritic 
area in and around the Chesapeake Bay as critical habitat. The 
commenter felt that the available information supports the designation 
for this area. Specifically, surveys show a relatively large abundance 
and density of loggerheads in neritic Virginia waters between the 
months of May and September. Satellite telemetry studies show that 
individual loggerheads have core habitat in the Chesapeake Bay. Dive 
data collected from Virginia show dynamic behaviors for loggerheads in 
Chesapeake Bay and preliminary analysis of these data show potential 
foraging hotspots. Furthermore, resource selection analysis modeling on 
existing data could provide a statistically reportable probability that 
loggerheads will forage in specific areas. The commenter felt that this 
type of modeling should be conducted to identify critical foraging 
habitat. A large proportion of Virginia stranded loggerheads exhibit 
signs of anthropogenic injury. The commenter felt that these numbers 
qualify Virginia as a specific geographic area which may require 
special management considerations or protection. Finally, diet studies 
have shown that the primary prey of stranded Virginia loggerheads has 
shifted away from crustaceans and mollusks to bony fish over the past 
years--potentially putting the population at greater risk of fishery 
related serious injury and mortality. This may be due to a decrease in 
the availability of primary prey types in the Bay. The commenter 
asserted this shift creates a conservation concern directly related to 
foraging behavior in the Chesapeake Bay.
    Response: See response to Comment 42.
Comments on Nearshore Reproductive Habitat
    Comment 45: Several commenters were concerned that the proposed 1.6 
km (1 mile) from the mean high water (MHW) datum seaward is too narrow 
an area to be identified as nearshore reproductive habitat for 
hatchling swim frenzy and for females during the internesting period. 
They argued that females utilize nearshore waters at least out to 5.0 
km (3 mi). They stated that NMFS should designate areas up to 3 miles 
or further due to the dangers of fishing, offshore energy activities, 
and vessel traffic. The commenters suggest that NMFS did not determine 
whether a distance of three miles was essential

[[Page 39868]]

to the conservation of the species, but rather that a distance of one 
mile was more essential to the conservation of the species. Rather than 
the dispersal of sea turtles as they move farther from shore providing 
a reason to designate less critical habitat, it arguably should be 
reason to designate across more of the dispersal area.
    Response: We considered using 1.6 km (1 mile), 4.8 km (3 mile), and 
distances further from shore, and weighed which distance was essential 
to the conservation of the species. As noted, the data indicate 
loggerheads use habitat even greater than 5.0 km (3 miles) from shore. 
However, in considering habitat needs of these turtles, waters closest 
to shore pose the greatest opportunity for disruption of the habitat 
functions necessary for offshore egress for hatchlings and transit to 
and from the nesting beach by nesting females. Internesting females use 
waters to 4.8 km (3 mile) and beyond, but they move up and down the 
shoreline as well. We chose not to attempt to include all habitat used 
by the internesting females and hatchlings; rather, we identified the 
physical or biological feature necessary to the conservation of 
loggerheads as the portion of nearshore waters adjacent to nesting 
beaches that are used by hatchlings to egress to the open-water 
environment as well as by nesting females to transit between beach and 
open water during the nesting season. For example, threats to the 
essential function of the hatchling swim frenzy habitat include 
physical impediments to offshore egress, predator concentration, 
disruption of wave angles used for orientation to open water, and the 
formation of strong longshore currents resulting from artificial 
structures (such as breakwaters or groins). The vast majority of 
threats would occur well within the 1.6 km line. Likewise, internesting 
female use of in-water habitats beyond the very nearshore waters is 
expected to be much more dispersed as discussed previously. A distance 
of 1.6 km from the MHW line includes the areas most in need of 
protection from potential habitat disruptions such as the construction 
and placement of structures that could alter the nearshore habitat 
conditions and thus affect nesting female transit to and from the 
nesting beaches.
    Comment 46: Several commenters were concerned that the proposed 
rule may not adequately address critical habitat for reproductively 
active adult females during the internesting period. They argued that 
the location of nearshore reproductive habitat should not be based on 
the locations of certain nesting beaches. Females move laterally along 
the shore and often occupy nearshore waters that are not seaward of the 
designated nesting beaches. Therefore, many of them will not be 
protected by the critical habitat designation if their internesting 
habitat is not off one of these designated beaches. The proposed 
critical habitat should extend along the entire shoreline in which 
loggerhead nesting occurs, not just off some of the beaches.
    Response: We agree that internesting females move laterally along 
the shore and often occupy nearshore waters that are not seaward of the 
designated nesting beaches. However, we have determined that the 
portion of nearshore waters adjacent to nesting beaches that are used 
by hatchlings to egress to the open-water environment as well as by a 
large portion of nesting females to transit between beach and open 
water during the nesting season are the areas that contain the features 
that are essential to the conservation of loggerheads. These waters 
contain the vast majority of threats to expeditious ingress and egress 
from the beach that are experienced both by nesting females and 
hatchlings in their swim frenzy (see also Response 44).
    Comment 47: One commenter felt that NMFS must designate waters off 
all occupied nesting beaches, and not only the beaches with the highest 
nesting density, as proposed. They believe NMFS should designate waters 
off all occupied beaches because the physical and biological feature of 
nearshore reproductive habitat and its corresponding PCEs are present 
regardless of how the beaches rank in density. Additionally, they 
argued that tagging studies show that many sea turtles nesting on high-
density beaches in the northern Gulf of Mexico will also nest on other 
low-density beaches as well.
    Response: Section 3(5)(C) of the ESA states that, ``Except under 
those circumstances determined by the Secretary, critical habitat shall 
not include the entire geographical area which can be occupied by the . 
. . species.'' We defined the first PCE for nearshore reproductive 
habitat as ``Nearshore waters directly off the highest density nesting 
beaches and their adjacent beaches as identified in 50 CFR 17.95(c) to 
1.6 km (1 mile) offshore.'' Therefore the PBF and PCEs are not present 
in nearshore reproductive habitat off of all occupied nesting beaches 
but are in all those we designated. Most importantly, we defined the 
PBF and PCEs the way we did because we believe that the amount and 
distribution of critical habitat being designated for terrestrial and 
nearshore reproductive habitat is adequate to conserve (recover) all 
recovery units of this DPS.
    The nearshore reproductive habitat off of high density beaches will 
conserve the species because they represent the highest nesting 
densities within each of the four recovery units, have a good 
geographic spatial distribution that will help ensure the protection of 
genetic diversity, and collectively provide a good representation of 
total nesting. The beaches and nearshore habitat adjacent to the 
primary high-density nesting beaches currently support loggerhead 
nesting and can serve as expansion areas should the high-density 
nesting beaches be significantly degraded or temporarily or permanently 
lost through natural processes or upland development.
    Comment 48: Several commenters felt USFWS and NMFS did not consider 
the historical nesting data distribution when they proposed critical 
habitat on nesting beaches and in nearshore reproductive habitat. They 
believe historical nesting data distribution shows that the 
geographical area most critical to the survival of the species occurs 
on the beaches of Florida. The commenters stated the data show that 79 
percent of nesting activity occurs on 363 km of the Florida east coast 
between Ponce Inlet and Miami Beach (15 percent of the total of all 
beaches within the Northwest Atlantic Ocean DPS) while only 21 percent 
of nesting activity occurs within the 2,078 km (85 percent) comprising 
the rest of the DPS. Further, the data show that geographical locations 
at the northern extreme of the DPS (North Carolina) and the northern 
Gulf of Mexico have very low populations and nesting density.
    Response: We understand that most nesting occurs along the east 
coast of Florida; however, highest density nesting is not the sole 
criteria by which to identify geographic areas that are critical to the 
conservation of the species. We intentionally divided loggerhead 
reproductive areas into the Recovery Units identified in the Recovery 
Plan (NMFS and USFWS 2008) and, within these areas, by State or regions 
within the State (for Florida). We did this to identify the following: 
(1) Beaches with a good geographic spatial distribution to ensure 
protection of genetic diversity and thus adaptive potential of the DPS, 
(2) beaches that collectively provide a good representation of total 
nesting, and (3) beaches adjacent to high density nesting beaches that 
can serve as expansion areas as the DPS recovers or allow for movement 
of nesting, since loggerheads nest on dynamic ocean beaches that can

[[Page 39869]]

be degraded or lost over time through natural and anthropogenic 
processes.
    While the geographical locations at the northern end of the DPS 
(North Carolina) and the northern Gulf of Mexico have very low 
populations and nesting density in comparison with Florida, they may 
also represent important genetic diversity and adaptive potential for 
the DPS, especially as our climate changes. In the case of the northern 
end of the DPS, these beaches also represent the portion of the DPS 
most likely to produce male loggerheads because lower nest temperatures 
result in a higher proportion of males. As a result, these areas serve 
a very important and unique purpose within the DPS.
    Comment 49: One commenter requested NMFS add seven beach segments 
and exclude 23 beach segments of proposed nearshore reproductive 
habitat. The commenter argued that the seven beach segments, all 
located in Florida, should be added due to the high concentration of 
historical nesting activity at these locations and/or the proximity of 
these segments to other high density segments proposed for critical 
habitat. These segments have an average nest density of 55.3 nests/km 
and account for 10 percent of total nests. They consist of Ponce Inlet 
through New Smyrna Beach, Cape Canaveral Air Force Station, Jetty Park 
through Cocoa Beach, Patrick Air Force Base, Vero Beach to Ft. Pierce 
Inlet, Hillsboro Inlet to Port Everglades, and Port Everglades through 
Golden Beach.
    The 23 beach segments recommended for exclusion are due to the low 
number of nests/low density they produce. These include eight in North 
Carolina, two in Mississippi, three in Alabama, and 10 in Florida. 
These segments have an average nest density of 2.7 nests/km and account 
for 1.6 percent of total nests. They consist of Bogue Banks and Bear 
Island, North Carolina (LOGG-N-03), Topsail Island and Lea-Hutaff 
Island, North Carolina (LOGG-N-04), Pleasure Island, Bald Head Island, 
Oak Island and Holden Beach, North (LOGG-N-05), Long Key and Bahia 
Honda, Florida (LOGG-N-19), Perdido Key, including Gulf Islands 
National Seashore, Florida (LOGG-N-33), St. Joe Beach and Mexico Beach, 
Florida (LOGG-N-32), St. Joseph Peninsula (LOGG-N-31), St. Vincent 
Island, Little St George Island, St. George Island, and Dog Island, 
Florida (LOGG-N-31), Horn Island, MS (LOGG-N-35), Petit Bois Island, MS 
(LOGG-N-36), Mobile Bay-Little Lagoon Pass, AL (LOGG-N-34), Gulf State 
Park-Perdido Pass, AL (LOGG-N-33), Perdido Pass-Florida-Alabama line, 
AL (LOGG-N-33). The net effects of the changes would be (1) Number of 
Critical Habitat units would drop from 90 to 74; (2) critical habitat 
unit length would drop from 1,189.9 km (48 percent) to 927.9 km (38 
percent); (3) average annual nesting event included in critical habitat 
units would increase from 55,204 (86 percent) to 60,691 (94 percent). 
These changes would increase the coverage of historical nesting 
activity but reduce the area that would be subjected to additional 
regulations and management processes as a result of designation.
    Response: We appreciate the commenter's desire to include the 
greatest density of loggerhead nests and nearshore reproductive areas 
within the shortest span of coastline. However, while the Florida coast 
does contain the highest density of loggerhead nests, tenets of 
conservation biology dictate the importance of conserving the range of 
habitats and individuals in order to preserve both adaptive capability 
of turtles (turtles that have adapted to different conditions, exhibit 
different life history strategies (such as overwintering off of North 
Carolina as opposed to migrating south) and/or those whose genetic 
makeup may reflect such adaptations), and a range of habitat options as 
conditions change, such as loss of habitat in low lying areas due to 
sea level rise. In the designation of critical habitat, we purposely 
identified high density nesting habitat in each state in order to 
protect a portion of nesting in each recovery unit. See Response 47 for 
more discussion of this subject.
    Comment 50: Several commenters noted that 2012 nesting density for 
North Carolina was 3.25 nests per mile of beach. Bogue Banks nesting 
density was half of that at 1.6 nests per mile. Bogue Banks has had an 
average nesting density of 1.25 since 1996. When compared to South 
Carolina (24.8 nests per mile), Georgia (24 nests per mile of beach), 
and Florida (120 nests per mile), Bogue Banks does not qualify for 
critical habitat designation for either terrestrial or nearshore 
reproductive habitat.
    Response: We are aware that the beaches in North Carolina have 
lower nesting densities than in some of the other parts of the species' 
nesting range. Please see Responses to Comments 47 and 48.
    Comment 51: One commenter disagreed with designating nearshore 
reproductive habitat in Mississippi (LOGG-N-35 and LOGG-N-36). The 
commenter argued that there are far fewer nests annually in Mississippi 
compared to other identified habitat recovery units and nesting 
locations. They state that estimated densities of sea turtles in shelf 
areas seaward of the Mississippi barrier islands have historically been 
low (e.g., McDaniel et al., 2000). The commenter felt the data did not 
support designation of critical habitat for the two nearshore 
reproductive areas in Mississippi.
    Response: Please see Responses to Comments 47 and 48.
    Comment 52: Several commenters felt the inclusion of low density 
nesting sites adjacent to high density nesting sites was inappropriate. 
Some noted that 34 areas covering 739.3 miles of coastal waters 
proposed by NMFS for marine critical habitat designation are comprised 
of waters offshore beaches that are not high nesting density beaches. 
Marine habitat off of beaches that presently host low density nesting 
activity is not essential to the conservation of the loggerhead turtle 
because the ``egress'' and ``transit'' behaviors of a relatively small 
percentage of the total number of hatchlings or nesting females could 
be affected by activities in these proposed areas. They further note 
that the proposed rule indicates these adjacent beaches may or may not 
become important nesting beaches based on two future events which may 
be plausible, but which do not exist today and which may or may not 
occur in the future. Thus, the designation of these adjacent beaches 
and the marine areas offshore of these beaches is neither prudent nor 
determinable.
    Response: Beaches adjacent to high density nesting beaches were 
proposed for designation by USFWS to serve as expansion areas as the 
DPS recovers and/or allow for movement of nesting because loggerheads 
nest on dynamic ocean beaches that can be degraded or lost over time 
through natural and anthropogenic processes. We support this and 
proposed designation of waters offshore of these beaches because it is 
important not only to identify high density nesting with a broad 
geographic representation but also to identify sufficient geographic 
area to allow the DPS to continue to recover and thrive. Given the 
strong nest site fidelity of loggerhead sea turtles, it made the most 
sense to identify areas adjacent to high density nesting beaches.
    Comment 53: One commenter asked for clarity on designating areas 
offshore of beaches, which collectively account for 84 percent of all 
documented nests in order to satisfy the statutory standards of it 
being both prudent and essential to the conservation of the species. 
The commenter questioned whether some lower percent would be

[[Page 39870]]

sufficient for the essential conservation of loggerhead turtles.
    Response: Designating nearshore areas off of beaches that account 
for a high percentage of documented nests is appropriate, given that 
the species is threatened and needs to continue to recover. As stated 
in the rule, this habitat has been deemed essential to the conservation 
of the species because it does the following: (1) Protects nearshore 
habitat adjacent to a broad distribution of nesting sites; (2) allows 
for movement between beach areas depending on habitat availability 
(response to changing nature of coastal beach habitat) and supports 
genetic interchange; (3) allows for an increase in the size of each 
recovery unit to a level at which the threats of genetic, demographic, 
and normal environmental uncertainties are diminished; and (4) 
maintains its ability to withstand local or unit level environmental 
fluctuations or catastrophes.
    Comment 54: NMFS proposed 36 marine areas for potential designation 
as critical habitat that relate to four specific aspects of loggerhead 
life history including nearshore reproductive habitat, wintering areas, 
breeding areas and migratory corridors (LOGG-N-1 through LOGG-N-36). 
Several aspects of loggerhead life history are seasonal and do not 
normally occur year-round. In turn, the proposed rule confirms that the 
use or occupation of these areas by loggerhead turtles is also 
seasonal. For example, it is obvious that by definition, wintering 
habitat is occupied by certain turtles during the winter. The commenter 
felt the critical habitat designations did not adequately include a 
component that reflects seasonal behavior and occupation of the areas 
by loggerheads.
    Response: Seasonal behavior and occupation of an area by 
loggerheads can be influenced by environmental conditions, which may 
vary year to year. Wherever possible, we specified seasonal components 
that reflect seasonal use by or behavior of loggerheads. For instance, 
where appropriate we specified the time of year or even months during 
which the physical or biological features in the proposed designated 
critical habitat occur or are of interest. For example, in the proposed 
rule, winter habitat is described as warm water (above 10 [deg]C from 
November through April) used by a high concentration of juveniles and 
adults during the winter months. These seasonal descriptors will assist 
Federal agencies when consulting under ESA section 7 on their 
activities in the area.
    Comment 55: The proposed rule does not provide an adequate 
description of the PBF's and PCE's to support the inclusion of inlets 
as a component of nearshore reproductive habitat. The proposed rule 
should cite specific scientific research supporting the designation of 
inlets as nearshore reproductive habitat.
    Response: We may designate an inclusive area when several habitats, 
each satisfying the requirements for designation as critical habitat, 
are located in proximity to one another (50 CFR 424.12(d)). In the 
cases of beaches along islands or that wrap around into an inlet, we 
started with the furthest point from the far end of the unit and 
extended it out seaward. Where beaches are adjacent and within 1.6 km 
(1 mile) of each other, nearshore areas are connected, either along the 
shoreline or by delineating on GIS a straight line from the end of one 
beach to the beginning of another, either from island to island, or 
across an inlet or the mouth of an estuary. The furthest point at each 
end of the combined unit was extended seaward to identify the nearshore 
reproductive habitat area. This will provide more connectivity to the 
multiple adjacent areas and a clear designation for nearshore 
reproductive habitat. We did not designate critical habitat within 
inlets when linking nearshore reproductive units--just across the inlet 
from beach to beach.
    Comment 56: One commenter was concerned that the proposed rule did 
not define what constitutes a ``sufficient'' condition of minimal 
obstructions and artificial lighting to allow transit through the surf 
zone. They felt such ambiguity is likely to result in inconsistency in 
regulatory requirements depending on the type and timing of future 
Federal actions.
    Response: It is not possible to define what constitutes a 
``sufficient'' condition because every situation will be different. It 
is not possible to apply one standard as the impact of the obstructions 
and lighting could vary depending on many variables about the 
obstructions themselves, the configuration, and other details of the 
nesting beach and nearshore waters. Although the condition is not 
standardized, we will be as consistent as possible in our 
consultations, given these constraints.
    Comment 57: One commenter urged NMFS to include in its designation 
of nearshore reproductive habitat the areas offshore the following 
nesting beaches: Cape Hatteras and Cape Lookout, Figure 8 Island, Ocean 
Isle, and Sunset (North Carolina); Bay Point, Hilton Head, North, 
Pritchards, Bull, and Hunting (South Carolina); Little St. Simon and 
Jekyll Islands (Georgia).
    Response: Both NMFS and USFWS acknowledge the importance of all 
loggerhead nesting beaches and nearshore reproductive habitat. These 
beaches and their associated nearshore habitat did not meet the 
critical habitat selection criteria either because the nesting density 
was not in the upper quartile of nesting density by state or the island 
was not adjacent to a high density nesting beach. For this reason, we 
are not designating the areas as critical habitat. However, 
loggerheads, their nests and nearshore habitat will continue to be 
protected along these beaches because the DPS is listed as threatened 
under the ESA and any impacts to the habitat that affect individual 
turtles will be considered in a consultation with Federal action 
agencies.
    Comment 58: Several commenters requested NMFS also consider 
additional nearshore habitat off nesting beaches in Lee and Collier 
Counties, Florida. Specifically, they requested beaches in Collier 
County from Doctor's Pass to Gordon Pass, as well as the beaches of 
Marco Island be designated. Likewise, the eastern end of Sanibel Island 
in Lee County should be designated. While these stretches of beach do 
not contain the same density as other areas proposed for designation 
under the USFWS proposal, these beaches are currently occupied and do 
appear to contain the physical and biological features, as well as 
constituent elements, of critical habitat as described in the USFWS 
Federal Register notice. Thus, the final NMFS rule should also reflect 
these areas in its designation. Specifically, areas adjacent to LOGG-N-
28, between LOGG-N-27 and LOGG-N-26, and adjacent to LOGG-N-25, should 
be designated where neritic and nearshore habitats occur.
    Response: We acknowledge the importance of the loggerhead nesting 
beaches and nearshore reproductive habitat in Lee and Collier Counties. 
However, these beaches and their associated nearshore habitat did not 
meet the critical habitat selection criteria either because the nesting 
density was not in the upper quartile of nesting density by state or 
the island was not adjacent to a high density nesting beach. For this 
reason, we are not designating the areas as critical habitat. However, 
it is important to note that loggerheads, their nests and nearshore 
habitat will continue to be protected along these beaches because the 
DPS is listed as threatened under the ESA and any impacts to the 
habitat that

[[Page 39871]]

affect individual turtles will be considered in a consultation with 
Federal action agencies.
    Comment 59: Multiple commenters opposed designating critical 
habitat for either terrestrial or nearshore reproductive habitat for 
the Cape Hatteras National Seashore Recreational Area (CAHA) and Cape 
Lookout (CALO) and areas south along the North Carolina coast. CAHA and 
CALO to its south are far beyond the historical nesting range that has 
proven critical to the species. They argued that neither of these 
beaches have historically had a sufficient number of nests or density 
to warrant designation. Foreseeable events are unlikely to ever change 
this conclusion. USFWS and NMFS correctly excluded CAHA and CALO in the 
proposed designations.
    Response: We determined that CAHA and CALO did not meet the 
critical habitat selection criteria because the nesting density was not 
in the upper quartile of nesting density by state or the island was not 
adjacent to a high density nesting beach. Loggerhead nests and 
nearshore reproductive habitat will continue to be protected along 
these beaches because the DPS is listed as threatened under the ESA and 
any impacts to the habitat that affect individual turtles will have to 
be considered in a consultation with Federal action agencies. The 
determination with regard to CAHA and CALO remained the same in the 
final rule.
    Comment 60: One commenter felt that the nearshore waters out to the 
Sargassum weed should be designated as critical habitat during the 
loggerhead nesting season. USFWS should designate as critical habitat 
the beaches from Currituck, North Carolina, and south, and concurrently 
NMFS should designate nearshore reproductive habitat off those beaches.
    Response: With regard to the extent to which nearshore waters 
should be designated off the beach, it would be very difficult to tie 
it to a dynamic habitat feature such as Sargassum, and particularly 
difficult to tie it to Sargassum given that Sargassum can occur right 
up to shore. In our proposed rule, we discussed designating Sargassum 
habitat starting at the 10 m depth contour only to ensure that the 
Sargassum we might designate was out of the tidal influence (although 
we identified critical habitat for Sargassum more narrowly in the final 
rule, starting it at the western edge of the Gulf Stream in the 
Atlantic). With regard to designating nearshore reproductive habitat 
off of all beaches from Currituck, North Carolina and south, we 
appreciate the commenter's desire to protect these beaches and their 
nearshore habitat, but we used selection criteria to identify critical 
habitat (see responses to Comment 56) and many of these beaches and 
their associated nearshore habitat did not meet these criteria. For 
this reason, we are not designating them as critical habitat. However, 
loggerheads, their nests and nearshore habitat will continue to be 
protected along these beaches because the DPS is listed as threatened 
under the ESA and any impacts to the habitat that affect individual 
turtles will be considered in consultations with Federal action 
agencies.
    Comment 61: Several commenters requested that NMFS not designate 
nearshore reproductive waters as critical habitat in Carteret County, 
North Carolina. They felt that existing active coastal shore protection 
programs, which include maintaining and enhancing ``on land'' and ``in 
the water'' habitats for loggerhead sea turtles, negated the necessity 
of designating critical habitat in the area. The commenters stated 
these programs are compliant with stringent state and federal 
regulations, including sediment criteria, mandated construction 
windows, tilling requirements and other provisions, to ensure that 
habitat for threatened and endangered species, including the loggerhead 
sea turtle, are protected before, during and after beach nourishment 
activities.
    Response: We appreciate all the efforts that are being made by 
Carteret County on behalf of loggerhead turtles and their habitat. 
However, ongoing conservation measures are not a cause for excluding an 
area from critical habitat. The nearshore reproductive habitat off 
Carteret County was designated based upon nesting beach selection 
criteria that was consistently applied throughout the DPS.
    Comment 62: One commenter requested NMFS reduce the proposed 11.5 
miles of nearshore reproductive critical habitat designation (LOGG-N-5-
Pleasure Island, Bald Head Island, Oak Island, and Holden Beach, New 
Hanover and Brunswick Counties, North Carolina) to 4.5 miles to include 
the oceanfronts of Fort Fisher State Park, portions of the Zeke's 
Island Reserve south to the ephemeral Corncake Inlet and waterward east 
one mile. They stated that documented nesting data within the suggested 
4.5 mile area has a 17-year average of 19 nests per year compared to 
eight and seven nests per year for Kure Beach and Carolina Beach, 
respectively. They highlighted several ongoing sea turtle monitoring 
and protection programs for this area, and felt the 4.5 mile area 
coincides more closely with the PBFs and PCEs for supporting 
reproductive and high-density nesting beaches described in the proposed 
rule. Conversely, they felt that the Kure Beach and Carolina Beach 
municipal oceanfronts and Freeman Park (totaling approximately seven 
miles) marginally contain the PBFs and PCEs for critical habitat 
designation. Over one mile of Pleasure Island has shore parallel 
hardened structures located at the southern and northern termini of 
Kure Beach and Carolina Beach, respectively. In addition, Freeman Park 
has year-round off-road vehicle access averaging 2,200 vehicle visits 
per month. They felt designating a 4.5 mile area of virtually pristine 
habitat was more appropriate than an additional seven miles with 
marginal PBFs/PCEs.
    Response: We appreciate the thought given to this proposal and gave 
it serious consideration, which included discussions with USFWS. 
However, we determined that these beaches do meet the selection 
criteria used to identify critical habitat and therefore they should be 
designated.
    Comment 63: One commenter recommended NMFS develop and implement an 
agreement with Marine Corps Base (MCB) Camp Lejeune, North Carolina, 
that provides protection equivalent to critical habitat designation to 
those nearshore waters adjacent to the base.
    Response: We consulted with the U.S. Marine Corps on their INRMP 
for MCB Camp Lejeune, which is the vehicle for such an agreement. 
Section 4(a)(3)(B)(i) of the ESA states that ``the Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such a plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.'' We did not designate critical habitat in the waters off 
Camp Lejeune because the base's INRMP was determined to provide a 
benefit to loggerheads through reference to Base Order 3570. 1C, Range 
and Training Regulations--Standing Operating Procedures for Range 
Control. Camp Lejeune is currently in the process of updating their 
INRMP and the revised INRMP will explicitly detail loggerhead 
conservation measures for nearshore reproductive habitat rather than 
incorporating them by reference.
    Comment 64: One commenter noted that a turtle sanctuary has existed 
since

[[Page 39872]]

1991 in the Atlantic Ocean in the vicinity of Hammock's Beach State 
Park and MCB Camp Lejeune, North Carolina, by Rule of the Marine 
Fisheries Commission (15A NCAC 03R.0101), which prohibits use of any 
commercial fishing gear within the bounds of the sanctuary between June 
1 and August 31 each year. If this area also receives designation as 
critical habitat, the commenter encouraged NMFS to issue a minimal 
number of incidental take permits in order to maintain the 
functionality of the sanctuary.
    Response: The sea turtle sanctuary and its prohibitions on fishing 
will remain in place with or without a critical habitat designation. It 
is not affected by a designation.
Comments on Wintering Habitat
    Comment 65: One commenter was concerned that the migratory/winter 
(LOGGN-01) and winter (LOGGN-02) areas were too large and may entail no 
wake zones or slower speed restrictions for large vessels operating in 
the areas.
    Response: The migratory and winter habitats do encompass a large 
portion of the waters off North Carolina, but that is due to the 
location and nature of the important habitat features off the North 
Carolina coast. We identified several factors/activities that may have 
an effect on one or more PBF or PCE and may require special management 
considerations. For winter habitat, those factors/activities include 
large-scale water temperature changes resulting from global climate 
change, and shifts in the patterns of the Gulf Stream resulting from 
climate change. For the migratory habitat, the primary impact to the 
functionality of the migratory corridors would be a loss of passage 
conditions that allow for the free and efficient migration along the 
corridor. The activities that are anticipated to result in an impact to 
the PCEs and potential altered habitat conditions needed for efficient 
passage are oil and gas activities; power generation activities; 
dredging and disposal of sediments; channel blasting; marina and dock/
pier development; offshore breakwaters; aquaculture structures; fishing 
activities, particularly those using fixed gear and arranged closely 
together over a wide geographic area; and noise pollution from 
construction, shipping and/or military activities. None of the 
identified special management considerations for winter or migratory 
habitat involve large vessel transiting impacts. We do not anticipate 
the designation of winter and migratory critical habitat will result in 
no wake zones or slower speed restrictions for large vessels operating 
in the areas.
Comments on Constricted Migratory Corridors
    Comment 66: One commenter supported NMFS' proposed critical habitat 
designation of constricted migratory habitat. However, they felt NMFS 
should identify other migration routes, such as the waters off New 
England and designate them as critical habitat. Additionally, female 
loggerheads are known to transit between nesting beaches as far as 250 
km apart during the same nesting season. Loggerhead occupation in these 
instances means that the species is utilizing some area to migrate from 
one place to another.
    Response: We appreciate the commenter's desire to identify as 
critical habitat migratory paths that are well used in additional 
places, such as off the waters of New England. Because loggerheads move 
readily up and down the east coast of the U.S. and within the Gulf of 
Mexico to forage, and move between foraging and reproductive areas, we 
focused on migratory corridors that are both highly used and 
constricted (limited in width) by land on one side and the edge of the 
continental shelf and Gulf Stream on the other side, and therefore 
might be more vulnerable to perturbations than other migratory areas. 
These constricted, high use corridors are used for traveling from 
nesting, breeding, and foraging sites by both juvenile and adult 
loggerheads. They provide the function of a relatively safe, efficient 
route for a large proportion of the population to move between areas 
that are vital to the species. During our review of the best available 
information, only the two migratory corridors off Florida and North 
Carolina fit the identified criteria (e.g., high use and constricted in 
width).
    Comment 67: One commenter was concerned that the proposed critical 
habitat designation focused narrowly on a very small segment of the 
life cycle (nesting females and hatchlings) and areas used during a 
small proportion of a calendar year. They also recommended that NMFS 
designate migratory habitat in the Gulf of Mexico. The commenter argued 
that the absence of migratory habitat appears to represent the relative 
dearth of information, not lack of importance, as the loggerhead 
clearly does migrate seasonally through the Gulf of Mexico.
    Response: The critical habitat designation does address nesting 
female and hatchling habitat use, but it is not limited to those life 
stages; juvenile and adult habitat use is considered in the migratory 
corridor, breeding, and winter habitat designations. As stated in 
Response 65, because loggerheads move readily up and down the east 
coast of the U.S. and within the Gulf of Mexico to forage, and move 
between foraging and reproductive areas, we focused on migratory 
corridors that are both highly used and constricted (limited in width) 
by land on one side and the edge of the continental shelf and/or Gulf 
Stream on the other side, and therefore might be more vulnerable to 
perturbations than other migratory areas. The commenter is correct that 
the loggerhead sea turtle does migrate seasonally through the Gulf of 
Mexico, but we are unaware of similar constricted migratory routes in 
this area as those off Florida and North Carolina.
    Comment 68: One commenter was concerned about the effects a 
critical habitat designation would have on dredging operations in Bogue 
Sound, North Carolina. The commenter asked if this proposal does not 
``impose an enforceable duty on state or local'' governments, whether 
dredging would happen without Federal intervention.
    Response: The critical habitat designation does not include any 
areas inside of Bogue Sound, North Carolina. The nearshore reproductive 
habitat (LOGG-N-03) being designated spans the nearshore waters from 
Beaufort Inlet to Bear Inlet (crossing Bogue Inlet) from the MHW line 
seaward 1.6 km. While it does cross Bogue Inlet, dredging operations at 
the inlets are not expected to be impacted beyond what is already 
required under ESA section 7 consultations.
Comments on Special Management Considerations
    Comment 69: Multiple commenters felt the ESA only allows critical 
habitat designations when special management considerations may be 
necessary as evidenced by threat levels for that area. They felt that 
the physical and biological features of the areas proposed as 
designated critical habitat for loggerhead sea turtles already require 
special management consideration; therefore, additional protections are 
not necessary, are likely to be redundant, and are unlikely to result 
in a measurable increase in conservation benefits.
    Response: Whether an area ``may require special management'' is one 
criterion we use to identify critical habiat. The presence or lack of 
adequate management of an area prior to designation does not determine 
its consideration as critical habitat. See Natural Resources Defense 
Council v. United States Department of the

[[Page 39873]]

Interior, 113 F.3d 1121, 1127 (9th Cir. 1997). Critical habitat is 
defined as ``(i) the specific areas within the geographical area 
occupied by the species, at the time it is listed [under Section 4], on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species'' (16 U.S.C. section 
1532(5)(A)). The fact that special management is ongoing has been 
interpreted in court cases to mean that it fits the portion of the 
definition of critical habitat that states it may require special 
management considerations or protection. See, e.g., The Cape Hatteras 
Access Preservation Alliance v. United States Department of the 
Interior, 731 F. Supp. 2d 15, 26 (D.D.C. 2010); Center for Biological 
Diversity v. Norton, 240 F. Supp. 2d 1090, 1097-1100 (D. Ariz. 2003).
    Comment 70: Several commenters stated that the assumption that 
economic impacts associated with critical habitat designation are 
limited to the administrative costs of consultation is not fully 
consistent with the discussion in the ``special management 
considerations'' section of the proposed rule. One commenter stated 
that this section of the proposed rule is vague and ambiguous, creating 
a concern that new conservation measures may be required for certain 
activities (e.g., dredging or disposal). For example, the proposed rule 
discusses ``geographical areas occupied by the species,'' on page 43012 
(Breeding habitat), and states that ``we were unable to identify 
specific habitat features within the breeding areas to distinguish them 
from other areas not used for breeding. In the face of a lack of clear 
habitat features, we believe it is reasonable to conclude that the 
importance of the breeding areas is based primarily on their 
locations.'' However, on page 43024 under the ``special management 
considerations'' section for ``Breeding Habitat'' the proposed rule 
includes ``Dredging and disposal of sediments that affect 
concentrations of reproductive loggerheads.'' This raises the concern 
that some vaguely defined aspect of a dredging or disposal action would 
be deemed an adverse modification of critical habitat. The proposed 
rule also states that for wintering habitat ``the water depth PCE could 
potentially be affected by extensive dredging and sediment disposal 
activities.'' This statement is ambiguous and should be clarified. The 
proposed rule should be revised to clearly identify how or whether the 
dredging and disposal of sediments would affect loggerheads.
    Response: The descriptions under ``Special Management 
Considerations'' include, in the broadest terms possible, potential 
sources of impacts to critical habitat from various activity types that 
have been considered. That does not equate to an expectation that those 
impacts are in fact likely to occur; merely that they were in the 
universe of potential impacts considered. Our consideration of effects 
to the habitat has been ongoing since the original listing of 
loggerheads in 1978. Although we can now consider effects to habitat 
more directly, we do not anticipate changes in requirements of Federal 
projects and those with a Federal nexus--particularly because of our 
long experience with the types of projects that are occurring and their 
effects. In particular, as part of the analysis of potential impacts 
``dredging and disposal of sediments that affect concentrations of 
reproductive loggerheads'' was considered among the possible sources of 
adverse impacts to breeding habitat and ``the water depth PCE could 
potentially be affected by extensive dredging and sediment disposal 
activities'' was similarly considered for winter habitat. However, we 
could not determine reasonable scenarios where such adverse impacts to 
those habitat features would occur to any extent that would rise to the 
level of adversely affecting the essential features and/or PCEs 
identified for the critical habitat.
    Comment 71: The proposed rule discusses ``Dredging and disposal of 
sediments that results in altered habitat conditions needed for 
efficient passage.'' The proposed rule should more specifically 
identify the dredging and disposal actions believed to result in 
``altered habitat conditions.''
    Response: Because each project and project location varies, we 
cannot specifically identify which actions would alter the essential 
features of the proposed habitat. However, as stated in the draft 
Economic Analysis for the proposed rule:

    NMFS' primary concerns relative to construction, dredging, and 
disposal activities include obstructions to transit through the surf 
zone in nearshore reproductive habitat, manmade structure that 
attract predators or disrupt wave patterns in nearshore reproductive 
habitat, artificial lighting in nearshore reproductive habitat, and 
barriers to passage in constricted migratory corridors. Existing 
regulations and recommendations provide significant baseline 
protections to loggerhead habitat. In particular, NMFS makes 
recommendations to reduce disturbance of loggerheads including 
timing restrictions, equipment requirements, lighting limits, and 
turtle monitoring as part of section 7 consultation due to the 
listing of the species. NMFS has not identified any conservation 
efforts that may be recommended to avoid adverse effects of these 
activities on the essential features of critical habitat that would 
not already be recommended to avoid potential adverse effects on the 
species itself. That is, NMFS anticipates that it is unlikely that 
critical habitat designation will generate a change in the outcome 
of future section 7 consultations due to the presence of critical 
habitat. This analysis accordingly does not forecast any changes to 
the scope, scale, or management of construction, dredging, or 
disposal activities due to critical habitat.

    Comment 72: The proposed rule states that ``For ongoing activities, 
we recognize that designation of critical habitat may trigger 
reinitiating past consultations. In most cases, we do not anticipate 
the outcome of reinitiated consultation to require significant 
additional conservation measures, because effects to habitat would 
likely have been assessed in the original consultation.'' The commenter 
requests that previously established conservation measures from past 
consultations be specifically identified and listed to help determine 
whether additional conservation measures would be needed to avoid the 
adverse modification of critical habitat.
    Response: Due to the volume of past consultations and associated 
conservation measures, cataloging them all in the rule's preamble is 
not appropriate. Additionally, the potential need for additional 
conservation measures would be highly project specific, depending on 
the details of the project scope and the particular project location. 
However, all past consultations are public records and can be accessed 
by any interested party, either through NMFS regional and headquarters 
Web sites, through the Public Consultation Tracking System (PCTS; also 
through the Web sites), and/or by requesting copies of specific 
consultations from the regional office that conducts them.
    Comment 73: The proposed rule assumes that ``Critical habitat 
designation is unlikely to change the conservation efforts recommended 
to avoid adverse effects on the loggerhead and its habitat as part of 
future section 7 consultations on most construction, dredging, and 
disposal activities'' and states that the likely significance with 
respect to estimated impacts is ``minor.'' The commenter felt that 
language

[[Page 39874]]

within the proposed rule does not reflect this position. Impact 
categories from dredging and disposal that are discussed in the 
proposed rule are not addressed by the current conservation efforts 
that are documented in this report suggesting that additional 
conservation measures or reasonable and prudent alternatives may be 
required to avoid adverse modification of critical habitat.
    Response: We do not agree that potential impacts discussed in the 
proposed rule will likely require additional conservation measures to 
avoid adverse modification of the critical habitat. The proposed rule 
included an extensive account of the various possible routes of effect 
to critical habitat by construction, dredging, and disposal activities. 
However, many of those possible impacts are not expected to occur, or 
to occur at a level that would affect or modify the essential features 
of the critical habitat. This issue is also addressed in the draft 
Economic Analysis for the proposed critical habitat rule, as quoted in 
the response to Comment 70 above.
    Comment 74: The U.S. Army Corps of Engineers (USACE) expressed 
concerns about safety of and costs to their operations should light be 
restricted at night as a result of the designations.
    Response: We do not anticipate any additional lighting restrictions 
or required lighting modifications beyond those already typically 
required by the Services for nighttime operations at or near sea turtle 
nesting beaches during the nesting and hatchling emergence seasons. 
While the critical habitat designation focuses on the habitat features 
important to loggerhead sea turtles, lighting requirements have been 
required for protection of the nesting sea turtles and hatchlings 
themselves in the past and should not change in the future due to 
designation of critical habitat.
Additional Comments
    Comment 75: One commenter specified that the health of the Earth's 
geomagnetic fields of the ocean be included as a physical or biological 
feature and primary constituent element for loggerhead habitats because 
sea turtles depend upon the Earth's geomagnetic field to navigate. NMFS 
must recognize the potential of research to ascertain the absolute 
measures of cheloniid turtle navigational science, by preservation of 
all ocean regions that contribute to the health and procreation of the 
loggerhead.
    Response: We acknowledge that research studies have indicated that 
sea turtles use the Earth's magnetic field as a source of navigational 
information (Lohmann et al. 2008, Lohmann et al. 2012, Lohmann et al. 
2013). However, to make a determination that habitat is critical 
habitat in accordance with the ESA, it must have PBFs which ``may 
require special management considerations or protection.'' We are 
unaware of special management considerations that may apply to the 
earth's geomagnetic fields of the ocean. As such, the Earth's magnetic 
field was not identified as a PBF that would support critical habitat 
for loggerheads. We do acknowledge the benefit of continuing research 
on sea turtle navigational science.

F. Comments on Draft 4(b)(2) Report and the Draft Economic Analysis 
(DEA)

    Comment 76: Multiple commenters state that the DEA underestimates 
the impacts of the proposed critical habitat designation in utilizing 
an incremental approach (i.e., it does not consider costs associated 
with baseline protections already afforded the loggerhead either as a 
result of its listing as a threatened DPS or as a result of other 
Federal, state, and local regulations). The commenters reference a 
decision by the U.S. Tenth Circuit Court of Appeals in 2001, which 
instructed USFWS to conduct a full analysis of all the economic impacts 
of proposed critical habitat, regardless of whether those impacts are 
attributable co-extensively to other causes (see, e.g., New Mexico 
Cattle Growers Assoc. v. United States Fish & Wildlife Service, 248 
F.3d 1277, 1285 (10th Cir. 2001)).
    Response: As stated in Section 1.2 of the DEA, subsequent to the 
U.S. Tenth Circuit Court of Appeals' decision, other courts have held 
that an incremental analysis of impacts stemming solely from the 
critical habitat rulemaking is proper (The Cape Hatteras Access 
Preservation Alliance v. United States Department of the Interior, 344 
F. Supp. 2d 108 (D.D.C. 2004); Center for Biological Diversity v. 
United States Bureau of Land Management, 422 F. Supp.2d 1115 (N.D. Cal. 
2006)). Relevant court decisions, and the use of an incremental 
approach for impact analyses, are addressed in a final rule issued by 
NMFS and USFWS on August 28, 2013, (78 FR 53058), revising the 
regulations pertaining to impact analyses of critical habitat. In order 
to provide the most complete information to decision-makers, the DEA 
employs ``without critical habitat'' (baseline) and ``with critical 
habitat'' (incremental) scenarios. The DEA describes how baseline 
conservation efforts for the loggerhead may be implemented across the 
proposed designation, and describes and monetizes, where possible, the 
incremental impacts due specifically to the designation of critical 
habitat.
    Comment 77: Multiple commenters expressed concern that the critical 
habitat designation will affect a wide variety of activities due to 
additional or new management efforts, operational conditions, and 
regulatory review. The commenters state that the designation may result 
in additional costs, regulatory hurdles, restrictions, delays, and 
prohibitions for a wide variety of activities, including coastal and 
inlet management; dredging and offshore disposal; beach maintenance and 
restoration; commercial and recreational fishing; boating, boatbuilding 
and marina activities; oil spill response; hurricane recovery; offshore 
energy development; power generation; aquaculture; shipping and/or 
military activities; dock and pier development; and tourism. The 
commenters state that these impacts will affect local, state and 
Federal economies and the public's access and enjoyment of marine 
waters, and that the DEA does not account for these impacts. Several 
commenters further assert that the NMFS determination that section 7 
consultation analyses will result in no differences between 
recommendations to avoid jeopardy or adverse modification in occupied 
areas of critical habitat leads to an underestimate of the economic 
impacts of critical habitat designation for the loggerhead.
    Response: As summarized on page ES-2 and detailed throughout the 
draft DEA, we anticipate that the impacts of critical habitat 
designation will most likely be limited to incremental administrative 
effort to consider potential adverse modification as part of future 
section 7 consultations. This is because we anticipate that the 
substantial ongoing and currently recommended conservation efforts to 
avoid take of and jeopardy to the species would also most likely avoid 
adverse modification of critical habitat. Our consideration of effects 
to the habitat has been ongoing since the original listing of 
loggerheads in 1978. Although we can now consider effects to habitat 
more directly, we do not anticipate changes in requirements of Federal 
projects and those with a Federal nexus--particularly because of our 
long experience with the types of projects that are occurring and their 
effects. As a result, it is unlikely that critical habitat will 
generate new or different recommendations for conservation efforts for 
the loggerhead. The economic analysis accordingly quantifies costs of 
the designation in terms of additional effort for section 7 
consultations and

[[Page 39875]]

anticipates that the additional categories of costs described by the 
commenters (additional restrictions or prohibitions on activities) are 
unlikely. A potential exception to this finding identified in the 
economic analysis are activities that may alter the habitat in such a 
way as to impact transit back and forth from the nearshore waters to 
the beach for nesting loggerhead sea turtles (e.g., construction of 
large emergent structures parallel to the shore). Such projects have 
the potential to generate adverse modification of critical habitat but 
may or may not constitute a jeopardy concern. We may request 
modifications to these activities specifically to avoid adverse 
modification (e.g., recommending that structures be located farther 
offshore), therefore generating incremental costs of critical habitat. 
However, based on experience consulting on projects due to the presence 
of loggerheads, we have not identified a circumstance in which the 
presence of critical habitat would have changed the conservation 
recommendations made.
    Comment 78: One commenter states that the DEA is inconsistent on 
page ES-2 because it first states that the quantified impacts of the 
designation are limited to administrative costs, but then states that 
NMFS may recommend changes to activities to avoid destruction or 
adverse modification of critical habitat.
    Response: Page ES-2 of the DEA describes the quantified impacts as 
being limited to additional administrative costs of consultations 
because we anticipate that it is unlikely that critical habitat 
designation will generate new or different recommendations for 
loggerhead conservation efforts. The DEA further describes, however, 
that the possible exceptions to this finding are activities that may 
alter the habitat in such a way as to impact transit back and forth 
from the nearshore waters to the beach for nesting loggerhead sea 
turtles (e.g., construction of large emergent structures parallel to 
the shore). Based on our experience consulting on projects due to the 
presence of the species and the suite of projects forecast to occur 
over the next ten years, however, we do not anticipate circumstances in 
which the presence of critical habitat would change the conservation 
recommendations made.
    Comment 79: Multiple commenters state that the analysis did not 
account for the indirect impacts associated with litigation and project 
delays because forecasting the likelihood of litigation and the length 
of associated project delays is speculative and likely to be minor. The 
commenters assert that these indirect costs are likely and would be 
significant. One commenter states that in comments on the proposed 
polar bear critical habitat designation, the oil and gas industry 
estimated the incremental cost of defending an additional claim related 
to adverse modification to be around $50,000.
    Response: Section 3.4 of the DEA acknowledges the concern that 
critical habitat designation may generate project delays due to either 
increasing the length of time for us to review projects due to ESA 
section 7 consultation or litigation. In particular, the DEA recognizes 
that project delays may increase costs in two key ways: (1) The value 
of a project is maximized if its benefits are realized as soon as 
possible and its costs are postponed as long as possible and, 
therefore, changes in schedule can reduce the present value of the 
project; and (2) delays can result in additional logistical costs 
(e.g., extra expense of renting equipment during delays) and, 
potentially, the loss of low cost bids on projects. While potential 
exists for third party lawsuits to result from critical habitat 
designation, the likelihood, timing, and outcome of such lawsuits are 
uncertain. Quantifying costs associated with hypothetical outcomes of 
the critical habitat designation would be speculative. Therefore, the 
DEA qualitatively discusses these potential incremental impacts so that 
they can be considered along with the monetized costs presented in the 
report. In addition, the DEA does quantify some additional time 
required to consider adverse modification as part of the section 7 
consultation process. We anticipate that this additional time, as 
reflected in the incremental administrative costs, will most likely be 
minor as it is unlikely that the proposed critical habitat designation 
will result in changes in the outcome of future ESA section 7 
consultations.
Comments on Construction and Dredging Activities
    Comment 80: One commenter states that the DEA identifies the 
restriction of hopper dredging to the months of December to March as a 
baseline impact that would be recommended by NMFS for construction, 
dredging, and disposal projects carried out in areas being proposed for 
critical habitat designation. The commenter asserts that this is 
incorrect, as this measure is ``self-imposed on many projects and was 
based on the risk of entrainment to sea turtles due to dredging 
activities and did not consider disposal activities.'' In addition, the 
commenter notes that the DEA documents the concern raised by the USACE 
that any additional timing restrictions placed on dredging activities 
due to the designation of critical habitat could result in significant 
cost increases. An additional comment expressed concern about timing 
restrictions for hopper dredging and the potential impact on the BOEM's 
Marine Minerals Program.
    Response: The commenter is correct in that the DEA lists timing 
restrictions on hopper dredging among the measures that may be 
recommended under the baseline for dredging and disposal activities. 
While the potential conservation measures relevant to dredging and 
disposal activities are provided as a combined list in the DEA, the 
timing restrictions would only apply to dredging activities. 
Restrictions on hopper dredging for specific areas were included in the 
South Atlantic Regional Biological Opinion (SARBO) and Gulf Regional 
Biological Opinion (GRBO) for hopper dredging. As is explained in the 
DEA, we do not anticipate requesting further timing restrictions due to 
the designation of critical habitat and, therefore, incremental costs 
to these activities are not expected.
    Comment 81: One commenter states that there are multiple borrow, 
beach placement, and offshore disposal areas associated with the 
USACE's coastal storm damage reduction and navigation missions that are 
located outside of `harbors and channels' and overlap with the proposed 
designations. The comment suggests that further coordination with the 
USACE is necessary to assure that all projects are documented and to 
better evaluate the project area overlaps and associated economic 
implications.
    Response: In preparation of the DEA, we requested information from 
the USACE South Atlantic Division (encompassing the Wilmington, 
Charleston, Savannah, Jacksonville, and Mobile Districts) on USACE 
activities that may be affected by the proposed designation of critical 
habitat for the loggerhead. The information provided was discussed in 
the DEA and used to verify that the consultation history is a 
reasonable indicator of the frequency and location of future projects. 
The Final Economic Analysis (FEA) integrates additional information 
provided by BOEM during the public comment period on sand placement 
projects undertaken or authorized by USACE that rely on sand from OCS 
borrow areas.
    Comment 82: One comment stated that BOEM expects an increase in 
future requests for sand to restore shoreline habitat and that the DEA 
does not

[[Page 39876]]

adequately address all future nourishment projects. The commenter 
provided a ten-year projection of all future projects, including USACE 
regulatory and civil works projects. Lastly, the commenter noted that 
BOEM should be included in the discussion regarding consultations on 
construction, dredging, and channelization projects, and in exhibits 
describing Marine Minerals Program projects.
    Response: Chapter 3 of the FEA incorporates additional information 
provided on future nourishment and renourishment projects using outer 
continental shelf (OCS) sand. In total, BOEM is expected to consult 
with us on offshore dredging for 101 beach nourishment and 
renourishment projects between 2014 and 2023. In addition, the FEA 
incorporates a discussion of areas in which BOEM expects that dredging 
of OCS sand may increase. However, this increase will be offset by a 
decrease in consultations between the USACE and NMFS or USFWS for 
dredging of state sand resources. Therefore, the rate of consultation 
is not expected to change. The discussion and exhibits in the FEA are 
updated accordingly.
    Comment 83: One commenter notes that the potential mitigation 
measures listed in the DEA as standard are not standard and/or 
consistent across all sand nourishment projects. For example, recycling 
bins and educational signage have not been regularly included in 
Biological Opinions from NMFS. Inclusion of additional mitigation 
measures would increase costs and should be included in the DEA.
    Response: Section 3.3.1 of the DEA provides a description of 
baseline protections for loggerhead related to construction, dredging, 
and disposal activities. Included in this description is a list of 
measures that we regularly recommend in consultations to minimize the 
impact of construction activities on the loggerhead, which include 
displaying educational signage and providing recycling bins for used 
fishing line to decrease turtle entanglement or ingestion of marine 
debris. This list is not comprehensive, nor are all of the listed 
measures recommended in all section 7 consultations; rather, it is 
meant to convey the breadth of conservation efforts that may be 
undertaken in the baseline, regardless of the presence of critical 
habitat. As described in the DEA, it is unlikely that we will recommend 
additional conservation measures for such projects as a result of 
critical habitat designation for the loggerhead.
    Comment 84: One commenter states that while the nearshore 
reproductive habitat does not extend into the outer continental shelf 
(OCS) waters, it may include areas that are potential rehandling sites 
for dredged material and the impact to the potential use of these sites 
and any associated costs should be considered in the DEA.
    Response: Costs associated with dredging of OCS sand were 
attributed to particular critical habitat units using GIS data of 
borrow sites provided by BOEM. No additional information was provided 
in this comment on the location of rehandling sites or the projects 
that may make use of such sites. If consultation on rehandling sites in 
nearshore reproductive habitat does occur, we anticipate that baseline 
protections for the loggerhead would provide adequate protection of 
loggerhead habitat and, as such, incremental costs would be limited to 
the additional administrative cost of considering adverse modification 
during consultation.
Comments on Oil and Gas Activities
    Comment 85: One commenter stated that the DEA significantly 
underestimates costs of the designation to offshore oil and gas 
activities because it only accounts for consultation costs in areas 
where there are existing offshore oil and gas operations, and not the 
South- and Mid-Atlantic planning areas where additional oil and gas 
leasing is being considered and renewable energy projects are already 
occurring. In addition, for the entire Western and Central Gulf of 
Mexico Planning areas, the DEA estimates that there will be only three 
programmatic consultations in the next ten years, but there have been 
six consultations in this area in the last five years. Also, the 
commenter states that because the DEA assumes section 7 consultations 
will already be required due to the presence of the loggerhead, it 
assigns a value of $4,200 as the incremental administrative cost the 
government would incur in each of the consultations and assumes no 
costs for industry, which results in an underestimate of costs.
    Response: Chapter 5 of the DEA describes the potential for future 
expansion of oil and gas activities into the South and Mid-Atlantic 
Planning Areas. In particular, the DEA describes a recent (2013) 
programmatic consultation on seismic studies in these planning areas; 
however, leasing in these areas is not anticipated before 2017. While 
the DEA acknowledges that additional consultations may occur on oil and 
gas drilling activities after 2017 in the Mid- and South Planning 
areas, absent the findings of the ongoing seismic testing, the 
frequency and locations of these potential activities is significantly 
uncertain and forecasting the nature of these activities for the 
purposes of this analysis would be speculative. The analysis 
accordingly describes that administrative costs of consultations in 
these areas is likely underestimated. However, as described in the DEA, 
critical habitat designation for the loggerhead is unlikely to change 
the outcome of future consultations on oil and gas activities. 
Furthermore, the DEA describes that, although six consultations have 
occurred in the Western and Central Gulf of Mexico Planning Areas over 
the last five years, these consultations are sporadic and relate to 
unpredictable incidents (e.g., oil spills). We are unable to predict 
the frequency of such events into the future but anticipate the 
additional costs associated with critical habitat on these 
consultations would be minimal.
    To minimize consultation on individual projects, we consult on oil 
and gas activities at the programmatic level in the Western and Central 
Gulf of Mexico Planning Areas. Thus, we anticipate approximately three 
programmatic-level consultations with BOEM occurring at the time of 
lease sales. We do not anticipate third parties (i.e., industry) will 
be a party to the programmatic consultations. To the extent that third 
parties are involved, the analysis underestimates administrative costs. 
However, these consultations would occur regardless of critical habitat 
designation for the loggerhead and any incremental administrative 
effort on the part of third parties to consider critical habitat would 
most likely be minimal. Furthermore, the critical habitat designation 
is unlikely to change the outcome of these programmatic consultations.
    Comment 86: One commenter states that the DEA is incorrect in 
stating that ``additional requirements placed on operators mandate that 
industry surveyors be present during exploration and operations that 
look specifically for sea turtles and Sargassum.'' The commenter states 
that BOEM does not require operators to look for Sargassum but does 
require the industry to have Protected Species Observers onboard 
seismic survey vessels.
    Response: The FEA clarifies that Protected Species Observers, and 
not Sargassum surveyors, are aboard seismic survey vessels.
Comments on Fisheries
    Comment 87: One commenter states that all of the shrimp fishing 
activities in the nearshore reproductive habitat

[[Page 39877]]

areas proposed for designation in the Southeast region are limited to 
State waters and therefore lack a Federal nexus and requests that this 
be clarified in the final report. The commenter also requests that 
potential impacts on the penaeid and rock shrimp fisheries caused by 
the designation of critical habitat in LOGG-N-17 and LOGG-N-19 be 
described in the final report.
    Response: Section 4.2.1 of the DEA states that the fisheries 
operating in nearshore reproductive habitat are state-managed and 
therefore typically lack the Federal nexus to trigger section 7 
consultation. Critical habitat designation for the loggerhead is 
therefore unlikely to generate the need for section 7 consultation and 
associated economic impacts to fisheries occurring in nearshore 
reproductive habitat. With respect to the penaeid and rock shrimp 
fisheries in Units LOGG-N-17 and LOGG-N-19, the DEA quantifies 
relatively minor additional administrative costs to consider critical 
habitat as part of consultations on any amendments to Fisheries 
Management Plans (FMPs). However, as described in Chapter 4 of the DEA, 
we have not identified any conservation efforts that may be recommended 
to avoid adverse effects of fisheries on critical habitat that would 
not already be recommended due to the listing status of the species. 
That is, critical habitat is not expected to result in any additional 
changes to the scope, scale, or management of these fisheries.
    Comment 88: One commenter asserted that the DEA underestimates 
costs on commercial fishing activities. First, the DEA quantifies only 
$29,000 in costs annually for fisheries and the salary of one NMFS 
enforcement agent in the State would cost more than $29,000 for his 
salary. Second, the DEA states that most fisheries occur in state 
waters and are not subject to a Federal nexus; however, NMFS and U.S. 
Coast Guard enforcement agents board vessels to check compliance on 
turtle excluder devices. In addition, this year the sea scallop fishery 
was required to pull new fishing gear at a cost to the industry of $2.0 
million.
    Response: The costs described in this comment are not related to 
critical habitat designation. Critical habitat designation does not 
require presence of enforcement officers nor is critical habitat 
designation for the loggerhead anticipated to result in new gear 
restrictions for fisheries. Critical habitat requires that activities 
with a Federal nexus be subject to consultation with NMFS or USFWS to 
assure that they do not adversely modify critical habitat. The costs 
associated with regulations pertaining to turtle excluder devices and 
other fisheries regulations described here are outside the scope of the 
economic analysis because they are not affected by decisions related to 
the designation of critical habitat.
Comments on Other Economic Activities or Issues
    Comment 89: One commenter stated that there are several 
inaccuracies in the DEA regarding the status and process of BOEM's 
offshore wind leasing program, and that the DEA must be updated to best 
represent these activities.
    Response: Chapter 6 of the FEA integrates updated information from 
BOEM regarding the status of their offshore wind energy programs. These 
updates include revising the schedule of three proposed informal 
consultations in New Jersey (2014), Maryland (2016), and North Carolina 
(2016) into one formal consultation currently being undertaken (2014), 
and adding potential costs associated with reinitiation of six 
previously completed informal consultations as a result of the 
designation of loggerhead critical habitat.
    Comment 90: One commenter asked how critical habitat affects 
private property owners if a Federal permit is required. The commenter 
requested clarification regarding whether critical habitat would 
devalue the property if the private landowner cannot do anything with 
it.
    Response: The areas being considered for marine critical habitat 
for the loggerhead do not include private lands. Thus, the economic 
analysis does not forecast impacts to values of private lands. With 
regard to federally permitted projects, we have been considering the 
effects to loggerhead habitat since the original listing of loggerheads 
in 1978, and we do not anticipate changes in requirements of federally 
permitted projects as a result of this designation.
    Comment 91: One commenter agreed with the conclusion of the DEA 
that the designation is not likely to result in additional conservation 
efforts to benefit the loggerhead. They further stated that NMFS 
attempted to remediate this DEA conclusion by stating, without support, 
that critical habitat designation results in improved `education and 
outreach' and `additional protections under state and local 
authorities.' The commenter felt that not only are such statements 
unsupported and somewhat questionable, they are undermined by, and in 
direct conflict with, the DEA.
    Response: We do not believe that our statement that critical 
habitat designation can have non-regulatory impacts is in conflict with 
the DEA. In the many years since critical habitat has been designated 
for listed species, we have found that awareness of the importance of 
that habitat on the part of the public as well as planners, government 
entities and others has promoted the conservation of the species. As 
stated in responses to other comments and in the DEA, we do not 
anticipate that Federal agencies or others with a Federal nexus will be 
required to take additional conservation efforts for any ongoing 
actions because the habitat has been addressed, albeit in a less direct 
way, through section 7 jeopardy consultations for many years. This is 
the reason that the DEA concludes that no conservation actions will 
need to be taken and very minimal economic costs will be incurred as a 
result of designation.
    Comment 92: Another commenter stated that the economic analysis 
provides inadequate information to do the balancing test regarding 
whether the benefits of excluding an area outweigh the benefits of 
including it as critical habitat.
    Response: We believe the economic analysis provides adequate 
information to do the balancing test. The economic impacts for each 
unit were estimated to the best of our ability and, because we selected 
our critical habitat units to reflect areas that have high conservation 
value, we were able to do the balancing test regarding the benefits of 
exclusion vs. the benefits of inclusion.
    Comment 93: One commenter requested clarification that the Federal 
requirement for certain shrimp trawl fisheries to use compliant turtle 
excluder devices does not constitute a Federal nexus.
    Response: The requirement to use turtle excluder devices is not 
related to the designation of critical habitat, even if related to the 
conservation of loggerhead sea turtles, because it exists regardless of 
this designation, i.e., is part of the baseline and not an additional 
cost or incremental impact. For this reason, costs associated with 
regulations pertaining to turtle excluder devices and other fisheries 
regulations are outside the scope of the economic analysis.
    Comment 94: The North Carolina Department of Transportation (NCDOT) 
requested exclusion of critical habitat in order to maintain the 
operation of the NC 12 transportation facility. If a beach nourishment 
alternative is pursued, then the designated critical habitat will be 
impacted both by the placement of sand along the ocean beach face and 
the dredging of sand from an offshore borrow site. They requested 
information

[[Page 39878]]

on whether a programmatic agreement between NMFS, USFWS, and the NCDOT 
would be required to allow flexibility in the construction and 
maintenance of our transportation projects along the coast. They were 
concerned that this designation could create obstacles that would make 
fulfilling their mission to the travelling public an impossibility.
    Response: We do not consider an exclusion from critical habitat to 
be appropriate in this case as the expected economic impacts are 
expected to be minimal and do not warrant exclusion under the ESA. 
Although beach nourishment falls primarily under the purview of the 
USFWS, neither beach nourishment nor the dredging of sand from offshore 
borrow sites are expected to be significantly impacted by the critical 
habitat designation as proposed. Those activities are already 
considered under ESA section 7 consultations, with resulting associated 
required conservation measures. Such measures already limit the impacts 
to the essential features now described in the proposed critical 
habitat designation and thus, such operations are not expected to be 
impacted beyond what is already required under existing ESA 
consultations.
    Comment 95: Multiple commenters believe the designation will 
actually increase the degree of threat to loggerhead sea turtles by 
making it much more difficult for local governments and others to 
conduct active coastal shore damage reduction projects, which serve to 
increase and enhance loggerhead sea turtle nesting area and habitat. 
They claim designation of critical habitat would affect a wide variety 
of coastal projects involving a Federal nexus. They believe that if 
critical habitat is designated for the loggerhead sea turtle, these 
existing, successful programs will be burdened with additional and 
unnecessary measures and will become more costly and difficult to 
implement, which increases the threat to the loggerhead sea turtle and 
its habitat.
    Response: We cannot foresee how designation of critical habitat 
would increase the threat to loggerhead sea turtles. As stated 
throughout the rule and the DEA, we do not anticipate requiring 
additional conservation measures beyond those already employed, and 
therefore do not anticipate that projects such as these will be more 
costly and difficult to implement.
    Comment 96: Multiple commenters felt that designation of critical 
habitat would benefit local economies by increasing tourism. These 
commenters felt the designation would raise awareness of the 
environmental significance of the area and draw more visitors. Other 
commenters felt the designation would have a negative impact on tourism 
by increasing restrictions to access.
    Response: We do not anticipate any restrictions to access to 
loggerhead critical habitat. It is possible that designation of 
critical habitat will draw more visitors, but we were not able to 
incorporate this into the economic analysis as we do not have data on 
which to base this possibility.
    Comment 97: One commenter felt NMFS had prepared an inaccurate and 
incomplete draft economic analysis and failed to recognize the 
successful programs that North Carolina and its local governments and 
communities have in place to ensure the survival and recovery of the 
loggerhead sea turtle. Thus, they felt NMFS did not properly consider 
whether the benefits of excluding the area actually outweighed the 
benefits of including it.
    Response: We believe our economic analysis is thorough and 
represents the best available information. It accurately portrays costs 
of designation, which are minimal. While we appreciate North Carolina's 
ongoing conservation efforts, we do not have a basis to exclude areas 
from critical habitat.

IV. Critical Habitat Identification

    Section 4 of the ESA requires the designation of critical habitat 
for threatened and endangered species ``to the maximum extent prudent 
and determinable,'' and provides for the revision of critical habitat 
based on the best scientific data available, as appropriate (16 U.S.C. 
1533(a)(3)(A); 16 U.S.C. 1533(b)(2)). Critical habitat may only be 
designated in areas under U.S. jurisdiction (50 CFR 424.12(h)).
    Section 4(b)(2) of the ESA requires designation of critical habitat 
for threatened and endangered species ``on the basis of the best 
scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical 
habitat.'' Section 4(b)(2) also grants the Secretary of Commerce 
(Secretary) discretion to exclude any area from critical habitat if she 
determines ``the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat.'' However, the 
Secretary may not exclude areas that ``will result in the extinction of 
the species.''
    The ESA defines critical habitat in section 3(5)(A) as: ``(i) The 
specific areas within the geographical area occupied by the species, at 
the time it is listed . . . on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protection; and (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed upon a determination 
by the Secretary that such areas are essential for the conservation of 
the species.''
    Joint NMFS-USFWS regulations emphasize that in identifying critical 
habitat, the agencies shall consider those PBFs that are essential to 
the conservation of a given species and that may require special 
management considerations or protection (50 CFR 424.12(b)). The 
regulations provide examples of the kinds of essential features to 
consider, which may include but are not limited to:
    (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 require agencies to ``focus on the principal 
biological or physical constituent elements'' (hereafter referred to as 
``Primary Constituent Elements'' or PCEs) within the specific areas 
considered for designation, which ``may include, but are not limited 
to, the following: . . . nesting grounds, spawning sites, feeding 
sites, seasonal wetland or dryland, water quality or quantity, . . . 
geological formation, vegetation type, tide, and specific soil types'' 
(50 CFR 424.12(b)). There is inherent overlap between what may 
constitute a PBF and what can be enumerated as a PCE. When we set out a 
list of PCEs with a PBF, our intent is that the PBF exists whenever a 
sufficient subset of PCEs is present to allow the habitat to serve the 
conservation function for a single life stage. It is not necessary for 
all the PCEs to occur simultaneously. Section 4(b)(2) of the ESA and 
our implementing regulations (50 CFR 424.12(a)), require designation of 
critical habitat to be based on the best scientific data available.
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure they do not fund, authorize, or carry out 
any actions that are likely to result in the ``destruction or

[[Page 39879]]

adverse modification'' of that habitat (16 U.S.C. 1536(a)(2)). This 
standard is separate from the section 7 requirement that Federal 
agencies must ensure that their actions are not likely to ``jeopardize 
the continued existence of'' listed species.
    We reviewed the best available assessments for loggerheads by 
habitat category (e.g., neritic, oceanic), which for most cases was the 
``Assessment of the loggerhead turtle population in the western North 
Atlantic Ocean'' conducted by the TEWG (2009). This review resulted in 
the identification of relatively high use areas (generally those with 
60 or more turtle days in the TEWG satellite tracking analysis 
figures), which served as a proxy for identifying important habitat 
areas, especially as there is little quantitative data on loggerhead 
use of offshore waters. This information was supplemented by known and 
available studies that were not included in the TEWG analysis or 
occurred subsequent to it. For the nearshore reproductive habitat, we 
relied on data and information on nesting distribution and patterns to 
identify nearshore reproductive areas associated with high density 
nesting beaches, as described in the USFWS proposed rule to designate 
critical habitat for the Northwest Atlantic Ocean DPS (78 FR 18000, 
March 25, 2013). For the Sargassum habitat, we reviewed data on the 
distribution of Sargassum, its relationship to loggerhead habitat 
needs, and its use by loggerheads.

A. Geographical Area Occupied by the Species

    As noted above, the statutory definition of ``critical habitat'' 
requires that we initially identify the geographical area occupied by 
the species at the time of its listing. We have interpreted 
``geographical area occupied'' in the definition of critical habitat to 
mean the range of the species at the time of listing. For both of these 
DPSs, there is no known unoccupied marine habitat within their historic 
range. Critical habitat can only be designated in U.S. territory, and 
thus designation is limited to the Northwest Atlantic Ocean and North 
Pacific Ocean DPSs within the U.S. Economic Exclusive Zone (EEZ). We 
identified the geographical area occupied for the Northwest Atlantic 
Ocean DPS as south of 60[deg] N. lat., north of the equator, and west 
of 40[deg] W. long., and for the North Pacific Ocean DPS as south of 
60[deg] N. lat. and north of the equator. While this is the range 
occupied by the species, we reviewed data for only U.S. EEZ waters 
within that range. Within the U.S. EEZ, loggerhead sea turtle nesting 
occurs only within the Northwest Atlantic Ocean DPS. Terrestrial 
(nesting) habitat was identified by the USFWS and addressed in a 
separate rulemaking.
1. Northwest Atlantic Ocean DPS
    We analyzed three ecosystem types when identifying critical 
habitat: Terrestrial, neritic, and oceanic. Because we have 
jurisdiction only in the marine environment, the proposed rule (78 FR 
43006, July 18, 2013) examined areas within the broad categories of 
neritic and oceanic habitat. Sargassum habitat was added as a separate 
category, as it occurs in both neritic and oceanic habitat. For more 
information on each of these habitats and the methods we used to 
identify them, we refer the reader to the proposed rule (78 FR 43006, 
July 18, 2013).
    Neritic habitat consists of the nearshore marine environment from 
the surface to the sea floor where water depths do not exceed 200 m 
(656 ft), including inshore bays and estuaries. For purposes of 
describing potential critical habitat in the Atlantic Ocean and the 
physical or biological features essential to the conservation of the 
species, we divided consideration of neritic habitat into several 
habitat types that reflect key life history phases of the loggerhead 
sea turtle: (1) Nearshore Reproductive Habitat (which includes 
hatchling swim frenzy and internesting female habitat); (2) Foraging 
Habitat; (3) Wintering Habitat; (4) Breeding Habitat; and (5) 
Constricted Migratory Habitat. All of these habitat types were labeled 
Neritic Habitat in units identified as critical habitat.
    Sargassum habitat occurs in both the neritic and oceanic 
environment. Most pelagic Sargassum in the Atlantic Ocean circulates 
between 20[deg] N. and 40[deg] N. lat., and between 30[deg] W. long. 
and the western edge of the Florida Current/Gulf Stream, and the Gulf 
of Mexico (SAFMC 2002; Dooley 1972; Gower and King 2011). The survival 
of loggerhead sea turtles, in particular the post-hatchling and small 
oceanic juvenile stages, is dependent upon suitable foraging and 
shelter habitat, both of which are provided by the algae of the genus 
Sargassum in the Atlantic Ocean and Gulf of Mexico (Witherington et al. 
2012). Although no Sargassum habitat was proposed for designation, we 
specifically requested comments on whether to include Sargassum habitat 
as critical habitat and, if so, whether we should include the entire 
areas, features, and elements described in the ``Description of 
Physical or Biological Features and Primary Constituent Elements and 
Identification of Specific Sites'' section of the proposed rule. 
Potential Sargassum habitat included all U.S. waters south of 40[deg] 
N. lat. in the Atlantic Ocean and Gulf of Mexico from the 10 m depth 
contour to the outer boundary of the EEZ, separated into two large 
contiguous areas, the Gulf of Mexico and the U.S. Atlantic Ocean.
    Although adults transition between neritic and oceanic habitat, 
oceanic habitat is predominantly used by young loggerhead sea turtles 
that leave neritic areas as neonates or young juveniles and remain in 
oceanic habitat moving with the predominant ocean gyres for several 
years. The ocean currents and gyres, such as the Gulf Stream and 
Florida Loop Current, serve as important dispersal mechanisms for 
hatchlings and neonate sea turtles as well as vital developmental 
habitat for those early age classes. The presence of Sargassum is 
important for the oceanic juvenile life stage, as it offers a 
concentrated, protected foraging area, with facilitated dispersal by 
associated oceanic currents. Aside from Sargassum habitat, we were 
unable to identify oceanic habitat essential to conservation of the 
species within the Northwest Atlantic Ocean DPS.
2. North Pacific Ocean DPS
    In the proposed rule (78 FR 43006, July 18, 2013), we did not 
divide the north Pacific Ocean by ecosystem (i.e., terrestrial, 
neritic, and oceanic zones) and habitat type, as with the Northwest 
Atlantic Ocean DPS, due to the limited occurrence of loggerheads within 
the North Pacific Ocean DPS in habitats under U.S. jurisdiction. 
Loggerhead sea turtle habitat in the North Pacific Ocean occurs between 
28[deg] N. and 40[deg] N. lat. (Polovina et al. 2004). Within the U.S. 
EEZ, loggerheads are found only in waters northwest of the Hawaiian 
Islands, and off the U.S. west coast, primarily the Southern California 
Bight, south of Point Conception. No loggerhead nesting occurs within 
U.S. jurisdiction. In the central North Pacific Ocean, the Transition 
Zone Chlorophyll Front is favored foraging and developmental habitat 
for juvenile loggerhead turtles (Polovina et al. 2001; Kobayashi et al. 
2008). Within the U.S. EEZ around Hawaii, North Pacific Ocean DPS 
developmental, foraging and transiting habitat occurs seasonally within 
the southernmost fringe of the Transition Zone Chlorophyll Front, north 
and northwest of Hawaii (Polovina et al. 2006); however, the area 
extending into the U.S. EEZ is very limited compared to the foraging 
area overall. Loggerheads documented off the U.S. west coast are 
primarily found south of Point Conception, the northern

[[Page 39880]]

boundary of the Southern California Bight, in very low numbers. No 
critical habitat was identified in the proposed rule. For more 
information on loggerhead habitat in the North Pacific Ocean DPS, we 
refer the reader to the proposed rule (78 FR 43006, July 18, 2013).

B. Description of Physical or Biological Features and Primary 
Constituent Elements, and Identification of Specific Areas

    Based on the best available scientific information, we identified 
PBFs of habitat essential for the conservation of the loggerhead sea 
turtle, the PCEs that support the PBFs, and the specific areas 
identified using these PBFs and PCEs. A description of the means used 
to identify PBFs, PCEs and specific areas can be found in the proposed 
rule (78 FR 18000, March 25, 2013), with the exception of the Sargassum 
units which were not proposed but were discussed in the proposed rule, 
and are described fully here. Because information that allowed us to 
use quantitative criteria (such as was done for terrestrial habitat) 
was lacking, we necessarily identified most marine habitat in a more 
qualitative manner.
1. Northwest Atlantic Ocean DPS
    PBFs and PCEs were identified for Neritic (nearshore reproductive, 
foraging, winter, breeding, and migratory) and Sargassum Habitat. No 
PBFs or PCEs were identified for Oceanic Habitat in the Northwest 
Atlantic Ocean DPS because we could find no specific habitat features 
that were essential to the conservation of the species within this area 
other than Sargassum.
    The PBFs and PCEs of neritic habitat occur in the five categories 
of habitat discussed above: Nearshore reproductive, foraging, winter, 
breeding, and constricted migratory.
Nearshore Reproductive Habitat
    We describe the PBF of nearshore reproductive habitat as a portion 
of the nearshore waters adjacent to nesting beaches that are used by 
hatchlings to egress to the open-water environment as well as by 
nesting females to transit between beach and open water during the 
nesting season.
    PCEs that support this habitat are the following:
    (1) Nearshore waters directly off the highest density nesting 
beaches and their adjacent beaches as identified in 50 CFR 17.95(c) to 
1.6 km (1 mile) offshore;
    (2) Waters sufficiently free of obstructions or artificial lighting 
to allow transit through the surf zone and outward toward open water; 
and
    (3) Waters with minimal manmade structures that could promote 
predators (i.e., nearshore predator concentration caused by submerged 
and emergent offshore structures), disrupt wave patterns necessary for 
orientation, and/or create excessive longshore currents.
    The identification of nearshore reproductive habitat was based 
primarily on the location of beaches identified as high density nesting 
beaches by the USFWS (50 CFR 17.95(c)), as well as beaches adjacent to 
the high density nesting beaches that can serve as expansion areas, in 
accordance with the process described by the USFWS in their proposed 
rule (78 FR 18000, March 25, 2013). In doing so, we identified 36 units 
of nearshore reproductive critical habitat.
    Because the nesting beach habitat being designated by the USFWS has 
the densest nesting within given geographic locations, the greatest 
number of hatchlings is presumed to be produced on these beaches and 
either the greatest number of nesting females and/or the most 
productive females presumably nest on these beaches. Nearshore 
reproductive habitat includes waters off of three high density or 
expansion nesting beaches that are not being designated as terrestrial 
critical habitat by USFWS because the beaches occur on military lands 
that are not designated due to the existence of an adequate INRMP. They 
are identified here as essential nearshore reproductive habitat because 
their INRMPs do not address waters off the beach. However, there are 
two nearshore areas under military control that we did not designate 
due to existence of an adequate INRMP: Naval Air Station Key West and 
MCB Camp Lejeune. Although the latter was included in our proposed 
rule, it is not included in the final designation because we determined 
that their INRMP benefits loggerheads in waters off the beach.
    Designation of nearshore reproductive habitat will conserve the 
Northwest Atlantic Ocean DPS by doing the following: (1) Protecting 
nearshore habitat adjacent to a broad distribution of nesting sites; 
(2) allowing for movement between nearshore reproductive areas 
depending on habitat availability (response to changing nature of 
coastal beach habitat) and support genetic interchange; (3) allowing 
for an increase in the size of each recovery unit to a level at which 
the threats of genetic, demographic, and normal environmental 
uncertainties are diminished; and (4) maintaining their ability to 
withstand local or unit level environmental fluctuations or 
catastrophes.
Foraging Habitat
    We describe the PBF of foraging habitat as specific sites on the 
continental shelf or in estuarine waters frequently used by large 
numbers of juveniles or adults as foraging areas.
    The PCEs that support this habitat are the following:
    (1) Sufficient prey availability and quality, such as benthic 
invertebrates, including crabs (spider, rock, lady, hermit, blue, 
horseshoe), mollusks, echinoderms and sea pens; and
    (2) Water temperatures to support loggerhead inhabitance, generally 
above 10[deg] C.
    We identified high use areas throughout the Atlantic Ocean and Gulf 
of Mexico, as these areas likely have habitat features that are 
essential to the conservation of the species. In order to identify high 
use foraging areas, available data on sea turtle distribution were 
considered. Specifically, we evaluated information from aerial and 
shipboard surveys, stable isotope analyses, satellite telemetry 
studies, and in-water studies to identify areas of known high use 
foraging habitat.
    Given the wide-spread nature of foraging loggerheads in the 
Northwest Atlantic Ocean and the lack of clear habitat features of 
foraging areas, we were unsuccessful in identifying specific high value 
sites as foraging critical habitat for loggerheads in the proposed rule 
(78 FR 43006, July 18, 2013). Although we identified numerous sites of 
known foraging habitat in the proposed rule and requested information 
from the public as to the importance of these areas or other areas to 
foraging, as well as habitat features for foraging areas (78 FR 43006, 
July 18, 2003), we remain unable to identify areas that are more 
essential than the rest of the continental shelf and associated bays 
and sounds, and have not identified any units of foraging critical 
habitat in this final rule.
Winter Habitat
    We describe the PBF of winter habitat as warm water habitat south 
of Cape Hatteras, North Carolina near the western edge of the Gulf 
Stream used by a high concentration of juveniles and adults during the 
winter months.
    PCEs that support this habitat are the following:
    (1) Water temperatures above 10[deg] C from November through April;
    (2) Continental shelf waters in proximity to the western boundary 
of the Gulf Stream; and

[[Page 39881]]

    (3) Water depths between 20 and 100 m.
    In the consideration of winter habitat, the same data sets as those 
for foraging habitat were evaluated. The same steps were also followed 
as above, but greater emphasis was placed on the satellite telemetry 
data to identify seasonal differences in distribution. While there were 
other high use areas identified, this analysis revealed a consistent 
high use area during the colder months off the coast of North Carolina 
that serves as a particularly important area for northern foraging 
loggerheads.
    We identified one specific area of winter critical habitat which 
extends from Cape Hatteras at the 20 m depth contour straight across 
35.27[deg] N. lat. to the 100 m (328 ft) depth contour, south to Cape 
Fear at the 20 m (66 ft) depth contour (approximately 33.47[deg] N. 
lat., 77.58[deg] W. long.) extending in a diagonal line to the 100 m 
(328 ft) depth contour (approximately 33.2[deg] N. lat., 77.32[deg] W. 
long.). This southern diagonal line (in lieu of a straight latitudinal 
line) was chosen to encompass the loggerhead concentration area 
(observed in satellite telemetry data) and identified habitat features, 
while excluding the less appropriate habitat (e.g., nearshore waters at 
33.2[deg] N. lat.).
    The designation of winter critical habitat will conserve loggerhead 
sea turtles by (1) maintaining the habitat in an area where sea turtles 
are concentrated during a discrete time period and for a distinct group 
of loggerheads (e.g., northern foragers); and (2) allowing for 
variation in seasonal concentrations based on water temperatures and 
Gulf Stream patterns.
Breeding Habitat
    We describe the PBFs of concentrated breeding habitat as sites with 
high densities of both male and female adult individuals during the 
breeding season.
    PCEs that support this habitat are the following:
    (1) High densities of reproductive male and female loggerheads;
    (2) Proximity to primary Florida migratory corridor; and
    (3) Proximity to Florida nesting grounds.
    Concentrated breeding aggregations were identified via a review of 
the literature and expert opinion. We determined that such areas are 
essential to the conservation of the species because, as a result of 
the high density of breeding individuals, the areas likely represent 
important locations for breeding activities and the propagation of the 
species. Although there is no distinct boundary for these concentrated 
breeding sites, we chose to constrain the boundaries of the proposed 
designation to what we consider the ``core'' areas where data indicate 
adult males congregate to gain access to receptive females.
    We identified two units of breeding critical habitat that have been 
noted in the scientific literature as containing large densities of 
reproductively active male and female loggerheads in the spring, prior 
to the nesting season. The first is contained within the Southern 
Florida migration corridor from the shore out to the 200 m (656 ft) 
depth contour along the stretch of the corridor between the Marquesas 
Keys and the Martin County/Palm Beach County line. The second area 
identified as a concentrated breeding site is located in the nearshore 
waters just south of Cape Canaveral, Florida.
    The designation of critical habitat in breeding areas will help 
conserve loggerhead sea turtles by maintaining the habitat in a 
documented high use area for behavior essential to the propagation of 
the species.
Constricted Migratory Habitat
    We describe the PBF of constricted migratory habitat as high use 
migratory corridors that are constricted (limited in width) by land on 
one side and the edge of the continental shelf and Gulf Stream on the 
other side.
    PCEs that support this habitat are the following:
    (1) Constricted continental shelf area relative to nearby 
continental shelf waters that concentrate migratory pathways; and
    (2) Passage conditions to allow for migration to and from nesting, 
breeding, and/or foraging areas.
    Satellite telemetry information, in-water studies, and available 
mid-Atlantic fishery bycatch assessments show the majority of neritic 
stage loggerhead migratory tracks to be on the continental shelf, with 
two defined shelf constriction areas off North Carolina and southern 
Florida (NEFSC and Coonamessett Farm Foundation, unpublished data; 
McClellan and Read 2007; Hawkes et al. 2007; Mansfield et al. 2009; 
Murray 2009; TEWG 2009; Hawkes et al. 2011; Warden 2011; Virginia 
Aquarium 2011a, 2011b, 2012a, 2012b; Arendt et al. 2012b; Arendt et al. 
2012c; Ceriani et al. 2012; Griffin et al., 2013; Murray and Orphanides 
2013, Foley et al. 2013). They are also associated with near-land 
contact by the Gulf Stream (Putman et al. 2010) which results in the 
available neritic habitat being more narrowly confined in these areas. 
Both constricted corridors were identified as high use (Murray 2009; 
Warden 2011; Foley et al., 2013; Murray and Orphanides 2013). This 
information included both neritic stage juveniles and adults from 
multiple Recovery Units. We identified two specific areas of 
constricted migratory critical habitat: One off the coast of North 
Carolina, and the other off the coast of southern Florida.
    The constricted migratory corridor off North Carolina serves as a 
concentrated migratory pathway for loggerheads transiting to neritic 
foraging areas in the north, and back to winter, foraging, and/or 
nesting areas in the south. The majority of loggerheads pass through 
this migratory corridor in the spring (April to June) and fall 
(September to November), but loggerheads are also present in this area 
from April through November and, given variations in water temperatures 
and individual turtle migration patterns, these time periods are 
variable.
    The constricted migratory corridor in Florida stretches from the 
westernmost edge of the Marquesas Keys (82.17[deg] W. long.) to the tip 
of Cape Canaveral (28.46[deg] N. lat.). The northern border stretches 
from shore to the 30 m depth contour. The seaward border then stretches 
from the northeastern-most corner to the intersection of the 200 m 
depth contour and 27[deg] N. lat. parallel. The seaward border then 
follows the 200 m depth contour to the westernmost edge at the 
Marquesas Keys. Adult male and female turtles use this corridor to move 
from foraging sites to the nesting beach or breeding sites from March 
to May, and then use this corridor to move from the nesting beach or 
breeding sites to foraging sites from August to October, while 
juveniles and adults use it to move south during fall migrations to 
warmer waters (Mansfield 2006; Mansfield et al. 2009; Arendt et al. 
2012b; Foley et al. in review).
    The designation of critical habitat in the constricted migratory 
corridors will help conserve loggerhead sea turtles by (1) preserving 
passage conditions to and from important nesting, breeding, and 
foraging areas; and (2) protecting the habitat in a narrowly confined 
area of the continental shelf with documented high use by loggerheads.
Sargassum Habitat
    We describe the PBF of loggerhead Sargassum habitat as 
developmental and foraging habitat for young loggerheads where surface 
waters form accumulations of floating material, especially Sargassum.
    PCEs that support this habitat are the following:
    (i) Convergence zones, surface-water downwelling areas, the margins 
of major boundary currents (Gulf Stream), and

[[Page 39882]]

other locations where there are concentrated components of the 
Sargassum community in water temperatures suitable for the optimal 
growth of Sargassum and inhabitance of loggerheads;
    (ii) Sargassum in concentrations that support adequate prey 
abundance and cover;
    (iii) Available prey and other material associated with Sargassum 
habitat including, but not limited to, plants and cyanobacteria and 
animals native to the Sargassum community such as hydroids and 
copepods; and
    (iv) Sufficient water depth and proximity to available currents to 
ensure offshore transport (out of the surf zone), and foraging and 
cover requirements by Sargassum for post-hatchling loggerheads, i.e., 
>10 m depth.
    Witherington et al. (2012) found that the presence of floating 
Sargassum itself, irrespective of other detectable surface features, 
defined habitat used by young juvenile sea turtles. However, we found 
it challenging to identify specific areas where these Sargassum 
concentrations are likely to form consistently, given its dynamic 
nature. In the proposed rule, we specifically requested comments on 
whether to include Sargassum habitat as critical habitat and, if so, 
whether or not we should include the entire areas, features, and 
elements described in the ``Description of Physical or Biological 
Features and Primary Constituent Elements and Identification of 
Specific Areas'' section. We also requested information on specific 
areas that frequently encompass convergence zones, surface water 
downwelling areas and/or other locations where concentrated components 
of the Sargassum community are likely to be found in the Atlantic Ocean 
and Gulf of Mexico. Finally, we requested information on times or areas 
that loggerheads are most likely to co-occur with Sargassum habitat. We 
received numerous comments on the designation of Sargassum (see Section 
III, Summary of Comments and Responses). While many comments supported 
designation of Sargassum habitat, and some in the form presented in the 
proposed rule, some expressed concern with the magnitude of the areas 
discussed. New literature was supplied by one commenter in the form of 
Mansfield et al., 2014. We considered this reference and also 
reevaluated oceanographic information and again consulted with 
Sargassum experts in order to define the Sargassum area as specifically 
as possible.
    Gower and King (2011) evaluated satellite imagery data from 2002-
2008 and found high concentrations of Sargassum in the northwest Gulf 
of Mexico from March to June. Sargassum then spreads eastward into the 
central and eastern Gulf of Mexico, and then into the Atlantic starting 
in about July. Sargassum was found in a widespread area of the Atlantic 
Ocean east of Cape Hatteras in July, spreading further north and east 
by September. Observations from 2003 to 2007 suggest that Sargassum has 
a lifespan of approximately 1 year or less, and that the northwest Gulf 
of Mexico is a major nursery area (Gower and King 2011). High 
resolution imagery from 2010 suggested that Sargassum was more abundant 
and widespread in the western Gulf of Mexico compared to the central 
and eastern Gulf of Mexico, with the latter areas having smaller and 
more dispersed patches of Sargassum (Hardy et al. 2011). Further, NMFS 
has collected Sargassum on Gulf of Mexico ichthyoplankton surveys since 
2002. While there are various sampling limitations, available data from 
2006-2011 fall surveys indicate the highest volume of Sargassum is 
found in the western Gulf, with very little Sargassum collected in 
locations on the eastern Gulf of Mexico shelf (G. Zapfe, NMFS, 2013, 
pers. comm.). Based upon the best available data on the distribution of 
Sargassum in the Gulf of Mexico, it is apparent that the western Gulf 
contains the most predictable and abundant Sargassum habitat, and in 
the eastern Gulf (western Florida shelf) Sargassum concentrations are 
lower, more dispersed and transient. The presence or absence of major 
and persistent circulation features may offer guidance as to where 
Sargassum drift habitats might persist and where they may be extremely 
transient. Gower et al. (2006) reported that freely floating pelagic 
Sargassum may be expected to reach highest concentrations in ocean 
areas where surface water remains for long periods of time in a slowly 
rotating gyre, such as the western Gulf of Mexico. Continental shelf 
waters in the western Gulf of Mexico are relatively narrow and may be 
influenced by the mesoscale eddies that have travelled westward after 
separating from the Loop Current (Ohlmann et al. 2001). The broad 
continental shelf within the eastern Gulf of Mexico lacks such 
circulation features. The relatively fast moving Loop Current and the 
Florida Current both serve to distribute Sargassum from the western and 
central Gulf into the Atlantic.
    In the Atlantic, the highest Sargassum production has been found in 
the Gulf Stream, the lowest on the shelf, and intermediate in the 
Sargasso Sea (outside of the U.S. EEZ), with Sargassum contributing 
about 0.5 percent of the total primary production in the area, but 
nearly 60 percent of the total in the upper 1 m (3 ft) of the water 
column (Howard and Menzies 1969; Carpenter and Cox 1974; Hanson 1977). 
Witherington et al. (2012) found that transects on which turtles were 
observed in the Atlantic were typically found near the western wall of 
the Gulf Stream and its associated frontal boundaries. Further, 
Mansfield et al. (2014) satellite tracked 17 neonate loggerheads 
released into the Gulf Stream off Florida within Sargassum mats. 
Tracked turtles rarely occupied continental shelf waters and, with one 
exception, none of the turtles moved westward of the Gulf Stream 
boundary. Turtles did move east of the Gulf Stream boundary in 
association with meso-scale eddies, and some turtles moved east into 
the Sargasso Sea (Mansfield et al. 2014). Sargassum production varies 
by season and, in the Atlantic, has the greatest biomass occurring off 
the southeastern U.S. coast after July (Gower and King 2011). This 
roughly coincides with peak hatchling production in the southeastern 
United States (Mansfield and Putman 2013). The physical forces that 
aggregate Sargassum also aggregate pollutants and debris, making this 
habitat especially vulnerable.
    Based on the above information, we identified two specific areas of 
Sargassum: The western Gulf of Mexico to the eastern edge of the Loop 
Current, and the Atlantic Ocean from the Gulf of Mexico along the 
northern/western boundary of the Gulf Stream and east to the outer edge 
of the U.S. EEZ.
    Specifically, the Gulf of Mexico area has as its northern and 
western boundaries the 10 m depth contour starting at the mouth of 
South Pass of the Mississippi River and proceeding west and south to 
the outer boundary of the U.S. EEZ. The southern boundary of the area 
is the U.S. EEZ from the 10 m depth contour off of Texas to the Gulf of 
Mexico-Atlantic border (83[deg] W. long.). The eastern boundary follows 
the 10 m depth contour from the mouth of South Pass of the Mississippi 
River at 28.97[deg] N. lat., 89.15[deg] W. long., in a straight line to 
the northernmost boundary of the Loop Current (28[deg] N. lat., 89[deg] 
W. long.) and along the eastern edge of the Loop Current roughly 
following the velocity of 0.101-0.20 m/second as depicted by Love et 
al. (2013) using the Gulf of Mexico summer mean sea surface currents 
from 1993-2011, to the Gulf of Mexico-Atlantic border (24.58[deg] N. 
lat., 83[deg] W. long.). The

[[Page 39883]]

delineation between the Gulf of Mexico and the Atlantic Ocean starts at 
24.58[deg] N. lat., 83[deg] W. long. (near the Dry Tortugas), and 
proceeds southward along 83[deg] W. long. to the outer boundary of the 
EEZ (23.82[deg] N. lat.).
    The Atlantic Ocean area has as its outer boundary the U.S. EEZ, 
starting at the Gulf of Mexico-Atlantic border (23.82[deg] N. lat., 
83[deg] W. long.) and proceeding east and north until the EEZ coincides 
with the Gulf Stream at 37.84[deg] N. lat., 70.59[deg] W. long. The 
inner boundary of the unit starts at the Gulf of Mexico-Atlantic border 
(24.58[deg] N. lat., 83[deg] W. long.) to the outer edge of the 
breeding/migratory critical habitat (LOGG-N-19) at 24.34[deg] N. lat., 
82.16[deg] W. long., along the outer edge of the corridor (following 
the 200 m depth contour) until it coincides with the breeding habitat 
off of Cape Canaveral (LOGG-N-17) at 27.97[deg] N. lat., 80.14[deg] W. 
long., and from there roughly following the velocity of 0.401-0.50 m/
second (Ocean Conservancy 2012; PMEL 2012) until it coincides with the 
outer edge of the EEZ at 37.84[deg] N. lat., 70.59[deg] W. long.
    The designation of Sargassum critical habitat will help conserve 
loggerhead sea turtles by protecting essential forage, cover and 
transport habitat for post-hatchlings and early juveniles.
2. North Pacific Ocean DPS
    Within the range of the North Pacific Ocean DPS, neither neritic 
nor Sargassum habitat are used by loggerheads within U.S. jurisdiction; 
therefore, no areas were identified for these habitat types. PBFs (and 
PCEs) were identified for Oceanic Habitat. Although the Central North 
Pacific and the Eastern Pacific/U.S. West Coast share the same PBFs, 
they have different accompanying PCEs.
Central North Pacific Ocean
    We describe the essential PBFs of loggerhead sea turtle oceanic 
habitat in the central North Pacific Ocean as waters that support 
suitable conditions in sufficient quantity and frequency to provide 
meaningful foraging, development, and/or transiting opportunities to 
the population in the North Pacific Ocean.
    PCEs in the central North Pacific Ocean that support this habitat 
include the following:
    (1) Currents and circulation patterns of the North Pacific Ocean 
(KEBR, and the southern edge of the KEC characterized by the Transition 
Zone Chlorophyll Front) where physical and biological oceanography 
combine to promote high productivity (chlorophyll a = 0.11-0.31 mg/
m\3\) and sufficient prey quality (energy density >=11.2 kJ/g) of 
species; and
    (2) Appropriate SSTs (14.5[deg] to 20.0[deg] C (58.1[deg] to 
68.0[emsp14][deg]F)), primarily concentrated at the 17[deg] to 18[deg] 
C (63[deg] to 64[emsp14][deg]F) isotherm.
    Loggerhead foraging and developmental habitat in the North Pacific 
Ocean occurs between 28[deg] N. and 40[deg] N. lat. (Polovina et al. 
2004). Despite historical population decline and nesting trend 
variability (Kamezaki et al. 2003; Conant et al. 2009; Van Houtan and 
Halley 2011), loggerheads appear to have remained widely distributed 
and continue to occupy most, if not all, of their historical range in 
the central North Pacific Ocean. Accordingly, those oceanic areas 
within loggerhead range that are infrequently used generally do not 
provide the significant function that they might for a species with a 
constricted range. The potential loggerhead habitat occurring in the 
U.S. EEZ around Hawaii represents between 0.68 percent and 4.2 percent 
of the total habitat in the central portion of the Pacific Ocean. This 
habitat represents a small percentage of suitable habitat, and the 
variables that make it suitable only occur within the U.S. EEZ around 
Hawaii a portion of the year in spite of loggerheads using areas north 
of it throughout the year.
    Given the information presented above, we conclude that the habitat 
within the U.S. EEZ of the central North Pacific Ocean does not provide 
meaningful foraging, development, and/or transiting opportunities to 
the North Pacific Ocean DPS, and therefore does not contain PBFs 
described in the previous section.
Eastern Pacific/U.S. West Coast
    We describe the essential PBFs of loggerhead sea turtle oceanic 
habitat in the eastern North Pacific Ocean as waters that support 
suitable conditions in sufficient quantity and frequency to provide 
meaningful foraging, development, and/or transiting opportunities to 
the population in the North Pacific Ocean.
    PCEs in the eastern North Pacific Ocean that support this habitat 
include the following:
    (1) Sites that support meaningful aggregations of foraging 
juveniles; and
    (2) Sufficient prey densities of neustonic and oceanic organisms.
    Loggerheads documented off the U.S. west coast are primarily found 
south of Point Conception, the northern boundary of the Southern 
California Bight. Based on interactions with the California drift 
gillnet fishery and stranding records, recorded observations of 
loggerheads in the Southern California Bight are rare events, with 16 
loggerheads taken in 4,165 observed sets from 1990-2010 (Allen et al. 
2013) and 28 loggerheads observed stranded from 1990 to 2012 (average 
~1.3 loggerheads/year). In contrast, waters off the Pacific coast of 
Baja California, and particularly within the shelf waters of Ulloa Bay, 
are highly productive with loggerheads documented in the thousands in 
this area (Pitman 1990; Seminoff et al. 2006).
    Due to the rarity of loggerheads and their prey both historically 
and currently in waters off the U.S. west coast, U.S. waters in the 
eastern Pacific Ocean do not provide meaningful foraging, development, 
and/or transiting opportunities to the loggerhead population in the 
North Pacific Ocean DPS, and therefore do not contain the PBFs 
described in the previous section.

C. Special Management Considerations

    An occupied area may be designated as critical habitat if it 
contains one or more of the PBFs essential to conservation, and if such 
features ``may require special management considerations or 
protection'' (16 U.S.C. 1532(5)(a)(i)(II)). Joint NMFS and USFWS 
regulations (50 CFR 424.02(j)) define special management considerations 
or protection to mean any methods or procedures useful in protecting 
PBFs of the environment for the conservation of listed species. We 
determined that the PBFs identified earlier may require special 
management considerations due to a number of factors that may affect 
them. These factors include activities, structures, or other byproducts 
of human activities. The list below is not necessarily inclusive of all 
factors.
    Major categories of factors, by habitat type, follow. All of these 
may have an effect on one or more PBF or PCE within the range of the 
Northwest Atlantic Ocean DPS and may require special management 
considerations as described below.
1. Northwest Atlantic Ocean DPS
Nearshore Reproductive Habitat
    The primary impact to the PBFs and PCEs of the nearshore 
reproductive habitat (habitat from MHW to 1.6 km offshore of high 
density nesting beaches and adjacent beaches) for loggerhead sea 
turtles would be from activities or byproducts of human activities that 
result in a loss of habitat conditions that allow for (a) hatchling 
egress from the water's edge to open water; and (b) nesting female 
transit back and forth between the open water and the nesting beach 
during nesting season. The loss of such habitat conditions could come

[[Page 39884]]

from, but is not limited to, the following:
    (1) Offshore structures including, but not limited to, breakwaters, 
groins, jetties, and artificial reefs, that block or otherwise impede 
efficient passage of hatchlings or females and/or which concentrate 
hatchling predators and thus result in greater predation on hatchlings;
    (2) Lights on land or in the water, which can disorient hatchlings 
and nesting females and/or attract predators, particularly lighting 
that is permanent or present for long durations and has a short wave 
length (below 540nm);
    (3) Oil spills and response activities, that affect habitat 
conditions for efficient passage of hatchlings or females;
    (4) Alternative offshore energy development (turbines or similar 
structures) that affects habitat conditions for efficient passage of 
hatchlings or females;
    (5) Fishing or aquaculture gear that blocks or impedes efficient 
passage of hatchlings or females; and
    (6) Dredging and disposal activities that affect habitat conditions 
for efficient passage of hatchlings or females by creating barriers or 
dramatically altering the slope of the beach approach.
Winter Habitat
    The PBF, water temperature PCE, and Gulf Stream boundary PCE of the 
winter habitat for loggerhead sea turtles could be affected by the 
following:
    (1) Large-scale water temperature changes resulting from global 
climate change; and
    (2) Shifts in the patterns of the Gulf Stream resulting from 
climate change.
    While unlikely to be affected to a significant extent by human 
activities, the water depth PCE (20-100 m) could potentially be 
affected by extensive dredging or sediment disposal activities.

Breeding Habitat

    The PBF of a concentrated breeding habitat and the associated PCE 
of high densities of reproductive male and female loggerheads (which 
facilitates breeding for individuals migrating to that area) could be 
affected by the following:
    (1) Fishing activities that disrupt use of habitat and thus affect 
densities of reproductive loggerheads;
    (2) Dredging and disposal of sediments that affect densities of 
reproductive loggerheads;
    (3) Oil spills and response activities that affect densities of 
reproductive loggerheads;
    (4) Alternative offshore energy development (turbines or similar 
structures) that affect densities of reproductive loggerheads; and
    (5) Climate change, which can affect currents and water 
temperatures and affect densities of reproductive loggerheads.
Constricted Migratory Habitat
    The primary impact to the functionality of the identified corridors 
as migratory routes for loggerhead sea turtles would be a loss of 
passage conditions that allow for free and efficient migration along 
the corridor. The loss of these passage conditions could come from 
large-scale and or multiple construction projects that result in the 
placement of substantial structures along the path of the migration, or 
other similar habitat alterations, requiring large-scale deviations in 
the migration movements. This impact is expected to be much more 
likely, and have a greater impact, in the most constricted areas of the 
migratory routes. Other activities or byproducts of human activities 
that may, but are less likely to result in an impact to the PCEs 
include the following:
    (1) Oil and gas activities, such as construction and removal of 
platforms, lighting and noise that alter habitat conditions needed for 
efficient passage;
    (2) Power generation activities such as turbines, wind farms, 
conversion of wave or tidal energy into power that result in altered 
habitat conditions needed for efficient passage;
    (3) Dredging and disposal of sediments that results in altered 
habitat conditions needed for efficient passage;
    (4) Channel blasting, including use of explosives to remove 
existing bridge or piling structures or to deepen navigation channels, 
that results in altered habitat conditions needed for efficient 
passage;
    (5) Marina and dock/pier development that results in altered 
habitat conditions needed for efficient passage;
    (6) Offshore breakwaters that result in altered habitat conditions 
needed for efficient passage;
    (7) Aquaculture structures such as net pens and fixed structures 
and artificial lighting that result in altered habitat conditions 
needed for efficient passage;
    (8) Fishing activities, particularly those using fixed gear (pots, 
pound nets), that, when arranged closely together over a wide 
geographic area, result in altered habitat conditions needed for 
efficient passage; and
    (9) Noise pollution from construction, shipping and/or military 
activities that results in altered habitat conditions needed for 
efficient passage.
Sargassum Habitat
    The PBF of developmental and foraging habitat in accumulations of 
floating materials, especially Sargassum, and its associated PCEs of 
convergence zones and other areas of concentration, adequate 
concentrations of Sargassum to support abundant prey and cover, and the 
existence of the community of flora and fauna typically associated with 
Sargassum habitat could be affected by the following:
    (1) Commercial harvest of Sargassum, which would directly decrease 
the amount of habitat;
    (2) Oil and gas exploration, development, and transportation that 
affects the Sargassum habitat itself and the loggerhead prey items 
found within this habitat--this could occur both in the process of 
normal operations and during blowouts and oil spills, which release 
toxic hydrocarbons and also require other toxic chemicals for cleanup;
    (3) Vessel operations that result in the routine disposal of trash 
and wastes and/or the accidental release or spillage of cargo, trash or 
toxic substances, and/or result in the transfer and introduction of 
exotic and harmful organisms through ballast water discharge, which may 
then impact the loggerhead prey species found in Sargassum habitat;
    (4) Ocean dumping of anthropogenic debris and toxins that affects 
the Sargassum habitat itself and the loggerhead prey items found within 
this habitat; and
    (5) Global climate change, which can alter the conditions (such as 
currents and other oceanographic features, temperature, and levels of 
ocean acidity) that allow Sargassum habitat and communities to thrive 
in abundance and locations suitable for loggerhead developmental 
habitat.
2. North Pacific Ocean DPS
    We did not identify any specific areas within the U.S. EEZ in the 
North Pacific Ocean that contain PBFs essential to the conservation of 
the North Pacific Ocean DPS; therefore, we did not analyze special 
management considerations.

D. Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA authorizes designation of ``specific 
areas outside the geographical areas occupied by the species at the 
time it is listed'' if those areas are determined to be essential to 
the conservation of the species. Joint NMFS and USFWS regulations (50 
CFR 424.12(e)) emphasize that the agency shall designate as critical 
habitat areas outside the geographical area presently

[[Page 39885]]

occupied by a species only when a designation limited to its present 
range would be inadequate to ensure the conservation of the species. We 
have not identified additional specific areas outside the geographic 
area occupied by loggerheads at the time of their listing that may be 
essential for the conservation of the species.

V. Military Lands: Application of ESA Section 4(a)(3)

    The ESA precludes the Secretary from designating military lands as 
critical habitat if those lands are subject to an INRMP under the Sikes 
Act Improvement Act of 1997 (Sikes Act; 16 U.S.C. 670a) and the 
Secretary certifies in writing that the plan benefits the listed 
species (Section 4(a)(3), Pub. L. 108-136).
    We have determined that the INRMPs for NAS Key West (Florida) and 
MCB Camp Lejeune (North Carolina) both confer benefits to the 
loggerhead sea turtle and enhance its habitat, and therefore we are not 
designating the waters subject to these INRMPs as critical habitat. 
Management actions described in the NAS Key West INRMP that benefit 
loggerhead sea turtles include water quality improvement measures, 
invasive species control, re-establishment of historic tidal 
connections for mangrove/saltmarsh and shallow open water (including 
areas containing seagrasses), completion of a marine benthic survey, 
installation of turtle-friendly lights, and community outreach and 
information. Management actions described in the MCB Camp Lejeune INRMP 
that benefit loggerhead sea turtles include air sweeps before and 
lookouts during live fire exercises with halting of live fire if a sea 
turtle is spotted, and avoidance of sea turtles when in boats, keeping 
a distance of 200 yd (183 m) if feasible.

VI. Exclusions: ESA Section 4(b)(2) Analysis

    Section 4(b)(2) of the ESA states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat (16 U.S.C. 
section 1533(b)(2)). In addition to this mandatory consideration of 
impacts, this section also gives the Secretary discretion to exclude 
any area from critical habitat if the benefits of such exclusion 
outweigh the benefits of designating such area as part of the critical 
habitat (the conservation benefits to the species), unless the failure 
to designate such area as critical habitat will result in the 
extinction of the species (16 U.S.C. 1533(b)(2)). In making this 
determination, the statute, as well as the legislative history, are 
clear that the Secretary has broad discretion regarding whether to 
proceed to the optional weighing of benefits, which factor(s) to use, 
how much weight to give to any factor, and whether or not to exclude 
any area.

A. Benefits of Designation

    The benefits of designating the particular areas include the 
protection afforded under section 7(a)(2) of the ESA, requiring all 
Federal agencies to ensure that their actions are not likely to destroy 
or adversely modify critical habitat. This is in addition to the 
requirement that all Federal agencies ensure that their actions are not 
likely to jeopardize the continued existence of the species, and to the 
take prohibitions of section 9 of the ESA. The designation of critical 
habitat also provides conservation benefits such as improved education 
and outreach by informing the public about areas and features important 
to the species conservation, as well as additional protections that may 
exist or be created under state and local authorities.
    We find that, because the PBFs and PCEs of the proposed critical 
habitat inherently focus on the areas that best support the needs of 
the species (i.e., those that support meaningful aggregations of the 
species) and the areas were selected expressly to ensure maximum 
consistency with the goals in the Recovery Plan, each of the proposed 
areas is of high conservation value.

B. Economic Benefits of Exclusion

    According to the final Economic Analysis, the total estimated 
present value of the quantified impacts is $950,000 over the next 10 
years. On an annualized basis, this is equivalent to impacts of 
$110,000 (IEc 2013). The quantified economic impacts of designation are 
the same as the economic benefits of exclusion. Costs for each area can 
be found in Exhibit ES-1 of the final Economic Analysis (IEc 2013). 
Impacts are anticipated to be greatest in LOGG-S-1 (37 percent of the 
total costs or $40,000 annually), the Atlantic Sargassum habitat area, 
and the Gulf of Mexico Sargassum area (13 percent or $14,000 annually) 
although these impacts are based on the proposed Sargassum areas, which 
are appreciably larger (virtually the entire area between the 10 m 
depth contour and the extent of the U.S. EEZ in the Atlantic Ocean and 
Gulf of Mexico below 40 N. Lat.) than the areas in the final rule, 
which do not include areas between the 10 m depth contour and the 
northern/western edge of the Gulf Stream in the Atlantic, and the 
eastern Gulf of Mexico. Impacts reflect the very large size of these 
areas, rather than the potential for significant activities that may 
adversely affect this habitat type. Because the majority of anticipated 
impacts are administrative costs associated with consultation on 
nearshore and in-water construction, dredging, and sediment disposal 
activities and fisheries and related activities, impacts in the 
designated areas should be considerably reduced. Impacts to LOGG-N-19, 
a large area that extends from Martin County/Palm Beach County line to 
the Marquesas Keys in Monroe County and which includes several 
nearshore reproductive areas as well as the southern-most constricted 
migratory corridor and concentrated breeding habitat in Florida, have 
the next greatest cost at 12 percent of the total or $12,000 annually. 
These costs are due primarily to the number of consultations 
anticipated for in-water construction, dredging, and sediment disposal 
activities, but also to the size of the area relative to most of the 
other areas. The final Economic Analysis describes in more detail the 
types of activities that may be affected by the designation and the 
estimated relative level of economic impacts (IEc 2014).
    The highest estimated annual economic cost associated with the 
designation of loggerhead critical habitat is less than $40,000 for a 
very large area, LOGG-S-1, and the estimated cost associated with the 
designation of most areas as critical habitat is below $1,000. Because 
these numbers are so low, all areas are considered to have a ``low'' 
economic impact. Typically, to be considered ``high,'' an economic 
value would need to be above several million dollars (sometimes tens of 
millions), and ``medium'' may fall between several hundred thousand and 
millions of dollars.

C. Exclusions of Particular Areas Based on Economic Impacts

    Because all particular areas identified for loggerheads have a high 
conservation value and a low economic impact, no areas are being 
excluded based on economic impacts. This has not changed from the 
proposed rule. Because no areas are being excluded, we did not need to 
further consider whether exclusions would result in the extinction of 
the Northwest Atlantic Ocean DPS of the loggerhead sea turtle.

[[Page 39886]]

D. Exclusions Based on Impacts to National Security

    The Secretary must consider possible impacts to national security 
when determining critical habitat (16 U.S.C. 1533(b)(2)). We shared the 
draft Biological Report with the Departments of the Navy (including 
Marine Corps), Army, Air Force and the Department of Homeland Security. 
The Navy, Air Force, and Department of Homeland Security provided 
comments (see proposed rule for further discussion of the comments). 
Although there is overlap between areas proposed for critical habitat 
and their activities, we do not believe that these activities, as 
currently conducted, are the types of activities that may affect or 
adversely modify critical habitat proposed for the loggerhead sea 
turtle or its PBF/PCEs. Therefore, we conclude that Navy, Air Force and 
DHS activities are not likely to be affected by this proposed 
designation, and the designation would not affect national security.
    No additional national security concerns have been raised at this 
time; therefore, we have not excluded any areas due to national 
security concerns.

E. Exclusions for Tribal Lands

    No Tribal lands occur in the areas being recommended for 
designation, and no Tribal activities are anticipated to be affected by 
designation. Therefore no exclusions are recommended for Indian Lands.

VII. Final Determinations and Critical Habitat Designation

    We conclude that specific areas meet the definition of critical 
habitat for the Northwest Atlantic Ocean DPS, that a critical habitat 
designation is prudent, and that critical habitat is determinable. We 
found 38 specific marine areas for critical habitat designation 
occupied within the range of the Northwest Atlantic Ocean DPS. These 
areas contain one or a combination of nearshore reproductive habitat, 
winter habitat, breeding habitat, constricted migratory corridors, and 
Sargassum habitat. These areas are described in detail in the proposed 
rule (78 FR 43006, July 18, 2013).
    We conclude that no specific areas exist within U.S. jurisdiction 
that meet the definition of critical habitat for the North Pacific 
Ocean DPS. We did not identify any critical habitat within the U.S. EEZ 
in the Pacific Ocean for the North Pacific Ocean DPS because occupied 
habitat within the U.S. EEZ did not support suitable conditions in 
sufficient quantity and frequency to provide meaningful foraging, 
development, and/or transiting opportunities to the population in the 
North Pacific Ocean.

VIII. Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires Federal agencies to insure that 
any action authorized, funded, or carried out by the agency (agency 
action) does not jeopardize the continued existence of any threatened 
or endangered species or destroy or adversely modify designated 
critical habitat (16 U.S.C. 1536(a)(2)). When a species is listed or 
critical habitat is designated, Federal agencies must consult with NMFS 
on any agency actions they authorize, fund, or carry out that may 
affect the species or its critical habitat (16 U.S.C. 1536(a)(2)). 
During the consultation, we evaluate the agency action to determine 
whether the action may adversely affect listed species or critical 
habitat and issue our findings in a biological opinion or, if 
appropriate, in a letter concurring with a finding of the action agency 
that their action is not likely to adversely affect the species. If we 
conclude in the biological opinion that the action would likely result 
in the destruction or adverse modification of critical habitat, we 
would also recommend any reasonable and prudent alternatives to the 
action (16 U.S.C. 1536(b)(4)(2)). Reasonable and prudent alternatives 
(defined in 50 CFR 402.02) are alternative actions identified during 
formal consultation that can be implemented in a manner consistent with 
the intended purpose of the action, that are consistent with the scope 
of the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that would avoid the 
destruction or adverse modification of critical habitat. Regulations 
(50 CFR 402.16) require Federal agencies that have retained 
discretionary involvement or control over an action, or where such 
discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where (1) critical habitat is subsequently designated, or (2) new 
information or changes to the action may result in effects to critical 
habitat not previously considered in the biological opinion. 
Consequently, some Federal agencies may request reinitiation of a 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Activities subject to the ESA section 7 consultation process 
include Federal activities and non-Federal activities requiring a 
permit from a Federal agency (e.g., a Clean Water Act, Section 404 
dredge or fill permit from the USACE) or some other Federal action, 
including funding (e.g., Federal Highway Administration funding for 
transportation projects). ESA section 7 consultation would not be 
required for Federal actions that do not affect listed species or 
critical habitat and for non-Federal activities or activities on non-
federal and private lands that are not federally funded, authorized, or 
carried out.

IX. Activities That May Be Affected

    ESA section 4(b)(8) requires in any final rule to designate 
critical habitat an evaluation and brief description, to the maximum 
extent practicable, of those activities that may adversely modify such 
habitat or that may be affected by the designation. A wide variety of 
activities may affect the critical habitat and may be subject to the 
ESA section 7 consultation process when carried out, funded, or 
authorized by a Federal agency. These include (1) nearshore and in-
water construction, dredging, and sediment disposal, such as 
construction and maintenance of offshore structures such as 
breakwaters, groins, jetties, and artificial reefs; construction and 
maintenance of transportation projects (e.g., bridges) and utility 
projects; dredging and sediment disposal; channel blasting; (2) 
fisheries management, such as Federal commercial fisheries and related 
activities; (3) oil and gas exploration and development, such as 
decommissioning of old oil and gas platforms, construction of nearshore 
oil and gas platforms, oil and gas activity transport in the nearshore 
environment; (4) renewable energy projects, such as ocean thermal 
energy, wave energy, and offshore wind energy; (5) some military 
activities, such as in-water training and research; and (6) 
aquaculture, such as marine species propagation.
    For ongoing activities, we recognize that designation of critical 
habitat may trigger reinitiation of past consultations. Although we 
cannot predetermine the outcome of section 7 consultations, we do not 
anticipate at this time that the outcome of reinitated consultation 
would likely require additional conservation measures, because effects 
to habitat would likely have been assessed in the original 
consultation. We commit to working closely with other Federal agencies 
to implement these reinitiated consultations in an efficient and 
streamlined manner that, as much as possible and consistent with our 
statutory and regulatory obligations,

[[Page 39887]]

minimizes the staff and resource burden and recognizes existing habitat 
conservation measures from previously completed ESA consultations. 
Further, we will continue to work with other agencies to refine and 
revise cost estimates associated with such consultations.

X. Information Quality Act and Peer Review

    The data and analyses supporting this designation have undergone a 
pre-dissemination review and have been determined to be in compliance 
with applicable information quality guidelines implementing the 
Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In 
December 2004, the Office of Management and Budget (OMB) issued a Final 
Information Quality Bulletin for Peer Review pursuant to the IQA. The 
Bulletin established minimum peer review standards, a transparent 
process for public disclosure of peer review planning, and 
opportunities for public participation with regard to certain types of 
information disseminated by the Federal Government. The peer review 
requirements of the OMB Bulletin apply to influential or highly 
influential scientific information disseminated on or after June 16, 
2005. To satisfy our requirements under the OMB Bulletin, we obtained 
independent peer review of the Biological and Economic Reports that 
support the designation of critical habitat for the loggerhead sea 
turtle and incorporated the peer review comments prior to the proposed 
rule and within this rulemaking.

XI. Classification

A. Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
final rule is significant under Executive Order 12866. A final Economic 
Analysis and 4(b)(2) analysis as set forth herein have been prepared to 
support the exclusion process under section 4(b)(2) of the ESA. To 
review these documents see ADDRESSES section above.

B. National Environmental Policy Act

    We have determined that an environmental analysis as provided for 
under the National Environmental Policy Act of 1969 for critical 
habitat designations made pursuant to the ESA is not required. See 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 
116 S.Ct. 698 (1996).

C. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking 
for any final rule (other than one regarding the listing of a species 
under the Endangered Species Act), it must prepare and make available 
for public comment a regulatory flexibility analysis describing the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). We prepared a final 
regulatory flexibility analysis (FRFA) pursuant to section 603 of the 
Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.; IEc, 2014), 
which is an appendix to the final Economic Analysis. The FRFA 
incorporates the Initial Regulatory Flexibility Analysis (IRFA), which 
was part of the draft economic analysis that accompanied the proposed 
rule to designate critical habitat. This document is available upon 
request (see ADDRESSES section above). The results are summarized 
below.
    A statement of the need for and objectives of this final rule is 
provided earlier in the preamble and is not repeated here. This final 
rule will not impose any recordkeeping or reporting requirements.
    Three types of small entities identified in the analysis are (1) 
small business, (2) small governmental jurisdiction, and (3) small 
organization. The regulatory mechanism through which critical habitat 
protections are enforced is section 7 of the ESA, which directly 
regulates only those activities carried out, funded, or permitted by a 
Federal agency. By definition, Federal agencies are not considered 
small entities, although the activities they may fund or permit may be 
proposed or carried out by small entities. This analysis considers the 
extent to which this designation could potentially affect small 
entities, regardless of whether these entities would be directly 
regulated by NMFS through the final rule or by a delegation of impact 
from the directly regulated entity.
    The small entities that may bear the incremental impacts of this 
rulemaking are quantified in chapters 3 through 6 of the final Economic 
Analysis on four categories of economic activity potentially requiring 
modification to avoid destruction or adverse modification of loggerhead 
sea turtle critical habitat. Small entities also may participate in ESA 
section 7 consultation as an applicant or may be affected by a 
consultation if they intend to undertake an activity that requires a 
permit, license, or funding from the Federal Government. It is 
therefore possible that the small entities may spend additional time 
considering critical habitat during section 7 consultation for the 
loggerhead sea turtle. Potentially affected activities include 
nearshore and in-water construction, dredging and disposal, fisheries, 
oil and gas exploration and development, and alternative energy 
projects.
    Estimated impacts to small entities are summarized by industry in 
Exhibit A-1 Exhibit A-2 describes potentially affected small businesses 
by NAICS code, highlighting the relevant small business thresholds. 
Although businesses affected indirectly are considered, this analysis 
considers only those entities for which impacts would not be measurably 
diluted, i.e., it focuses on those entities that may bear some 
additional costs associated with participation in section 7 
consultation.
    Based on the number of past consultations and information about 
potential future actions likely to take place within proposed critical 
habitat areas, this analysis forecasts the number of additional 
consultations that may take place as a result of critical habitat (see 
Chapters 3 through 6 of the draft Economic Analysis). Based on this 
forecast, annual incremental consultation costs that may be borne by 
small entities are forecast at $18,000 (discounted at seven percent).
    Ideally this analysis would directly identify the number of small 
entities which may engage in activities that overlap with the proposed 
designation; however, while we track the Federal agencies involved in 
the consultation process, we do not track the identity of past permit 
recipients or the particulars that would allow us to determine whether 
the recipients were small entities. Nor do we track how often Federal 
agencies have hired small entities to complete various actions 
associated with these consultations. In the absence of this 
information, this analysis utilizes Dun and Bradstreet databases to 
determine the number of small businesses operating within the NAICS 
codes identified in Exhibit A-2. Exhibit A-3 presents the potentially 
affected small counties.
    The final rule does not directly mandate ``reporting'' or ``record 
keeping'' within the meaning of the Paperwork Reduction Act, and does 
not impose record keeping or reporting requirements on small entities. 
A critical habitat designation requires Federal agencies to initiate a 
section 7 consultation to insure their actions do not destroy or 
adversely modify critical habitat. During formal section 7 consultation 
under the ESA, NMFS, the action agency (Federal agency), and a

[[Page 39888]]

third party participant applying for Federal funding or permitting may 
communicate in an effort to minimize potential adverse impacts to the 
habitat and/or the essential features. Communication may include 
written letters, phone calls, and/or meetings. Project variables such 
as the type of consultation, the location, affected essential features, 
and activity of concern, may in turn dictate the complexity of these 
interactions. Third party costs may include administrative work, such 
as cost of time and materials to prepare for letters, calls, or 
meetings. The cost of analyses related to the activity and associated 
reports may be included in these administrative costs. In addition, 
following the section 7 consultation process, entities may be required 
to monitor progress during the activity to ensure that impacts to the 
habitat and features have been minimized.
    A FRFA must identify any duplicative, overlapping, and conflicting 
Federal rules. The protections afforded to threatened and endangered 
species and their habitat are described in section 7, 9, and 10 of the 
ESA. A final determination to designate critical habitat requires 
Federal agencies to consult, pursuant to section 7 of the ESA, with 
NMFS on any activities the Federal agency funds, authorizes, or carries 
out, including permitting, approving, or funding non-Federal activities 
(e.g., a Clean Water Act, Section 404 dredge or fill permit from 
USACE). The requirement to consult is to ensure that any Federal action 
authorized, funded, or carried out will not likely jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of critical habitat. The 
incremental impacts forecast in this report and contemplated in this 
analysis are expected to result from the critical habitat designation 
and not other Federal regulations.
    In accordance with the requirements of the RFA (as amended by 
SBREFA, 1996) this analysis considers alternatives to the proposed 
critical habitat designation for the loggerhead sea turtle. The 
alternative of not designating critical habitat for the loggerhead sea 
turtle was considered and rejected because such an approach does not 
meet the legal requirements of the ESA.

D. Coastal Zone Management Act

    Under section 307(c)(1)(A) of the Coastal Zone Management Act 
(CZMA) (16 USC 1456(c)(1)(A)) and its implementing regulations, each 
Federal activity within or outside the coastal zone that has reasonably 
foreseeable effects on any land or water use or natural resource of the 
coastal zone shall be carried out in a manner which is consistent to 
the maximum extent practicable with the enforceable policies of 
approved state coastal zone management programs. We initially 
determined that the proposed designation of critical habitat is 
consistent to the maximum extent practicable with the enforceable 
policies of approved Coastal Zone Management Programs of New Jersey, 
Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, 
Florida, Alabama, Mississippi, Louisiana, and Texas, and submitted this 
to the responsible agencies in the aforementioned states for review. 
Upon further review of the proposed designation and its supporting 
analysis, we have determined that any effects of the designation on 
coastal uses and resources are not reasonably foreseeable at this time. 
This designation does not restrict any coastal uses, affect land 
ownership, or establish a refuge or other conservation area; rather, 
the designation only affects the ESA section 7 consultation process. 
Through the consultation process, we will receive information on 
proposed Federal actions and their effects on listed species and the 
designated critical habitat upon which we base our biological opinion. 
It will then be up to the Federal action agencies to decide how to 
comply with the ESA in light of our opinion, as well as to ensure that 
their actions comply with the CZMA's Federal consistency requirement. 
At this time, we do not anticipate that this designation is likely to 
result in any additional management measures by other Federal agencies.

E. Federalism

    Executive Order 13132 requires agencies to take into account any 
Federalism impacts of regulations under development. It includes 
specific consultation directives for situations in which a regulation 
will preempt state law, or impose substantial direct compliance costs 
on state and local governments (unless required by statute). We have 
determined that the final rule to designate critical habitat for the 
loggerhead sea turtle under the ESA does not have Federalism 
implications. The designation of critical habitat directly affects only 
the responsibilities of Federal agencies. As a result, the rule does 
not have substantial direct effects on the States, on the relationship 
between the Federal Government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in the Order. State or local governments may be indirectly 
affected by the proposed revision if they require Federal funds or 
formal approval or authorization from a Federal agency as a 
prerequisite to conducting an action. In these cases, the State or 
local government agency may participate in the section 7 consultation 
as a third party. One of the key conclusions of the incremental 
analysis of economic impacts is that we do not expect critical habitat 
designation to generate additional requests for project modification in 
any of the critical habitat units. Incremental impacts of the 
designation will likely be limited to minor additional administrative 
costs to NMFS, Federal agencies, and third parties when considering 
critical habitat as part of the forecast section 7 consultations. 
Therefore, the designation of critical habitat is also not expected to 
have substantial indirect impacts on State or local governments.

F. Paperwork Reduction Act

    This final rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.

G. Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings: The designation of critical habitat does not impose 
an ``enforceable duty'' on state, local, tribal governments, or the 
private sector and therefore does not qualify as a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an ``enforceable duty'' upon non-federal 
governments or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.''
    Under the ESA, the only direct regulatory effect of this final rule 
is that Federal agencies must ensure that their actions do not destroy 
or adversely modify critical habitat under section 7. While non-Federal 
entities who receive Federal funding, assistance, permits, or otherwise 
require approval or authorization from a Federal agency for an action 
may be indirectly affected by the designation of critical habitat, the 
legally binding duty to avoid the destruction or adverse modification 
of critical habitat rests squarely on the Federal agency. Furthermore, 
to the extent that non-Federal entities are indirectly affected because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the

[[Page 39889]]

Unfunded Mandates Reform Act would not apply.
    We do not believe that this rule will significantly or uniquely 
affect small governments because it is not likely to produce a Federal 
mandate of $100 million or greater in any year; that is, it is not a 
''significant regulatory action'' under the Unfunded Mandates Reform 
Act. In addition, the designation of critical habitat imposes no 
obligations on local, state or tribal governments. Therefore, a Small 
Government Agency Plan is not required.

H. Takings

    Under Executive Order 12630, Federal agencies must consider the 
effects of their actions on constitutionally protected private property 
rights and avoid unnecessary takings of property. A taking of property 
includes actions that result in physical invasion or occupancy of 
private property, and regulations imposed on private property that 
substantially affect its value or use.
    In accordance with Executive Order 12630, the critical habitat 
designation does not pose significant takings implications. A takings 
implication assessment is not required. This final designation affects 
only Federal agency actions (i.e. those actions authorized, funded, or 
carried out by Federal agencies). Therefore, the critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits.
    This critical habitat designation would not increase or decrease 
the current restrictions on private property concerning take of 
loggerhead sea turtles, nor do we expect the designation to impose 
substantial additional burdens on land use or substantially affect 
property values. Additionally, the final critical habitat designation 
does not preclude the development of Conservation Plans and issuance of 
incidental take permits for non-Federal actions. Owners of property 
included or used within the final critical habitat designation would 
continue to have the opportunity to use their property in ways 
consistent with the survival of listed loggerhead sea turtles.

I. Government to Government Relationships With Tribes

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights.
    Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, outlines the responsibilities of the Federal 
Government in matters affecting tribal interests. If we issue a 
regulation with tribal implications (defined as having a substantial 
direct effect on one or more Indian tribes, on the relationship between 
the Federal Government and Indian tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes), we must consult with those governments or the Federal 
Government must provide funds necessary to pay direct compliance costs 
incurred by tribal governments. The critical habitat designation does 
not have tribal implications. The final critical habitat designation 
does not include any tribal lands and does not affect tribal trust 
resources or the exercise of tribal rights.

J. Energy Effects

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects when undertaking a ``significant energy action.'' 
According to Executive Order 13211, ``significant energy action'' means 
any action by an agency that is expected to lead to the promulgation of 
a final rule or regulation that is a significant regulatory action 
under Executive Order 12866 and is likely to have a significant adverse 
effect on the supply, distribution, or use of energy. We have 
considered the potential impacts of this action on the supply, 
distribution, or use of energy (see final Economic Analysis). Oil and 
gas exploration and alternative energy projects may affect the 
essential features of critical habitat for the loggerhead sea turtle. 
Due to the extensive requirements of oil and gas development and 
renewable energy projects to consider environmental impacts, including 
impacts on marine life, even absent critical habitat designation for 
the loggerhead sea turtle, we anticipate it is unlikely that critical 
habitat designation will change conservation efforts recommended during 
section 7 consultation for these projects. Consequently, it is unlikely 
the identified activities and projects will be affected by the 
designation beyond the quantified administrative impacts. Therefore, 
the designation is not expected to impact the level of energy 
production. It is unlikely that any impacts to the industry that remain 
unquantified will result in a change in production above the one 
billion kilowatt-hour threshold identified in the Executive Order. 
Therefore, it is unlikely that the energy industry will experience ``a 
significant adverse effect'' as a result of the critical habitat 
designation for the loggerhead sea turtle.

XII. References Cited

    A complete list of all references cited in this rule making can be 
found on our Web site at http://www.nmfs.noaa.gov/pr/species/turtles/loggerhead.htm and is available upon request from the NMFS (see 
ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: July 1, 2014.
Eileen Sobeck,
Assistant Administrator, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 226 is amended 
as set forth below:

PART 226--DESIGNATED CRITICAL HABITAT

0
1. The authority citation of part 226 continues to read as follows:

    Authority:  16 U.S.C. 1533.



0
2. Add Sec.  226.223 to read as follows:


Sec.  226.223  Critical habitat for the Northwest Atlantic Ocean 
Distinct Population Segment of the loggerhead sea turtle (Caretta 
caretta).

    Critical habitat is designated for the Northwest Atlantic Ocean 
Distinct Population Segment of the loggerhead sea turtle (Caretta 
caretta) as described in this section. The textual descriptions of 
critical habitat in this section are the definitive source for 
determining the critical habitat boundaries. For nearshore reproductive 
areas, the areas extend directly from the mean high water (MHW) line 
datum at each end of the area seaward 1.6 km. Where beaches are within 
1.6 km of each other, nearshore areas are connected, either along the 
shoreline (MHW line) or by delineating on GIS a straight line from the 
end of one beach to the beginning of another (either from island to 
island, or across an inlet or the mouth of an estuary). Although 
generally following these rules, the exact delineation of each area was 
determined individually because each was unique. The overview maps are 
provided for general guidance only and not as a definitive source for 
determining critical habitat boundaries.

[[Page 39890]]

    (a) Critical habitat boundaries. Critical habitat is designated to 
include the following areas:
    (1) LOGG-N-1--North Carolina Constricted Migratory Corridor and 
Northern Portion of the North Carolina Winter Concentration Area. This 
unit contains constricted migratory and winter habitat. The unit 
includes the North Carolina constricted migratory corridor and the 
overlapping northern half of the North Carolina winter concentration 
area. The constricted migratory corridor off North Carolina consists of 
waters between 36[deg] N. lat. and Cape Lookout (approximately 
34.58[deg] N. lat.) from the edge of the Outer Banks, North Carolina, 
barrier islands to the 200 m (656 ft) depth contour (continental 
shelf). The constricted migratory corridor overlaps with the northern 
portion of winter concentration area off North Carolina. The western 
and eastern boundaries of winter habitat are the 20 m and 100 m (65.6 
and 328 ft) depth contours, respectively. The northern boundary of 
winter habitat starts at Cape Hatteras (35[deg]16' N lat.) in a 
straight latitudinal line between 20 and 100 m (65.6-328 ft) depth 
contours and ends at Cape Lookout (approximately 34.58[deg] N. lat.).
    (2) LOGG-N-2--Southern Portion of the North Carolina Winter 
Concentration Area. This unit contains winter habitat only. The 
boundaries include waters between the 20 and 100 m (65.6 and 328 ft) 
depth contours between Cape Lookout to Cape Fear. The eastern and 
western boundaries of winter habitat are the 20 m and 100 m (65.6 and 
328 ft) depth contours, respectively. The northern boundary is Cape 
Lookout (approximately 34.58[deg] N). The southern boundary is a 37.5 
km (23.25 mile) line that extends from the 20 m (65.6 ft) depth contour 
at approximately 33.47[deg] N, 77.58[deg] W (off Cape Fear) to the 100 
m (328 ft) depth contour at approximately 33.2[deg] N, 77.32[deg] W.
    (3) LOGG-N-3--Bogue Banks and Bear Island, Carteret and Onslow 
Counties, North Carolina. This unit contains nearshore reproductive 
habitat only. The unit consists of nearshore area from Beaufort Inlet 
to Bear Inlet (crossing Bogue Inlet) from the MHW line seaward 1.6 km.
    (4) LOGG-N-4--Topsail Island and Lea-Huttaf Island, Onslow and 
Pender Counties, North Carolina. This unit contains nearshore 
reproductive habitat only. The unit consists of nearshore area from New 
River Inlet to Rich Inlet (crossing New Topsail Inlet) from the MHW 
line seaward 1.6 km.
    (5) LOGG-N-5--Pleasure Island, Bald Head Island, Oak Island, and 
Holden Beach, New Hanover and Brunswick Counties, North Carolina. This 
unit contains nearshore reproductive habitat only. The unit consists of 
nearshore area from Carolina Beach Inlet around Cape Fear to Shallotte 
Inlet (crossing the mouths of the Cape Fear River and Lockwoods Folly 
Inlet), from the MHW line seaward 1.6 km.
    (6) LOGG-N-6--North, Sand, South and Cedar Islands, Georgetown 
County, South Carolina; Murphy, Cape, Lighthouse Islands and Racoon 
Key, Charleston County, South Carolina. This unit contains nearshore 
reproductive habitat only. The unit consists of nearshore area from 
North Inlet to Five Fathom Creek Inlet (crossing Winyah Bay, North 
Santee Inlet, South Santee Inlet, Cape Romain Inlet, and Key Inlet) 
from the MHW line seaward 1.6 km.
    (7) LOGG-N-7--Folly, Kiawah, Seabrook, Botany Bay Islands, Botany 
Bay Plantation, Interlude Beach, and Edingsville Beach, Charleston 
County, South Carolina; Edisto Beach State Park, Edisto Beach, and Pine 
and Otter Islands, Colleton County, South Carolina. This unit contains 
nearshore reproductive habitat only. The unit consists of nearshore 
area from Lighthouse Inlet to Saint Helena Sound (crossing Folly River, 
Stono, Captain Sam's, North Edisto, Frampton, Jeremy, South Edisto and 
Fish Creek Inlets) from the MHW line seaward 1.6 km.
    (8) LOGG-N-8--Harbor Island, Beaufort County, South Carolina. This 
unit contains nearshore reproductive habitat only. The unit consists of 
nearshore area from Harbor Inlet to Johnson Inlet from the MHW line 
seaward 1.6 km.
    (9) LOGG-N-9--Little Capers, St. Phillips, and Bay Point Islands, 
Beaufort County, South Carolina. This unit contains nearshore 
reproductive habitat only. The unit consists of nearshore area from 
Pritchards Inlet to Port Royal Sound (crossing Trenchards Inlet and 
Morse Island Creek Inlet East) from the MHW line seaward 1.6 km.
    (10) LOGG-N-10--Little Tybee Island, Chatham County, Georgia: This 
unit contains nearshore reproductive habitat only. The boundaries of 
this unit are from Tybee Creek Inlet to Wassaw Sound from the MHW line 
seaward 1.6 km.
    (11) LOGG-N-11--Wassaw Island, Chatham County, Georgia: This unit 
contains nearshore reproductive habitat only. The boundaries of the 
unit are from Wassaw Sound to Ossabaw Sound from the MHW line seaward 
1.6 km.
    (12) LOGG-N-12--Ossabaw Island, Chatham County, Georgia; St. 
Catherines Island, Liberty County, Georgia; Blackbeard and Sapelo 
Islands, McIntosh County, Georgia: This unit contains nearshore 
reproductive habitat only. The boundaries of this unit are nearshore 
areas from the Ogeechee River to Deboy Sound (crossing St. Catherines 
Sound, McQueen Inlet, Sapelo Sound, and Cabretta Inlet), extending from 
the MHW line and seaward 1.6 km.
    (13) LOGG-N-13--Little Cumberland Island and Cumberland Island, 
Camden County, Georgia: This unit contains nearshore reproductive 
habitat only. The boundaries of this unit are nearshore areas from St. 
Andrew Sound to the St. Marys River (crossing Christmas Creek) from the 
MHW line seaward 1.6 km.
    (14) LOGG-N-14--Southern Boundary of Kathryn Abbey Hanna Park to 
Mantanzas Inlet, Duval and St. Johns Counties, Florida: This unit 
contains nearshore reproductive habitat only. The boundaries of the 
unit are nearshore areas from the south boundary of Kathryn Abbey Hanna 
Park to Matanzas Inlet (crossing St. Augustine Inlet) from the MHW line 
seaward 1.6 km.
    (15) LOGG-N-15--Northern Boundary of River to Sea Preserve at 
Marineland to Granada Blvd., Flagler and Volusia Counties, Florida: 
This unit contains nearshore reproductive habitat only. The boundaries 
of the unit are nearshore areas from the north boundary of River to Sea 
Preserve at Marineland to Granada Boulevard in Ormond Beach from the 
MHW line seaward 1.6 km.
    (16) LOGG-N-16--Canaveral National Seashore to 28.70[deg] N, 
80.66[deg] W near Titusville, Volusia and Brevard Counties, Florida: 
This unit contains nearshore reproductive habitat only. Boundaries of 
the unit are nearshore areas from the north boundary of Canaveral 
National Seashore to 28.70[deg] N, 80.66[deg] W near Titusville (at the 
start of the Titusville--Floridana Beach concentrated breeding area) 
from the MHW line seaward 1.6 km.
    (17) LOGG-N-17--Titusville to Floridana Beach Concentrated Breeding 
Area, Northern Portion of the Florida Constricted Migratory Corridor, 
Nearshore Reproductive Habitat from 28.70[deg] N, 80.66[deg] W near 
Titusville to Cape Canaveral Air Force Station; and Nearshore 
Reproductive Habitat from Patrick Airforce Base and Central Brevard 
Beaches, Brevard County, Florida: This unit includes overlapping areas 
of nearshore reproductive habitat, constricted migratory habitat, 
breeding habitat, and Sargassum habitat. The concentrated breeding 
habitat area is from the MHW line on shore at 28.70[deg] N, 80.66[deg] 
W near Titusville to depths less than 60 m and extending south to 
Floridana Beach. This overlaps with waters in the northern portion of 
the

[[Page 39891]]

Florida constricted migratory corridor, which begins at the tip of Cape 
Canaveral Air Force Station (28.46[deg] N. lat.) and ends at Floridana 
beach, including waters from the MHW line on shore to the 30 m depth 
contour. Additionally, the above two habitat areas overlap with two 
nearshore reproductive habitat areas. The first begins near Titusville 
at 28.70[deg] N, 80.66[deg] W to the south boundary of the Cape 
Canaveral Air Force Station/Canaveral Barge Canal Inlet from the MHW 
line seaward 1.6 km. The second begins at Patrick Air Force Base, 
Brevard County, through the central Brevard Beaches to Floridana Beach 
from the MHW line seaward 1.6 km.
    (18) LOGG-N-18--Florida Constricted Migratory Corridor from 
Floridana Beach to Martin County/Palm Beach County Line; Nearshore 
Reproductive Habitat from Floridana Beach to the south end of Indian 
River Shores; Nearshore Reproductive Habitat from Fort Pierce inlet to 
Martin County/Palm Beach County Line, Brevard, Indian River and Martin 
Counties, Florida--This unit contains nearshore reproductive habitat 
and constricted migratory habitat. The unit contains a portion of the 
Florida constricted migratory corridor, which is located in the 
nearshore waters from the MHW line to the 30 m depth contour off 
Floridana Beach to the Martin County/Palm Beach County line. This 
overlaps with two nearshore reproductive habitat areas. The first 
nearshore reproductive area includes nearshore areas from Floridana 
Beach to the south end of Indian River Shores (crossing Sebastian 
Inlet) from the MHW line seaward1.6 km. The second nearshore 
reproductive habitat area includes nearshore areas from Fort Pierce 
inlet to Martin County/Palm Beach County line (crossing St. Lucie 
Inlet) from the MHW line seaward 1.6 km.
    (19) LOGG-N-19--Southern Florida Constricted Migratory Corridor; 
Southern Florida Concentrated Breeding Area; and Six Nearshore 
Reproductive Areas: Martin County/Palm Beach County line to Hillsboro 
Inlet, Palm Beach and Broward Counties, Florida; Long Key, Bahia Honda 
Key, Woman Key, Boca Grande Key, and Marquesas Keys, Monroe County, 
Florida--This unit contains nearshore reproductive habitat, constricted 
migratory habitat, and breeding habitat. The unit contains the southern 
Florida constricted migratory corridor habitat, overlapping southern 
Florida breeding habitat, and overlapping nearshore reproductive 
habitat. The southern portion of the Florida concentrated breeding area 
and the southern Florida constricted migratory corridor are both 
located in the nearshore waters starting at the Martin County/Palm 
Beach County line to the westernmost edge of the Marquesas Keys 
(82.17[deg] W. long.), with the exception of the waters under the 
jurisdiction of NAS Key West. The seaward border then follows the 200 m 
depth contour to the westernmost edge at the Marquesas Keys. The 
overlapping nearshore reproductive habitat includes nearshore waters 
starting at the Martin County/Palm Beach County line to Hillsboro Inlet 
(crossing Jupiter, Lake Worth, Boyton, and Boca Raton Inlets) from the 
MHW line seaward 1.6 km; Long Key, which is bordered on the east by the 
Atlantic Ocean, on the west by Florida Bay, and on the north and south 
by natural channels between Keys (Fiesta Key to the north and Conch Key 
to the south), and has boundaries following the borders of the island 
from the MHW line seaward to 1.6 km; Bahia Honda Key, from the MHW line 
seaward 1.6 km; 4) Woman Key, from the MHW line and seaward to 1.6 km; 
5) Boca Grande Key, from the MHW line seaward to 1.6 km; 6) the 
Marquesas Keys unit boundary, including nearshore areas from the MHW 
line seaward to 1.6 km from four islands where loggerhead sea turtle 
nesting has been documented within the Marquesas Keys: Marquesas Key, 
Unnamed Key 1, Unnamed Key 2, and Unnamed Key 3.
    (20) LOGG-N-20--Dry Tortugas, Monroe County, Florida: This unit 
contains nearshore reproductive habitat only. The unit boundary 
includes nearshore areas from the MHW line and seaward to 1.6 km (1.0 
mile) from six islands where loggerhead sea turtle nesting has been 
documented within the Dry Tortugas. From west to east, these six 
islands are: Loggerhead Key, Garden Key, Bush Key, Long Key, Hospital 
Key, and East Key.
    (21) LOGG-N-21--Cape Sable, Monroe County, Florida: This unit 
contains nearshore reproductive habitat only. The boundaries of the 
unit are nearshore areas from the MHW line and seaward to 1.6 km from 
the north boundary of Cape Sable at 25.25[deg] N, 81.17[deg] W to the 
south boundary of Cape Sable at 25.12[deg] N, 81.07[deg] W.
    (22) LOGG-N-22--Graveyard Creek to Shark Point, Monroe County, 
Florida: This unit contains nearshore reproductive habitat only. The 
boundaries of this unit are nearshore areas from Shark Point 
(25.39[deg] N, 81.15[deg] W) to Graveyard Creek Inlet from the MHW line 
seaward 1.6 km.
    (23) LOGG-N-23--Highland Beach, Monroe County, Florida: This unit 
contains nearshore reproductive habitat only. The boundaries of this 
unit are from First Bay to Rogers River Inlet from the MHW line seaward 
1.6 km.
    (24) LOGG-N-24--Ten Thousand Islands North, Collier County, 
Florida: This unit contains nearshore reproductive habitat only. The 
unit boundary includes nearshore areas from the MHW line seaward 1.6 km 
of nine keys where loggerhead sea turtle nesting has been documented 
within the northern part of the Ten Thousand Islands in Collier County 
in both the Ten Thousand Islands NWR and the Rookery Bay NERR.
    (25) LOGG-N-25--Cape Romano, Collier County, Florida: This unit 
contains nearshore reproductive habitat only. The boundaries of the 
unit are nearshore areas from Caxambas Pass to Gullivan Bay from the 
MHW line seaward 1.6 km.
    (26) LOGG-N-26--Keewaydin Island and Sea Oat Island, Collier 
County, Florida: This unit contains nearshore reproductive habitat 
only. The boundaries of the unit are nearshore areas from Gordon Pass 
to Big Marco Pass from the MHW line seaward 1.6 km.
    (27) LOGG-N-27--Little Hickory Island to Doctors Pass, Lee and 
Collier Counties, Florida: This unit contains nearshore reproductive 
habitat only. The boundaries of the unit are nearshore areas from 
Little Hickory Island to Doctors Pass (crossing Wiggins Pass and Clam 
Pass) from the MHW line seaward 1.6 km.
    (28) LOGG-N-28--Captiva Island and Sanibel Island West, Lee County, 
Florida: This unit contains nearshore reproductive habitat only. The 
boundaries of the unit are nearshore areas from the north end of 
Captiva/Captiva Island Golf Club (starting at Redfish Pass and crossing 
Blind Pass) and along Sanibel Island West to Tarpon Bay Road, from the 
MHW line seaward 1.6 km.
    (29) LOGG-N-29--Siesta and Casey Keys, Sarasota County; Venice 
Beaches and Manasota Key, Sarasota and Charlotte Counties; Knight, Don 
Pedro, and Little Gasparilla Islands, Charlotte County; Gasparilla 
Island, Charlotte and Lee Counties; Cayo Costa, Lee County, Florida: 
This unit contains nearshore reproductive habitat only. The boundaries 
of this unit are nearshore areas from Big Sarasota Pass to Catliva Pass 
(crossing Venice Inlet, Stump Pass, Gasparilla Pass, and Boca Grande 
Pass), from the MHW line seaward 1.6 km.
    (30) LOGG-N-30--Longboat Key, Manatee and Sarasota Counties, 
Florida: This unit contains nearshore reproductive habitat only. The 
boundaries of this unit are the north point of Longboat Key at Longboat 
Pass

[[Page 39892]]

to New Pass, from the MHW line seaward 1.6 km.
    (31) LOGG-N-31--St. Joseph Peninsula, Cape San Blas, St. Vincent, 
St. George and Dog Islands, Gulf and Franklin Counties, Florida: This 
unit contains nearshore reproductive habitat only. The boundaries of 
this unit are from St. Joseph Bay to St. George Sound (crossing Indian, 
West, and East Passes) from the MHW line seaward 1.6 km.
    (32) LOGG-N-32--Mexico Beach and St. Joe Beach, Bay and Gulf 
Counties, Florida: This unit contains nearshore reproductive habitat 
only. The boundaries of the unit are from the eastern boundary of 
Tyndall Air Force Base to Gulf County Canal in St. Joseph Bay from the 
MHW line seaward 1.6 km.
    (33) LOGG-N-33--Gulf State Park to FL/AL state line, Baldwin 
County, Alabama; FL/AL state line to Pensacola Pass, Escambia County, 
Florida: This unit contains nearshore reproductive habitat only. The 
boundaries of the unit are nearshore areas from the west boundary of 
Gulf State Park to the Pensacola Pass (crossing Perido Pass and the 
Alabama-Florida border) from the MHW line and seaward to 1.6 km.
    (34) LOGG-N-34--Mobile Bay -- Little Lagoon Pass, Baldwin County, 
Alabama: This unit contains nearshore reproductive habitat only. The 
boundaries of the unit are nearshore areas from Mobile Bay Inlet to 
Little Lagoon Pass from the MHW line and seaward to 1.6 km.
    (35) LOGG-N-35--Petit Bois Island, Jackson County, Mississippi: 
This unit contains nearshore reproductive habitat only. The boundaries 
of the unit are nearshore areas from Horn Island Pass to Petit Bois 
Pass from the MHW line and seaward to 1.6 km.
    (36) LOGG-N-36--Horn Island, Jackson County, Mississippi: This unit 
contains nearshore reproductive habitat only. The boundaries of the 
unit are nearshore areas from Dog Keys Pass to the eastern most point 
of the ocean facing island shore from the MHW line and seaward to 1.6 
km.
    (37) LOGG-S-1--Atlantic Ocean Sargassum: This unit contains 
Sargassum habitat and overlaps with breeding habitat (LOGG-N-17). The 
western edge of the unit is the Gulf of Mexico-Atlantic border (83[deg] 
W. long.) from 24.58[deg] N. lat. to 23.82[deg] N. lat. The outer 
boundary of the unit is the U.S. EEZ, starting at the Gulf of Mexico-
Atlantic border (23.82[deg] N. lat., 83[deg] W. long.) and proceeding 
east and north until the EEZ coincides with the Gulf Stream at 
37.84[deg] N. lat., 70.59[deg] W. long. The inner boundary of the unit 
starts at the Gulf of Mexico-Atlantic border (24.58[deg] N. lat., 
83[deg] W. long.) to the outer edge of the breeding/migratory critical 
habitat (LOGG-N-19) at 24.34[deg] N. lat., 82.16[deg] W. long., along 
the outer edge of the corridor (following the 200 m depth contour) 
until it coincides with the breeding habitat off of Cape Canaveral 
(LOGG-N-17) at 27.97[deg] N. lat., 80.14[deg] W. long., and from there 
roughly following the velocity of 0.401-0.50 m/second (Ocean 
Conservancy 2012; PMEL 2012) until it coincides with the outer edge of 
the EEZ at 37.84[deg] N. lat., 70.59[deg] W. long.
    (38) LOGG-S-2--Gulf of Mexico Sargassum. This unit contains 
Sargassum habitat only. The northern and western boundaries of the unit 
follow the 10 m depth contour starting at the mouth of South Pass of 
the Mississippi River proceeding west and south to the outer boundary 
of the U.S. EEZ. The southern boundary of the unit is the U.S. EEZ from 
the 10 m depth contour off of Texas to the Gulf of Mexico-Atlantic 
border (83[deg] W. long.). The eastern boundary follows the 10 m depth 
contour from the mouth of South Pass of the Mississippi River at 
28.97[deg] N. lat., 89.15[deg] W. long., in a straight line to the 
northernmost boundary of the Loop Current (28[deg] N. lat., 89[deg] W. 
long.) and along the eastern edge of the Loop Current roughly following 
the velocity of 0.101-0.20 m/second as depicted by Love et al. (2013) 
using the Gulf of Mexico summer mean sea surface currents from 1993-
2011, to the Gulf of Mexico-Atlantic border (24.58[deg] N. lat., 
83[deg] W. long.).
    (b) Physical or biological features and primary constituent 
elements essential for conservation. The physical or biological 
features (PBFs) and primary constituent elements (PCEs) essential for 
conservation of the Northwest Atlantic Ocean DPS of the loggerhead sea 
turtle are identified by habitat type below.
    (1) Nearshore reproductive habitat. The PBF of nearshore 
reproductive habitat as a portion of the nearshore waters adjacent to 
nesting beaches that are used by hatchlings to egress to the open-water 
environment as well as by nesting females to transit between beach and 
open water during the nesting season. The following PCEs support this 
habitat:
    (i) Nearshore waters directly off the highest density nesting 
beaches and their adjacent beaches, as identified in 50 CFR 17.95(c), 
to 1.6 km offshore;
    (ii) Waters sufficiently free of obstructions or artificial 
lighting to allow transit through the surf zone and outward toward open 
water; and
    (iii) Waters with minimal manmade structures that could promote 
predators (i.e., nearshore predator concentration caused by submerged 
and emergent offshore structures), disrupt wave patterns necessary for 
orientation, and/or create excessive longshore currents.
    (2) Winter habitat. We describe the PBF of the winter habitat as 
warm water habitat south of Cape Hatteras near the western edge of the 
Gulf Stream used by a high concentration of juveniles and adults during 
the winter months. PCEs that support this habitat are the following:
    (i) Water temperatures above 10[deg] C from November through April;
    (ii) Continental shelf waters in proximity to the western boundary 
of the Gulf Stream; and
    (iii) Water depths between 20 and 100 m.
    (3) Breeding habitat. We describe the PBF of concentrated breeding 
habitat as those sites with high densities of both male and female 
adult individuals during the breeding season. PCEs that support this 
habitat are the following:
    (i) High densities of reproductive male and female loggerheads;
    (ii) Proximity to primary Florida migratory corridor; and
    (iii) Proximity to Florida nesting grounds.
    (4) Constricted migratory habitat. We describe the PBF of 
constricted migratory habitat as high use migratory corridors that are 
constricted (limited in width) by land on one side and the edge of the 
continental shelf and Gulf Stream on the other side. PCEs that support 
this habitat are the following:
    (i) Constricted continental shelf area relative to nearby 
continental shelf waters that concentrate migratory pathways; and
    (ii) Passage conditions to allow for migration to and from nesting, 
breeding, and/or foraging areas.
    (5) Sargassum habitat. We describe the PBF of loggerhead Sargassum 
habitat as developmental and foraging habitat for young loggerheads 
where surface waters form accumulations of floating material, 
especially Sargassum. PCEs that support this habitat are the following:
    (i) Convergence zones, surface-water downwelling areas, the margins 
of major boundary currents (Gulf Stream), and other locations where 
there are concentrated components of the Sargassum community in water 
temperatures suitable for the optimal growth of Sargassum and 
inhabitance of loggerheads;
    (ii) Sargassum in concentrations that support adequate prey 
abundance and cover;
    (iii) Available prey and other material associated with Sargassum 
habitat including, but not limited to, plants and cyanobacteria and 
animals native to the

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Sargassum community such as hydroids and copepods; and
    (iv) Sufficient water depth and proximity to available currents to 
ensure offshore transport (out of the surf zone), and foraging and 
cover requirements by Sargassum for post-hatchling loggerheads, i.e., 
>10 m depth.
    (c) Areas not included in critical habitat. Critical habitat does 
not include the following particular areas where they overlap with the 
areas described in paragraph (a) of this section:
    (1) Pursuant to ESA section 4(a)(3)(B), all areas subject to the 
Naval Air Station Key West Integrated Natural Resources Management 
Plan.
    (2) Pursuant to ESA section 3(5)(A)(i), all federally authorized or 
permitted manmade structures such as aids-to-navigation, boat ramps, 
platforms, docks, and pilings existing within the legal boundaries on 
August 11, 2014.
    (d) Maps of loggerhead critical habitat follow:
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[FR Doc. 2014-15748 Filed 7-9-14; 8:45 am]
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