Vol. 79 Thursday, No. 132 July 10, 2014

Part IV

Department of Commerce

National Oceanic and Atmospheric Administration 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

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DEPARTMENT OF COMMERCE Resources, 301–427–8474 or VII. Final Determinations and Critical Habitat [email protected]. Designations VIII. Effects of Critical Habitat Designation National Oceanic and Atmospheric SUPPLEMENTARY INFORMATION: Administration IX. Activities That May Be Affected Table of Contents X. Information Quality Act and Peer Review XI. Classification 50 CFR Part 226 The following topics are discussed in this A. Regulatory Planning and Review [Docket No. 130513467–4401–02] final rule: B. National Environmental Policy Act I. Background C. Regulatory Flexibility Act RIN 0648–BD27 II. Summary of Changes From the Proposed D. Coastal Zone Management Act Critical Habitat Designation E. Federalism Endangered and Threatened Species: III. Public Comments and Responses F. Paperwork Reduction Act Critical Habitat for the Northwest A. Comments on ESA Requirements and G. Unfunded Mandates Reform Act Atlantic Ocean Loggerhead Sea Turtle Process H. Takings Distinct Population Segment (DPS) and B. Comments on Prudent and Determinable I. Government to Government Determination Regarding Critical C. Comments on Coastal Zone Management Relationships With Tribes J. Energy Effects Habitat for the North Pacific Ocean Act D. Comments on North Pacific Ocean DPS XII. References Cited Loggerhead DPS E. Comments on Northwest Atlantic Ocean I. Background AGENCY: National Marine Fisheries DPS Service (NMFS), National Oceanic and Comments on Use of Best Available Data The loggerhead sea turtle was Atmospheric Administration (NOAA), Comments on Sargassum Habitat originally listed under the ESA Comments on Foraging Habitat Commerce. worldwide as a threatened species on Comments on Nearshore Reproductive July 28, 1978 (43 FR 32800). No critical ACTION: Final rule. Habitat habitat was designated for the Comments on Wintering Habitat loggerhead sea turtle at that time. SUMMARY: We, the National Marine Comments on Constricted Migratory Fisheries Service (NMFS), issue a final Corridors Pursuant to a joint memorandum of rule to designate critical habitat for the Comments on Special Management understanding signed on July 18, 1977, Northwest Atlantic Ocean Distinct Considerations the USFWS has jurisdiction over sea Population Segment (DPS) of the Additional Comments turtles on land and we, the National loggerhead sea turtle (Caretta caretta) F. Comments on Draft 4(b)(2) Report and Oceanic and Atmospheric within the Atlantic Ocean and the Gulf Economic Analysis Report (DEA) Administration’s (NOAA’s) NMFS, have of Mexico pursuant to the Endangered Comments on Construction and Dredging jurisdiction over sea turtles in the Activities marine environment. On September 22, Species Act of 1973, as amended (ESA). Comments on Oil And Gas Activities Specific areas for designation include 38 2011, NMFS and USFWS jointly Comments on Fisheries published a final rule revising the occupied marine areas within the range Comments on Other Activities or Issues of the Northwest Atlantic Ocean DPS. IV. Critical Habitat Identification loggerhead’s listing from a single These areas contain one or a A. Geographical Area Occupied by the worldwide threatened species to nine combination of habitat types: Nearshore Species DPSs (76 FR 58868). Five DPSs were reproductive habitat, winter area, 1. Northwest Atlantic Ocean DPS listed as endangered (North Pacific breeding areas, constricted migratory 2. North Pacific Ocean DPS Ocean, South Pacific Ocean, North corridors, and/or Sargassum habitat. B. Description of Physical or Biological Indian Ocean, Northeast Atlantic Ocean, Features and Primary Constituent The U.S. Fish and Wildlife Service and Mediterranean Sea), and four DPSs Elements, and Identification of Specific were listed as threatened (Northwest (USFWS) is issuing a final rule for Areas loggerhead critical habitat for terrestrial Atlantic Ocean, South Atlantic Ocean, 1. Northwest Atlantic Ocean DPS Southeast Indo-Pacific Ocean, and areas (nesting beaches) in a separate Nearshore Reproductive Habitat Southwest Indian Ocean). Critical document. No marine areas meeting the Foraging Habitat definition of critical habitat were Winter Habitat habitat cannot be designated in areas outside of U.S. jurisdiction (50 CFR identified within the jurisdiction of the Breeding Habitat 424.12). Two DPSs occur within U.S. United States for the North Pacific Constricted Migratory Habitat jurisdiction: The Northwest Atlantic Ocean DPS, and therefore we are not Sargassum Habitat 2. North Pacific Ocean DPS Ocean DPS (range defined as north of designating critical habitat for that DPS. Central North Pacific Ocean the equator, south of 60° N. lat., and DATES: This rule becomes effective Eastern Pacific/U.S. West Coast west of 40° W. long.), and the North August 11, 2014. C. Special Management Considerations Pacific Ocean DPS (range defined as ADDRESSES: The final rule and final 1. Northwest Atlantic Ocean DPS north of the equator and south of 60° N. Nearshore Reproductive Habitat Economic Analysis (including the lat.). At the time the final listing rule Regulatory Flexibility Analysis) used in Winter Habitat Breeding Habitat was developed, we lacked preparation of this final rule, as well as Constricted Migratory Habitat comprehensive data and information comments and information received, Sargassum Habitat necessary to identify and describe and accompanying documents are 2. North Pacific Ocean DPS physical or biological features (PBFs) of available at http://www.nmfs.noaa.gov/ D. Unoccupied Areas the terrestrial and marine habitats. As a pr/species/turtles/loggerhead.htm or by V. Military Lands: Application of ESA result, we found designation of critical contacting Susan Pultz, NMFS, Office of Section 4(a)(3) habitat to be ‘‘not determinable’’ (see 16 Protected Resources, 1315 East-West VI. Exclusions: ESA Section 4(b)(2) Analysis U.S.C. 1533(b)(6)(C)(ii)). In the final rule Highway, Silver Spring, MD 20910. A. Benefits of Designation B. Economic Benefits of Exclusion we stated that we would consider FOR FURTHER INFORMATION CONTACT: C. Exclusions of Particular Areas Based on designating critical habitat for the two Susan Pultz, NMFS, Office of Protected Economic Impacts DPSs within U.S. jurisdiction in future Resources 301–427–8472 or D. Exclusions Based on Impacts to National rulemakings. [email protected]; or Angela Security Following the 2011 listing, NMFS and Somma, NMFS, Office of Protected E. Exclusions for Tribal Lands USFWS convened a critical habitat

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review team (CHRT) to assist in the Ocean DPS (78 FR 18000, March 25, to comments that were specific to assessment and evaluation of critical 2013) to the appropriate place in the terrestrial habitat, but did share those habitat areas for the Northwest Atlantic Code of Federal Regulations to read, comments with USFWS so they could Ocean and North Pacific Ocean DPSs. ‘‘Nearshore waters directly off the respond. We only include comments Based on their biological report, the highest density nesting beaches and that are germane to the proposed rule initial Regulatory Flexibility Analysis their adjacent beaches, as identified in and we sort our responses below by and section 4(b)(2) analysis (which 50 CFR 17.95(c), to 1.6 km offshore; major topic area. considers exclusions to critical habitat (2) To the PBFs, PCEs and Special A. Comments on ESA Requirements and based on economic, national security Management Considerations for Process and other relvant impacts), we Concentrated Breeding areas (IV.B.1 and published a proposed rule (78 FR 43006, IV.C.1), we changed ‘‘concentrations’’ to Comment 1: Several commenters felt July 18, 2013) to designate critical ‘‘densities.’’ that NMFS took an inappropriately habitat for the threatened Northwest (3) To Special Management narrow reading of its conservation Atlantic Ocean DPS and determined Considerations for Sargassum (section mandate for in-water designation of that there are no areas meeting the IV.C.1.), we added ‘‘levels of ocean critical habitat. Commenters note that definition of critical habitat for the acidity’’ to (5), which now reads, the ESA and its implementing endangered North Pacific Ocean DPS. ‘‘Global climate change, which can alter regulations require the designation of We proposed designating 36 marine the conditions (such as currents and critical habitat to focus on the biological areas within the Northwest Atlantic other oceanographic features, features of the habitat that make it Ocean DPS as critical habitat. Each of temperature, and levels of ocean acidity) essential to the conservation of the these areas consists of one or a that allow Sargassum habitat and species. The commenters said that combination of the following habitat communities to thrive in abundance and NMFS declined to designate critical types: nearshore reproductive habitat locations suitable for loggerhead habitat in all areas where the PCEs are (directly off nesting beaches to 1.6 km developmental habitat.’’ present and essential to the (1 mile)), wintering habitat, breeding (4) Under VII. Final Determinations conservation of the species, instead habitat, and constricted migratory and Critical Habitat Designations, we repeatedly narrowing its proposed corridors. In the proposed rule, we also added Sargassum habitat to the list of designation to include only a subset of asked for comment on whether to habitat areas. these areas. The commenters argued if include as critical habitat in the final (5) In the textual description for an area is essential for the conservation rule some areas that contain foraging LOGG–N–4, we deleted reference to of the species, including both its habitat and two large areas that contain ‘‘Onslow Beach (Marine Corps Base survival and recovery, it must be Sargassum habitat. Camp Lejeune)’’ as well as ‘‘Browns designated unless the economic costs In the proposed rule we requested Inlet’’ because it was determined that outweigh the benefits of designation. public comment through September 16, the base’s Integrated Natural Resources Response: The ESA requires that in 2013. In response to requests, we Management Plan (INRMP) benefited designating critical habitat, we identify extended the public comment period loggerheads and therefore the area ‘‘physical or biological features (I) through November 29, 2013 (78 FR should not be designated in accordance essential to the conservation of the 59907) and held three public hearings. with section 4(a)(3) of the ESA. species and (II) which may require The USFWS proposed terrestrial (6) We added textual descriptions for special management consideration or critical habitat (nesting beaches) in a two units of Sargassum habitat (LOGG– protection’’ (section 3(5)(A)(i)). Section separate rulemaking on March 25, 2013 S–1 and LOGG–S–2) with associated 3(5)(C) of the ESA states that ‘‘Except (78 FR 18000). The proposed regulatory text and map. under those circumstances determined by the Secretary, critical habitat shall designations complement each other as III. Public Comments and Responses the nearshore reproductive habitat we not include the entire geographical area proposed is directly offshore of the In response to the request for which can be occupied by the . . . nesting beaches proposed by the comments in the proposed rule and our species.’’ This species is naturally wide- USFWS. public hearings, we received over 200 ranging and a generalist forager. As For a complete description of our individual comment letters, one with such, it occurs throughout the east coast proposed action, including the natural 5,552 signatures. At least 42 individual of the U.S. We identified Physical history of the loggerhead sea turtle, we comments consisted of general Biological Features (PBFs) and Primary refer the reader to the proposed rule (78 statements supporting the designation, Constituent Elements (PCEs) that help FR 43006, July 18, 2013). many noting that they would like us identify habitat essential to the loggerheads to receive as much conservation of the species (as defined II. Summary of Changes From the protection as possible, and some noting in the ESA), and not the entire historical Proposed Critical Habitat Designation that they would be in favor of range of the species. We evaluated the comments ‘‘protecting more habitat,’’ although Comment 2: Several commenters submitted and new information they were not specific as to where. Two emphasized that NMFS should subject received from public comments and commenters expressed general any requests for critical habitat hearings following the proposed statements opposing the designation but exclusion to a thorough public review, rulemaking, and made the following without reference to specific areas or including notice and opportunity for changes from the proposed rule to the issues. We received additional comment, just as it has its critical final rule: comments either expressing support or habitat proposal. (1) To the first PCE for Nearshore opposition with specific information Response: While we appreciate the Reproductive Habitat (IV.B.1. and in the regarding areas or issues. For the commenters’ concern with transparency textual description), we added ‘‘and responses to comments, we do not and public review, we do not request their adjacent beaches’’ and replaced the include comments expressing general public comment on requests for reference to the USFWS proposed rule support or general opposition; only exclusions. We do make all comments for terrestrial critical habitat for the comments that are accompanied by available on regulations.gov and we loggerhead sea turtle Northwest Atlantic specific details. We also did not respond address them in this final rulemaking so

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the public can see any requests that preparing the critical habitat associated with those areas as described were made and our response. designation, NMFS considered whether in the proposed rule. Comment 3: Several commenters felt Section 7 consultations would need to Response: The commenters are correct NMFS was obligated to prepare an consider additional or different that critical habitat is designated when environmental impact statement in conservation measures or risk factors to special management considerations may connection with designating critical avoid destruction or adverse be necessary, when designation is habitat pursuant to the National modification of the primary constituent prudent, and where critical habitat is Environmental Policy Act, 42 U.S.C. elements that support the physical and determinable. With regard to special 4321, et seq. (‘‘NEPA’’). Designation of biological features of critical habitat management considerations, we have critical habitat for the loggerhead sea above and beyond those measures determined that Sargassum habitat is turtle significantly affects the quality of already taken to avoid jeopardizing the essential to loggerheads and may require the human environment, and NMFS is continued existence of the species. For special management considerations. In required to determine the extent of these example, NMFS has issued several the proposed rule, we recognized that impacts in compliance with NEPA. biological opinions to the Bureau of the Sargassum PCEs can be affected by Response: We have determined that Ocean Energy Management (BOEM) the following activities which may an environmental analysis as provided regarding authorized activities in the require special management: for under NEPA for critical habitat Gulf of Mexico and Atlantic that may Commercial harvest of Sargassum, oil designations made pursuant to the ESA affect Sargassum habitat. This long and gas activities, vessel operations that is not required. See Douglas County v. consultation history with BOEM has result in the disposal of trash and Babbitt, 48 F.3d 1495 (9th Cir. 1995), allowed NMFS and the action agency to wastes, ocean dumping, and global cert. denied, 116 S.Ct. 698 (1996). identify direct and indirect effects of climate change. Comment 4: Several commenters cited BOEM actions that may adversely affect With regard to the prudency of critical data indicating that the loggerhead the species (e.g., authorization of habitat designations, our implementing population is increasing and questioned routine activities such as vessel traffic, regulations for critical habitat whether designation of critical habitat drilling, dredging and surveys; and designations (50 CFR 424.12(a)(1)) state in marine areas is in fact essential to the accidental events reasonably certain to that designating critical habitat is not conservation of this species according to occur, such as small oil spills from prudent when (1) the species is the requirements of the ESA. vessels or platforms) and measures to threatened by taking or other human Response: Whether the loggerhead minimize and mitigate those impacts on activity, and identification of critical population is increasing could have a the species. Conservation measures habitat can be expected to increase the bearing on whether and how it is listed required by NMFS in biological degree of such threat to the species (not (endangered or threatened), but does not opinions issued to BOEM include, but the case for loggerheads); or (2) such have a bearing on whether critical are not limited to, marine debris designation would not be beneficial to habitat should be designated. Habitat is minimization guidance and training. the species. In the case of loggerhead sea a key ingredient to the well-being of any Although the risk factors evaluated in turtles, identification of critical habitat species, and Congress determined that a the BOEM consultations and the would not increase the degree of threat species that is listed under the ESA conservation measures resulting from to the species. Further, because there is should have critical habitat protected them were for the effects to the species, value in highlighting critical habitat, except in the very limited circumstances NMFS anticipates that they would be including for planning and educational in which it is determined not to be equally applicable to the determination purposes, designation of critical habitat prudent (see response to comment #5). of whether there is likely to be an does contribute to the conservation of Comment 5: A number of commenters adverse impact to, or an adverse the species. Uncertainty in information expressed concern about whether the modification of, critical habitat as does not mean a designation is not critical habitat designation would add designated in this final rule. Therefore, prudent. information requirements, or reasonable NMFS does not expect additional risk Critical habitat is now determinable. and prudent alternatives, to current and factors or conservation measures to be At the time we listed the nine DPSs of future Section 7 consultations, required as a result of this critical loggerhead sea turtles in 2011, critical including whether consideration of habitat designation, because the habitat was not determinable. If critical additional risk factors would be protection accorded the species through habitat is not determinable at the time required. the Section 7 process has included of listing, the ESA allows the Secretary Response: NMFS anticipates that it is consideration of measures necessary to to extend the timeframe to designate, unlikely that this critical habitat protect its habitat from destruction or but only by one additional year. After designation will alter the factors adverse modification. this year, she must publish a final considered in, or result in additional regulation based on such data as may be management efforts resulting from, B. Comments on Prudent and available at that time. future section 7 consultations. Determinable Regardless of whether critical habitat is Comment 6: Several commenters C. Comments on Coastal Zone designated, all listed species undergo noted the ESA only allows critical Management Act section 7 consultation. Loggerhead sea habitat designations when special Comment 7: Several commenters were turtles have been protected under the management considerations may be concerned that that our consistency ESA since 1978, with Section 7 necessary, when designation is prudent, determination submitted to the North consultations proceeding regularly since and where critical habitat is Carolina Division of Coastal that listing. determinable. They believe the areas Management in connection with NMFS has engaged in a large number proposed for critical habitat designation designating critical habitat is of consultations with Federal agencies do not meet these requirements. Several incomplete and does not meet the that resulted in implementation of a of these commenters specifically requirements of the Coastal Zone suite of conservation measures that are identified the Sargassum habitat Management Act, 16 U.S.C. 1451, et seq. used to avoid jeopardizing the discussed in the proposed rule as an (CZMA) and its implementing continued existence of the species. In example, due to the large uncertainties regulations. Some requested that we

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revisit this Federal consistency We closely examined whether migratory Mexico. The authors concluded that submission and include additional pathways should be included, turtles in California most likely came analysis of potential impacts, and that particularly with respect to physical and from the central North Pacific and not we include additional information on biological features that are associated from the Baja California peninsula, as potential economic impacts and the data with loggerhead movement between was initially believed when the drift used to determine critical habitat foraging and nesting grounds in the gillnet time/area closure was put in boundaries. Pacific Ocean. While loggerheads are place off the Southern California Bight Response: Upon further review of our known to migrate between foraging in 2003. In addition, Allen et al. (2013) proposed designation of critical habitat areas in the eastern Pacific and nesting note that loggerhead turtles, while rarely for the threatened loggerhead sea turtle areas in Japan, those migratory encountered in the Southern California Northwest Atlantic Ocean DPS and its pathways overlap very minimally with Bight have been observed taken in small supporting analysis, by letter dated U.S. waters in the EEZ northwest of numbers by the CA drift gillnet fishery January 23, 2014, we withdrew our Hawaii and off the U.S. west coast. or found stranded during non-ENSO consistency determination for North Satellite telemetry data that currently years. Carolina and instead provided a exists is not sufficient to identify Comment 9: One comment stated that negative determination. While we migration corridors to, from, or within the agencies did not propose recognize the State’s goals of coastal the U.S. EEZ of either location. designation of any critical habitat for the resource protection and economic Loggerhead turtles transiting to the North Pacific Ocean DPS because of the development, we determined that any Eastern Pacific head primarily into lack of nesting in U.S. Pacific waters. effects of the proposed action on North Mexican waters. Indeed, there is a Response: Our decision not to Carolina’s coastal uses and resources are significant foraging ‘‘hotspot’’ at Ulloa propose designation of critical habitat in not reasonably foreseeable at this time. Bay, Baja California peninsula at the EEZ around Hawaii and off the coast As indicated in our negative approximately 114° W. long. and 25° N. of southern California is not because determination, this designation of lat. (Wingfield et al. 2013), and turtle there is no nesting adjacent to U.S. critical habitat will not restrict any migratory habitat appears to dip south Pacific waters. A species does not have coastal uses, affect land ownership, or around 130° W. long. (which is outside to nest within U.S. waters to have establish a refuge or other conservation of the California EEZ and runs south to critical habitat designated. An occupied area; rather, the designation only affects Baja) where turtles follow optimal area only need contain the physical and the ESA section 7 consultation process. temperature to foraging grounds in biological features essential to the Through the ESA consultation process, Mexico (Abecassis et al. 2013). conservation of the species and which we will receive information on may require special management proposed Federal actions and their With regard to the Southern California consideration or protection, and in the effects on listed species and this critical Loggerhead Conservation Area, the case of unoccupied habitat be essential habitat upon which we base our oceanographic feature thought to be to the conservation of the species in biological opinions. It will then be up to correlated with loggerhead movements order for it to be designated as critical the Federal action agencies to decide and the trigger for a drift gillnet time/ habitat. The U.S. waters around Hawaii how to comply with the ESA in light of area closure during the summer months and off the coast of southern California our opinion, as well as to ensure that off southern California is the El Nin˜ o- do not contain the physical and their actions comply with the CZMA’s Southern Oscillation (ENSO). However, biological features essential to the Federal consistency requirement. At this both tagging and stable isotope data conservation of the species and time, we do not anticipate that this have brought the ENSO-driven therefore do not meet the requirements designation is likely to result in any movement hypothesis into question. For for designation. additional management measures by example, no loggerheads that were Comment 10: One commenter other Federal agencies. tracked while foraging along the Pacific expressed the importance of using the coast of Baja California, Mexico from best available information in D. Comments on the North Pacific 1996 to 2007 moved north into U.S. designating critical habitat in Hawaii Ocean DPS California EEZ waters (Peckham et al. and California. Comment 8: Numerous commenters 2011). This is particularly relevant Response: As required by Section suggested that the designation should considering that this time period 4(b)(2) of the ESA we evaluated whether include migratory pathways for the encompassed at least one major ENSO to designate critical habitat on the basis North Pacific Ocean DPS between North event (1997–1998). The results of of the best scientific data available. The American foraging grounds and/or their Peckham et al. (2011) underscore the loggerhead habitat within the U.S. EEZ nesting grounds in Japan. They also strong tendency for loggerheads to of the central North Pacific Ocean does raised concern about areas used by maintain their presence in the waters off not provide suitable conditions in loggerheads along the U.S. west coast Mexico. The apparent absence of sufficient quantity and frequency to not being proposed for designation. One northward movements of tracked turtles support meaningful foraging, of these commenters went on to add that may be due to the equatorial flow of the development, and/or transiting the Southern California Loggerhead California Current, which would require opportunities and, therefore, was not Conservation Area and areas within the northbound turtles off the Baja deemed to be essential to the U.S. EEZ northwest of the Hawaiian California peninsula to swim directly conservation of the species. Islands are occupied by loggerheads and into the southerly currents (Allen et al. Comment 11: Several commenters contain PBFs essential to loggerhead 2013). Allen et al. (2013) also compared suggested that critical habitat should be conservation that may require special skin samples from loggerheads captured designated for the North Pacific Ocean management considerations. in the California drift gillnet fishery DPS simply because of the presence of Response: Loggerheads are wide- with loggerheads from the central North loggerheads. ranging, opportunistic foragers, with Pacific (incidentally caught in the Response: The mere presence of a individuals traveling long distances Hawaii-based longline fishery) and from listed species in an area does not mean between nesting and foraging sites, and turtles sampled during in-water research that the area qualifies as critical habitat. Pacific loggerheads are no exception. along the Baja California Peninsula, The ESA defines critical habitat as ’’ the

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specific areas within the geographical quantity and frequency to provide conducted in response to the Deep area occupied by the species . . . on meaningful foraging, development, and/ Water Horizon incident, satellite tracks which are found those physical or or transiting opportunities to the in the Gulf of Mexico were collected by biological features (I) essential to the populations in the North Pacific. PCEs the NMFS Southeast Fishery Science conservation of the species and (II) in the central North Pacific Ocean that Center but not funded by NRDA. As which may require special management support this habitat are (1) currents and with the AMAPPS data, review of these consideration or protection’’ (section circulation patterns of the North Pacific data did not yield any new or unknown 3(5)(A)(i)). It further states, ‘‘Except in (Kuroshoi Extension Bifurcation Region, patterns of habitat use by loggerheads in those circumstances determined by the and the southern edge of the Kuroshio the Gulf of Mexico. Secretary, critical habitat shall not Extension Current characterized by the Comment 15: One commenter felt it include the entire geographical area Transition Zone Chlorophyll Front) was imperative for USFWS to include which can be occupied by the where physical and biological readily available data from the 2012 threatened or endangered species’’ oceanography combine to promote high nesting season into their final analysis (section 3(5)(C)). Habitat used by productivity (chlorophyll a = 0.11–0.31 and critical habitat designation. Because loggerheads within the U.S. EEZ of the mg/m 3) and sufficient prey quality NMFS’ designation of nearshore central North Pacific Ocean does not (energy density ≥11.2 kJ/g) of species; reproductive habitat is based on the provide suitable conditions in sufficient and (2) appropriate sea surface USFWS proposal, the commenter quantity and frequency to support temperatures (14.45° to 19.95 °C (58.01° argued these must be closely meaningful foraging, development, and/ to 67.91 °F)), primarily concentrated at coordinated and both agencies must or transiting opportunities and, the 17° to 18 °C (63° to 64 °F) isotherm. examine the science relevant to their therefore, could not be deemed to be PCEs in the eastern North Pacific Ocean designation. essential to the conservation of the that support this habitat include the Response: Critical habitat is defined species. following: (1) Sites that support in section 3 of the Act as the specific Comment 12: Several commenters meaningful aggregations of foraging areas within the geographical area supported our decision not to designate juveniles, and (2) sufficient prey occupied by the species at the time it critical habitat for the North Pacific densities of neustonic and oceanic was listed and contain physical or Ocean DPS. One commenter also organisms. biological features (1) which are suggested that there is ‘‘no data essential to the conservation of the establishing that modification of the E. Comments on Northwest Atlantic species and (2) which may require pelagic environment is a significant Ocean DPS special management considerations or contributing factor to the risks faced by Comments on Use of Best Available protection. The Northwest Atlantic the North Pacific DPS’’ and further Data Ocean loggerhead sea turtle DPS was added that ‘‘longline fisheries that listed in 2011 (50 CFR 17.11(h)). operate in those waters have, at best, Comment 14: One commenter felt that USFWS defined the terrestrial portion of negligible effects on the North Pacific we failed to access and compile all the the geographical area occupied for the DPS.’’ Another commenter cited sea available data and, as a result, the loggerhead sea turtle as those U.S. areas turtle interaction rates with U.S. proposed rule was not based on the best in the Northwest Atlantic Ocean DPS fisheries, and also suggested that the scientific data available. The commenter where nesting has been documented for U.S. fisheries around Hawaii have, at argued that NMFS did not include the the most part annually for the 10-year most, negligible effects on the species. synthesis of aerial survey and telemetry period from 2002 to 2011 as this time The commenter also supplied data for surfacing times collected period represents the most consistent information on conservation efforts, seasonally in the Atlantic Ocean and standardized nest count surveys. such as nesting beach projects at foreign through the Atlantic Marine Assessment NMFS defined the nearshore beaches. Program for Protected Species reproductive habitat as waters off those Response: We agree that based on the (AMAPPS) and in the Gulf of Mexico nesting beaches to 1.6 km. In addition, best available information no marine through the Deep Water Horizon Natural the proposed rule for this designation areas meeting the definition of critical Resource Damage Assessment (NRDA) was being prepared in 2012 and early habitat were identifiable within the surveys. 2013, and not all of the nesting survey jurisdiction of the United States for the Response: We did review available results from 2012 were available for all North Pacific Ocean DPS. However, data from the AMAPPS project but did areas at the time. Thus, to insure data because we did not identify PBFs within not note this in the preamble to the quality and consistency our the U.S. EEZs, we did not need to look proposed rule. However, the telemetry determination of critical habitat used further into the issues raised in these data from AMAPPS has not been nesting data through the 2011 nesting comments. analyzed in a way similar to that done season. Comment 13: One commenter by the Loggerhead Turtle Expert Comment 16: One commenter was suggested that the agency use metrics Working Group (TEWG), which concerned that much of the proposal when defining the foraging habitats as synthesized information for turtle was based on the 2009 assessment of functional habitats (including the North presence based on satellite telemetry in loggerhead sea turtles in the Western Pacific Ocean DPS). the Gulf of Mexico and Atlantic Ocean North Atlantic Ocean conducted by the Response: The Biological Report uses and was therefore particularly useful for Turtle Expert Working Group (TEWG, both general and specific metrics when our analysis. Incorporation of the 2009). The commenter noted that the it describes the PBF deemed essential to AMAPPS data would not alter the TEWG’s 2009 assessment presents loggerhead oceanic habitat in the North already known pattern of habitat use in considerable data which have been Pacific as well as the PCEs for both the the U.S. Atlantic as the tracks from the compiled and analyzed over the past 30 central North Pacific and the eastern AMAPPS turtles overlay the areas years, but is careful to point out North Pacific. We describe the PBF of already known to be extensively used by significant shortcomings in current data loggerhead turtle oceanic habitat in the turtles from the TEWG report (NMFS and the need to improve and increase North Pacific Ocean as waters that 2011; NMFS 2012a; Richards 2012, pers. data collection in the future to better support suitable conditions in sufficient comm.). With regard to surveys understand the population. The

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

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

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relationship between sea turtles and piece of Sargassum wherever it may Sargassum. They noted that in the Sargassum (Mellgren et al. 1994; occur. It was not our intent to classify aftermath of the 2010 Deepwater Mellgren and Mann 1996; Witherington every piece of Sargassum as critical Horizon spill, rescuers collected nearly et al. 2002; Smith and Salmon 2009; habitat, only the habitat that provides 500 juvenile turtles from lines of oil and Witherington et al. 2012), and it is shelter and forage. Sargassum. They also identified direct known to be important forage and We have not identified a ‘‘high’’ harvest of the habitat and fishing shelter habitat for multiple life stages. concentration target for loggerheads in activities that could predictably remove The magnitude of Sargassum in the Sargassum in part because ‘‘high Sargassum. Atlantic and Gulf of Mexico may vary concentration’’ of loggerheads is not a Response: We agree that Sargassum from year to year, so it is difficult to PCE, and in part because it is unknown. habitat is important to loggerheads and establish natural baseline conditions The best information on concentrations meets the ‘‘may require special that would calculate a biomass that of turtles in Sargassum can be found in management considerations’’ portion of needs to be protected. However, critical Witherington et al. (2012). That study the critical habitat definition. In the habitat designation is not dependent found that relative densities of post- proposed rule, we recognized that the upon establishing a baseline condition. hatchling loggerheads in Sargassum PCEs can be affected by the following The PCEs were identified based upon were higher in the Atlantic (∼267 turtles activities which may require special the best available information and per km2) compared to the Gulf of management: Commercial harvest of qualities that would support Sargassum Mexico (∼2 turtles per km2). However, Sargassum, oil and gas activities, vessel habitat and be beneficial to loggerheads. given the limitations in sampling, these operations that result in the disposal of Management actions will be evaluated numbers cannot necessarily be trash and wastes, ocean dumping, and via ESA section 7 consultations on a translated into a target ‘‘high’’ global climate change. Commercial case by case basis considering these concentration of turtles. fishing gear may have some interactions PCEs and in consideration of the Comment 26: Some commenters with Sargassum during deployment and magnitude of the project and potential noted that NMFS acknowledged that retrieval, but these effects are temporary impacts. This process does not differ ‘‘Sargassum rafts are likely not the only and isolated in nature and because of from other section 7 consultations on habitat of this life stage, as young turtles the fluid nature of the pelagic other ESA listed species and their move through other areas where environment, recovery time is rapid. It designated critical habitat. Finally, Sargassum does not occur.’’ The is important to point out that we also while we agree there are no commenters believe the science shows believe that additional management— management actions that can provide that there are other significant factors beyond that already required—is not Sargassum habitat, there are that influence loggerhead use of anticipated. management actions that can conserve Sargassum, including time of year, Comment 28: One commenter stated Sargassum and thus essential forage, nesting intensity and cohort size, that not only would designation of the cover and transport habitat for a migration behaviors, and the vagaries of Sargassum habitat cause the proposed particularly vulnerable life stage. habitat location. critical habitat designation to be the Comment 25: Some commenters were Response: The most recent and largest in the history of the ESA, it concerned with NMFS’ inability to comprehensive study on this topic would be based on physical and determine suitable concentrations of (Witherington et al. 2012) found that biological features that are poorly Sargassum, including patch size or turtle densities were 100 times higher in understood, ephemeral, and largely abundance of its associated loggerhead targeted Sargassum patches than in disconnected from the post-hatchling prey. Some felt the proposed rule did open water between consolidated populations it is intended to protect. not present methods for determining patches. Certainly there are other factors The commenter requested the entire what would be a natural, healthy that may influence the loggerhead’s use proposed critical habitat designation be Sargassum habitat condition. Some also of Sargassum, but those factors are not withdrawn as unnecessary and noted that NMFS concedes that the necessarily features of the habitat. PBFs impermissible under the ESA and its specific density of Sargassum that may and PCEs refer to the elements of the implementing regulations, or narrowly result in a high concentration of habitat type (e.g., Sargassum) that are delineate critical habitat and exclude loggerhead turtles is unknown. The essential to the conservation of the from the designation all existing and implication is that ‘‘high concentration’’ species, and may require special proposed oil and gas development areas, is the desired condition, but this management considerations. Time of as well as the areas containing concept is not directly addressed year, nesting intensity and cohort size, industry’s support infrastructure. anywhere in the proposed rule, and the migration behavior and vagaries of Response: Numerous references have range of abundances for loggerheads habitat location are not features of the explored the relationship between sea that constitute ‘‘high’’ numbers is never Sargassum habitat, per se, although they turtles and Sargassum (Mellgren et al. defined. may allow us to anticipate whether 1994; Mellgren and Mann 1996; Response: We agree that it would be special management considerations may Witherington et al. 2002; NMFS and ideal to have a scientific study that be required. USFWS, 2008; Smith and Salmon 2009; conclusively states the concentration of Comment 27: Several commenters Witherington et al. 2012, Mansfield et Sargassum that would congregate provided detailed information on the al. 2014), and it is known to be loggerheads or their prey. However, crucial role Sargassum plays in the important forage and shelter habitat for such a study is not currently available, loggerhead’s life cycle. They noted why multiple life stages. Given the available nor is it necessary to designate critical this habitat fits the ‘‘may require special literature, we disagree that the habitat. While a specific prey management’’ definition, including the designation of Sargassum critical concentration cannot be determined, the fact that currents that aggregate habitat is disconnected from post- PCEs include ‘‘Sargassum in Sargassum also facilitate the hatchling populations. We also disagree concentrations that support adequate accumulation of synthetic marine debris that the features of the Sargassum prey abundance and cover’’ to address and petroleum or petroleum- habitat are poorly understood. The the question of whether the critical contaminated debris within the physical and biological feature of habitat designation applies to a small convergence lines that aggregate Sargassum (developmental and foraging

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

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

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

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

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

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

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

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

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

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Interior, 113 F.3d 1121, 1127 (9th Cir. affected by extensive dredging and migratory corridors. Existing regulations and 1997). Critical habitat is defined as ‘‘(i) sediment disposal activities.’’ This recommendations provide significant the specific areas within the statement is ambiguous and should be baseline protections to loggerhead habitat. In particular, NMFS makes recommendations to geographical area occupied by the clarified. The proposed rule should be reduce disturbance of loggerheads including species, at the time it is listed [under revised to clearly identify how or timing restrictions, equipment requirements, Section 4], on which are found those whether the dredging and disposal of lighting limits, and turtle monitoring as part physical or biological features (I) sediments would affect loggerheads. of section 7 consultation due to the listing of essential to the conservation of the Response: The descriptions under the species. NMFS has not identified any species and (II) which may require ‘‘Special Management Considerations’’ conservation efforts that may be special management considerations or include, in the broadest terms possible, recommended to avoid adverse effects of protection; and (ii) specific areas potential sources of impacts to critical these activities on the essential features of critical habitat that would not already be outside the geographical area occupied habitat from various activity types that recommended to avoid potential adverse by the species at the time it is listed, have been considered. That does not effects on the species itself. That is, NMFS upon a determination by the Secretary equate to an expectation that those anticipates that it is unlikely that critical that such areas are essential for the impacts are in fact likely to occur; habitat designation will generate a change in conservation of the species’’ (16 U.S.C. merely that they were in the universe of the outcome of future section 7 consultations section 1532(5)(A)). The fact that special potential impacts considered. Our due to the presence of critical habitat. This management is ongoing has been consideration of effects to the habitat analysis accordingly does not forecast any has been ongoing since the original changes to the scope, scale, or management interpreted in court cases to mean that of construction, dredging, or disposal it fits the portion of the definition of listing of loggerheads in 1978. Although activities due to critical habitat. critical habitat that states it may require we can now consider effects to habitat special management considerations or more directly, we do not anticipate Comment 72: The proposed rule states protection. See, e.g., The Cape Hatteras changes in requirements of Federal that ‘‘For ongoing activities, we Access Preservation Alliance v. United projects and those with a Federal recognize that designation of critical States Department of the Interior, 731 F. nexus—particularly because of our long habitat may trigger reinitiating past consultations. In most cases, we do not Supp. 2d 15, 26 (D.D.C. 2010); Center experience with the types of projects anticipate the outcome of reinitiated for Biological Diversity v. Norton, 240 F. that are occurring and their effects. In consultation to require significant Supp. 2d 1090, 1097–1100 (D. Ariz. particular, as part of the analysis of additional conservation measures, 2003). potential impacts ‘‘dredging and because effects to habitat would likely Comment 70: Several commenters disposal of sediments that affect concentrations of reproductive have been assessed in the original stated that the assumption that consultation.’’ The commenter requests economic impacts associated with loggerheads’’ was considered among the possible sources of adverse impacts to that previously established conservation critical habitat designation are limited measures from past consultations be breeding habitat and ‘‘the water depth to the administrative costs of specifically identified and listed to help PCE could potentially be affected by consultation is not fully consistent with determine whether additional extensive dredging and sediment the discussion in the ‘‘special conservation measures would be needed disposal activities’’ was similarly management considerations’’ section of to avoid the adverse modification of considered for winter habitat. However, the proposed rule. One commenter critical habitat. stated that this section of the proposed we could not determine reasonable Response: Due to the volume of past rule is vague and ambiguous, creating a scenarios where such adverse impacts to consultations and associated concern that new conservation measures those habitat features would occur to conservation measures, cataloging them may be required for certain activities any extent that would rise to the level all in the rule’s preamble is not (e.g., dredging or disposal). For of adversely affecting the essential appropriate. Additionally, the potential example, the proposed rule discusses features and/or PCEs identified for the need for additional conservation ‘‘geographical areas occupied by the critical habitat. measures would be highly project species,’’ on page 43012 (Breeding Comment 71: The proposed rule specific, depending on the details of the habitat), and states that ‘‘we were discusses ‘‘Dredging and disposal of project scope and the particular project unable to identify specific habitat sediments that results in altered habitat location. However, all past features within the breeding areas to conditions needed for efficient consultations are public records and can distinguish them from other areas not passage.’’ The proposed rule should be accessed by any interested party, used for breeding. In the face of a lack more specifically identify the dredging either through NMFS regional and of clear habitat features, we believe it is and disposal actions believed to result headquarters Web sites, through the reasonable to conclude that the in ‘‘altered habitat conditions.’’ Public Consultation Tracking System Response: Because each project and importance of the breeding areas is (PCTS; also through the Web sites), and/ project location varies, we cannot based primarily on their locations.’’ or by requesting copies of specific specifically identify which actions However, on page 43024 under the consultations from the regional office would alter the essential features of the ‘‘special management considerations’’ that conducts them. section for ‘‘Breeding Habitat’’ the proposed habitat. However, as stated in Comment 73: The proposed rule proposed rule includes ‘‘Dredging and the draft Economic Analysis for the assumes that ‘‘Critical habitat disposal of sediments that affect proposed rule: designation is unlikely to change the concentrations of reproductive NMFS’ primary concerns relative to conservation efforts recommended to loggerheads.’’ This raises the concern construction, dredging, and disposal avoid adverse effects on the loggerhead that some vaguely defined aspect of a activities include obstructions to transit and its habitat as part of future section through the surf zone in nearshore dredging or disposal action would be reproductive habitat, manmade structure that 7 consultations on most construction, deemed an adverse modification of attract predators or disrupt wave patterns in dredging, and disposal activities’’ and critical habitat. The proposed rule also nearshore reproductive habitat, artificial states that the likely significance with states that for wintering habitat ‘‘the lighting in nearshore reproductive habitat, respect to estimated impacts is ‘‘minor.’’ water depth PCE could potentially be and barriers to passage in constricted The commenter felt that language

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within the proposed rule does not a source of navigational information incremental impacts due specifically to reflect this position. Impact categories (Lohmann et al. 2008, Lohmann et al. the designation of critical habitat. from dredging and disposal that are 2012, Lohmann et al. 2013). However, to Comment 77: Multiple commenters discussed in the proposed rule are not make a determination that habitat is expressed concern that the critical addressed by the current conservation critical habitat in accordance with the habitat designation will affect a wide efforts that are documented in this ESA, it must have PBFs which ‘‘may variety of activities due to additional or report suggesting that additional require special management new management efforts, operational conservation measures or reasonable considerations or protection.’’ We are conditions, and regulatory review. The and prudent alternatives may be unaware of special management commenters state that the designation required to avoid adverse modification considerations that may apply to the may result in additional costs, of critical habitat. earth’s geomagnetic fields of the ocean. regulatory hurdles, restrictions, delays, Response: We do not agree that As such, the Earth’s magnetic field was and prohibitions for a wide variety of potential impacts discussed in the not identified as a PBF that would activities, including coastal and inlet proposed rule will likely require support critical habitat for loggerheads. management; dredging and offshore additional conservation measures to We do acknowledge the benefit of disposal; beach maintenance and avoid adverse modification of the continuing research on sea turtle restoration; commercial and recreational critical habitat. The proposed rule navigational science. fishing; boating, boatbuilding and included an extensive account of the marina activities; oil spill response; various possible routes of effect to F. Comments on Draft 4(b)(2) Report hurricane recovery; offshore energy critical habitat by construction, and the Draft Economic Analysis (DEA) development; power generation; dredging, and disposal activities. Comment 76: Multiple commenters aquaculture; shipping and/or military However, many of those possible state that the DEA underestimates the activities; dock and pier development; impacts are not expected to occur, or to impacts of the proposed critical habitat and tourism. The commenters state that occur at a level that would affect or designation in utilizing an incremental these impacts will affect local, state and modify the essential features of the approach (i.e., it does not consider costs Federal economies and the public’s critical habitat. This issue is also associated with baseline protections access and enjoyment of marine waters, addressed in the draft Economic already afforded the loggerhead either as and that the DEA does not account for Analysis for the proposed critical a result of its listing as a threatened DPS these impacts. Several commenters habitat rule, as quoted in the response or as a result of other Federal, state, and further assert that the NMFS to Comment 70 above. local regulations). The commenters determination that section 7 Comment 74: The U.S. Army Corps of reference a decision by the U.S. Tenth consultation analyses will result in no Engineers (USACE) expressed concerns Circuit Court of Appeals in 2001, which differences between recommendations about safety of and costs to their instructed USFWS to conduct a full to avoid jeopardy or adverse operations should light be restricted at analysis of all the economic impacts of modification in occupied areas of night as a result of the designations. proposed critical habitat, regardless of critical habitat leads to an Response: We do not anticipate any whether those impacts are attributable underestimate of the economic impacts additional lighting restrictions or co-extensively to other causes (see, e.g., of critical habitat designation for the required lighting modifications beyond New Mexico Cattle Growers Assoc. v. loggerhead. those already typically required by the United States Fish & Wildlife Service, Response: As summarized on page Services for nighttime operations at or 248 F.3d 1277, 1285 (10th Cir. 2001)). ES–2 and detailed throughout the draft near sea turtle nesting beaches during Response: As stated in Section 1.2 of DEA, we anticipate that the impacts of the nesting and hatchling emergence the DEA, subsequent to the U.S. Tenth critical habitat designation will most seasons. While the critical habitat Circuit Court of Appeals’ decision, other likely be limited to incremental designation focuses on the habitat courts have held that an incremental administrative effort to consider features important to loggerhead sea analysis of impacts stemming solely potential adverse modification as part of turtles, lighting requirements have been from the critical habitat rulemaking is future section 7 consultations. This is required for protection of the nesting sea proper (The Cape Hatteras Access because we anticipate that the turtles and hatchlings themselves in the Preservation Alliance v. United States substantial ongoing and currently past and should not change in the future Department of the Interior, 344 F. Supp. recommended conservation efforts to due to designation of critical habitat. 2d 108 (D.D.C. 2004); Center for avoid take of and jeopardy to the species Biological Diversity v. United States would also most likely avoid adverse Additional Comments Bureau of Land Management, 422 F. modification of critical habitat. Our Comment 75: One commenter Supp.2d 1115 (N.D. Cal. 2006)). consideration of effects to the habitat specified that the health of the Earth’s Relevant court decisions, and the use of has been ongoing since the original geomagnetic fields of the ocean be an incremental approach for impact listing of loggerheads in 1978. Although included as a physical or biological analyses, are addressed in a final rule we can now consider effects to habitat feature and primary constituent element issued by NMFS and USFWS on August more directly, we do not anticipate for loggerhead habitats because sea 28, 2013, (78 FR 53058), revising the changes in requirements of Federal turtles depend upon the Earth’s regulations pertaining to impact projects and those with a Federal geomagnetic field to navigate. NMFS analyses of critical habitat. In order to nexus—particularly because of our long must recognize the potential of research provide the most complete information experience with the types of projects to ascertain the absolute measures of to decision-makers, the DEA employs that are occurring and their effects. As cheloniid turtle navigational science, by ‘‘without critical habitat’’ (baseline) and a result, it is unlikely that critical preservation of all ocean regions that ‘‘with critical habitat’’ (incremental) habitat will generate new or different contribute to the health and procreation scenarios. The DEA describes how recommendations for conservation of the loggerhead. baseline conservation efforts for the efforts for the loggerhead. The economic Response: We acknowledge that loggerhead may be implemented across analysis accordingly quantifies costs of research studies have indicated that sea the proposed designation, and describes the designation in terms of additional turtles use the Earth’s magnetic field as and monetizes, where possible, the effort for section 7 consultations and

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

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

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

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on whether a programmatic agreement felt the designation would raise by the species, at the time it is listed between NMFS, USFWS, and the awareness of the environmental . . . on which are found those physical NCDOT would be required to allow significance of the area and draw more or biological features (I) essential to the flexibility in the construction and visitors. Other commenters felt the conservation of the species and (II) maintenance of our transportation designation would have a negative which may require special management projects along the coast. They were impact on tourism by increasing considerations or protection; and (ii) concerned that this designation could restrictions to access. specific areas outside the geographical create obstacles that would make Response: We do not anticipate any area occupied by the species at the time fulfilling their mission to the travelling restrictions to access to loggerhead it is listed upon a determination by the public an impossibility. critical habitat. It is possible that Secretary that such areas are essential Response: We do not consider an designation of critical habitat will draw for the conservation of the species.’’ exclusion from critical habitat to be more visitors, but we were not able to Joint NMFS–USFWS regulations appropriate in this case as the expected incorporate this into the economic emphasize that in identifying critical economic impacts are expected to be analysis as we do not have data on habitat, the agencies shall consider minimal and do not warrant exclusion which to base this possibility. those PBFs that are essential to the under the ESA. Although beach Comment 97: One commenter felt conservation of a given species and that nourishment falls primarily under the NMFS had prepared an inaccurate and may require special management purview of the USFWS, neither beach incomplete draft economic analysis and considerations or protection (50 CFR nourishment nor the dredging of sand failed to recognize the successful 424.12(b)). The regulations provide from offshore borrow sites are expected programs that North Carolina and its examples of the kinds of essential to be significantly impacted by the local governments and communities features to consider, which may include critical habitat designation as proposed. have in place to ensure the survival and but are not limited to: Those activities are already considered recovery of the loggerhead sea turtle. (1) Space for individual and under ESA section 7 consultations, with Thus, they felt NMFS did not properly population growth, and for normal resulting associated required consider whether the benefits of behavior; conservation measures. Such measures excluding the area actually outweighed (2) Food, water, air, light, minerals, or already limit the impacts to the essential the benefits of including it. other nutritional or physiological features now described in the proposed Response: We believe our economic requirements; critical habitat designation and thus, analysis is thorough and represents the (3) Cover or shelter; such operations are not expected to be best available information. It accurately (4) Sites for breeding, reproduction, impacted beyond what is already portrays costs of designation, which are rearing of offspring, germination, or required under existing ESA minimal. While we appreciate North seed dispersal; and generally consultations. Carolina’s ongoing conservation efforts, (5) Habitats that are protected from Comment 95: Multiple commenters we do not have a basis to exclude areas disturbance or are representative of the believe the designation will actually from critical habitat. historic geographical and ecological increase the degree of threat to distributions of a species. IV. Critical Habitat Identification loggerhead sea turtles by making it The regulations also require agencies much more difficult for local Section 4 of the ESA requires the to ‘‘focus on the principal biological or governments and others to conduct designation of critical habitat for physical constituent elements’’ active coastal shore damage reduction threatened and endangered species ‘‘to (hereafter referred to as ‘‘Primary projects, which serve to increase and the maximum extent prudent and Constituent Elements’’ or PCEs) within enhance loggerhead sea turtle nesting determinable,’’ and provides for the the specific areas considered for area and habitat. They claim designation revision of critical habitat based on the designation, which ‘‘may include, but of critical habitat would affect a wide best scientific data available, as are not limited to, the following: . . . variety of coastal projects involving a appropriate (16 U.S.C. 1533(a)(3)(A); 16 nesting grounds, spawning sites, feeding Federal nexus. They believe that if U.S.C. 1533(b)(2)). Critical habitat may sites, seasonal wetland or dryland, critical habitat is designated for the only be designated in areas under U.S. water quality or quantity, . . . loggerhead sea turtle, these existing, jurisdiction (50 CFR 424.12(h)). geological formation, vegetation type, successful programs will be burdened Section 4(b)(2) of the ESA requires tide, and specific soil types’’ (50 CFR with additional and unnecessary designation of critical habitat for 424.12(b)). There is inherent overlap measures and will become more costly threatened and endangered species ‘‘on between what may constitute a PBF and and difficult to implement, which the basis of the best scientific data what can be enumerated as a PCE. When increases the threat to the loggerhead available and after taking into we set out a list of PCEs with a PBF, our sea turtle and its habitat. consideration the economic impact, the intent is that the PBF exists whenever Response: We cannot foresee how impact on national security, and any a sufficient subset of PCEs is present to designation of critical habitat would other relevant impact, of specifying any allow the habitat to serve the increase the threat to loggerhead sea particular area as critical habitat.’’ conservation function for a single life turtles. As stated throughout the rule Section 4(b)(2) also grants the Secretary stage. It is not necessary for all the PCEs and the DEA, we do not anticipate of Commerce (Secretary) discretion to to occur simultaneously. Section 4(b)(2) requiring additional conservation exclude any area from critical habitat if of the ESA and our implementing measures beyond those already she determines ‘‘the benefits of such regulations (50 CFR 424.12(a)), require employed, and therefore do not exclusion outweigh the benefits of designation of critical habitat to be anticipate that projects such as these specifying such area as part of the based on the best scientific data will be more costly and difficult to critical habitat.’’ However, the Secretary available. implement. may not exclude areas that ‘‘will result Once critical habitat is designated, Comment 96: Multiple commenters in the extinction of the species.’’ section 7 of the ESA requires Federal felt that designation of critical habitat The ESA defines critical habitat in agencies to ensure they do not fund, would benefit local economies by section 3(5)(A) as: ‘‘(i) The specific areas authorize, or carry out any actions that increasing tourism. These commenters within the geographical area occupied are likely to result in the ‘‘destruction or

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adverse modification’’ of that habitat (16 loggerhead sea turtle nesting occurs Sites’’ section of the proposed rule. U.S.C. 1536(a)(2)). This standard is only within the Northwest Atlantic Potential Sargassum habitat included all separate from the section 7 requirement Ocean DPS. Terrestrial (nesting) habitat U.S. waters south of 40° N. lat. in the that Federal agencies must ensure that was identified by the USFWS and Atlantic Ocean and Gulf of Mexico from their actions are not likely to addressed in a separate rulemaking. the 10 m depth contour to the outer ‘‘jeopardize the continued existence of’’ boundary of the EEZ, separated into two 1. Northwest Atlantic Ocean DPS listed species. large contiguous areas, the Gulf of We reviewed the best available We analyzed three ecosystem types Mexico and the U.S. Atlantic Ocean. assessments for loggerheads by habitat when identifying critical habitat: Although adults transition between category (e.g., neritic, oceanic), which Terrestrial, neritic, and oceanic. Because neritic and oceanic habitat, oceanic for most cases was the ‘‘Assessment of we have jurisdiction only in the marine habitat is predominantly used by young the loggerhead turtle population in the environment, the proposed rule (78 FR loggerhead sea turtles that leave neritic western North Atlantic Ocean’’ 43006, July 18, 2013) examined areas areas as neonates or young juveniles and conducted by the TEWG (2009). This within the broad categories of neritic remain in oceanic habitat moving with review resulted in the identification of and oceanic habitat. Sargassum habitat the predominant ocean gyres for several relatively high use areas (generally those was added as a separate category, as it years. The ocean currents and gyres, with 60 or more turtle days in the occurs in both neritic and oceanic such as the Gulf Stream and Florida TEWG satellite tracking analysis habitat. For more information on each of Loop Current, serve as important figures), which served as a proxy for these habitats and the methods we used dispersal mechanisms for hatchlings identifying important habitat areas, to identify them, we refer the reader to and neonate sea turtles as well as vital especially as there is little quantitative the proposed rule (78 FR 43006, July 18, developmental habitat for those early data on loggerhead use of offshore 2013). age classes. The presence of Sargassum waters. This information was Neritic habitat consists of the is important for the oceanic juvenile life supplemented by known and available nearshore marine environment from the stage, as it offers a concentrated, studies that were not included in the surface to the sea floor where water protected foraging area, with facilitated TEWG analysis or occurred subsequent depths do not exceed 200 m (656 ft), dispersal by associated oceanic currents. to it. For the nearshore reproductive including inshore bays and estuaries. Aside from Sargassum habitat, we were habitat, we relied on data and For purposes of describing potential unable to identify oceanic habitat information on nesting distribution and critical habitat in the Atlantic Ocean essential to conservation of the species patterns to identify nearshore and the physical or biological features within the Northwest Atlantic Ocean reproductive areas associated with high essential to the conservation of the DPS. density nesting beaches, as described in species, we divided consideration of 2. North Pacific Ocean DPS the USFWS proposed rule to designate neritic habitat into several habitat types critical habitat for the Northwest that reflect key life history phases of the In the proposed rule (78 FR 43006, Atlantic Ocean DPS (78 FR 18000, loggerhead sea turtle: (1) Nearshore July 18, 2013), we did not divide the March 25, 2013). For the Sargassum Reproductive Habitat (which includes north Pacific Ocean by ecosystem (i.e., habitat, we reviewed data on the hatchling swim frenzy and internesting terrestrial, neritic, and oceanic zones) distribution of Sargassum, its female habitat); (2) Foraging Habitat; (3) and habitat type, as with the Northwest relationship to loggerhead habitat needs, Wintering Habitat; (4) Breeding Habitat; Atlantic Ocean DPS, due to the limited and its use by loggerheads. and (5) Constricted Migratory Habitat. occurrence of loggerheads within the All of these habitat types were labeled North Pacific Ocean DPS in habitats A. Geographical Area Occupied by the Neritic Habitat in units identified as under U.S. jurisdiction. Loggerhead sea Species critical habitat. turtle habitat in the North Pacific Ocean As noted above, the statutory Sargassum habitat occurs in both the occurs between 28° N. and 40° N. lat. definition of ‘‘critical habitat’’ requires neritic and oceanic environment. Most (Polovina et al. 2004). Within the U.S. that we initially identify the pelagic Sargassum in the Atlantic Ocean EEZ, loggerheads are found only in geographical area occupied by the circulates between 20° N. and 40° N. waters northwest of the Hawaiian species at the time of its listing. We lat., and between 30° W. long. and the Islands, and off the U.S. west coast, have interpreted ‘‘geographical area western edge of the Florida Current/Gulf primarily the Southern California Bight, occupied’’ in the definition of critical Stream, and the Gulf of Mexico (SAFMC south of Point Conception. No habitat to mean the range of the species 2002; Dooley 1972; Gower and King loggerhead nesting occurs within U.S. at the time of listing. For both of these 2011). The survival of loggerhead sea jurisdiction. In the central North Pacific DPSs, there is no known unoccupied turtles, in particular the post-hatchling Ocean, the Transition Zone Chlorophyll marine habitat within their historic and small oceanic juvenile stages, is Front is favored foraging and range. Critical habitat can only be dependent upon suitable foraging and developmental habitat for juvenile designated in U.S. territory, and thus shelter habitat, both of which are loggerhead turtles (Polovina et al. 2001; designation is limited to the Northwest provided by the algae of the genus Kobayashi et al. 2008). Within the U.S. Atlantic Ocean and North Pacific Ocean Sargassum in the Atlantic Ocean and EEZ around Hawaii, North Pacific DPSs within the U.S. Economic Gulf of Mexico (Witherington et al. Ocean DPS developmental, foraging and Exclusive Zone (EEZ). We identified the 2012). Although no Sargassum habitat transiting habitat occurs seasonally geographical area occupied for the was proposed for designation, we within the southernmost fringe of the Northwest Atlantic Ocean DPS as south specifically requested comments on Transition Zone Chlorophyll Front, of 60° N. lat., north of the equator, and whether to include Sargassum habitat as north and northwest of Hawaii west of 40° W. long., and for the North critical habitat and, if so, whether we (Polovina et al. 2006); however, the area Pacific Ocean DPS as south of 60° N. lat. should include the entire areas, features, extending into the U.S. EEZ is very and north of the equator. While this is and elements described in the limited compared to the foraging area the range occupied by the species, we ‘‘Description of Physical or Biological overall. Loggerheads documented off the reviewed data for only U.S. EEZ waters Features and Primary Constituent U.S. west coast are primarily found within that range. Within the U.S. EEZ, Elements and Identification of Specific south of Point Conception, the northern

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

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

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

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delineation between the Gulf of Mexico prey quality (energy density ≥11.2 kJ/g) California Bight are rare events, with 16 and the Atlantic Ocean starts at 24.58° of species; and loggerheads taken in 4,165 observed sets N. lat., 83° W. long. (near the Dry (2) Appropriate SSTs (14.5° to 20.0° C from 1990–2010 (Allen et al. 2013) and Tortugas), and proceeds southward (58.1° to 68.0 °F)), primarily 28 loggerheads observed stranded from along 83° W. long. to the outer boundary concentrated at the 17° to 18° C (63° to 1990 to 2012 (average ∼1.3 loggerheads/ of the EEZ (23.82° N. lat.). 64 °F) isotherm. year). In contrast, waters off the Pacific The Atlantic Ocean area has as its Loggerhead foraging and coast of Baja California, and particularly outer boundary the U.S. EEZ, starting at developmental habitat in the North within the shelf waters of Ulloa Bay, are the Gulf of Mexico-Atlantic border Pacific Ocean occurs between 28° N. highly productive with loggerheads (23.82° N. lat., 83° W. long.) and and 40° N. lat. (Polovina et al. 2004). documented in the thousands in this proceeding east and north until the EEZ Despite historical population decline area (Pitman 1990; Seminoff et al. 2006). coincides with the Gulf Stream at 37.84° and nesting trend variability (Kamezaki Due to the rarity of loggerheads and N. lat., 70.59° W. long. The inner et al. 2003; Conant et al. 2009; Van their prey both historically and boundary of the unit starts at the Gulf Houtan and Halley 2011), loggerheads currently in waters off the U.S. west of Mexico-Atlantic border (24.58° N. appear to have remained widely coast, U.S. waters in the eastern Pacific lat., 83° W. long.) to the outer edge of distributed and continue to occupy Ocean do not provide meaningful the breeding/migratory critical habitat most, if not all, of their historical range foraging, development, and/or transiting (LOGG–N–19) at 24.34° N. lat., 82.16° in the central North Pacific Ocean. opportunities to the loggerhead W. long., along the outer edge of the Accordingly, those oceanic areas within population in the North Pacific Ocean corridor (following the 200 m depth loggerhead range that are infrequently DPS, and therefore do not contain the contour) until it coincides with the used generally do not provide the PBFs described in the previous section. breeding habitat off of Cape Canaveral significant function that they might for (LOGG–N–17) at 27.97° N. lat., 80.14° a species with a constricted range. The C. Special Management Considerations W. long., and from there roughly potential loggerhead habitat occurring An occupied area may be designated following the velocity of 0.401–0.50 m/ in the U.S. EEZ around Hawaii as critical habitat if it contains one or second (Ocean Conservancy 2012; represents between 0.68 percent and 4.2 more of the PBFs essential to PMEL 2012) until it coincides with the percent of the total habitat in the central conservation, and if such features ‘‘may outer edge of the EEZ at 37.84° N. lat., portion of the Pacific Ocean. This require special management 70.59° W. long. habitat represents a small percentage of considerations or protection’’ (16 U.S.C. The designation of Sargassum critical suitable habitat, and the variables that 1532(5)(a)(i)(II)). Joint NMFS and habitat will help conserve loggerhead make it suitable only occur within the USFWS regulations (50 CFR 424.02(j)) sea turtles by protecting essential forage, U.S. EEZ around Hawaii a portion of the define special management cover and transport habitat for post- year in spite of loggerheads using areas considerations or protection to mean hatchlings and early juveniles. north of it throughout the year. any methods or procedures useful in Given the information presented 2. North Pacific Ocean DPS protecting PBFs of the environment for above, we conclude that the habitat the conservation of listed species. We Within the range of the North Pacific within the U.S. EEZ of the central North determined that the PBFs identified Ocean DPS, neither neritic nor Pacific Ocean does not provide earlier may require special management Sargassum habitat are used by meaningful foraging, development, and/ considerations due to a number of loggerheads within U.S. jurisdiction; or transiting opportunities to the North factors that may affect them. These therefore, no areas were identified for Pacific Ocean DPS, and therefore does factors include activities, structures, or these habitat types. PBFs (and PCEs) not contain PBFs described in the other byproducts of human activities. were identified for Oceanic Habitat. previous section. The list below is not necessarily Although the Central North Pacific and Eastern Pacific/U.S. West Coast inclusive of all factors. the Eastern Pacific/U.S. West Coast Major categories of factors, by habitat share the same PBFs, they have different We describe the essential PBFs of type, follow. All of these may have an accompanying PCEs. loggerhead sea turtle oceanic habitat in effect on one or more PBF or PCE within the eastern North Pacific Ocean as Central North Pacific Ocean the range of the Northwest Atlantic waters that support suitable conditions Ocean DPS and may require special We describe the essential PBFs of in sufficient quantity and frequency to management considerations as loggerhead sea turtle oceanic habitat in provide meaningful foraging, described below. the central North Pacific Ocean as development, and/or transiting waters that support suitable conditions opportunities to the population in the 1. Northwest Atlantic Ocean DPS in sufficient quantity and frequency to North Pacific Ocean. Nearshore Reproductive Habitat provide meaningful foraging, PCEs in the eastern North Pacific development, and/or transiting Ocean that support this habitat include The primary impact to the PBFs and opportunities to the population in the the following: PCEs of the nearshore reproductive North Pacific Ocean. (1) Sites that support meaningful habitat (habitat from MHW to 1.6 km PCEs in the central North Pacific aggregations of foraging juveniles; and offshore of high density nesting beaches Ocean that support this habitat include (2) Sufficient prey densities of and adjacent beaches) for loggerhead sea the following: neustonic and oceanic organisms. turtles would be from activities or (1) Currents and circulation patterns Loggerheads documented off the U.S. byproducts of human activities that of the North Pacific Ocean (KEBR, and west coast are primarily found south of result in a loss of habitat conditions that the southern edge of the KEC Point Conception, the northern allow for (a) hatchling egress from the characterized by the Transition Zone boundary of the Southern California water’s edge to open water; and (b) Chlorophyll Front) where physical and Bight. Based on interactions with the nesting female transit back and forth biological oceanography combine to California drift gillnet fishery and between the open water and the nesting promote high productivity (chlorophyll stranding records, recorded observations beach during nesting season. The loss of a = 0.11–0.31 mg/m3) and sufficient of loggerheads in the Southern such habitat conditions could come

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from, but is not limited to, the structures) that affect densities of Sargassum Habitat following: reproductive loggerheads; and The PBF of developmental and (1) Offshore structures including, but (5) Climate change, which can affect foraging habitat in accumulations of not limited to, breakwaters, groins, currents and water temperatures and floating materials, especially jetties, and artificial reefs, that block or affect densities of reproductive Sargassum, and its associated PCEs of otherwise impede efficient passage of loggerheads. convergence zones and other areas of hatchlings or females and/or which concentration, adequate concentrations concentrate hatchling predators and Constricted Migratory Habitat of Sargassum to support abundant prey thus result in greater predation on The primary impact to the and cover, and the existence of the hatchlings; functionality of the identified corridors (2) Lights on land or in the water, community of flora and fauna typically as migratory routes for loggerhead sea associated with Sargassum habitat which can disorient hatchlings and turtles would be a loss of passage nesting females and/or attract predators, could be affected by the following: conditions that allow for free and (1) Commercial harvest of Sargassum, particularly lighting that is permanent efficient migration along the corridor. or present for long durations and has a which would directly decrease the The loss of these passage conditions amount of habitat; short wave length (below 540nm); could come from large-scale and or (3) Oil spills and response activities, (2) Oil and gas exploration, multiple construction projects that development, and transportation that that affect habitat conditions for result in the placement of substantial efficient passage of hatchlings or affects the Sargassum habitat itself and structures along the path of the the loggerhead prey items found within females; migration, or other similar habitat (4) Alternative offshore energy this habitat—this could occur both in alterations, requiring large-scale the process of normal operations and development (turbines or similar deviations in the migration movements. structures) that affects habitat during blowouts and oil spills, which This impact is expected to be much conditions for efficient passage of release toxic hydrocarbons and also more likely, and have a greater impact, hatchlings or females; require other toxic chemicals for (5) Fishing or aquaculture gear that in the most constricted areas of the cleanup; blocks or impedes efficient passage of migratory routes. Other activities or (3) Vessel operations that result in the hatchlings or females; and byproducts of human activities that routine disposal of trash and wastes (6) Dredging and disposal activities may, but are less likely to result in an and/or the accidental release or spillage that affect habitat conditions for impact to the PCEs include the of cargo, trash or toxic substances, and/ efficient passage of hatchlings or following: or result in the transfer and introduction females by creating barriers or (1) Oil and gas activities, such as of exotic and harmful organisms dramatically altering the slope of the construction and removal of platforms, through ballast water discharge, which beach approach. lighting and noise that alter habitat may then impact the loggerhead prey conditions needed for efficient passage; Winter Habitat species found in Sargassum habitat; (2) Power generation activities such as (4) Ocean dumping of anthropogenic The PBF, water temperature PCE, and turbines, wind farms, conversion of debris and toxins that affects the Gulf Stream boundary PCE of the winter wave or tidal energy into power that Sargassum habitat itself and the habitat for loggerhead sea turtles could result in altered habitat conditions loggerhead prey items found within this be affected by the following: needed for efficient passage; habitat; and (1) Large-scale water temperature (3) Dredging and disposal of (5) Global climate change, which can changes resulting from global climate sediments that results in altered habitat alter the conditions (such as currents change; and conditions needed for efficient passage; (2) Shifts in the patterns of the Gulf and other oceanographic features, (4) Channel blasting, including use of temperature, and levels of ocean acidity) Stream resulting from climate change. explosives to remove existing bridge or While unlikely to be affected to a that allow Sargassum habitat and piling structures or to deepen navigation communities to thrive in abundance and significant extent by human activities, channels, that results in altered habitat the water depth PCE (20–100 m) could locations suitable for loggerhead conditions needed for efficient passage; developmental habitat. potentially be affected by extensive (5) Marina and dock/pier dredging or sediment disposal activities. development that results in altered 2. North Pacific Ocean DPS Breeding Habitat habitat conditions needed for efficient We did not identify any specific areas The PBF of a concentrated breeding passage; within the U.S. EEZ in the North Pacific habitat and the associated PCE of high (6) Offshore breakwaters that result in Ocean that contain PBFs essential to the densities of reproductive male and altered habitat conditions needed for conservation of the North Pacific Ocean female loggerheads (which facilitates efficient passage; DPS; therefore, we did not analyze breeding for individuals migrating to (7) Aquaculture structures such as net special management considerations. pens and fixed structures and artificial that area) could be affected by the D. Unoccupied Areas following: lighting that result in altered habitat (1) Fishing activities that disrupt use conditions needed for efficient passage; Section 3(5)(A)(ii) of the ESA of habitat and thus affect densities of (8) Fishing activities, particularly authorizes designation of ‘‘specific areas reproductive loggerheads; those using fixed gear (pots, pound outside the geographical areas occupied (2) Dredging and disposal of nets), that, when arranged closely by the species at the time it is listed’’ sediments that affect densities of together over a wide geographic area, if those areas are determined to be reproductive loggerheads; result in altered habitat conditions essential to the conservation of the (3) Oil spills and response activities needed for efficient passage; and species. Joint NMFS and USFWS that affect densities of reproductive (9) Noise pollution from construction, regulations (50 CFR 424.12(e)) loggerheads; shipping and/or military activities that emphasize that the agency shall (4) Alternative offshore energy results in altered habitat conditions designate as critical habitat areas development (turbines or similar needed for efficient passage. outside the geographical area presently

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occupied by a species only when a habitat will result in the extinction of depth contour and the northern/western designation limited to its present range the species (16 U.S.C. 1533(b)(2)). In edge of the Gulf Stream in the Atlantic, would be inadequate to ensure the making this determination, the statute, and the eastern Gulf of Mexico. Impacts conservation of the species. We have not as well as the legislative history, are reflect the very large size of these areas, identified additional specific areas clear that the Secretary has broad rather than the potential for significant outside the geographic area occupied by discretion regarding whether to proceed activities that may adversely affect this loggerheads at the time of their listing to the optional weighing of benefits, habitat type. Because the majority of that may be essential for the which factor(s) to use, how much anticipated impacts are administrative conservation of the species. weight to give to any factor, and costs associated with consultation on whether or not to exclude any area. V. Military Lands: Application of ESA nearshore and in-water construction, Section 4(a)(3) A. Benefits of Designation dredging, and sediment disposal The ESA precludes the Secretary from The benefits of designating the activities and fisheries and related designating military lands as critical particular areas include the protection activities, impacts in the designated habitat if those lands are subject to an afforded under section 7(a)(2) of the areas should be considerably reduced. INRMP under the Sikes Act ESA, requiring all Federal agencies to Impacts to LOGG–N–19, a large area that Improvement Act of 1997 (Sikes Act; 16 ensure that their actions are not likely extends from Martin County/Palm U.S.C. 670a) and the Secretary certifies to destroy or adversely modify critical Beach County line to the Marquesas in writing that the plan benefits the habitat. This is in addition to the Keys in Monroe County and which listed species (Section 4(a)(3), Pub. L. requirement that all Federal agencies includes several nearshore reproductive 108–136). ensure that their actions are not likely areas as well as the southern-most We have determined that the INRMPs to jeopardize the continued existence of constricted migratory corridor and for NAS Key West (Florida) and MCB the species, and to the take prohibitions concentrated breeding habitat in Camp Lejeune (North Carolina) both of section 9 of the ESA. The designation Florida, have the next greatest cost at 12 confer benefits to the loggerhead sea of critical habitat also provides percent of the total or $12,000 annually. turtle and enhance its habitat, and conservation benefits such as improved These costs are due primarily to the therefore we are not designating the education and outreach by informing number of consultations anticipated for waters subject to these INRMPs as the public about areas and features in-water construction, dredging, and critical habitat. Management actions important to the species conservation, sediment disposal activities, but also to described in the NAS Key West INRMP as well as additional protections that the size of the area relative to most of that benefit loggerhead sea turtles may exist or be created under state and the other areas. The final Economic include water quality improvement local authorities. Analysis describes in more detail the measures, invasive species control, re- We find that, because the PBFs and types of activities that may be affected establishment of historic tidal PCEs of the proposed critical habitat by the designation and the estimated connections for mangrove/saltmarsh inherently focus on the areas that best and shallow open water (including areas support the needs of the species (i.e., relative level of economic impacts (IEc containing seagrasses), completion of a those that support meaningful 2014). marine benthic survey, installation of aggregations of the species) and the The highest estimated annual turtle-friendly lights, and community areas were selected expressly to ensure economic cost associated with the outreach and information. Management maximum consistency with the goals in designation of loggerhead critical actions described in the MCB Camp the Recovery Plan, each of the proposed habitat is less than $40,000 for a very Lejeune INRMP that benefit loggerhead areas is of high conservation value. large area, LOGG–S–1, and the sea turtles include air sweeps before and B. Economic Benefits of Exclusion estimated cost associated with the lookouts during live fire exercises with designation of most areas as critical halting of live fire if a sea turtle is According to the final Economic habitat is below $1,000. Because these spotted, and avoidance of sea turtles Analysis, the total estimated present numbers are so low, all areas are when in boats, keeping a distance of 200 value of the quantified impacts is considered to have a ‘‘low’’ economic yd (183 m) if feasible. $950,000 over the next 10 years. On an impact. Typically, to be considered annualized basis, this is equivalent to ‘‘high,’’ an economic value would need VI. Exclusions: ESA Section 4(b)(2) impacts of $110,000 (IEc 2013). The Analysis to be above several million dollars quantified economic impacts of (sometimes tens of millions), and Section 4(b)(2) of the ESA states that designation are the same as the ‘‘medium’’ may fall between several the Secretary shall designate and make economic benefits of exclusion. Costs hundred thousand and millions of revisions to critical habitat on the basis for each area can be found in Exhibit dollars. of the best available scientific data after ES–1 of the final Economic Analysis taking into consideration the economic (IEc 2013). Impacts are anticipated to be C. Exclusions of Particular Areas Based impact, national security impact, and greatest in LOGG–S–1 (37 percent of the on Economic Impacts any other relevant impact of specifying total costs or $40,000 annually), the any particular area as critical habitat (16 Atlantic Sargassum habitat area, and the Because all particular areas identified U.S.C. section 1533(b)(2)). In addition to Gulf of Mexico Sargassum area (13 for loggerheads have a high this mandatory consideration of percent or $14,000 annually) although conservation value and a low economic impacts, this section also gives the these impacts are based on the proposed impact, no areas are being excluded Secretary discretion to exclude any area Sargassum areas, which are appreciably based on economic impacts. This has from critical habitat if the benefits of larger (virtually the entire area between not changed from the proposed rule. such exclusion outweigh the benefits of the 10 m depth contour and the extent Because no areas are being excluded, we designating such area as part of the of the U.S. EEZ in the Atlantic Ocean did not need to further consider critical habitat (the conservation and Gulf of Mexico below 40 N. Lat.) whether exclusions would result in the benefits to the species), unless the than the areas in the final rule, which extinction of the Northwest Atlantic failure to designate such area as critical do not include areas between the 10 m Ocean DPS of the loggerhead sea turtle.

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D. Exclusions Based on Impacts to development, and/or transiting activities and non-Federal activities National Security opportunities to the population in the requiring a permit from a Federal The Secretary must consider possible North Pacific Ocean. agency (e.g., a Clean Water Act, Section 404 dredge or fill permit from the impacts to national security when VIII. Effects of Critical Habitat USACE) or some other Federal action, determining critical habitat (16 U.S.C. Designation including funding (e.g., Federal 1533(b)(2)). We shared the draft Section 7(a)(2) of the ESA requires Highway Administration funding for Biological Report with the Departments Federal agencies to insure that any transportation projects). ESA section 7 of the Navy (including Marine Corps), action authorized, funded, or carried out consultation would not be required for Army, Air Force and the Department of by the agency (agency action) does not Federal actions that do not affect listed Homeland Security. The Navy, Air jeopardize the continued existence of species or critical habitat and for non- Force, and Department of Homeland any threatened or endangered species or Federal activities or activities on non- Security provided comments (see destroy or adversely modify designated federal and private lands that are not proposed rule for further discussion of critical habitat (16 U.S.C. 1536(a)(2)). federally funded, authorized, or carried the comments). Although there is When a species is listed or critical out. overlap between areas proposed for habitat is designated, Federal agencies critical habitat and their activities, we must consult with NMFS on any agency IX. Activities That May Be Affected do not believe that these activities, as actions they authorize, fund, or carry ESA section 4(b)(8) requires in any currently conducted, are the types of out that may affect the species or its final rule to designate critical habitat an activities that may affect or adversely critical habitat (16 U.S.C. 1536(a)(2)). evaluation and brief description, to the modify critical habitat proposed for the During the consultation, we evaluate the maximum extent practicable, of those loggerhead sea turtle or its PBF/PCEs. agency action to determine whether the activities that may adversely modify Therefore, we conclude that Navy, Air action may adversely affect listed such habitat or that may be affected by Force and DHS activities are not likely species or critical habitat and issue our the designation. A wide variety of to be affected by this proposed findings in a biological opinion or, if activities may affect the critical habitat designation, and the designation would appropriate, in a letter concurring with and may be subject to the ESA section not affect national security. a finding of the action agency that their 7 consultation process when carried out, No additional national security action is not likely to adversely affect funded, or authorized by a Federal concerns have been raised at this time; the species. If we conclude in the agency. These include (1) nearshore and therefore, we have not excluded any biological opinion that the action would in-water construction, dredging, and areas due to national security concerns. likely result in the destruction or sediment disposal, such as construction E. Exclusions for Tribal Lands adverse modification of critical habitat, and maintenance of offshore structures we would also recommend any such as breakwaters, groins, jetties, and No Tribal lands occur in the areas reasonable and prudent alternatives to artificial reefs; construction and being recommended for designation, the action (16 U.S.C. 1536(b)(4)(2)). maintenance of transportation projects and no Tribal activities are anticipated Reasonable and prudent alternatives (e.g., bridges) and utility projects; to be affected by designation. Therefore (defined in 50 CFR 402.02) are dredging and sediment disposal; no exclusions are recommended for alternative actions identified during channel blasting; (2) fisheries Indian Lands. formal consultation that can be management, such as Federal VII. Final Determinations and Critical implemented in a manner consistent commercial fisheries and related Habitat Designation with the intended purpose of the action, activities; (3) oil and gas exploration that are consistent with the scope of the and development, such as We conclude that specific areas meet Federal agency’s legal authority and decommissioning of old oil and gas the definition of critical habitat for the jurisdiction, that are economically and platforms, construction of nearshore oil Northwest Atlantic Ocean DPS, that a technologically feasible, and that would and gas platforms, oil and gas activity critical habitat designation is prudent, avoid the destruction or adverse transport in the nearshore environment; and that critical habitat is determinable. modification of critical habitat. (4) renewable energy projects, such as We found 38 specific marine areas for Regulations (50 CFR 402.16) require ocean thermal energy, wave energy, and critical habitat designation occupied Federal agencies that have retained offshore wind energy; (5) some military within the range of the Northwest discretionary involvement or control activities, such as in-water training and Atlantic Ocean DPS. These areas over an action, or where such research; and (6) aquaculture, such as contain one or a combination of discretionary involvement or control is marine species propagation. nearshore reproductive habitat, winter authorized by law, to reinitiate For ongoing activities, we recognize habitat, breeding habitat, constricted consultation on previously reviewed that designation of critical habitat may migratory corridors, and Sargassum actions in instances where (1) critical trigger reinitiation of past consultations. habitat. These areas are described in habitat is subsequently designated, or Although we cannot predetermine the detail in the proposed rule (78 FR (2) new information or changes to the outcome of section 7 consultations, we 43006, July 18, 2013). action may result in effects to critical do not anticipate at this time that the We conclude that no specific areas habitat not previously considered in the outcome of reinitated consultation exist within U.S. jurisdiction that meet biological opinion. Consequently, some would likely require additional the definition of critical habitat for the Federal agencies may request conservation measures, because effects North Pacific Ocean DPS. We did not reinitiation of a consultation or to habitat would likely have been identify any critical habitat within the conference with us on actions for which assessed in the original consultation. U.S. EEZ in the Pacific Ocean for the formal consultation has been completed, We commit to working closely with North Pacific Ocean DPS because if those actions may affect designated other Federal agencies to implement occupied habitat within the U.S. EEZ critical habitat or adversely modify or these reinitiated consultations in an did not support suitable conditions in destroy proposed critical habitat. efficient and streamlined manner that, sufficient quantity and frequency to Activities subject to the ESA section as much as possible and consistent with provide meaningful foraging, 7 consultation process include Federal our statutory and regulatory obligations,

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minimizes the staff and resource burden by the Small Business Regulatory spend additional time considering and recognizes existing habitat Enforcement Fairness Act (SBREFA) of critical habitat during section 7 conservation measures from previously 1996), whenever an agency publishes a consultation for the loggerhead sea completed ESA consultations. Further, notice of rulemaking for any final rule turtle. Potentially affected activities we will continue to work with other (other than one regarding the listing of include nearshore and in-water agencies to refine and revise cost a species under the Endangered Species construction, dredging and disposal, estimates associated with such Act), it must prepare and make available fisheries, oil and gas exploration and consultations. for public comment a regulatory development, and alternative energy flexibility analysis describing the effects projects. X. Information Quality Act and Peer of the rule on small entities (i.e., small Estimated impacts to small entities Review businesses, small organizations, and are summarized by industry in Exhibit The data and analyses supporting this small government jurisdictions). We A–1 Exhibit A–2 describes potentially designation have undergone a pre- prepared a final regulatory flexibility affected small businesses by NAICS dissemination review and have been analysis (FRFA) pursuant to section 603 code, highlighting the relevant small determined to be in compliance with of the Regulatory Flexibility Act (RFA; business thresholds. Although applicable information quality 5 U.S.C. 601 et seq.; IEc, 2014), which businesses affected indirectly are guidelines implementing the is an appendix to the final Economic considered, this analysis considers only Information Quality Act (IQA) (Section Analysis. The FRFA incorporates the those entities for which impacts would 515 of Pub. L. 106–554). In December Initial Regulatory Flexibility Analysis not be measurably diluted, i.e., it 2004, the Office of Management and (IRFA), which was part of the draft focuses on those entities that may bear Budget (OMB) issued a Final economic analysis that accompanied the some additional costs associated with Information Quality Bulletin for Peer proposed rule to designate critical participation in section 7 consultation. Review pursuant to the IQA. The habitat. This document is available Based on the number of past Bulletin established minimum peer upon request (see ADDRESSES section consultations and information about review standards, a transparent process above). The results are summarized potential future actions likely to take for public disclosure of peer review below. place within proposed critical habitat planning, and opportunities for public A statement of the need for and areas, this analysis forecasts the number participation with regard to certain objectives of this final rule is provided of additional consultations that may types of information disseminated by earlier in the preamble and is not take place as a result of critical habitat the Federal Government. The peer repeated here. This final rule will not (see Chapters 3 through 6 of the draft review requirements of the OMB impose any recordkeeping or reporting Economic Analysis). Based on this Bulletin apply to influential or highly requirements. forecast, annual incremental influential scientific information Three types of small entities consultation costs that may be borne by disseminated on or after June 16, 2005. identified in the analysis are (1) small small entities are forecast at $18,000 To satisfy our requirements under the business, (2) small governmental (discounted at seven percent). OMB Bulletin, we obtained independent jurisdiction, and (3) small organization. Ideally this analysis would directly peer review of the Biological and The regulatory mechanism through identify the number of small entities Economic Reports that support the which critical habitat protections are which may engage in activities that designation of critical habitat for the enforced is section 7 of the ESA, which overlap with the proposed designation; loggerhead sea turtle and incorporated directly regulates only those activities however, while we track the Federal the peer review comments prior to the carried out, funded, or permitted by a agencies involved in the consultation proposed rule and within this Federal agency. By definition, Federal process, we do not track the identity of rulemaking. agencies are not considered small past permit recipients or the particulars entities, although the activities they may that would allow us to determine XI. Classification fund or permit may be proposed or whether the recipients were small A. Regulatory Planning and Review carried out by small entities. This entities. Nor do we track how often The Office of Management and Budget analysis considers the extent to which Federal agencies have hired small (OMB) has determined that this final this designation could potentially affect entities to complete various actions rule is significant under Executive small entities, regardless of whether associated with these consultations. In Order 12866. A final Economic Analysis these entities would be directly the absence of this information, this and 4(b)(2) analysis as set forth herein regulated by NMFS through the final analysis utilizes Dun and Bradstreet have been prepared to support the rule or by a delegation of impact from databases to determine the number of exclusion process under section 4(b)(2) the directly regulated entity. small businesses operating within the of the ESA. To review these documents The small entities that may bear the NAICS codes identified in Exhibit A–2. see ADDRESSES section above. incremental impacts of this rulemaking Exhibit A–3 presents the potentially are quantified in chapters 3 through 6 of affected small counties. B. National Environmental Policy Act the final Economic Analysis on four The final rule does not directly We have determined that an categories of economic activity mandate ‘‘reporting’’ or ‘‘record environmental analysis as provided for potentially requiring modification to keeping’’ within the meaning of the under the National Environmental avoid destruction or adverse Paperwork Reduction Act, and does not Policy Act of 1969 for critical habitat modification of loggerhead sea turtle impose record keeping or reporting designations made pursuant to the ESA critical habitat. Small entities also may requirements on small entities. A is not required. See Douglas County v. participate in ESA section 7 critical habitat designation requires Babbitt, 48 F.3d 1495 (9th Cir. 1995), consultation as an applicant or may be Federal agencies to initiate a section 7 cert. denied, 116 S.Ct. 698 (1996). affected by a consultation if they intend consultation to insure their actions do to undertake an activity that requires a not destroy or adversely modify critical C. Regulatory Flexibility Act permit, license, or funding from the habitat. During formal section 7 Under the Regulatory Flexibility Act Federal Government. It is therefore consultation under the ESA, NMFS, the (RFA; 5 U.S.C. 601 et seq., as amended possible that the small entities may action agency (Federal agency), and a

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third party participant applying for zone that has reasonably foreseeable various levels of government, as Federal funding or permitting may effects on any land or water use or specified in the Order. State or local communicate in an effort to minimize natural resource of the coastal zone governments may be indirectly affected potential adverse impacts to the habitat shall be carried out in a manner which by the proposed revision if they require and/or the essential features. is consistent to the maximum extent Federal funds or formal approval or Communication may include written practicable with the enforceable policies authorization from a Federal agency as letters, phone calls, and/or meetings. of approved state coastal zone a prerequisite to conducting an action. Project variables such as the type of management programs. We initially In these cases, the State or local consultation, the location, affected determined that the proposed government agency may participate in essential features, and activity of designation of critical habitat is the section 7 consultation as a third concern, may in turn dictate the consistent to the maximum extent party. One of the key conclusions of the complexity of these interactions. Third practicable with the enforceable policies incremental analysis of economic party costs may include administrative of approved Coastal Zone Management impacts is that we do not expect critical work, such as cost of time and materials Programs of New Jersey, Delaware, habitat designation to generate to prepare for letters, calls, or meetings. Maryland, Virginia, North Carolina, additional requests for project The cost of analyses related to the South Carolina, Georgia, Florida, modification in any of the critical activity and associated reports may be Alabama, Mississippi, Louisiana, and habitat units. Incremental impacts of the included in these administrative costs. Texas, and submitted this to the designation will likely be limited to In addition, following the section 7 responsible agencies in the minor additional administrative costs to consultation process, entities may be aforementioned states for review. Upon NMFS, Federal agencies, and third required to monitor progress during the further review of the proposed parties when considering critical habitat activity to ensure that impacts to the designation and its supporting analysis, as part of the forecast section 7 habitat and features have been we have determined that any effects of consultations. Therefore, the minimized. the designation on coastal uses and designation of critical habitat is also not A FRFA must identify any resources are not reasonably foreseeable expected to have substantial indirect duplicative, overlapping, and at this time. This designation does not impacts on State or local governments. conflicting Federal rules. The restrict any coastal uses, affect land protections afforded to threatened and ownership, or establish a refuge or other F. Paperwork Reduction Act endangered species and their habitat are conservation area; rather, the This final rule does not contain a described in section 7, 9, and 10 of the designation only affects the ESA section collection-of-information requirement ESA. A final determination to designate 7 consultation process. Through the for purposes of the Paperwork critical habitat requires Federal agencies consultation process, we will receive Reduction Act. to consult, pursuant to section 7 of the information on proposed Federal ESA, with NMFS on any activities the actions and their effects on listed G. Unfunded Mandates Reform Act Federal agency funds, authorizes, or species and the designated critical In accordance with the Unfunded carries out, including permitting, habitat upon which we base our Mandates Reform Act, we make the approving, or funding non-Federal biological opinion. It will then be up to following findings: The designation of activities (e.g., a Clean Water Act, the Federal action agencies to decide critical habitat does not impose an Section 404 dredge or fill permit from how to comply with the ESA in light of ‘‘enforceable duty’’ on state, local, tribal USACE). The requirement to consult is our opinion, as well as to ensure that governments, or the private sector and to ensure that any Federal action their actions comply with the CZMA’s therefore does not qualify as a Federal authorized, funded, or carried out will Federal consistency requirement. At this mandate. In general, a Federal mandate not likely jeopardize the continued time, we do not anticipate that this is a provision in legislation, statute, or existence of any endangered or designation is likely to result in any regulation that would impose an threatened species or result in the additional management measures by ‘‘enforceable duty’’ upon non-federal destruction or adverse modification of other Federal agencies. critical habitat. The incremental impacts governments or the private sector, and E. Federalism forecast in this report and contemplated includes both ‘‘Federal in this analysis are expected to result Executive Order 13132 requires intergovernmental mandates’’ and from the critical habitat designation and agencies to take into account any ‘‘Federal private sector mandates.’’ not other Federal regulations. Federalism impacts of regulations under Under the ESA, the only direct In accordance with the requirements development. It includes specific regulatory effect of this final rule is that of the RFA (as amended by SBREFA, consultation directives for situations in Federal agencies must ensure that their 1996) this analysis considers which a regulation will preempt state actions do not destroy or adversely alternatives to the proposed critical law, or impose substantial direct modify critical habitat under section 7. habitat designation for the loggerhead compliance costs on state and local While non-Federal entities who receive sea turtle. The alternative of not governments (unless required by Federal funding, assistance, permits, or designating critical habitat for the statute). We have determined that the otherwise require approval or loggerhead sea turtle was considered final rule to designate critical habitat for authorization from a Federal agency for and rejected because such an approach the loggerhead sea turtle under the ESA an action may be indirectly affected by does not meet the legal requirements of does not have Federalism implications. the designation of critical habitat, the the ESA. The designation of critical habitat legally binding duty to avoid the directly affects only the responsibilities destruction or adverse modification of D. Coastal Zone Management Act of Federal agencies. As a result, the rule critical habitat rests squarely on the Under section 307(c)(1)(A) of the does not have substantial direct effects Federal agency. Furthermore, to the Coastal Zone Management Act (CZMA) on the States, on the relationship extent that non-Federal entities are (16 USC 1456(c)(1)(A)) and its between the Federal Government and indirectly affected because they receive implementing regulations, each Federal the States, or on the distribution of Federal assistance or participate in a activity within or outside the coastal power and responsibilities among the voluntary Federal aid program, the

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Unfunded Mandates Reform Act would special Federal trust responsibility production. It is unlikely that any not apply. involving the legal responsibilities and impacts to the industry that remain We do not believe that this rule will obligations of the United States toward unquantified will result in a change in significantly or uniquely affect small Indian Tribes and the application of production above the one billion governments because it is not likely to fiduciary standards of due care with kilowatt-hour threshold identified in the produce a Federal mandate of $100 respect to Indian lands, tribal trust Executive Order. Therefore, it is million or greater in any year; that is, it resources, and the exercise of tribal unlikely that the energy industry will is not a ’’significant regulatory action’’ rights. experience ‘‘a significant adverse effect’’ under the Unfunded Mandates Reform Executive Order 13175, Consultation as a result of the critical habitat Act. In addition, the designation of and Coordination with Indian Tribal designation for the loggerhead sea turtle. critical habitat imposes no obligations Governments, outlines the on local, state or tribal governments. responsibilities of the Federal XII. References Cited Therefore, a Small Government Agency Government in matters affecting tribal A complete list of all references cited Plan is not required. interests. If we issue a regulation with in this rule making can be found on our tribal implications (defined as having a H. Takings Web site at http://www.nmfs.noaa.gov/ substantial direct effect on one or more pr/species/turtles/loggerhead.htm and is Under Executive Order 12630, Federal Indian tribes, on the relationship available upon request from the NMFS agencies must consider the effects of between the Federal Government and (see ADDRESSES). their actions on constitutionally Indian tribes, or on the distribution of protected private property rights and power and responsibilities between the List of Subjects in 50 CFR Part 226 avoid unnecessary takings of property. Federal Government and Indian tribes), Endangered and threatened species. A taking of property includes actions we must consult with those Dated: July 1, 2014. that result in physical invasion or governments or the Federal Government occupancy of private property, and must provide funds necessary to pay Eileen Sobeck, regulations imposed on private property direct compliance costs incurred by Assistant Administrator, National Marine that substantially affect its value or use. tribal governments. The critical habitat Fisheries Service. In accordance with Executive Order designation does not have tribal For the reasons set out in the 12630, the critical habitat designation implications. The final critical habitat preamble, 50 CFR part 226 is amended does not pose significant takings designation does not include any tribal as set forth below: implications. A takings implication lands and does not affect tribal trust assessment is not required. This final resources or the exercise of tribal rights. PART 226—DESIGNATED CRITICAL designation affects only Federal agency HABITAT actions (i.e. those actions authorized, J. Energy Effects funded, or carried out by Federal Executive Order 13211 requires ■ 1. The authority citation of part 226 agencies). Therefore, the critical habitat agencies to prepare a Statement of continues to read as follows: designation does not affect landowner Energy Effects when undertaking a Authority: 16 U.S.C. 1533. actions that do not require Federal ‘‘significant energy action.’’ According funding or permits. to Executive Order 13211, ‘‘significant ■ 2. Add § 226.223 to read as follows: This critical habitat designation energy action’’ means any action by an would not increase or decrease the agency that is expected to lead to the § 226.223 Critical habitat for the Northwest current restrictions on private property promulgation of a final rule or Atlantic Ocean Distinct Population Segment concerning take of loggerhead sea regulation that is a significant regulatory of the loggerhead sea turtle (Caretta caretta). turtles, nor do we expect the action under Executive Order 12866 and designation to impose substantial is likely to have a significant adverse Critical habitat is designated for the additional burdens on land use or effect on the supply, distribution, or use Northwest Atlantic Ocean Distinct substantially affect property values. of energy. We have considered the Population Segment of the loggerhead Additionally, the final critical habitat potential impacts of this action on the sea turtle (Caretta caretta) as described designation does not preclude the supply, distribution, or use of energy in this section. The textual descriptions development of Conservation Plans and (see final Economic Analysis). Oil and of critical habitat in this section are the issuance of incidental take permits for gas exploration and alternative energy definitive source for determining the non-Federal actions. Owners of property projects may affect the essential features critical habitat boundaries. For included or used within the final of critical habitat for the loggerhead sea nearshore reproductive areas, the areas critical habitat designation would turtle. Due to the extensive extend directly from the mean high continue to have the opportunity to use requirements of oil and gas water (MHW) line datum at each end of their property in ways consistent with development and renewable energy the area seaward 1.6 km. Where beaches the survival of listed loggerhead sea projects to consider environmental are within 1.6 km of each other, turtles. impacts, including impacts on marine nearshore areas are connected, either life, even absent critical habitat along the shoreline (MHW line) or by I. Government to Government designation for the loggerhead sea turtle, delineating on GIS a straight line from Relationships With Tribes we anticipate it is unlikely that critical the end of one beach to the beginning The longstanding and distinctive habitat designation will change of another (either from island to island, relationship between the Federal and conservation efforts recommended or across an inlet or the mouth of an tribal governments is defined by during section 7 consultation for these estuary). Although generally following treaties, statutes, executive orders, projects. Consequently, it is unlikely the these rules, the exact delineation of each judicial decisions, and agreements, identified activities and projects will be area was determined individually which differentiate tribal governments affected by the designation beyond the because each was unique. The overview from the other entities that deal with, or quantified administrative impacts. maps are provided for general guidance are affected by, the Federal Government. Therefore, the designation is not only and not as a definitive source for This relationship has given rise to a expected to impact the level of energy determining critical habitat boundaries.

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

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

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

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Sargassum community such as hydroids (c) Areas not included in critical (2) Pursuant to ESA section 3(5)(A)(i), and copepods; and habitat. Critical habitat does not include all federally authorized or permitted (iv) Sufficient water depth and the following particular areas where manmade structures such as aids-to- proximity to available currents to ensure they overlap with the areas described in navigation, boat ramps, platforms, offshore transport (out of the surf zone), paragraph (a) of this section: docks, and pilings existing within the (1) Pursuant to ESA section 4(a)(3)(B), legal boundaries on August 11, 2014. and foraging and cover requirements by all areas subject to the Naval Air Station (d) Maps of loggerhead critical habitat Sargassum for post-hatchling Key West Integrated Natural Resources follow: loggerheads, i.e., >10 m depth. Management Plan. BILLING CODE 3510–22–P

Loggerhead Critical Habitat: LOGG-N-01 (Migratory, Winter) and LOGG-N-02 (Winter)

- Nearshore Reproductiw Habitat l'olitieai/Administratiw Units fZZ1 Breeding Habitat 200m Bathymetric Contours 1::::/:.:j Migratory Habitat I;;S'Sl Winter Habitat

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loggerhead Critical Habitat: lOGG-N-03 (Ne.arshore Reproductive}

- Nearshore Reproductive Habitat Political/Administrative Units f2ZI Brtedirng Habitat 20m Bathymetrit COntours I:,:;:(,.:J Migratory Habitat &'S."SJ Winter Hiobitat

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Loggernead Critical Habitat! LOGG-N.04,05 (Nearsnore Reproductive)

- Nearshore Repi'Qduct:lve Habitat POlitical/Administrative Units IZZJ Breeding Habitat 20M Bathymetric Gontours !:!~::':":] Migratory Habitat &S'SI Winter Habitat

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loggerhead Critical Habitat: LOGG·N-06 (Nearshore Reproductive}

18'30'W

33'30'111

- Nearshore Reproductive Habitat Politieal/ Admini5tratiw Units IZZJ Breeding Habitat 20m B,athym etri<: contours k:~·'J MlgratoryHabitat 6SS1 Winter Habitat

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loggerhead Critical Habitat: lOGG-N.07,08,09,10,11 (Nearshore Reproductive)

- Nearshore Reproductive Habitat Political/Administrative IJnfts tzZJ Breeding Habitat 20m Bathym etrli: COntours (:,::.-:·.:) Migrat-ory Habitat E;SSl Winter Habitat

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loggerhead Critical Habitat: LOGG-N-12,13 (Nearshore Reproductive)

- Nearshore Reproductive Habitat POiitieat/Atlmlnistrative Units IZZJ Breeding Habitat 20m Bathymetric Contours k:'>:J Migratory Habitat &'SSJ Winter Habitat

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loggerhead Critical Habitat: LOGG-N-.14 (Nearshore Reproductive)

- Nearshore Reproductive Habitat Political/Administrative Units f2Z.l Breeding Habitat 20m Batl'lymetric Contours ~i:-:.',.,j Migratory Habitat E;;'SSI Winter Hllbitat 0

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loggerhead Critical Habitat: l0GG-N-1S,16 (Nearshore Reproductive)

- Nearshore Reprcu:luctlve Habitat Politil:lii/Mministrative Units fZZJ Breeding H<1bitat 2om B.atllymetri<: Contours k:.-.:j Migratory Habitat &'SSI Winter Habitat

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Loggerhead Critical Habitat: LOGG~N-17 (Nearshore Reproductive; Breeding, Migratory, Sargas:sum)

- Nearshore Reproductive Habitat Sarsassum Habitat Polltica[/Admirlistratlve Units r:zz:l Breeding Habitat 20m Bathymetric COntours ~·:::: ,:,j Migratory Habitat &SSI Winter Habitat D

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Loggerhead Critical Habitat: LOGG-N-18 (Nearshore Reproductive, Migratory)

- Nearshore Reproductive Habitat Politicai/Admlnistr.otive Units IZZJ Breeding Habitat 20m Bathymetric COntoun ki:;,;.:J Migratory Habitat &'S.'SI Winter Habitat

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Loggerhead Critical Habitat: LOGG-N-19 {Nearshore Reproductive, Breeding, Migratory)

- Nearshore Reproductive Habitat Political/Administrative Units rzzJ Breeding Habitat ------200m Bathymetric Contours ~i;:;,.:J Migratory Habitat ESSJ Winter Habitat

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Loggerhead Critical Habitat: LOGG-N-19 {Nearshore Reproductive}

- Nearl;lltore Rl!produ~;tive Habitat PGiiticai/Admini$trative Units I'Z2'J Breeding Habitat 20m BathymetricContours (:.:::;,, :J Migratory Habitat E;SSI Winter Habitat

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Loggerhead Critical Habitat: LOGG-N-19 {Nearshore Reproductive}

- Nearshore Repmduo;:ti~ Habitat I'Olitielii/Admlnistrative Units CZZI Breeding Habitat 20m Bath.ym etrie Contours Pi:-~·':-:J Mfg~atory Habitat &'S'SI Winter Habitat

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Loggerhead Critical. Habitat: LOGG-N-20 (Nearshore Reproductive)

-Nearshore Reproductive Habitat Political/Administrative Units IZZJ Breeding Habitat 20m Bath.ymetrk COntours l'i;:,';.cJ Migrat"'ry Habitat or-----,2!1______,40 Jakmleten &'S.'SJ Winter li

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loggerhead Critical Habitat: LOGG-N-,2.1,22;23 (Nearshore Reproductive}

W30'W

25'45'~

25'15'N

24'45'N

ll1"4S'W ll1.30'W 81.15'W 81"0'W

- Nearshore Reproductive Habitat Political/Administrative Onlts fZZl Breeding Habitat 20m Bathymetri~ C:Ontou.rs k:::.::.cj Migratory Habitat &SS1 Winm Habitat

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loggerhead Critical Habitat: LOGG·N-24,25,26,27,28 (Nearshore Reproductive)

-Nearshore Reproductive Habitat POlitical/Administrative Units 1'ZZl Breeding Habitat 20M Balhymetrit dontours ~b:":J Migratory Habitat l!ll<>m~ &S'SI Wlntet Habitat 0 20 40

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loggerhead Critical Habitat: lOGG-N-29,30 (Nearshore Reproductive)

- Nearnlwre Reproductive Habitat Politic~I/Ao:lministrative Unb f2ZJ Breeding Habitat 20m Bathymetric Ccmtours P·:;:,;,:j Migratory Habitat &'S:SI Winter Habitat

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Loggerhead Critical Habitat: LOGG-N-31,32 (Nearshore Reproductive}

- Nearshore Reproductive Habitat I'Oiitielli/Administrative Unit$ tZZJ Breeding Habitat 201'1'1 Bathymetrit Contours p;::,;.:J Migratory Habitat &'S:'SI Winter Habitat

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loggerhead Critical Habitat: lOGG-N-33,34,35,36 (Nearl>hore Reproductive}

- Neal'!lhore Reproductive Habitat Political/Administrative Unfti; tZZJ lfreeding Habitat 20111 Bathyrn etri<: Contours (:,~;.:·::J Migratory Habitat &'SSI Winter Habitat

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[FR Doc. 2014–15748 Filed 7–9–14; 8:45 am] BILLING CODE 3510–22–C

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