[Federal Register Volume 67, Number 107 (Tuesday, June 4, 2002)]
[Proposed Rules]
[Pages 38459-38461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13959]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No.020523130-2130-01; I.D. No. 040102D]
RIN 0648-AP94


Listing Endangered and Threatened Wildlife and Designating 
Critical Habitat; 90-day Finding for a Petition to Reclassify the 
Northern and Florida Panhandle Subpopulations of the Loggerhead as 
Distinct Population Segments with Endangered Status and to Designate 
Critical Habitat

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

ACTION: Notice of petition finding; request for information and 
comments.

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SUMMARY: The National Marine Fisheries Service (NMFS), National Oceanic 
and Atmospheric Administration (NOAA), Department of Commerce, 
announces the 90-day finding for a petition to reclassify the Northern 
and Florida Panhandle subpopulations of the loggerhead turtle (Caretta 
caretta), now listed as threatened throughout their range, as distinct 
population segments with endangered status and designate critical 
habitat under the Endangered Species Act of 1973, as amended (ESA). We 
find that the petition presents substantial scientific information 
indicating that the petitioned action may be warranted.
    We are initiating a review of the status of the species to 
determine whether the petitioned action is warranted. To ensure a 
comprehensive review, we are soliciting information and comments 
pertaining to this species from any interested party.

DATES: Written comments and information related to this petition 
finding must be received [see ADDRESSES] by August 5, 2002.

ADDRESSES: Written comments and information should be addressed to the 
Chief, Endangered Species Division, Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may 
also be sent via fax to 301-713-0376. Comments will not be accepted if 
submitted via e-mail or the Internet. The petition is available for 
public inspection, by appointment, during normal business hours at the 
above address. The petition may also be found at the following website: 
http://www.nmfs.noaa.gov/prot_res/PR3/Turtles/turtles.html.

FOR FURTHER INFORMATION CONTACT: Barbara Schroeder (ph. 301-713-1401, 
fax 301-713-0376, e-mail [email protected]).

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the ESA (16 U.S.C. 1531 et seq.) requires us 
to make a finding as to whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. Our 
implementing regulations (50 CFR 424.14) define ``substantial 
information'' as the amount of information that would lead a reasonable 
person to believe that the measure proposed in the petition may be 
warranted. In determining whether substantial information exists, we 
take into account several factors, including information submitted 
with, and referenced in, the petition and all other information readily 
available. To the maximum extent practicable, this finding is to be 
made within 90 days of the receipt of the petition, and the

[[Page 38460]]

finding is to be published promptly in the Federal Register. If we find 
that a petition presents substantial information indicating that the 
requested action may be warranted, we are also required to conduct a 
status review of the species. The determination of whether or not the 
petition is warranted must be made within one year of the receipt of 
the petition.

Analysis of Petition

    On January 14, 2002, we received a petition from the Earthjustice 
Legal Defense Fund, on behalf of the Turtle Island Restoration Network 
and the Center for Biological Diversity, requesting that the Northern 
and Florida Panhandle subpopulations of the loggerhead be reclassified 
as distinct population segments (see Petition Finding for discussion on 
distinct population segments) with endangered status throughout their 
range and that critical habitat be designated. In addition, the 
petition requested an emergency rule be issued for the same.
    The petition contains a detailed description of the species legal 
status, life history parameters, geographic range, population status 
and trends, and factors contributing to the decline in several 
subpopulations. The petition cites key documents recognizing the 
identification of genetically different loggerhead subpopulations 
(Turtle Expert Working Group (TEWG) 1998, 2000; NMFS Southeast 
Fisheries Science Center (SEFSC) 2001). At least five different 
subpopulations in the Western North Atlantic and Gulf of Mexico have 
been identified (NMFS SEFSC 2001). The subpopulations are divided 
geographically as follows: (1) A Northern nesting subpopulation, 
occurring from North Carolina to northeast Florida at about 29 deg. N 
(approximately 7,500 nests in 1998); (2) a South Florida nesting 
subpopulation, occurring from 29 deg. N on the east coast to Sarasota 
on the west coast (approximately 83,400 nests in 1998); (3) a Florida 
Panhandle nesting subpopulation, occurring at Eglin Air Force Base and 
the beaches near Panama City, FL (approximately 1,200 nests in 1998); 
(4) a Yucat n nesting subpopulation, occurring on the eastern Yucat n 
Peninsula, Mexico (M rquez 1990) (approximately 1,000 nests in 1998) 
(TEWG 2000); and (5) a Dry Tortugas nesting subpopulation, occurring in 
the islands of the Dry Tortugas, near Key West, FL (approximately 200 
nests per year) (NMFS SEFSC 2001). Recent fine-scale mitochondrial 
deoxyribonucleic acid (mtDNA) analysis from Florida rookeries indicate 
that population separations begin to appear between nesting beaches 
separated by more than 100 kilometers (62 miles) of coastline that do 
not host nesting (Francisco et al., 2000). Tagging studies of nesting 
females corroborate these findings (Ehrhart 1979, LeBuff 1990) and 
affirm loggerhead nest site fidelity, with rare exceptions.
    The petition maintains that the Northern subpopulation has declined 
dramatically over the past 20 years. The petition refers to nesting 
trends at Cape Island, SC, and Little Cumberland Island, Georgia -
nesting beaches that have been consistently surveyed since the early 
1970s. From 1973 to 1995, nesting at Cape Island declined on average 
3.2 percent per year, and from 1964 to 1995, Little Cumberland nesting 
activity declined at 2.6 percent per year. Regarding the Florida 
Panhandle subpopulation, the petition asserts that the population's 
small size (less than 1,000 annual nesters) would not withstand 
catastrophic events and warrants rigorous management.
    The petition asserts that the Northern and Florida Panhandle 
subpopulations are endangered because they are in imminent danger of 
extirpation from their ranges and identifies several threats including 
commercial fishing, coastal development, and pollution. The petition 
discusses the significance of the Northern and Florida Panhandle 
subpopulations and states that if either were extirpated, re-
establishment is unlikely and the loss of genetic contribution to the 
species would be permanent. The petition also states that the Northern 
subpopulation produces a higher percentage of male hatchlings and the 
extirpation of this nesting assemblage would seriously hamper male-
mediated gene flow.

Petition Finding

    Based on the above information and criteria specified in 50 CFR 
424.14(b)(2), we find the petitioner presents substantial scientific 
and commercial information indicating that a reclassification of the 
Northern and Florida Panhandle loggerhead subpopulations as distinct 
population segments with endangered status may be warranted. The ESA 
defines a ``species'' as ``...any subspecies of fish or wildlife or 
plants and any distinct population segment of any species of vertebrate 
fish or wildlife which interbreeds when mature.'' NMFS and the U.S. 
Fish and Wildlife Service published a joint policy defining the phrase 
``distinct population segment'' on February 7, 1996 (61 FR 4722). Three 
elements are considered in a decision regarding the listing, delisting, 
or reclassification of a distinct population segment as endangered or 
threatened under the ESA: discreteness of the population segment in 
relation to the remainder of the species, significance of the 
population segment to the species, and conservation status. Under 
section 4(b)(3) of the ESA, an affirmative 90-day finding requires that 
we commence a status review on the loggerhead turtle. We are initiating 
this review and, once it has been completed, a finding will be made as 
to whether reclassification of the Northern and Florida Panhandle 
loggerhead subpopulations as distinct population segments with 
endangered status is warranted, warranted but precluded by higher 
priority listing actions, or not warranted, as required by section 
4(b)(3) of the ESA.
    Designation of critical habitat is not subject to the ESA's 
petition provision; however, the ESA requires us to make a critical 
habitat determination concurrent with listing determinations. The ESA 
defines ``critical habitat'' as ``...the specific areas within the 
geographical area occupied by the species, at the time it is listed... 
on which are found those physical or biological features (I) essential 
to the conservation of the species and (II) which may require special 
management considerations or protection; and... specific areas outside 
the geographical area occupied by the species at the time it is 
listed... upon a determination... that such areas are essential for the 
conservation of the species.''
    Species are considered for emergency listing when the immediacy of 
the threat is so great to a significant proportion of the total 
population that the routine listing process is not sufficient to 
prevent large losses that may result in extinction. Expected losses 
during the normal listing process that would risk the continued 
existence of the entire species are grounds for an emergency rule. The 
purpose of the emergency rule provision of the ESA is to prevent 
species from becoming extinct by affording them immediate protection 
while the normal rulemaking procedures are being followed. Taking this 
into consideration, we find that emergency reclassification is not 
warranted because the species is already afforded protection under the 
ESA, protection under sections 7 and 9 would remain the same, recovery 
implementation would not be any different, and we have recently applied 
cautious management to ensure that irreversible impacts from fisheries 
interactions do not occur (NMFS 2001). Therefore, we conclude there 
will be no

[[Page 38461]]

significant risk to the species as a whole during the normal listing 
process.

Listing Factors and Basis for Determination

    Under section 4(a)(1) of the ESA and the implementing regulations 
at 50 CFR 424.11(c), a species can be reclassified, based on the best 
scientific and commercial data available after conducting a review of 
the species' status, for any one or a combination of the following: (1) 
Present or threatened destruction, modification, or curtailment of its 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; or (5) other natural or 
manmade factors affecting its continued existence.

Information Solicited

    To ensure that the status review is completed and based on the best 
available data, we are soliciting information and comments on whether 
the Northern and Florida Panhandle loggerhead subpopulations qualify as 
distinct population segments and, if so, whether they should be 
reclassified from threatened to endangered based on the above listing 
factors. Specifically, we are soliciting information in the following 
areas: (1) Historical and current abundance for these nesting 
assemblages; (2) current distribution and movement; (3) population 
status and trends; (4) genetic stock identification; (5) current or 
planned activities that may adversely impact these subpopulations; and 
(6) ongoing efforts to protect the Northern and Florida Panhandle 
subpopulations and their habitat. We request that all data, 
information, and comments be accompanied by supporting documentation 
such as maps, bibliographic references, or reprints of pertinent 
publications.
    All submissions must contain the submitter's name, address, and any 
association, institution, or business that the person represents. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address (see ADDRESSES).

Critical Habitat

    We are also requesting information on areas that may qualify as 
critical habitat for the loggerhead particularly related to the 
Northern and Florida Panhandle subpopulations. Areas that include the 
physical and biological features essential to the conservation of the 
species should be identified. Areas outside the present range should 
also be identified if such areas are essential to the conservation of 
the species. Essential features include, but are not limited to: (1) 
Space for individual growth and for normal behavior; (2) food, water, 
air, light, minerals, or other nutritional or physiological 
requirements; (3) cover or shelter; (4) sites for reproduction and 
development of offspring; and (5) habitats that are protected from 
disturbance or are representative of the historical, geographical and 
ecological distributions of the species (50 CFR 424.12).

Peer Review

    For listings, delistings, and reclassifications under the ESA, NMFS 
and the U.S. Fish and Wildlife Service have a joint policy for peer 
review of the scientific data (59 FR 34270, July 1, 1994). The intent 
of the peer review policy is to ensure that listings are based on the 
best scientific and commercial data available. We are soliciting the 
names of recognized experts in the field that could take part in the 
peer review process for the loggerhead status review. Independent peer 
reviewers will be selected from the academic and scientific community, 
applicable tribal and other Native American groups, Federal and state 
agencies, the private sector, and public interest groups.

References Cited

    Ehrhart, L.M. 1979. A survey of marine turtle nesting at Kennedy 
Space Center, Cape Canaveral Air Force Station, North Brevard County, 
Florida, 1-122. Unpublished report to Division of Marine Resources, St. 
Petersburg, Florida, Fla. Dept. Nat. Res.
    Francisco, A.M., A.L. Bass, K.A. Bjorndal, A.B. Bolten, R. Reardon, 
M. Lamont, Y. Anderson, J. Foote, and B.W. Bowen. 2000. Stock structure 
and nesting site fidelity in Florida loggerhead turtles (Caretta 
caretta) resolved with mtDNA sequences. Unpublished Manuscript. 
Department of Fisheries and Aquatic Sciences, University of Florida, 
Gainesville, 23pp.
    LeBuff, C.R., Jr. 1990. The loggerhead turtle in the eastern Gulf 
of Mexico. Caretta Research, Inc., Sanibel, FL, 216 pp.
    M rquez-M., R. 1990. FAO Species Catalogue, Vol. 11. Sea turtles of 
the world, an annotated and illustrated catalogue of sea turtle species 
known to date. FAO Fisheries Synopsis, 125, 81 pp.
    NMFS Biological Opinion, Reinitiation of Consultation on the 
Atlantic Highly Migratory Species Fisheries Management Plan and Its 
Associated Fisheries, June 8, 2001 pp: 167.
    NMFS Southeast Fisheries Science Center. 2001. Stock assessments of 
loggerhead and leatherback sea turtles and an assessment of the impact 
of the pelagic longline fishery on the loggerhead and leatherback sea 
turtles of the Western North Atlantic. U.S. Department of Commerce, 
National Marine Fisheries Service, Miami, FL, SEFSC Contribution PRD-
00/01-08; Parts I-III and Appendices I-V1.
    Turtle Expert Working Group. 1998. (Byles, R., C. Caillouet, D. 
Crouse, L. Crowder, S. Epperly, W. Gabriel, B. Gallaway, M. Harris, T. 
Henwood, S. Heppell, R. Marquez-M, S. Murphy, W. Teas, N. Thompson, and 
B. Witherington). An Assessment of the Kemp's ridley (Lepidochelys 
kempii) and loggerhead (Caretta caretta) sea turtle populations in the 
Western North Atlantic. U.S. Dep. Commer. NOAA Tech. Mem. NMFS-SEFSC-
409, 96 pp.
    Turtle Expert Working Group. 2000. Assessment update for the Kemp's 
ridley and loggerhead sea turtle populations in the Western North 
Atlantic. U.S. Dep. Commer. NOAA Tech. Mem. NMFS-SEFSC-444, 115 pp.

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

    Dated: May 30, 2002.
John Oliver,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-13959 Filed 6-3-02; 8:45 am]
BILLING CODE 3510-22-S