[Federal Register Volume 68, Number 178 (Monday, September 15, 2003)]
[Proposed Rules]
[Pages 53947-53955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23434]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No.020523130-3076-02;I.D. 030303C]
RIN 0648-AP94


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition to List the Northern and Florida Panhandle Loggerhead Sea 
Turtle (Caretta caretta) Subpopulations as Endangered

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

ACTION: Notice of petition finding.

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SUMMARY: We, the FWS and NMFS (collectively ``the Services'') announce 
a 12-month finding on a petition to reclassify the Northern and Florida 
Panhandle subpopulations of the loggerhead sea turtle (Caretta 
caretta), a species now listed as threatened throughout its range, as 
distinct population segments (DPSs) with endangered status and to 
designate critical habitat under the Endangered Species Act of 1973 
(ESA), as amended. After review of all available scientific and 
commercial information, we find that the Northern and Florida Panhandle 
loggerhead subpopulations do not meet the criteria for classification 
as DPSs, and therefore the petitioned action is not warranted.

DATES: Effective September 9, 2003.

ADDRESSES: The petition finding, supporting data, and comments are 
available for public inspection, by appointment, during normal business 
hours at the Protected Resources Division, NMFS Southeast Region, 9721 
Executive Center Drive North, St. Petersburg, FL 33702. Copies of the 
1991 Recovery Plan for the U.S. Atlantic population of the loggerhead 
turtle are available upon request at the above address, and the plan 
also is available on the NMFS website at http://www.nmfs.noaa.gov/prot_res/PR3/recovery.html.

FOR FURTHER INFORMATION CONTACT: David Bernhart, NMFS Southeast Region 
(ph. 727-570-5312, fax 727-570-5517, e-mail [email protected]), 
or Barbara Schroeder, NMFS Office of Protected Resources (ph. 301-713-
1401, fax 301-713-0376, e-mail [email protected]).

SUPPLEMENTARY INFORMATION:

Background

    Pursuant to section 4(b)(3)(B) of the ESA (16 U.S.C. 1531 et seq.), 
for any petition that presents substantial scientific and commercial 
information to revise the List of Endangered or Threatened Wildlife and 
Plants, we are required to make a finding within 12 months of the date 
of receipt of the petition on whether the petitioned action is (a) not 
warranted, (b) warranted, or (c) warranted but precluded from immediate 
proposal by other pending proposals of higher priority. Such 12-month 
findings are to be published promptly in the Federal Register.
    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 
(northeast Florida through North Carolina) and Florida Panhandle 
subpopulations of the loggerhead sea turtle, a species currently listed 
as threatened throughout its worldwide range, be reclassified as DPSs 
and their status be changed to ``endangered''. They also requested that 
critical habitat for the Northern and Florida Panhandle subpopulations 
be designated. In addition, the petition requested that the 
reclassification of these subpopulations to endangered be completed by 
an emergency rule.
    On June 4, 2002 (67 FR 38459), NMFS announced a finding that the 
petition presented substantial scientific and commercial information 
indicating that the petitioned reclassification may be warranted. NMFS, 
therefore, solicited additional information and comments from the 
public to assist NMFS in its review of whether the Northern and Florida 
Panhandle loggerhead

[[Page 53948]]

subpopulations qualify as distinct population segments and, if so, 
whether they should be reclassified from threatened to endangered on 
the basis of the ESA's listing factors. NMFS found that the petition's 
request for emergency action was not warranted because the species was 
already afforded protection under the ESA. NMFS also noted that 
although designation of critical habitat is not subject to the ESA's 
petition provision, the ESA requires the Services, to the maximum 
extent prudent and determinable, to make a critical habitat designation 
concurrent with a listing determination. NMFS, therefore, solicited 
information and comments that would help identify areas for 
consideration as critical habitat for the Northern and Florida 
Panhandle subpopulations, should they be determined to warrant listing 
as DPSs.

Summary of Comments Received

    NMFS received a total of 23 responses to its initial finding. These 
included responses from one Federal agency (the U.S. Army Corps of 
Engineers), two state agencies, four fishermen or fishing industry 
groups, four academics, five regional environmental groups, one 
representative of a consulting firm, and six non-affiliated citizens. 
Virtually all of the respondents provided additional information in the 
form of new data or a critique or analysis of existing data on the 
genetic identification of loggerhead subpopulations, the status of 
southeastern U.S. loggerheads, or the threats facing loggerheads in 
specific locations.
    Of the 23 respondents, 19 expressed an opinion on the petitioned 
reclassification, the majority (11) of which supported 
reclassification. Most private citizens and environmental groups based 
their support for the petitioned action on their views regarding the 
need for enhanced protection of loggerheads in the water or on the 
nesting beaches, given their concerns about the vulnerability of these 
small subpopulations. Some researchers based their support on the 
genetic evidence for distinct subpopulations and the apparent 
demographic differences between certain subpopulations.
    One respondent who opposed the petition challenged the equivocal 
nature of the existing scientific information regarding both genetic 
distinctness and population trends. All of the industry respondents 
opposed the petition, based on their view that there is a lack of 
sufficient data to support taking the requested action. The Federal 
agency, one state agency, and one environmental respondent did not 
support reclassification, based on their view that there is a lack of 
sufficient data to support a DPS and listing change at this time. These 
respondents recommended that the loggerhead recovery team review the 
status of the subpopulations and possibly designate them as recovery 
units.
    We have considered all of the comments and information that were 
submitted and included them in the administrative record for this 
decision. Some of the information submitted, especially new data and 
analyses, is explicitly cited in the discussion below.

Current Listing Status

    We listed the loggerhead sea turtle as threatened under the ESA on 
July 28, 1978 (43 FR 32808), throughout its worldwide range. The 
species has a broad distribution, inhabiting continental shelves, bays, 
estuaries, and lagoons in temperate, subtropical, and tropical waters 
of the Atlantic, Pacific, and Indian Oceans. Adult females come ashore 
on beaches to lay eggs in nests they dig in the sand. Nesting generally 
occurs in temperate zones and subtropics, principally at the western 
rims of the Atlantic and Indian Oceans.
    The U.S. jurisdiction over the species principally involves 
loggerheads in the Atlantic and Pacific populations. Although the 
Atlantic and Pacific populations are not formally recognized as 
different subspecies, the best available information indicates that the 
populations are separated across these large oceanic expanses. Given 
the need for management from the perspective of different ocean basins, 
separate recovery plans were prepared for the U.S. populations in the 
Atlantic and the Pacific. We published final recovery plans for the 
U.S. loggerhead sea turtle in the Atlantic in 1991 (NMFS and USFWS, 
1991) and in the Pacific in 1998 (NMFS and USFWS, 1998). We also treat 
sea turtle populations in the Atlantic Ocean separately from those in 
the Pacific Ocean for the purposes of section 7 consultations under the 
ESA. Because of the separate conservation and management efforts 
already occurring for the Atlantic population of loggerheads, and 
because the petition focused on reclassifying two loggerhead 
subpopulations in the southeastern U.S., the background information for 
this 12-month finding is focused on loggerheads in the western North 
Atlantic.

Western North Atlantic Loggerhead Nesting Assemblages

    The range of the loggerhead sea turtle in the western North 
Atlantic extends from Newfoundland to as far south as Argentina and 
Brazil. Within the southeastern U.S., loggerheads nest from the coast 
of southern Virginia to the coast of Texas with the vast majority of 
nesting occurring from North Carolina through Florida. Elsewhere in the 
western North Atlantic, nesting has been reported along the Gulf coast 
of Mexico, in Cuba, Puerto Rico, Jamaica, Honduras, Nicaragua, 
Colombia, and Venezuela (Sternberg, 1981, as reported by the Turtle 
Expert Working Group (TEWG), 1998).
    The 1991 recovery plan addresses loggerhead sea turtle conservation 
actions implemented under U.S. jurisdiction in the southeastern U.S., 
with an emphasis on the major nesting beaches in North and South 
Carolina, Georgia, and Florida. The plan established recovery 
objectives for nesting in each of these States. At the time the 
recovery plan was written, the known nesting in these States, taken 
collectively, was estimated to account for 35 to 40 percent of the 
known nesting of the species worldwide (NMFS and USFWS, 1991).
    Since the adoption of the recovery plan for southeastern U.S. 
loggerheads in 1991, new information has become available on their 
population structure, status, and trends. Based on a review of 
available genetic studies of loggerheads in relation to mitochondrial 
DNA (mtDNA), which is inherited only from the mother, the Turtle Expert 
Working Group (TEWG, 1998; TEWG, 2000) and the NMFS Southeast Fisheries 
Science Center (NMFS SEFSC, 2001) identified five different nesting 
assemblages, also referred to as nesting subpopulations, in the western 
North Atlantic. Studies have confirmed the hypothesis that adult female 
loggerheads generally show natal homing (i.e., returning to the area of 
their natal beach to lay their eggs), and this behavior provides the 
key mechanism that has established and maintained the mtDNA differences 
among the nesting assemblages. The five nesting assemblages are the 
Northern subpopulation, occurring from North Carolina to northeast 
Florida; the South Florida subpopulation, occurring from 29[deg] N. 
latitude on the east coast to Sarasota on the west coast; the Florida 
Panhandle subpopulation; the Yucatan subpopulation from the eastern 
Yucatan Peninsula, Mexico; and the Dry Tortugas subpopulation from the 
Dry Tortugas (located west of the Florida Keys), Florida. The Northern 
and Florida Panhandle subpopulations are the subject of the petition to 
be reclassified as endangered.

Status Summary

    Due to the difficulty of conducting comprehensive population 
surveys

[[Page 53949]]

away from the nesting beaches, we use nesting beach survey data as an 
index to the status and trends of loggerheads. In the information that 
follows, we describe the general location and the amount and trends of 
known nesting for each of the five identified nesting assemblages in 
the western North Atlantic, including the Northern and the Florida 
Panhandle nesting subpopulations that are petitioned to be identified 
as DPSs and reclassified as endangered. Detection of nesting trends 
requires consistent data collection methods over long periods of time. 
In 1989, a statewide sea turtle Index Nesting Beach Survey (INBS) 
program was developed and implemented in Florida, and similar 
standardized daily survey programs have been implemented in Georgia, 
South Carolina, and North Carolina. Although data for the Dry Tortugas 
in Florida are from beaches that are not part of the INBS program, 
these beaches have moderately good monitoring consistency. There are 
few nesting surveys for loggerheads in Mexico; however, some nesting 
survey data for the Yucatan Peninsula are available. Survey results 
show that the five nesting subpopulations differ in their overall size 
and trends, as described below.

South Florida Subpopulation

    The South Florida nesting subpopulation is the largest known 
loggerhead nesting assemblage in the Atlantic, with annual nesting 
totals (i.e., number of nests) ranging from 48,531 to 83,442 annually 
over the past decade. In terms of trends, data from all beaches within 
the subpopulation where nesting activity has been recorded indicate 
substantial increases when data are compared over the last 25 years. 
However, an analysis limited to nesting data from the INBS program from 
1989 to 2002, a period encompassing index surveys that are more 
consistent and more accurate than surveys in previous years, has shown 
no detectable trend (Blair Witherington, Florida Fish and Wildlife 
Conservation Commission (FFWCC), pers. comm., 2002).

Northern Subpopulation

    The Northern nesting subpopulation is much smaller than the 
adjacent South Florida subpopulation, with the reported total number of 
nests ranging from 4,370 to 7,887 annually between 1989 and 1998, 
representing an average of approximately 1,524 nesting females per year 
and characterized as stable or declining (TEWG, 2000). Although longer-
term trends are not available for the Northern subpopulation, 
researchers have documented substantial declines in nesting on some 
beaches within this nesting assemblage since the early 1970s. Data from 
standardized nesting beach surveys that were analyzed for a 30-year 
period showed that nesting decreased 1.2 percent. However, these 
results are based on information from only 3 beaches, representing 6 
percent of the total nesting of the Northern subpopulation, that met 
the criteria for standardized surveys during this time period. An 
analysis covering a 21-year period, when 8 beaches representing 31 
percent of the total nesting of the Northern subpopulation met the 
criteria for standardized surveys, showed no detectable trend. A longer 
time series may be necessary, however, to detect annual changes in 
nesting activity (Mark Dodd, Georgia Department of Natural Resources, 
pers. comm., 2003).
    As stated earlier, taken as a whole, the Northern nesting 
subpopulation is characterized by the TEWG as stable or declining 
(TEWG, 2000). Within this subpopulation, South Carolina usually 
accounts for half or more of the annual nesting of the Northern 
subpopulation, averaging 3,471 nests annually from 1989 to 1998. 
Nesting in South Carolina has been declining at an average of 3.1 
percent per year from 1980 to 2002, according to estimates of statewide 
nesting as determined through aerial surveys (South Carolina Department 
of Natural Resources, unpub. data). Northeast Florida is the next 
largest, with an annual average of 1,055 nests, followed by Georgia 
with an average of 991 nests, and North Carolina with an average of 730 
nests (TEWG, 2000).

Florida Panhandle Subpopulation

    The Florida Panhandle subpopulation appears to be the third largest 
in size, with annual nesting totals ranging from 113 to 1,285 nests 
between 1989 and 2002 (FFWCC, unpub. data). Evaluation of long-term 
nesting trends for the Florida Panhandle subpopulation is difficult 
because of changed and expanded beach survey coverage. Although there 
are six years of INBS data for the Florida Panhandle subpopulation, the 
time series is too short to detect a trend (Blair Witherington, FFWCC, 
pers. comm., 2003).

Yucatan Peninsula Subpopulation

    The Yucatan nesting subpopulation appears to be one of the two 
smallest of the five identified subpopulations in the western North 
Atlantic. This nesting assemblage had 1,052 nests reported in 1998 and 
the nesting trend is believed to be stable or increasing, but with 
little nesting survey data available for trend analyses (TEWG, 2000).

Dry Tortugas Subpopulation

    The Dry Tortugas nesting subpopulation appears to be the smallest 
of the five identified nesting assemblages, with an average of 213 
nests reported per year (range of 184 to 270 from 1995 to 2001; FFWCC, 
unpub. data). Trend data for the Dry Tortugas subpopulation are from 
beaches that are not part of the INBS program but have moderately good 
monitoring consistency. There are 7 years of data for this 
subpopulation, but the time series is too short to detect a trend 
(Blair Witherington, FFWCC, pers. comm., 2003).

Distinct Population Segment Review

    Pursuant to the ESA, we must consider for listing any species, 
subspecies, or DPS of vertebrates if there is sufficient information to 
indicate that such action may be warranted. The Services published the 
Policy Regarding the Recognition of Distinct Vertebrate Population 
Segments under the ESA (the DPS policy) on February 7, 1996 (61 FR 
4722), to clarify the application of the provision in the ESA to list, 
delist, or reclassify DPSs of any vertebrate species of fish or 
wildlife.
    The DPS policy describes a process for evaluating vertebrate 
populations as potential DPSs for ESA listing decisions. The first step 
involves determining whether the population is discrete in relation to 
the remainder of the taxon. Under our DPS policy, a population segment 
of a vertebrate species may be considered discrete if it satisfies 
either one of the following conditions: (1) It is markedly separated 
from other populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors (quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation); or (2) it is delimited by international governmental 
boundaries within which significant differences in control of 
exploitation, management of habitat, conservation status, or regulatory 
mechanisms exist that are significant in light of section 4(a)(1)(D) of 
the ESA.
    If a population is determined to be discrete under one or both of 
the above conditions, its biological and ecological significance to the 
taxon will then be considered in light of Congressional guidance 
(Senate Report 151, 96th Congress 1st Session) that the authority to 
list DPS's be used ''...sparingly and only when the biological evidence 
indicates that such action is warranted'' while encouraging the 
conservation of genetic diversity. The policy recognizes that the 
biological and ecological

[[Page 53950]]

circumstances in every case will differ, and the particular scientific 
evidence available will determine whether a population is considered 
significant. Our DPS policy states that the consideration of 
significance may include, but is not limited to, the following: (1) 
Persistence of the discrete population segment in an ecological setting 
unusual or unique for the taxon; (2) evidence that loss of the discrete 
population segment would result in a significant gap in the range of 
the taxon; (3) evidence that the discrete population segment represents 
the only surviving natural occurrence of a taxon that may be more 
abundant elsewhere as an introduced population outside its historic 
range, or (4) evidence that the discrete population segment differs 
markedly from other populations of the species in its genetic 
characteristics.
    If a population is determined to be both discrete and significant, 
it can be considered a DPS and its status as an endangered or 
threatened species then is evaluated, based on the ESA's definitions of 
those terms and on a review of the factors enumerated in ESA section 
4(a). Only then, if the population's status warrants it, would a 
listing or reclassification be appropriate through the usual rulemaking 
procedures specified in the ESA.

Discreteness

    As explained above, if a population meets either of two specified 
conditions, it may be considered discrete under our DPS policy. One of 
the conditions is specific to a population delimited by international 
governmental boundaries across which there are differences in control 
of exploitation, management of habitat, conservation status, or 
regulatory mechanisms. Because there was no clear way to delimit the 
Northern or the Florida Panhandle subpopulations by international 
boundaries, the Services have decided not to rely on this criterion to 
establish the discreteness of either of these two subpopulations.
    The other condition under which a population can be determined to 
be discrete is if it is markedly separated from other populations of 
the same taxon as a consequence of physical, physiological, ecological, 
or behavioral factors. Quantitative measures of genetic or 
morphological discontinuity may provide evidence of this separation. 
With regard to this condition, we examined several lines of evidence to 
evaluate whether the Northern and Florida Panhandle nesting 
subpopulations of loggerhead sea turtles are discrete based on the DPS 
policy criteria. These lines of evidence include information related to 
genetics (including maternally inherited mtDNA and biparentally 
inherited nuclear (nDNA)), physiological and ecological factors, 
foraging behavior as related to the distribution of loggerheads at 
areas other than nesting beaches, and morphometrics (measurement of the 
structure and form of organisms).
    Genetic information comes from studies of the maternally inherited 
mtDNA genome, as well as from nDNA genetic markers (microsatellites) 
that are biparentally inherited. The results of the mtDNA and nDNA 
studies differ, as described below.
    Non-coding regions of the mtDNA genome serve as maternally-
inherited neutral markers that can be used to help evaluate population 
substructure. The TEWG (2000) concluded that studies of mtDNA support a 
stock structure of at least five different nesting assemblages of 
loggerhead sea turtles in the western North Atlantic (as described 
above), including the Northern and the Florida Panhandle nesting 
subpopulations that are the subject of the petitioned action. The 
tendency of females to return to their natal beaches to lay eggs 
restricts maternal gene flow. Results of mtDNA studies of sea turtles 
support the hypothesis of natal homing (Encalada et al., 1996; Encalada 
et al., 1998; Bass, 1999; Dutton et al., 1999). Based on mtDNA 
analyses, Encalada et al.(1998) reported there is evidence of strong 
mtDNA (maternally inherited) differences between the identified nesting 
subpopulations, which they considered to be demographically 
independent.
    A subsequent study by Francisco et al., (2000) expanded the sites 
from which samples were taken for mtDNA analysis, and found the 
situation to be somewhat more complex. For instance, they reported a 
tentative conclusion that there is an additional, separate nesting 
assemblage associated with beaches in Volusia County, Florida which is 
within the area described as comprising the Northern subpopulation. 
They also reported that there were no statistically significant 
differences in the mtDNA analysis for some widely separated 
populations, including Amelia Island (in the Northern nesting 
assemblage) and Eglin Air Force Base (in the Florida Panhandle nesting 
assemblage).
    Fine-scale mtDNA analysis from Florida rookeries indicates that 
separations of nesting assemblages generally begin to appear (from the 
standpoint of being detected through mtDNA analysis) between nesting 
beaches separated by more than 100 kilometers (km) (62 miles) of 
coastline that do not host nesting (Francisco et al., 2000). Consistent 
with the results obtained from mtDNA analyses, data collected from 
females tagged on nesting beaches indicate high nesting site fidelity, 
with nest site relocations of distances greater than 100 km (62 miles) 
occurring only rarely (CMTTP, unpub. data; LeBuff, 1974, 1990; Ehrhart, 
1979; Richardson, 1982; Bjorndal et al., 1983). The typical distance 
between nest sites used by individual nesting females is 3 miles (5 km) 
or less (Schroeder et al., in press).
    Overall, the mtDNA information is consistent with natal homing, 
with nesting colonies separated by a few hundred kilometers appearing 
to represent isolated reproductive aggregates. The Northern 
subpopulation may be an exception to this pattern, however. Encalada et 
al. (1998) found that loggerheads from various beaches within the range 
of the Northern subpopulation from Amelia Island, in northeastern 
Florida, to North Carolina are indistinguishable based on mtDNA. 
However, they suggested the possibility of differentiation within the 
Northern nesting assemblage that has not yet been detected, concluding 
that the lack of mtDNA differentiation may be due to relatively recent 
colonization that has not allowed sufficient time to accumulate the 
genetic variation needed to detect any fine-scale population sub-
structure. The subsequent analysis of samples from a larger number of 
areas and the resulting indication that the vicinity of Volusia County 
may have a separate nesting assemblage (Francisco et al., 2000) 
suggests that the subpopulation may be further differentiated or that 
Volusia County may represent an area of overlap, including nesting 
females from both the Northern and South Florida subpopulations. With 
regard to the Florida Panhandle, Encalada et al. (1998) found 
insufficient genetic diversity to further differentiate the stock 
structure within the subpopulation. Thus, although partitioning within 
these nesting assemblages may exist, as appears to be indicated by the 
results of Francisco et al. (2000), we are unable to clearly discern it 
based on available information. Fine-structure analysis will benefit 
from additional data collection and analyses, and may well reveal that 
the identified subpopulations can be further divided.
    In addition to studies based on maternally inherited mtDNA, other 
studies have used nuclear (nDNA) genetic markers (microsatellites) to 
examine fine-scale population structure. Since these nDNA markers are 
biparentally inherited, information on

[[Page 53951]]

the role of males in population structure is provided that is not 
available from mtDNA. The results of recent nDNA analysis (Francisco-
Pearce, 2001) show no substantial subdivisions across the loggerhead 
nesting colonies in the southeastern United States. These findings, 
which contrast with the mtDNA evidence showing general segregation of 
female lineages among the loggerhead subpopulations, suggest that male 
loggerheads from each subpopulation are able to breed with females from 
other southeastern United States subpopulations. This male-mediated 
gene flow would be sufficient to prevent the rise of detectable nDNA 
genetic differences among the subpopulations. These results should be 
interpreted cautiously, due to the preliminary nature of nDNA analysis 
for loggerheads; nDNA genetic differences between subpopulations may 
exist but will require larger sample sizes and additional multiple 
markers to detect.
    We considered information on the degree of similarity in nesting 
variability within and between nesting assemblages as a possible 
indication of ecological or physiological factors that might indicate 
discreteness while acknowledging that the variability could be the 
result of other factors that are independent of discreteness. 
Loggerhead nesting typically shows high variability from year to year. 
The TEWG (2000) reported correlations of nesting variability within and 
between the Northern, South Florida, and Florida Panhandle nesting 
assemblages. Annual variation in nesting activity is significantly 
correlated across nesting beaches within the Northern subpopulation. 
Within the South Florida subpopulation, the correlation between the 
southeast and southwest portions of the subpopulation also were 
statistically significant. The correlation between the Northern and the 
South Florida subpopulations was lower than those within each of them, 
but still was statistically significant. The Florida Panhandle 
subpopulation results showed a high, significant correlation with nest 
numbers reported annually for the South Florida subpopulation as a 
whole, and for the portion in southwest Florida, but not with the 
southeastern Florida area or with the Northern nesting assemblage.
    The correlations indicate support for the concept of a considerable 
degree of cohesiveness within the identified nesting subpopulations in 
terms of annual variability in nesting. However, the results also 
indicate some degree of similarity across the subpopulations. Compared 
to beaches within a subpopulation, the correlations between the 
different nesting subpopulations are lower, but there is some degree of 
similarity and in some cases the correlations between subpopulations 
are statistically significant in terms of the annual variability in 
nesting. The mechanism(s) that drive annual variability within and 
between nesting assemblages is not well understood.
    Because the sex of loggerhead hatchlings is environmentally 
determined by nest incubation temperatures, we considered information 
about the sex ratios of progeny from different nesting assemblages to 
evaluate whether they indicate marked separation of the assemblages as 
a consequence of environmental factors. Pivotal (i.e., the incubation 
temperature that produces equal numbers of males and females) and 
transitional ranges of temperatures determine whether a nest will 
produce males, females, or both (Mrosovsky and Pieau, 1991). For 
example, Mrosovsky and Provancha (1989) suggest that the majority of 
nests laid at a major rookery near Cape Canaveral, Florida, an area 
near where the segregation between the South Florida and Northern 
subpopulations occur, incubate at such warm temperatures that virtually 
no males are produced. In contrast, males are predominately although 
not exclusively - produced in rookeries of the Northern subpopulation, 
presumably because of a nesting season characterized by cooler 
incubation temperatures.
    NMFS SEFSC (2001) evaluated a combination of genetic data and 
observed juvenile sex ratios from several southeast U.S. locations. 
They estimated that the South Florida nesting subpopulation produces 20 
percent male hatchlings, the Yucatan subpopulation produces 31 percent 
males, and the Northern subpopulation produces 65 percent males. They 
did not assess the sex ratios of hatchlings from the Dry Tortugas or 
Florida Panhandle nesting assemblages. The Florida Cooperative Fish and 
Wildlife Research Unit, in response to NMFS' request for additional 
information, submitted data on loggerhead nesting in northwest Florida 
and reported that based on nest incubation temperatures, sex ratios of 
hatchlings from the Florida Panhandle subpopulation are mixed, with an 
apparently larger proportion of males than the 20 percent proportion 
found in nests from the South Florida subpopulation.
    Since male-mediated gene flow appears to be keeping the 
subpopulations genetically similar on a nDNA level, the relatively 
higher percentage of males produced in the smaller Northern and Florida 
Panhandle subpopulations is of management interest, as it may play an 
important role in providing males to mate with females from the other, 
female-dominated subpopulations, thereby helping to ensure reproductive 
success for loggerheads in the entire western North Atlantic. Although 
the South Florida nesting assemblage apparently produces only about 20 
percent males, the total number of males produced is likely greater 
than that produced by the Northern and Florida Panhandle assemblages, 
due to the larger size of the South Florida assemblage. However, males 
produced from the Northern and Florida Panhandle nesting assemblages 
contribute to the overall number of males available for breeding and 
contribute to maintaining or increasing outbreeding.
    In our evaluation of whether the two petitioned nesting 
subpopulations are markedly separated from other populations of the 
taxon, we also considered evidence of morphological discontinuity. 
Morphometrics is a common taxonomic tool used to establish stock 
distinctions, and a common feature of morphometric variation in widely 
distributed animals is a latitudinal cline in body size. Reviews of the 
standard sea turtle size measurements (Tiwari and Bjorndal, 2000; 
Stoneburner, 1980) found no evidence of this latitudinal cline in 
carapace length and width for Atlantic loggerheads. Stoneburner (1980) 
suggested that body depth of nesting female loggerheads decreases with 
latitude from North Carolina to Florida; however, more recent data and 
analyses (NMFS SEFSC, unpub. data) show no differences in body depth 
over the same area. The lack of morphometric variation among the 
western North Atlantic loggerhead subpopulations is consistent with the 
reported lack of nDNA genetic differentiation.
    We have considered information on the non-nesting distribution of 
loggerheads to determine if it indicates that there is a marked 
separation of the petitioned subpopulations from other populations. As 
described below, this included consideration of information on foraging 
and stranded sea turtles, carapace epibionts (living organisms attached 
to the carapace), and migrations of post-nesting females.
    Genetic samples (mtDNA) taken from immature loggerheads at 
representative foraging grounds from the northeast United States to 
Florida Bay (at the southern tip of the mainland of Florida) have been 
analyzed to determine the origin of the individuals (see review in TEWG 
2000 and NMFS SEFSC 2001).

[[Page 53952]]

 The South Florida nesting subpopulation was the largest contributor at 
almost all sampling sites. For example, samples from an estuarine area 
in North Carolina indicated that about 64 percent of the individuals 
were from the South Florida subpopulation, 30 percent from the Northern 
subpopulation, and 5 percent from Mexico (Bass et al., 2000). This 
information demonstrates mixing of the immatures from the Northern and 
South Florida nesting assemblages in these foraging areas. The 
information also indicates that loggerheads from the Northern and South 
Florida subpopulations are not distributed randomly, i.e., not in 
proportion to the relative abundance of the subpopulations. Along the 
Atlantic seaboard and off the west coast of Florida, the Northern 
nesting subpopulation was represented disproportionately to its level 
of nesting. Specifically, although the Northern subpopulation accounts 
for only 8.5 percent of the total U.S. loggerhead nesting in the 
western North Atlantic, 25 to 59 percent of the loggerheads found 
foraging from the northeast United States to Georgia come from the 
Northern subpopulation and approximately 20 percent of those found off 
both Florida coasts come from the Northern nesting subpopulation (TEWG, 
2000).
    The study of epibiont colonization on turtle carapaces may provide 
clues as to where turtles are foraging because a number of long-lived 
sessile organisms within the epibiont community are likely unaffected 
by short term migrations. Carapace epibionts have been studied on 
female loggerhead turtles nesting along a portion of the east coast of 
the U.S., including parts of the Northern and South Florida nesting 
assemblages (from Pritchard's Island, South Carolina, south to 
Hutchinson Island, Florida) (Caine, 1986). The results provide an 
indirect indication that adult females are more strongly segregated on 
the foraging grounds than immature loggerheads. Caine found that 
differences in the epibiont communities began to appear on nesting 
females in the area between Flagler Beach and Cape Canaveral National 
Seashore in northeast Florida, indicating some separation in foraging 
areas used by nesting females from the Northern and South Florida 
nesting subpopulations. Certain epibionts of the turtles from the South 
Florida nesting areas were of Caribbean origin, whereas some of the 
epibionts of turtles from the Northern nesting assemblage were 
indicative of the Sargasso Sea, in the central North Atlantic. The 
amount of overlap in the epibiont communities is relatively low, 4.2 to 
7.5 percent, which is an indirect indication that nesting turtles from 
northern versus southern nesting areas were inhabiting different 
foraging environments.
    Satellite telemetry and tagging data also suggest that adult 
females from the Northern and South Florida nesting assemblages are not 
using the same foraging areas. Based on satellite telemetry studies and 
analyses of flipper tag return data, non-nesting adult females from the 
South Florida subpopulation are distributed throughout the Bahamas, 
Greater Antilles, Cuba, Yucatan, eastern and western Gulf of Mexico, 
and southern Florida (Meylan, 1982; Meylan et al., 1983; Barbara 
Schroeder, NMFS, pers. comm., 2003), whereas non-nesting adult females 
from the Northern subpopulation appear to occur almost exclusively 
along the east coast of the United States (Plotkin and Spotila, 2002; 
Griffin and Murphy, 2003; Sally Murphy, South Carolina Department of 
Natural Resources, pers. comm., 2003). Only one Northern subpopulation 
mature female has been reported to enter the Gulf of Mexico (Bell and 
Richardson, 1978). Limited tagging data suggest that adult females from 
the Florida Panhandle subpopulation remain in the Gulf of Mexico 
(Barbara Schroeder, NMFS, pers. comm., 2003) and overlap in foraging 
areas exist between adult females from the Florida panhandle and south 
Florida nesting subpopulations (Meylan, 1982; Barbara Schroeder, NMFS, 
pers. comm., 2003).

Conclusion

    The petitioners cited a number of points in support of their 
assertion that the Northern and Florida Panhandle subpopulations meet 
the discreteness criteria of our DPS policy. These included mtDNA 
distinctions, physical and ecological separations based on the 
behavioral attribute of females returning to their natal beaches to 
nest, differences in nesting chronology between ``northern'' and 
``southern'' turtles, and post-nesting movement to foraging areas by 
turtles in the Northern subpopulation as compared to those in the 
Southern subpopulation. We have reviewed information presented in the 
petition and other available information pertaining to the discreteness 
as defined by DPS policy.
    On the question of the discreteness of the petitioned Northern and 
Florida Panhandle nesting subpopulations, while numerous lines of 
evidence indicate the identified nesting assemblages are discrete to 
some degree, the separation is not highly rigid and the subpopulations 
are not markedly separated from each other based on the criteria for 
discreteness in our DPS policy. Although our DPS policy does not 
require an absolute separation or reproductive isolation for a 
population to satisfy the discreteness requirement, several factors 
within the overall loggerhead population structure indicate that the 
subpopulations are not markedly separated, and thus are not discrete 
under our DPS policy.
    Marked separation on the basis of genetic discontinuity is not 
definitive for the subpopulations. Natal homing behavior and nest site 
fidelity of females apparently are the mechanisms that result in being 
able to distinguish nesting subpopulations on the basis of maternally 
inherited mtDNA. However, recent genetic studies indicate that mtDNA 
distinctions between and among subpopulations are complex. Further 
subdivisions of some of the nesting assemblages, including the Northern 
subpopulation, may exist (e.g., the data for Volusia County) and some 
widely separated populations, including Amelia Island (in the Northern 
nesting assemblage) and Eglin Air Force Base (in the Florida Panhandle 
nesting assemblage) have no statistically significant differences in 
the mtDNA analysis. In addition, the recently available nDNA 
information suggests that males likely interbreed with females across 
subpopulations, and thus the subpopulations are not separable on this 
basis. From the standpoint of our DPS policy criteria, the evidence of 
marked separation based on genetic discontinuity at the nDNA level is 
inconclusive for the petitioned subpopulations.
    There is a high correlation of the annual variation in nesting 
activity across beaches within subpopulations. However, there also are 
statistically significant correlations in nesting activity between the 
Northern and South Florida subpopulations, and between the Florida 
Panhandle and South Florida subpopulations. Therefore, the comparison 
of annual variation in nesting activity does not indicate marked 
separation of the subpopulations.
    The Northern and South Florida subpopulations differ considerably 
in the percentage of male hatchlings produced, as a result of 
environmental differences in nest incubation temperatures. The 
percentage of males produced from the Florida Panhandle population is 
not known, but is estimated to be higher than that of the South Florida 
subpopulation. Because of its much larger size, however, the

[[Page 53953]]

South Florida subpopulation likely produces a larger number of male 
hatchlings than the smaller Northern and Florida Panhandle 
subpopulations. Male hatchlings from the Northern and Florida Panhandle 
subpopulations contribute to having sufficient males to mate with 
females from other subpopulations, including the female-dominated South 
Florida subpopulation, and thus help contribute to reproductive success 
of loggerheads in the western North Atlantic, as well as increasing 
outbreeding. Although this is an important management consideration in 
terms of survival and recovery goals, and it will be addressed in the 
update to the 1991 recovery plan, it does not indicate that the 
subpopulations are markedly separated in terms of the criteria for 
discreteness under our DPS policy.
    Quantitative measures of morphological characteristics do not show 
differences between the subpopulations. Specifically, measurements of 
carapace length and width, and body depth, did not show distinctions 
among Atlantic loggerheads.
    Genetic analyses indicate that immature loggerheads from the South 
Florida, Northern, and Florida Panhandle subpopulations are mixed in 
foraging areas. Although it is of management concern in terms of 
survival and recovery goals for the species that the Northern 
subpopulation is represented off the Atlantic coast in a higher 
proportion than its relative abundance would suggest, this does not 
meet the definition of marked separation in the DPS Policy. The study 
of epibionts on nesting females from the Northern and South Florida 
nesting assemblages provides an indirect indication that the adult 
females from these two subpopulations are using different foraging 
areas, and satellite telemetry and tagging data more clearly indicate 
they are using different foraging areas. The satellite telemetry and 
tagging data show that adult females from the Florida Panhandle and 
South Florida subpopulations overlap in foraging areas. Overall, the 
information on foraging distribution indicates overlap of immatures 
from different subpopulations, apparent use of different areas by adult 
females from the Northern and South Florida subpopulations, and 
apparent overlap by adult females from the Florida Panhandle and South 
Florida subpopulations. This information does not meet the definition 
for marked separation in the DPS Policy.
    Differences in nesting chronology between the subpopulations (i.e., 
earlier onset of the nesting season in south Florida) were mentioned by 
the petitioners as a possible behavioral measure of discreteness. These 
differences likely result from a combination of ecological and 
biological factors including climate, oceanographic conditions, and 
reproductive endocrinology. The effects of these factors on 
reproductive timing are not fully understood. Differences in nesting 
chronology could, in theory, provide a mechanism leading to 
reproductive separation between sea turtle populations. However, the 
nesting chronology differences are not extreme (i.e., nesting seasons 
of the petitioned sub-populations largely overlap), and other lines of 
evidence (nDNA data) show that they have not led to a marked separation 
as a consequence of behavioral factors, as required by the discreteness 
criteria of the DPS policy.
    To be discrete under our DPS policy, a population segment of a 
vertebrate species must be markedly separated from other populations of 
the same taxon as a consequence of physical, physiological, ecological, 
or behavioral factors. The available information does not support a 
conclusion that the loggerhead sea turtle subpopulations are discrete 
according to our DPS policy.

Significance

    Our DPS policy is clear that significance is analyzed only when a 
population segment has been identified as discrete. Therefore, we did 
not evaluate the subpopulations for significance under the DPS policy.

Status

    Again, our DPS policy is clear that the separate evaluation of 
listing status is conducted only if a population segment is determined 
to be both discrete and significant. Therefore, because we concluded 
that the subpopulations are not DPSs, we did not evaluate the 
subpopulations for separate reclassification.

Finding

    We have reviewed the petition, the literature cited in the 
petition, other available literature and information, and consulted 
with biologists and researchers familiar with the loggerhead sea 
turtle. On the basis of the best available scientific and commercial 
information, we find that the Northern and Florida Panhandle 
subpopulations of the loggerhead sea turtle are not discrete, and 
therefore are not distinct population segments and do not qualify for 
reclassification as DPSs. Therefore, we find that the petitioned action 
is not warranted.

Effect of Finding on Management and Conservation of Atlantic 
Loggerheads

    The petitioned action was the reclassification of certain 
subpopulations of the loggerhead sea turtle as DPSs with endangered 
status. In ESA section 7 consultations, NMFS has characterized the 
southeastern U.S. subpopulations as critical components of the overall 
loggerhead species and found that significant adverse effects on the 
survival and recovery of the individual subpopulations would adversely 
affect the overall survival and recovery of the entire listed species 
(see e.g., NMFS, 2001). The subpopulations are interdependent for the 
species' survival and recovery.
    Under the 1991 recovery plan, delisting of the southeastern U.S. 
population of the loggerhead may be considered if, over a period of 25 
years, the following three conditions are met: (1) The adult female 
population in Florida is increasing, and nesting in Georgia, South 
Carolina, and North Carolina returns to pre-listing levels identified 
in the plan; (2) certain amounts of available nesting beaches are in 
public ownership; and (3) all the identified recovery tasks necessary 
to prevent extinction or irreversible decline have been successfully 
implemented (NMFS and USFWS, 1991). Since the adoption of the 1991 
recovery plan, new information has become available on loggerhead 
population structure, status, and trends, and we recently convened a 
recovery team to revise and update the Atlantic loggerhead recovery 
plan and have solicited information from the public to use as part of 
this effort (68 FR 13662). We anticipate formal public review of the 
draft plan will occur in 2004.
    As a result of their threatened status and through protective 
regulations implemented by us, the states (e.g., 1995 Florida gillnet 
ban), and several municipalities (e.g., 2000 Lighting Ordinance for 
Town of Ocean Isle Beach, North Carolina), loggerhead sea turtles 
receive significant legal protections. Taking sea turtles (i.e., to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to do so) is prohibited, with certain exceptions 
specified at 50 CFR 223.206. In addition to these prohibitions, 
loggerhead sea turtles are the beneficiaries of research and 
conservation programs implemented under the recovery plans and other 
conservation measures that result from ESA section 7 consultations on 
projects that are funded, permitted, or carried out by Federal 
agencies. Incidental mortality of loggerheads from fisheries

[[Page 53954]]

(e.g., shrimp trawling and pelagic longlining) and from coastal 
construction (e.g., beach nourishment and hopper dredging) has been 
greatly reduced as a result of these protective measures.
    While implementing various management measures to protect the 
species, as listed, we have been mindful of the different dynamics of 
the subpopulations. Biological opinions, issued under section 7 of the 
ESA, have specifically considered the effects of actions on the 
Northern and South Florida subpopulations. For example, NMFS SEFSC 
(2001) modeled the differential effects of pelagic longline fishing in 
the Atlantic on the Northern and South Florida subpopulations of 
loggerheads, and NMFS' biological opinion on the Atlantic Highly 
Migratory Species fisheries (NMFS, 2001) concluded that the impact of 
ongoing mortality of loggerheads, particularly Northern loggerheads, in 
the pelagic longline fishery, together with the environmental baseline 
and cumulative effects acting on the species, would be expected to 
appreciably reduce the survival and recovery of the species. 
Consequently, NMFS implemented a reasonable and prudent alternative to 
reduce the impacts of the pelagic longline fishery. The biological 
opinion and particularly the treatment of the subpopulations' 
interdependence for the species' survival and recovery were challenged 
and upheld in court (Bluewater Fishermen's Assoc. vs. NMFS, U.S. 
District Court for the District of Massachusetts, September 30, 2002).
    As stated previously, we have convened a recovery team to update 
and revise the Atlantic recovery plan for loggerheads. The recovery 
team is conducting a full, independent review of the species' 
biological and habitat requirements and re-evaluating appropriate 
recovery goals and recovery actions to meet those goals. We will 
request that the recovery team consider establishing ``recovery units'' 
within the recovery plan, specifically looking at the previously 
identified subpopulations. In this determination, we found that the 
western North Atlantic loggerhead subpopulations are not discrete and 
thus not distinct population segments. The subpopulations are 
interrelated for recovery purposes, and they are important individually 
in many ways. These interrelated subpopulations are consistent with the 
recovery units set forth in some recovery plans. In recovery plans that 
use this concept, the Services generally describe recovery units as 
geographic or otherwise identifiable subunits of the listed entity that 
individually are necessary to conserve genetic robustness, demographic 
robustness, important life stages, or some other feature necessary for 
long-term sustainability of the overall listed entity. Designation of 
subpopulations as recovery units in the recovery plan would make the 
importance and interdependence of the subpopulations clearer and would 
give us greater guidance on recovery actions that will benefit 
individual subpopulations and most effectively conserve loggerheads as 
a species.

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Authority

    The authority for this action is the Endangered Species Act (16 
U.S.C. 1531 et seq.).

    Dated: September 9, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    Dated: August 21, 2003.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 03-23434 Filed 9-12-03; 8:45 am]
BILLING CODES 3510-22-S, 4310-55-P