6616 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Proposed Rules 

would result in a significant economic 

impact on a substantial number of small 

entities. Based on comments we receive, 

we may revise this determination as part 

of a final rulemaking. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the proposed 

designation of critical habitat for the 

Georgia pigtoe mussel (Pleurobema 

hanleyianum), interrupted rocksnail 

(Leptoxis foremani), and rough 

hornsnail (Pleurocera foremani) would 

affect a substantial number of small 

entities, we considered the number of 

small entities affected within particular 

types of economic activities, such as 

residential and commercial 

development. In order to determine 

whether it is appropriate for our agency 

to certify that this rule would not have 

a significant economic impact on a 

substantial number of small entities, we 

considered each industry or category 

individually. In estimating the numbers 

of small entities potentially affected, we 

also considered whether their activities 

have any Federal involvement. Critical 

habitat designation will not affect 

activities that do not have any Federal 

involvement; designation of critical 

habitat only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies. 

If we finalize this proposed listing 

rule and critical habitat designation, 

Federal agencies must consult with us 

under section 7 of the Act if their 

activities may affect designated critical 

habitat. In areas where the 3 mollusks 

are present, Federal agencies will also 

be required to consult with us under 

section 7 of the Act, due to the 

endangered status of the species. 

Consultations to avoid the destruction 

or adverse modification of critical 

habitat would be incorporated into the 

same consultation process. 

In the DEA, we evaluated the 

potential economic effects on small 

entities resulting from implementation 

of conservation actions related to the 

proposed designation of critical habitat 

for the Georgia pigtoe mussel 

(Pleurobema hanleyianum), interrupted 

rocksnail (Leptoxis foremani), and rough 

hornsnail (Pleurocera foremani). Based 

on that analysis, impacts on small 

entities due to this rule are expected to 

be modest because the incremental costs 

of the rule are estimated to be 

administrative in nature. The only 

incremental impacts associated with 

this rulemaking are administrative costs 

of consultation under section 7 of the 

Act. The administrative costs described 

in Appendix B of the DEA are 

predominantly associated with water 

management, water quality, National 

Forest, and construction. The following 

percentages are estimated annualized 

incremental impacts by activities 

discounted at 7 percent: 42 percent 

transportation construction, 33 percent 

water quality, 18 percent national forest 

activities, and 7 percent water 

management. Tribal lands are not 

expected to be affected by the 

designation. Incremental costs to all 

parties are not expected to exceed 

$43,600 annualized (discounted at 

seven percent). Third parties (some of 

which may be small entities) would bear 

significantly less than this total— 

approximately $5,060 annualized, or 

less than 1 percent impact for all 

sectors. These potential impacts may 

result from consultations on changes in 

water management, actions that affect 

water quality, dredging activities, or 

other activities in the region. Please 

refer to the DEA of the proposed critical 

habitat designation for a more detailed 

discussion of potential impacts. 

In summary, we have considered 

whether the proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities. Information for this analysis 

was gathered from the Small Business 

Administration, stakeholders, and the 

Service. For the reasons discussed 

above, and based on currently available 

information, we certify that if 

promulgated, the proposed designation 

would not have a significant economic 

impact on a substantial number of small 

business entities. Therefore, an initial 

regulatory flexibility analysis is not 

required. 

Author 

The primary author of this document 

is the staff of the Mississippi Fish and 

Wildlife Office (see ADDRESSES section). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: January 25, 2010 

Thomas L. Strickland 

Assistant Secretary for Fish and Wildlife and 

Parks 

[FR Doc. 2010–2870 Filed 2–9–10; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 224 

[Docket No. 0911231415–0052–01] 

RIN 0648–XT12 

Endangered and Threatened Wildlife; 

Notice of 90–Day Finding on a Petition 

to List 83 Species of Corals as 

Threatened or Endangered Under the 

Endangered Species Act (ESA) 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce. 

ACTION: 90–day petition finding; request 

for information. 

SUMMARY: We (NMFS) announce a 90– 

day finding on a petition to list 83 

species of corals as threatened or 

endangered under the ESA. We find that 

the petition presents substantial 

scientific or commercial information 

indicating that the petitioned actions 

may be warranted for 82 species; we 

find that the petition fails to present 

substantial scientific or commercial 

information indicating that the 

petitioned action may be warranted for 

Oculina varicosa. Therefore, we initiate 

status reviews of 82 species of corals to 

determine if listing under the ESA is 

warranted. To ensure these status 

reviews are comprehensive, we solicit 

scientific and commercial information 

regarding these coral species. 

DATES: Information and comments must 

be submitted to NMFS by April 12, 

2010. 

ADDRESSES: You may submit comments, 

information, or data, identified by the 

Regulation Identifier Number (RIN), 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Proposed Rules 6617 

0648-XT12, by any of the following 

methods: 

Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

Mail: Assistant Regional 

Administrator, Protected Resources 

Division, NMFS, Pacific Islands 

Regional Office, 1601 Kapiolani Blvd., 

Suite 1110, Honolulu, HI 96814 (for 

species occurring in the Pacific Ocean); 

or Assistant Regional Administrator, 

Protected Resources Division, NMFS, 

Southeast Regional Office, 263 13th 

Avenue South, St. Petersburg, FL 33701 

(for species occurring in the Atlantic 

Ocean). 

Facsimile (fax): (907) 586–7012 (for 

species occurring in the Pacific Ocean); 

(727) 824–5309 (for species occurring in 

the Atlantic Ocean). 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All personal identifying information 

(e.g., name, address, etc.) voluntarily 

submitted by the commenter may be 

publicly accessible. Do not submit 

confidential business information or 

otherwise sensitive or protected 

information. 

NMFS will accept anonymous 

comments. Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

Interested persons may obtain a copy 

of this coral petition from the above 

addresses or online from the NMFS HQ 

website: http://www.nmfs.noaa.gov/pr/ 

species/invertebrates/. 

FOR FURTHER INFORMATION CONTACT: 

Lance Smith, NMFS Pacific Islands 

Region, (808) 944–2258; Jennifer Moore, 

NMFS Southeast Region, (727) 824– 

5312; or Marta Nammack, NMFS, Office 

of Protected Resources, (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On October 20, 2009, we received a 

petition from the Center for Biological 

Diversity to list 83 species of coral as 

threatened or endangered under the 

ESA. The petitioner also requested that 

critical habitat be designated for these 

corals concurrent with listing under the 

ESA. The petition asserts that 

synergistic threats of ocean warming, 

ocean acidification, and other impacts 

affect these species, stating that 

immediate action is needed to reduce 

greenhouse gas concentrations to levels 

that do not jeopardize these species. The 

petition also asserts that the species are 

being affected by dredging, coastal 

development, coastal point source 

pollution, agricultural and land use 

practices, disease, predation, reef 

fishing, aquarium trade, physical 

damage from boats and anchors, marine 

debris, and aquatic invasive species. 

The petition briefly summarizes the 

description, taxonomy, natural history, 

distribution, and status for each 

petitioned species, and discusses the 

status of each oceanic basin’s coral 

reefs. It also describes current and 

future threats that the petitioners assert 

are affecting or will affect these species. 

The 83 species included in the 

petition are: Acanthastrea brevis, 

Acanthastrea hemprichii, Acanthastrea 

ishigakiensis, Acanthastrea regularis, 

Acropora aculeus, Acropora acuminate, 

Acropora aspera, Acropora dendrum, 

Acropora donei, Acropora globiceps, 

Acropora horrida, Acropora 

jacquelineae, Acropora listeri, Acropora 

lokani, Acropora microclados, Acropora 

palmerae, Acropora paniculata, 

Acropora pharaonis, Acropora 

polystoma, Acropora retusa, Acropora 

rudis, Acropora speciosa, Acropora 

striata, Acropora tenella, Acropora 

vaughani, Acropora verweyi, Agaricia 

lamarcki, Alveopora allingi, Alveopora 

fenestrate, Alveopora verrilliana, 

Anacropora puertogalerae, Anacropora 

spinosa, Astreopora cucullata, 

Barabattoia laddi, Caulastrea 

echinulata, Cyphastrea agassizi, 

Cyphastrea ocellina, Dendrogyra 

cylindrus, Dichocoenia stokesii, 

Euphyllia cristata, Euphyllia 

paraancora, Euphyllia paradivisa, 

Galaxea astreata, Heliopora coerulea, 

Isopora crateriformis, Isopora cuneata, 

Leptoseris incrustans, Leptoseris yabei, 

Millepora foveolata, Millepora tuberosa, 

Montastraea annularis, Montastraea 

faveolata, Montastraea franksi, 

Montipora angulata, Montipora 

australiensis, Montipora calcarea, 

Montipora caliculata, Montipora 

dilatata, Montipora flabellata, 

Montipora lobulata, Montipora patula, 

Mycetophyllia ferox, Oculina varicosa, 

Pachyseris rugosa, Pavona bipartite, 

Pavona cactus, Pavona decussate, 

Pavona diffluens, Pavona venosa, 

Pectinia alcicornis, Physogyra 

lichtensteini, Pocillopora danae, 

Pocillopora elegans, Porites 

horizontalata, Porites napopora, Porites 

nigrescens, Porites pukoensis, 

Psammocora stellata, Seriatopora 

aculeata, Turbinaria mesenterina, 

Turbinaria peltata, Turbinaria 

reniformis, and Turbinaria stellula. 

Eight of the petitioned species are in the 

Caribbean and belong to the following 

families: Agaricidae (1); Faviidae (3); 

Meandrinidae (2); Mussidae (1); 

Oculinidae (1). Seventy-five of the 

petitioned species are in the IndoPacific region, represented by five 

families (nine species) in Hawaii: 

Acroporidae (4); Agaricidae (1); 

Poritidae (1); Faviidae (2); 

Siderastreidae (1); and 11 families and 

one order in the rest of the Indo-Pacific 

region: Acroporidae (31); Agaricidae (7); 

Poritidae (6); Faviidae (2); 

Dendrophylliidae (4); Euphyllidae (4); 

Oculinidae (1); Pectiniidae (1); 

Mussidae (4); Pocilloporidae (3); 

Milleporidae (2); Order Helioporacea 

(1). All 83 species can be found in the 

United States, its territories (Puerto 

Rico, U.S. Virgin Islands, Navassa, 

Northern Mariana Islands, Guam, 

American Samoa, Pacific Remote Island 

Areas), or its freely associated states 

(Republic of the Marshall Islands, 

Federated States of Micronesia, and 

Republic of Palau), though many occur 

more frequently in other countries. 

The petition states that all of these 

species are classified as vulnerable (76 

species), endangered (six species: 

Acropora rudis, Anacropora spinosa, 

Montipora dilatata, Montastraea 

annularis, M. faveolata, Millepora 

tuberosa), or critically endangered (one 

species: Porites pukoensis) by the World 

Conservation Union (IUCN). Montipora 

dilatata and Oculina varicosa are also 

on our Species of Concern list. 

ESA Statutory Provisions and Policy 

Considerations 

Section 4(b)(3)(A) of the ESA of 1973, 

as amended (U.S.C. 1531 et seq.), 

requires, to the maximum extent 

practicable, that within 90 days of 

receipt of a petition to list a species as 

threatened or endangered, the Secretary 

of Commerce (Secretary) make a finding 

on whether that petition presents 

substantial scientific or commercial 

information indicating that the 

petitioned action may be warranted (16 

U.S.C. 1533(b)(3)(A)). Joint ESAimplementing regulations issued by 

NMFS and the U.S. Fish and Wildlife 

Service (FWS) (50 CFR 424.14(b)) define 

‘‘substantial information’’ in this context 

as the amount of information that would 

lead a reasonable person to believe that 

the measure proposed in the petition 

may be warranted. 

In making a finding on a petition to 

list a species, the Secretary must 

consider whether the petition: (i) clearly 

indicates the administrative measure 

recommended and gives the scientific 

and any common name of the species 

involved; (ii) contains detailed narrative 

justification for the recommended 

measure, describing, based on available 

information, past and present numbers 

and distribution of the species involved 


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6618 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Proposed Rules 

and any threats faced by the species; 

(iii) provides information regarding the 

status of the species over all or a 

significant portion of its range; and (iv) 

is accompanied by the appropriate 

supporting documentation in the form 

of bibliographic references, reprints of 

pertinent publications, copies of reports 

or letters from authorities, and maps (50 

CFR 424.14(b)(2)). To the maximum 

extent practicable, this finding is to be 

made within 90 days of the date the 

petition was received, and the finding is 

to be published promptly in the Federal 

Register. When it is found that 

substantial information indicating that 

the petitioned action may be warranted 

is presented in the petition, we are 

required to promptly commence a 

review of the status of the species 

concerned during which we will 

conduct a comprehensive review of the 

best available scientific and commercial 

information. In such cases, within 1 

year of receipt of the petition, we shall 

conclude the review with a finding as to 

whether, in fact, the petitioned action is 

warranted. Because the finding at the 

12–month stage is based on a more 

thorough review of the available 

information, as compared to the narrow 

scope of review at the 90–day stage, a 

‘‘may be warranted’’ finding does not 

prejudge the outcome of the status 

review. 

Under the ESA, a listing 

determination may address a ‘‘species,’’ 

which is defined to also include 

subspecies and, for any vertebrate 

species, a distinct population segment 

which interbreeds when mature (DPS) 

(16 U.S.C. 1532(16)). Because corals are 

invertebrate species, we are limited to 

assessing the status of species or 

subspecies of corals. A species or 

subspecies is ‘‘endangered’’ if it is in 

danger of extinction throughout all or a 

significant portion of its range, and 

‘‘threatened’’ if it is likely to become 

endangered within the foreseeable 

future throughout all or a significant 

portion of its range (ESA sections 3(6) 

and 3(20), respectively, 16 U.S.C. 

1532(6) and (20)). 

Biology of Coral Species 

Stony corals (Class Anthozoa, Order 

Scleractinia) are marine invertebrates 

that secrete a calcium carbonate 

skeleton. Stony corals can be 

hermatypic (significant contributors to 

the reef-building process) or 

ahermatypic, and may or may not 

contain endosymbiotic algae 

(zooxanthellae) (Schumacher and 

Zibrowius, 1985). The largest colonial 

members of the Scleractinia help 

produce the carbonate structures known 

as coral reefs in shallow tropical and 

subtropical seas around the world. The 

rapid calcification rates of these 

organisms have been linked to the 

mutualistic association with singlecelled dinoflagellate algae, 

zooxanthellae, found in the coral tissues 

(Goreau et al., 1979). Massive and 

branching stony corals are the major 

framework builders of shallow tropical 

reefs. Some stony corals occur in deep 

water and are azooxanthellate, but 

typically do not form extensive reefs, 

with few exceptions (e.g., Oculina 

varicosa; Reed, 1981). Corals provide 

substrate for colonization by benthic 

organisms, construct complex protective 

habitats for myriad other species, 

including commercially important 

invertebrates and fishes, and serve as 

food resources for a variety of animals. 

Analysis of Petition 

Of the 83 petitioned species, eight 

species occur in the U.S. waters of the 

Caribbean, and 75 occur in the U.S. 

waters of the Indo-Pacific. The petition 

includes species accounts (i.e., 

description of the species’ morphology, 

life history, habitat, distribution, and 

loss estimates over 30 years (20 years 

into the past and 10 years into the 

future)) of each of the 83 species, threats 

facing each species, and descriptions of 

the status of coral reef ecosystems of the 

wider Caribbean and Indo-Pacific areas. 

The petition asserts that all of the 

petitioned species have suffered 

population reductions of at least 30 

percent over a 30–year period, relying 

on information from the IUCN. 

The majority of coral species included 

in this petition belongs to either the 

wider Caribbean or Indo-Pacific areas 

and occur in similar habitats and face 

the same threats. Eight of the petitioned 

species occur in the Caribbean, and 75 

in the Indo-Pacific. 

The Caribbean, according to the 

petitioner, has the largest proportion of 

corals classified as being in one of the 

high extinction risk categories by the 

IUCN. The petitioner asserts that the 

region suffered massive losses of corals 

in response to climate-related events of 

2005, including a record-breaking series 

of 26 tropical storms and elevated ocean 

water temperatures. Further, the 

petitioner asserts that the U.S. Virgin 

Islands lost 51.5 percent of live coral 

cover, and that Florida, Puerto Rico, the 

Cayman Islands, St. Maarten, Saba, St. 

Eustatius, Guadeloupe, Martinique, St. 

Barthelemy, Barbados, Jamaica, and 

Cuba suffered bleaching of over 50 

percent of coral colonies, citing 

Carpenter et al. (2008). The petitioner 

cites Gardner et al. (2003) in asserting 

that, over the three decades prior to the 

2005 events, Caribbean reefs had 

already suffered an 80 percent decline 

in hard coral cover, from an average of 

50 percent to an average of 10 percent 

throughout the region. 

The abundance and trend information 

presented by the petitioner for each 

species is limited to an estimate of the 

percentage loss of its habitat and/or 

population over a 30–year period 

(including 20 years into the past and 10 

years into the future), as assessed by the 

IUCN. However, the petition also asserts 

that these corals face significant threats. 

To support this assertion, the petitioner 

cites Alvarez-Filip et al. (2009) in noting 

the dramatic decline of the threedimensional complexity of Caribbean 

reefs over the past 40 years, resulting in 

a phase shift from a coral-dominated 

ecosystem to fleshy macroalgal 

overgrowth in reef systems across the 

Caribbean. The petitioner notes that, in 

our 2008 critical habitat designation for 

elkhorn (Acropora palmata) and 

staghorn (A. cervicornis) corals, we 

identified chronic overfishing of 

herbivorous species and the die-off of 95 

percent of the regions’ long-spined sea 

urchins (Diadema antillarum) in the 

early 1980s as primary factors in this 

ecological shift (73 FR 72210; November 

26, 2008). The petitioner cites the same 

source in concluding that, in the 

absence of grazing pressure from 

herbivorous fish and urchins, fastgrowing algae, macroalgae, and other 

epibenthic organisms easily outcompete coral larvae by preempting 

available space, producing toxic 

metabolites that inhibit larval 

settlement, and trapping excess 

sediment in algal turfs. The petitioner 

cites Gledhill et al. (2008) in asserting 

that ocean acidification led to a decrease 

in mean sea surface aragonite saturation 

state in the Greater Caribbean Region 

between 1996 and 2006. The petitioner 

states that Hoegh-Guldberg et al. (2007) 

found marked reductions in resilience 

accompanied by increased grazing 

requirements to facilitate reef recovery 

after modeling the impacts of a 20 

percent decline in coral growth rate in 

response to ocean acidification on a 

Caribbean forereef. 

Seventy-five percent of the world’s 

coral reefs can be found in the IndoPacific, which stretches from the 

Indonesian island of Sumatra in the 

west to French Polynesia in the east 

(Bruno and Selig (2007), as cited by the 

petitioner). As recently as 1,000 to 100 

years ago, this region averaged about 50 

percent coral cover, but 20–50 percent 

of that total has been lost, according to 

the petitioner. The petitioner cites 

Bruno and Selig (2007), stating that 

regional total coral cover averaged 42.5 

percent during the early 1980s, 36.1 


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percent in 1995, and 22.1 percent in 

2003. The petitioner asserts, citing 

Bruno and Selig (2007), that this 

reduced coral cover was relatively 

consistent across 10 subregions of the 

Indo-Pacific in 2002–2003. Although 

these corals have recovered in the past 

(Colgan, 1987, as cited by the 

petitioner), anthropogenic stressors are 

increasing the frequency and intensity 

of mortality events and interfering with 

the natural ability of coral communities 

to recover (McClanahan et al., 2004; 

Pandolfi et al., 2003, as cited by the 

petitioner). The future of Indian Ocean 

reefs is a particular concern to the 

petitioner because over 90 percent of 

corals on many shallow water reefs died 

in 1998 in response to elevated sea 

surface temperatures, and average 

temperatures in the Indian Ocean are 

expected to rise above 1998 levels 

within a few decades (Sheppard, 2003, 

as cited by the petitioner). As elevated 

sea surface temperatures and associated 

climate-induced mass mortality events 

occur more frequently, it becomes less 

likely that there will be enough time 

between events for Indian Ocean reefs to 

recover (Sheppard, 2003, as cited by the 

petitioner). 

The ESA requires us to determine 

whether species are threatened or 

endangered because of any of the 

following section 4(a)(1) factors: the 

present or threatened destruction, 

modification, or curtailment of habitat 

or range; overutilization for commercial, 

recreational, scientific, or educational 

purposes; disease or predation; 

inadequacy of existing regulatory 

mechanisms; and any other natural or 

manmade factors affecting the species’ 

existence (16 U.S.C. 1533(a)(1)). The 

petition describes factors which it 

asserts have led to the current status of 

these corals, as well as threats which it 

asserts the species currently face, 

categorizing them under the section 

4(a)(1) factors. The petition focuses on 

habitat threats, asserting that the habitat 

of the petitioned coral species, and 

indeed all reef-building coral species, is 

under threat from several processes 

linked to anthropogenic greenhouse gas 

emissions, including increasing 

seawater temperatures, increasing ocean 

acidification, increasing storm 

intensities, changes in precipitation, 

and sea-level rise. The petition also 

asserts that these global habitat threats 

are exacerbated by local habitat threats 

posed by ship traffic, dredging, coastal 

development, pollution, and 

agricultural and land use practices that 

increase sedimentation and nutrientloading. The petition asserts that this 

combination of habitat threats has 

already impacted coral reef ecosystems 

on a global scale, and that these threats 

are currently accelerating in severity 

such that the quantity and quality of 

coral reef ecosystems are likely to be 

greatly reduced in the next few decades. 

Petition Finding 

We have reviewed the petition, the 

literature cited in the petition, and other 

literature and information available in 

our files. Based on that literature and 

information, we find that the petition 

meets the aforementioned requirements 

of the ESA regulations under 50 CFR 

424.14(b)(2) for most of the species 

which are the subject of the petition. 

Specifically, we determine that the 

petition presents substantial 

information indicating that the 

requested listing actions may be 

warranted for 82 of the 83 subject 

species. As required by 50 CFR 

424.14(b)(2), for the 82 species, the 

petition: 

(1) clearly indicates the 

administrative measure recommended 

(listing as threatened or endangered) 

and gives the scientific and any 

common names of the species involved; 

(2) contains detailed narrative 

justification for the recommended 

measure, describing, based on available 

information, past and present numbers 

and distribution of the species involved 

and any threats faced by the species; 

(3) provides information regarding the 

status of the species over all or a 

significant portion of its range; and 

(4) is accompanied by the appropriate 

supporting documentation for 82 of the 

83 species in the form of bibliographic 

references and maps. 

Further, it is reasonable to conclude, 

after reviewing the information 

presented in this petition, that these 

species may be threatened or 

endangered. A population decline of at 

least 30 percent throughout the 

Caribbean and Indo-Pacific regions, 

combined with large-scale threats of 

increased abundance of macroalgae 

(which compete for available space, 

produce toxins that inhibit larval 

settlement, and trap excess sediment), 

ocean acidification, decreased resilience 

of corals, and elevated sea surface 

temperatures (which cause mass 

mortalities of corals), could cause coral 

populations to collapse and make it 

difficult for them to recover. 

However, we have determined that 

the petition does not present substantial 

scientific or commercial information 

that the petitioned action may be 

warranted as to Oculina varicosa. The 

petition cited only three references in 

the section addressing O. varicosa. The 

petition relied on the Species Account 

from the IUCN Redlist of Threatened 

Species for information on the 

population status and threats regarding 

this species. Read as a whole, however, 

the IUCN Species Account presents 

conflicting information and does not 

ultimately support the petition, as is 

discussed further below. The other two 

references included a general corals text 

describing morphology and habitat and 

a NMFS’ Species of Concern fact sheet 

for O. varicosa, dated November 2007, 

which is also discussed further below. 

The IUCN Species Account presents 

conflicting information on the threats 

affecting O. varicosa and ultimately 

does not support the petition. The 

Species Account states that deep-water 

populations off the coast of Florida to 

North Carolina (Oculina Banks) have 

undergone declines exceeding 50 

percent since the 1970s due to 

destructive fishing practices, but also 

recognizes that there is no evidence of 

extensive declines beyond those areas or 

throughout the species’ entire range, 

which includes shallow-water 

populations and deeper populations in 

the Gulf of Mexico in addition to the 

populations where declines have been 

observed (Aronson et al., 2008). The 

IUCN Species Account also states that 

the species is ‘‘relatively common’’ 

throughout its range, but also states that 

there is ‘‘no species specific population 

information available’’ (Aronson et al., 

2008). Also, while many of the IUCN 

Species Accounts for species of corals 

that are found in other shallow tropical 

waters infer population information 

from habitat decline (a practice that is 

reasonable for species that actually 

occur within the declining habitat), the 

O. varicosa Species Account attempts to 

draw inappropriate inferences on this 

point. In particular, the Species Account 

infers that the shallow-water 

populations of O. varicosa have 

undergone population declines as a 

result of the threats that are affecting 

those other shallow-water coral reefs, 

even though the species does not occur 

in the same habitats as those other 

shallow-water tropical coral species. 

Similarly, while the IUCN Species 

Account states clearly that O. varicosa 

is not affected by disease and bleaching, 

it also appears to rely on the fact that 

the main threat to reefs is global climate 

change (in particular, temperature 

extremes leading to bleaching and 

increased susceptibility to disease). 

However, the only threat identified in 

the Species Account to actually affect O. 

varicosa is destructive fishing practices. 

NMFS identified O. varicosa as a 

Species of Concern in 1991 based on the 

documented declines of the species in 


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6620 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Proposed Rules 

the deep-water Oculina Banks, off the 

Southeast United States (NMFS, 2007). 

A Species of Concern is defined as 

‘‘species about which [NMFS] has some 

concerns regarding status and threats, 

but for which insufficient information is 

available to indicate a need to list the 

species under the ESA’’ (71 FR 61022; 

October 17, 2006). We maintain a fact 

sheet on our website for each Species of 

Concern, and these sheets are updated 

periodically. The O. varicosa fact sheet 

was updated, most recently on 

November 1, 2007 (http:// 

www.nmfs.noaa.gov/pr/pdfs/species/ 

ivorytreecoralldetailed.pdf). 

The petition presents no new 

information to indicate that O. varicosa 

meets the definition of endangered or 

threatened or that better information has 

become available since we last updated 

the fact sheet. While we acknowledge 

that the largest known population of O. 

varicosa, in the Oculina Banks, has 

undergone extensive decline compared 

to 1970’s levels (as the IUCN Species 

Account notes), we also note that this 

area has been protected as the Oculina 

Habitat Area of Particular Concern since 

1984, prohibiting trawling, dredging, 

bottom longlines, and anchoring 

(NMFS, 2007). These are the only 

documented threats to O. varicosa; there 

are no known threats to the shallowwater populations. Id. While destructive 

fishing practices have resulted in a 50% 

decline in the deep-water populations, 

this threat has not been shown to affect 

the shallow-water populations 

throughout the species’ range. 

Therefore, it is inappropriate to 

extrapolate the decline in the deepwater populations to a 30% decline 

throughout the species’ range. 

Viewing all the information cited by 

the petitioner in its entirety, we 

conclude that the petition fails to 

present substantial scientific or 

commercial information to suggest that 

the petitioned action may be warranted 

for O. varicosa. In particular, we note 

the species’ wide distribution, the lack 

of rangewide declines, and the existing 

protections for the deep-water 

populations, alleviating our concerns 

stemming from the declines that 

occurred following the 1970s. 

Information Solicited 

Information on Status of the Species 

As a result of this finding, we are 

commencing status reviews on all of the 

petitioned species (except O. varicosa) 

to determine whether listing any of 

these coral species under the ESA is in 

fact warranted. We intend that any final 

action resulting from these reviews be as 

accurate and as effective as possible, 

and consider the best available scientific 

and commercial information. Therefore, 

we open a 60–day public comment 

period to solicit information from the 

public, government agencies, the 

scientific community, industry, and any 

other interested parties on the status of 

these 82 coral species throughout their 

range, including: 

(1) Historical and current distribution 

and abundance of these species 

throughout their ranges (U.S. and 

foreign waters); 

(2) historic and current condition of 

these species and their habitat; 

(3) population density and trends; 

(4) the effects of climate change on the 

distribution and condition of these coral 

species and other organisms in coral 

reef ecosystems over the short- and 

long-term; 

(5) the effects of other threats 

including dredging, coastal 

development, coastal point source 

pollution, agricultural and land use 

practices, disease, predation, reef 

fishing, aquarium trade, physical 

damage from boats and anchors, marine 

debris, and aquatic invasive species on 

the distribution and abundance of these 

coral species over the short- and longterm; and 

(6) management programs for 

conservation of these coral species, 

including mitigation measures related to 

any of the threats listed under (5) above. 

We will base our findings on a review 

of the best scientific and commercial 

information available, including all 

information received during the public 

comment period. 

Information Regarding Protective Efforts 

Section 4(b)(1)(A) of the ESA requires 

the Secretary to make listing 

determinations solely on the basis of the 

best scientific and commercial data 

available after conducting a review of 

the status of a species and after taking 

into account efforts being made to 

protect the species (16 U.S.C. 

1533(b)(1)(A)). Therefore, in making its 

listing determinations, we first assess 

the status of the species and identify 

factors that have led to its current status. 

We then assess conservation measures 

to determine whether they ameliorate a 

species’ extinction risk (50 CFR 

424.11(f)). In judging the efficacy of 

conservation efforts, we consider the 

following: the substantive, protective, 

and conservation elements of such 

efforts; the degree of certainty that such 

efforts will reliably be implemented; the 

degree of certainty that such efforts will 

be effective in furthering the 

conservation of the species; and the 

presence of monitoring provisions to 

determine effectiveness of recovery 

efforts and that permit adaptive 

management (Policy on the Evaluation 

of Conservation Efforts; 68 FR 15100; 

March 28, 2003). In some cases, 

conservation efforts may be relatively 

new or may not have had sufficient time 

to demonstrate their biological benefit. 

In such cases, provision of adequate 

monitoring and funding for 

conservation efforts is essential to 

ensure that the intended conservation 

benefits will be realized. We encourage 

all parties to submit information on 

ongoing efforts to protect and conserve 

any of these 82 coral species, as well as 

information on recently implemented or 

planned activities and their likely 

impact(s). 

Information Regarding Potential Critical 

Habitat 

Critical habitat is defined in section 

3(5) of the ESA as: (1) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed in 

accordance with the ESA, on which are 

found those physical or biological 

features (a) essential to the conservation 

of the species and (b) which may require 

special management considerations or 

protection; and (2) 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 (16 U.S.C. 1532(5)). Once 

critical habitat is designated, section 

7(a)(2) of the ESA requires Federal 

agencies to ensure that they do not fund, 

authorize or carry out any actions that 

are likely to destroy or adversely modify 

that habitat (16 U.S.C. 1536(a)(2)). This 

requirement is in addition to the section 

7(a)(2) requirement that Federal 

agencies ensure that their actions do not 

jeopardize the continued existence of 

listed species. 

Section 4(a)(3)(A)(i) of the ESA 

requires that, to the extent prudent and 

determinable, critical habitat be 

designated concurrently with the listing 

of a species(16 U.S.C. 1533(a)(3)(A)(i)). 

Designations of critical habitat must be 

based on the best scientific data 

available and must take into 

consideration the economic, national 

security, and other relevant impacts of 

specifying any particular area as critical 

habitat (16 U.S.C. 1533(b)(2)). In 

advance of any determination to 

propose listing any of the petitioned 

coral species as threatened or 

endangered under the ESA, we solicit 

information that would assist us in 

developing a critical habitat proposal. 

Joint NMFS/FWS regulations for 

listing endangered and threatened 

species and designating critical habitat 

(50 CFR 424.12(b)) state that the agency 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Proposed Rules 6621 

‘‘shall consider those physical and 

biological features that are essential to 

the conservation of a given species and 

that may require special management 

considerations or protection.’’ Pursuant 

to the regulations, such requirements 

include, but are not limited to the 

following: (1) space for individual and 

population growth, and for normal 

behavior; (2) food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, rearing of offspring, 

germination, or seed dispersal; and, 

generally, (5) habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. Id. 

Section 4(b)(2) of the ESA requires the 

Secretary to consider the ‘‘economic 

impact, impact on national security, and 

any other relevant impact’’ of 

designating a particular area as critical 

habitat (16 U.S.C. 1533(b)(2)). Section 

4(b)(2) further authorizes the Secretary 

to exclude any area from a critical 

habitat designation if the Secretary finds 

that the benefits of exclusion outweigh 

the benefits of designation, unless 

excluding that area will result in 

extinction of the species. Id. We seek 

information regarding the benefits of 

designating specific areas 

geographically throughout the range of 

these coral species as critical habitat. 

We also seek information on the 

economic impact of designating 

particular areas as part of the critical 

habitat designation. In keeping with the 

guidance provided by the Office of 

Management and Budget (2000, 2003), 

we seek information that would allow 

the monetization of these effects to the 

extent possible, as well as information 

on qualitative impacts to economic 

values. We also seek information on 

impacts to national security and any 

other relevant impacts of designating 

critical habitat in these areas. 

In accordance with our regulations 

(50 CFR 424.13) we will consult, as 

appropriate, with affected states, 

interested persons and organizations, 

other affected Federal agencies, and, in 

cooperation with the Secretary of State, 

with the country or countries in which 

the species concerned are normally 

found or whose citizens harvest such 

species from the high seas. Data 

reviewed may include, but are not 

limited to, scientific or commercial 

publications, administrative reports, 

maps or other graphic materials, 

information received from experts, and 

comments from interested parties. 

Peer Review 

On July 1, 1994, NMFS, jointly with 

the FWS, published a series of policies 

regarding listings under the ESA, 

including a policy for peer review of 

scientific data (59 FR 34270). The intent 

of the peer review policy is to ensure 

listings are based on the best scientific 

and commercial data available. The 

Office of Management and Budget 

issued its Final Information Quality 

Bulletin for Peer Review on December 

16, 2004. The Bulletin went into effect 

June 16, 2005, and generally requires 

that all ‘‘influential scientific 

information’’ and ‘‘highly influential 

scientific information’’ disseminated on 

or after that date be peer reviewed. 

Because the information used to 

evaluate this petition may be considered 

‘‘influential scientific information,’’ we 

solicit the names of recognized experts 

in the field that could take part in the 

peer review process for this status 

review (see ADDRESSES). Independent 

peer reviewers will be selected from the 

academic and scientific community, 

tribal and other Native American 

groups, Federal and state agencies, the 

private sector, and public interest 

groups. 

Authority: The authority for this action is 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: February 4, 2010. 

Samuel D. Rauch III, 

Assistant Administrator for Regulatory 

Programs, National Marine Fisheries Service. 

[FR Doc. 2010–2939 Filed 2–9–10; 8:45 am] 

BILLING CODE 3510–22–S 


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