49842 Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Proposed Rules

Federally funded or permitted listed a new species or subsequently 1973, as amended. Based on our review, projects affecting listed species outside designated critical habitat that may be we find that the petition, in conjunction their designated critical habitat areas affected and the Federal agency has with information readily available in may still result in jeopardy findings in retained discretionary involvement or our files, presents substantial scientific some cases. Similarly, critical habitat control over the action (or the agency’s or commercial information indicating designations made on the basis of the discretionary involvement or control is that a revision of the critical habitat best available information at the time of authorized by law). Consequently, designation for the Florida manatee may designation will not control the Federal agencies may sometimes need to be warranted. Therefore, with the direction and substance of future request reinitiation of consultation with publication of this notice, we are recovery plans, habitat conservation us on actions for which formal initiating a review of the current critical plans, or other species conservation consultation has been completed, if habitat designation for the subspecies to planning efforts if new information those actions with discretionary determine how we intend to proceed available to these planning efforts calls involvement or control may affect with the revision. To ensure a for a different outcome. Section 7(a)(2) subsequently listed species or comprehensive review, we seek of the Act requires Federal agencies, designated critical habitat. information pertaining to the Florida including the Service, to ensure that manatee’s essential habitat needs from References Cited actions they fund, authorize, or carry any interested party. out are not likely to destroy or adversely A complete list of all references cited DATES: To allow us adequate time to modify critical habitat. If a Federal in this document is available, upon conduct this review, we request that you action may affect a listed species or its request, from the Western Colorado send us information on or before critical habitat, the responsible Federal Ecological Services Office (see FOR October 29, 2009. FURTHER INFORMATION CONTACT). agency (action agency) must enter into ADDRESSES: You may submit consultation with us. As a result of this Author information by one of the following consultation, we document compliance The primary authors of this notice are methods: with the requirements of section 7(a)(2) • Federal eRulemaking Portal: http:// through our issuance of: the staff members of the Western Colorado Ecological Services Office (see www.regulations.gov. Search for docket (1) A concurrence letter for Federal FWS-R4-ES-2009-0066 and then follow FOR FURTHER INFORMATION CONTACT). actions that may affect, but are not the instructions for submitting likely to adversely affect, listed species Authority comments. or critical habitat; or • The authority for this action is the U.S. mail or hand-delivery: Public (2) A biological opinion for Federal Comments Processing, Attn: FWS-R4- actions that may affect, and are likely to Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). ES-2009-0066; Division of Policy and adversely affect, listed species or critical Directives Management; U.S. Fish and habitat. Dated: September 16, 2009. Wildlife Service; 4401 N. Fairfax Drive, When we issue a biological opinion Thomas L. Strickland Suite 222; Arlington, VA 22203. concluding that a project is likely to Assistant Secretary for Fish and Wildlife and We will post all information received jeopardize the continued existence of a Parks on http://www.regulations.gov. This listed species or destroy or adversely [FR Doc. E9–23155 Filed 9–28– 09; 8:45 am] generally means that we will post any modify critical habitat, we also provide BILLING CODE 4310–55–S personal information you provide us reasonable and prudent alternatives to (see the Information Solicited section the project, if any are identifiable. We below for more details). define ‘‘Reasonable and prudent DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: alternatives’’ at 50 CFR 402.02 as Dave Hankla, Field Supervisor, alternative actions identified during Fish and Wildlife Service Jacksonville, Florida Ecological Services consultation that: • Can be implemented in a manner 50 CFR Part 17 Office, 7915 Baymeadows Way, Suite consistent with the intended purpose of 200, Jacksonville, FL 32256, by [Docket No. FWS-R4-ES-2009-0066] the action, telephone (904-731-3336), or by [92210-1117-0000-B4] • Can be implemented consistent with facsimile (904-731-3045). If you use a the scope of the Federal agency’s legal telecommunications device for the deaf Endangered and Threatened Wildlife (TDD), please call the Federal authority and jurisdiction, and Plants; 90-Day Finding on a • Are economically and Information Relay Service (FIRS) at 800- Petition to Revise Critical Habitat for 877-8339. technologically feasible, and the Florida Manatee (Trichechus • Would, in the Director’s opinion, SUPPLEMENTARY INFORMATION: manatus latirostris) avoid jeopardizing the continued Information Solicited existence of the listed species or AGENCY: Fish and Wildlife Service, destroying or adversely modifying Interior. When we make a finding that a critical habitat. ACTION: Notice of 90–day petition petition presents substantial Reasonable and prudent alternatives finding and initiation of critical habitat information indicating that a revision of can vary from slight project review. a critical habitat designation may be modifications to extensive redesign or warranted, we initiate a review of that relocation of the project. Costs SUMMARY: We, the U.S. Fish and critical habitat to determine how we associated with implementing a Wildlife Service, announce a 90–day intend to proceed with the requested reasonable and prudent alternative are finding on a petition to revise the revision of the designation. To ensure similarly variable. critical habitat designation for the that the review is complete and Regulations at 50 CFR 402.16 require Florida subspecies (Trichechus manatus incorporates the best available scientific Federal agencies to reinitiate latirostris) of the endangered West and commercial information, we seek consultation on previously reviewed Indian manatee (Trichechus manatus) information regarding the revision of actions in instances where we have under the Endangered Species Act of critical habitat for the Florida manatee.

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We request information from Information and materials we receive, determination that such areas are governmental agencies, Native as well as supporting documentation we essential for the conservation of the American Tribes, the scientific used in preparing this finding, will be species. community, industry, and any other available for public inspection on http:// Our implementing regulations at 50 interested parties. We are seeking www.regulations.gov, or by appointment CFR 424.12 describe our criteria for information regarding: during normal business hours, at the designating critical habitat. We are to (1) The historical and current status U.S. Fish and Wildlife Service, consider essential physical and and distribution of Florida manatee, its Jacksonville, Florida Ecological Services biological features essential to the biology and ecology, and ongoing Office (see FOR FURTHER INFORMATION conservation of the species. Those conservation measures for the species CONTACT). features include, but are not limited to: and its habitat; (1) space for individual and population (2) Physical and biological features Background growth, and normal behavior; (2) food, essential to the conservation of the Section 4(b)(3)(D) of the Act requires water, air, light, minerals, or other species; that we make a finding as to whether a nutritional or physiological (3) Information on threats to the petition to revise critical habitat requirements; (3) cover or shelter; (4) species and its habitat; and presents substantial scientific sites for breeding, reproduction, or (4) Data on the increase in growth of information indicating that the revision rearing of offspring; and (5) habitats that Florida’s human population since we may be warranted. The standard for are protected from disturbance or are designated manatee critical habitat in substantial scientific or commercial representative of the historic 1976, and examples of related increased information set forth in our geographical and ecological distribution threats to the species and subsequent implementing regulations with regard to of a species. Essential physical and changes to manatee habitat. a 90–day petition finding is ‘‘that biological features may include, but are In 2007, the Service conducted an amount of information that would lead not limited to: ‘‘nesting grounds, feeding extensive review of all available a reasonable person to believe that the sites, water quality, tide, and geological information on the Florida manatee measure proposed in the petition may formations.’’ Our implementing while preparing a 5–year status review be warranted’’ (50 CFR 424.14(b)). In regulations at 50 CFR 424.02 define of the species (Service 2007). We are determining whether substantial ‘‘special management considerations or particularly seeking information about information exists, we take into account protection’’ as any methods or manatee habitat or manatee use of several factors, including information procedures useful in protecting physical habitat that has been made available submitted with, and referenced in, the and biological features of the since publication of the review. petition and all other information environment for the conservation of the Please note that submissions merely readily available in our files. To the species. stating support for or opposition to the maximum extent practicable, we are to Section 4(b)(2) of the Act requires us action under consideration without make this finding within 90 days of the to designate and make revisions to providing supporting information, receipt of the petition, and we are to critical habitat for listed species on the although noted, will not be considered publish the finding promptly in the basis of the best scientific data available in making a determination. Section Federal Register. and after taking into consideration the 4(b)(2) of the Endangered Species Act of Our standard for substantial scientific economic impact, the impact on 1973, as amended (Act) (16 U.S.C. 1531 or commercial information within the national security, and any other relevant et seq.) directs that ‘‘the Secretary shall Code of Federal Regulations (CFR) with impact, of specifying any particular area designate critical habitat, and make regard to a 90–day petition finding is as critical habitat. The Secretary may revisions thereto, ...on the basis of the ‘‘that amount of information that would exclude any particular area from critical best scientific data available.’’ Based on lead a reasonable person to believe that habitat if he determines that the benefits our critical habitat review, we will the measure proposed in the petition of such exclusion outweigh the benefits publish a 12–month notice of our may be warranted’’ (50 CFR 424.14(b)). of specifying such area as part of the intentions concerning the petition, as If we find that a petition presents critical habitat, unless he determines provided in section 4(b)(3)(D)(ii) of the substantial information indicating that that the failure to designate such area as Act. the revision may be warranted, we are critical habitat will result in the You may submit your information required to determine how we intend to extinction of the species concerned. concerning this review by one of the proceed with the requested revision Petition History methods listed in the ADDRESSES within 12 months after receiving the section. If you submit information via petition and promptly publish notice of On December 19, 2008, we received a http://www.regulations.gov, your entire such intention in the Federal Register. petition from Wildlife Advocacy Project, submission—including any personal Critical habitat is defined under Save the Manatee Club, Center for identifying information—will be posted section 3(5)(A) of the Act as: Biological Diversity, and Defenders of on the website. If your submission is (i) The specific areas within the Wildlife, requesting that we revise made via a hardcopy that includes geographical area occupied by the critical habitat for the Florida manatee personal identifying information, you species, at the time it is listed in (Trichechus manatus latirostris) may request at the top of your document accordance with the Act, on which are pursuant to the Act and the that we withhold this personal found those physical or biological Administrative Procedure Act (5 U.S.C. identifying information from public features Subchapter II). The petition clearly review. However, we cannot guarantee (I) essential to the conservation of the identified itself and included the that we will be able to do so. We will species and requisite identification information for post all hardcopy submissions on http:// (II) which may require special the petitioners, as required in 50 CFR www.regulations.gov. Please include management considerations or 424.14(a). In a January 17, 2009, letter sufficient information with your protection; and to the petitioners, we responded that we submission (such as full references) to (ii) Specific areas outside the received the petition and would make a allow us to verify any scientific or geographical area occupied by the finding, to the maximum extent commercial information you include. species at the time it is listed, upon a practicable within 90 days, as to

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whether or not the petition presents information available in our files is and the availability of natural warm substantial information. We also stated substantial, thereby indicating that the water for manatees. that if the initial finding concludes that petitioned action may be warranted. Our We agree that the increase in urban the petition presents substantial evaluation of this information is development, particularly on Florida’s information indicating that a revision presented below. coasts, has changed the landscape since may be warranted, then we have one The petitioners seek to revise the we designated critical habitat for the year from the date we received the critical habitat designation through manatee. In response to the increase in petition to determine how we intend to proposed revisions of each geographic human growth, and consequent increase proceed with the requested revision and area or management unit and the in the number of recreational vessels on we will promptly publish in the Federal inclusion of ‘‘notable constituent Florida’s waterways, we have published Register a notice of our intentions at the elements.’’ The petitioners claim that a number of rules to establish manatee end of this period. although the currently designated protection areas in the State (50 CFR critical habitat is large, because of flaws 17.100 through 17.108). This Previous Federal Actions in the listing, it provides inadequate information can be found on the We originally listed the Florida protection of manatees. The petitioners Internet at http://www.fws.gov/ manatee (Trichechus manatus include the four topics listed below as northflorida/Manatee/manatees.htm. latirostris), a subspecies of the West ‘‘major deficiencies’’ in the currently We find that the information provided Indian manatee (Trichechus manatus), designated critical habitat for the by the petitioners, along with as endangered in 1967 (32 FR 4001, Florida manatee. information in our files, is substantial, March 11, 1967) under the Endangered indicating that a revision to critical (1) Petitioners Claim that Constituent Species Preservation Act of 1966 (Pub. habitat may be warranted to address Elements Required by Law are Absent. L. 89-669; 80 Stat. 926). In 1970, we changes in habitat use by manatees in amended Appendix A to 50 CFR part 17 The petitioners state that we Florida since the original designation of to include additional names to the list designated manatee critical habitat in critical habitat. of foreign endangered species (35 FR 1976, 2 years before the requirement for 18319, December 2, 1970). This listing constituent elements was included in (3) Petitioners Claim that Advancements incorporated West Indian manatees into the 1978 amendments to the ESA in in Science Provide New Information the list under the Endangered Species which the term ‘‘critical habitat’’ was About the Needs of the Species. Conservation Act of 1969 (Pub. L. 91- clearly defined, and included the The petitioners claim that aerial 135; 83 Stat. 275) and encompassed the physical and biological factors (p. 15). surveys, radio and satellite telemetry species’ range in the Caribbean and The petitioners also state that, because studies, a carcass retrieval database, and northern South America, thus including extensive information concerning the the U.S. Geological Survey-Sirenia both Antillean (T. m. manatus) and manatee’s current and projected habitat Project photo-identification database, Florida manatees in the listing. The needs and utilization is now available, which were developed after the initial West Indian manatee is currently listed it is possible to describe the constituent designation of manatee critical habitat, as an endangered species under the Act, elements, and we should remedy the have revolutionized our knowledge of and the population is further protected lack of such elements in the critical manatee distribution and use of habitat. as a depleted stock under the Marine habitat designation (p. 15). The petitioners also cite the Florida Mammal Protection Act (16 U.S.C. 1361 We agree that we did not address Manatee Recovery Plan’s actions et seq.). We designated critical habitat constituent elements, or more regarding manatee habitat, stating that for the Florida manatee (listed in that appropriately, the physical and we are compiling information and regulation as Trichechus manatus) on biological features essential to the sponsoring research to identify and September 24, 1976 (41 FR 41914) in conservation of the manatee, in the protect important manatee habitats with Citrus, Hillsborough, Manatee, Sarasota, original 1976 designation of critical a longer term goal to conserve a network Charlotte, De Soto, Lee, Collier, Monroe, habitat, and more information is now of manatee migratory corridors, and Dade, Palm Beach, Martin, West Palm available on the habitat needs of the feeding, calving, and nursing areas (p. Beach, Volusia, Brevard, Nassau and manatee. Therefore, we find that the 16). Duval Counties, Florida. That critical petitioners have presented substantial We agree that scientific information habitat designation appears in our information that a revision to the critical regarding manatee conservation has regulations at 50 CFR 17.95(a). habitat for the manatee may be dramatically increased since the original warranted to more adequately address critical habitat designation. On the basis Species Information the features essential to the species’ of this information, it is apparent that For current information on the conservation. there has been a change in habitat use biology, status, and habitat needs of the by the manatee due to an increasing (2) Petitioners Claim that Changes in Florida manatee, refer to the Service’s 5- manatee population and changing Use by the Species Necessitate Revision. Year Review of the West Indian Manatee habitats. However, the most substantial (Service 2007) and the Service’s Florida The petitioners include statistics on information otherwise readily available Manatee Recovery Plan (Service 2001), the increase in growth of Florida’s to the Service is not that of the available on the Internet at http:// human population since we designated petitioners, but the analysis of threats www.regulations.gov and at http:// manatee critical habitat and include for the Florida manatee in the Service’s www.fws.gov/northflorida/Manatee/ examples of related increased threats to 5–year review (Service 2007), which manatees.htm. the species and subsequent changes to incorporates updates in manatee science habitats now available to manatees (pp. and includes both biological Evaluation of the Petition 15-16). They state that a 171 percent information and habitat use. The In making this 90–day finding, we increase in the human population of Service must designate and make evaluated whether information Florida since critical habitat was revisions to critical habitat on the basis regarding the revision of the critical designated in 1976, through 2005, has of the best scientific information habitat for Florida manatee, as increased recreational use of coastal available. The Service’s 5–year review is presented in the petition and other areas and has diminished water quality the most recent analysis of threats to the

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species based on those updates in current Florida manatee critical habitat Based on this review and evaluation, scientific information. Therefore, based designation, the petitioners dedicate an in addition to the information readily on information submitted by the entire section of the petition to specific available in our files, we find that the petitioners and information in Service proposed revisions to manatee critical petition has presented substantial files, we find the information habitat in Florida. These proposed scientific information indicating that concerning advancements in science revisions include a description of revision of the critical habitat and new information concerning the geographic boundaries within each designation for the Florida manatee may needs of the species to be substantial regional management unit that would be warranted. Therefore, we are information. We now know more alter the currently designated critical initiating a review to determine how we specifically where habitat exists for habitat, as well as recommended intend to proceed with the request to manatees that is critical to their survival physical and biological features revise the critical habitat designation and recovery. As a consequence, we essential to the conservation of the under the Act for the Florida manatee. have determined that a revision to manatee that would require protection References Cited critical habitat for the manatee may be and special attention either throughout warranted to address new information all or portions of the petition’s proposed A complete list of all references cited concerning habitat usage and needs. geographical boundary revisions. in this rule is available on the Internet at http://www.regulations.govor upon (4) Petitioners Claim that The U.S. Fish Within each geographic management request from the Field Supervisor, and Wildlife Service Recognizes the unit (Northwest Region, Southwest Jacksonville, Florida Ecological Services Need for Revision. Region, Atlantic Region, and Upper St. Johns River Region), the petitioners Office (see FOR FURTHER INFORMATION The petitioners cite passages from provide a list of the currently designated CONTACT). Service consultation documents and the critical habitat areas followed by their current Florida Manatee Recovery Plan Author(s) proposed revisions to those areas. In (Recovery Plan) as evidence that we most cases, the petitioners list The primary authors of this notice are have stated the need to assess and revise additional areas that they believe should the staff members of the Jacksonville, critical habitat for the Florida manatee be included in a revision to the Florida Ecological Services Office (see (p. 17). Specifically, the petitioners cite currently designated critical habitat FOR FURTHER INFORMATION CONTACT). a biological opinion regarding U.S. boundaries. They cite available Army Corps of Engineers Application Authority scientific data to support their proposal. (No. 4-1-97-F-602): ‘‘The action area is The authority for this action is the within designated critical habitat for the The list of essential features Endangered Species Act of 1973, as manatee; however, no specific primary recommended by the petitioners for amended (16 U.S.C. 1531 et seq.). each of these geographic areas includes or secondary constituent elements were Dated: September 16, 2009. included in the critical habitat warm water (natural springs, passive Thomas L. Strickland designation, making it difficult to thermal basins, and power plant thermal determine when an action adversely discharges); various food sources Assistant Secretary for Fish and Wildlife and Parks modifies critical habitat.’’ The (seagrasses and freshwater vegetation); petitioners state that the Service’s travel corridors; shelter (for calving and [FR Doc. E9–23245 Filed 9–28– 09; 8:45 am] Recovery Plan acknowledges the need to from disturbances); fresh water; and BILLING CODE 4310–55–S revise critical habitat and cite Recovery other habitat features (water depth, Action 3.5 from the Recovery Plan: water quality and salinity). ‘‘Much has been learned about manatee The Service recognizes the DEPARTMENT OF COMMERCE distribution in the decades since importance of warm water habitat to manatee critical habitat was originally manatees; however, we have not National Oceanic and Atmospheric defined. The FWS should assess the evaluated potential physical and Administration need to revise critical habitat for the biological features essential to the Florida manatee.’’ conservation of the manatee. The 50 CFR Part 660 The Service disagrees with the Service makes no statement at this time [Docket No. 0909111273–91274–01] petitioner’s statement that the Recovery on the specific proposals by the RIN 0648–XR09 Plan acknowledges the need to revise petitioners for the constituent elements or for the areas presented as revised critical habitat; however, we do Fisheries Off West Coast States; critical habitat geographic boundaries. acknowledge that the 2001 Florida Coastal Pelagic Species Fisheries; We do believe that any revision to Manatee Recovery Plan contains a Annual Specifications recovery action, including the critical habitat should reflect the current recommendation as stated above, to understanding of the conservation needs AGENCY: National Marine Fisheries assess the need to revise critical habitat. of the species. Service (NMFS), National Oceanic and Although the Service believes Finding Atmospheric Administration (NOAA), ‘‘assessing the need’’ is not the same as Commerce. ‘‘recognizing the need’’ for revision, we Our process for making this 90–day ACTION: Proposed rule. find that the information submitted by finding under section 4(b)(3)(D) of the the petitioner in this category to be Act is limited to a determination of SUMMARY: NMFS proposes a regulation substantial information indicating that a whether the information in the petition to implement the annual harvest revision to critical habitat for the presents ‘‘substantial scientific guideline (HG) for Pacific mackerel in manatee may be warranted. information,’’ which is interpreted in the U.S. exclusive economic zone (EEZ) our regulations as ‘‘that amount of off the Pacific coast. This HG is Petitioners’ Proposed Revisions to information that would lead a proposed according to the regulations Critical Habitat reasonable person to believe that the implementing the Coastal Pelagic In addition to identifying the measure proposed in the petition may Species (CPS) Fishery Management Plan deficiencies noted above with the be warranted’’ (50 CFR 424.14(b)). (FMP) and establishes allowable harvest

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