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would result in a significant economic are present, Federal agencies will also regulatory flexibility analysis is not impact on a substantial number of small be required to consult with us under required. entities. Based on comments we receive, section 7 of the Act, due to the Author we may revise this determination as part endangered status of the species. of a final rulemaking. Consultations to avoid the destruction The primary author of this document According to the Small Business or adverse modification of critical is the staff of the Mississippi Fish and Administration, small entities include habitat would be incorporated into the Wildlife Office (see ADDRESSES section). small organizations, such as same consultation process. Authority independent nonprofit organizations; In the DEA, we evaluated the small governmental jurisdictions, potential economic effects on small The authority for this action is the including school boards and city and entities resulting from implementation Endangered Species Act of 1973, as town governments that serve fewer than of conservation actions related to the amended (16 U.S.C. 1531 et seq.). 50,000 residents; and small businesses proposed designation of critical habitat Dated: January 25, 2010 (13 CFR 121.201). Small businesses for the Georgia pigtoe mussel Thomas L. Strickland include manufacturing and mining (Pleurobema hanleyianum), interrupted Assistant Secretary for Fish and Wildlife and concerns with fewer than 500 rocksnail (Leptoxis foremani), and rough Parks employees, wholesale trade entities hornsnail (Pleurocera foremani). Based with fewer than 100 employees, retail [FR Doc. 2010–2870 Filed 2–9–10; 8:45 am] on that analysis, impacts on small BILLING CODE 4310–55–S and service businesses with less than $5 entities due to this rule are expected to million in annual sales, general and be modest because the incremental costs heavy construction businesses with less of the rule are estimated to be DEPARTMENT OF COMMERCE than $27.5 million in annual business, administrative in nature. The only special trade contractors doing less than incremental impacts associated with $11.5 million in annual business, and National Oceanic and Atmospheric this rulemaking are administrative costs Administration agricultural businesses with annual of consultation under section 7 of the sales less than $750,000. To determine Act. The administrative costs described 50 CFR Parts 223 and 224 if potential economic impacts to these in Appendix B of the DEA are small entities are significant, we predominantly associated with water [Docket No. 0911231415–0052–01] considered the types of activities that management, water quality, National might trigger regulatory impacts under RIN 0648–XT12 Forest, and construction. The following this designation as well as types of percentages are estimated annualized Endangered and Threatened Wildlife; project modifications that may result. In incremental impacts by activities Notice of 90–Day Finding on a Petition general, the term significant economic discounted at 7 percent: 42 percent to List 83 Species of Corals as impact is meant to apply to a typical transportation construction, 33 percent Threatened or Endangered Under the small business firm’s business water quality, 18 percent national forest Endangered Species Act (ESA) operations. activities, and 7 percent water To determine if the proposed AGENCY: management. Tribal lands are not National Marine Fisheries designation of critical habitat for the Service (NMFS), National Oceanic and Georgia pigtoe mussel (Pleurobema expected to be affected by the designation. Incremental costs to all Atmospheric Administration (NOAA), hanleyianum), interrupted rocksnail Department of Commerce. (Leptoxis foremani), and rough parties are not expected to exceed $43,600 annualized (discounted at ACTION: 90–day petition finding; request hornsnail (Pleurocera foremani) would for information. affect a substantial number of small seven percent). Third parties (some of which may be small entities) would bear entities, we considered the number of SUMMARY: We (NMFS) announce a 90– significantly less than this total— small entities affected within particular day finding on a petition to list 83 approximately $5,060 annualized, or types of economic activities, such as species of corals as threatened or less than 1 percent impact for all residential and commercial endangered under the ESA. We find that sectors. These potential impacts may development. In order to determine the petition presents substantial result from consultations on changes in whether it is appropriate for our agency scientific or commercial information water management, actions that affect to certify that this rule would not have indicating that the petitioned actions water quality, dredging activities, or a significant economic impact on a may be warranted for 82 species; we other activities in the region. Please substantial number of small entities, we find that the petition fails to present refer to the DEA of the proposed critical considered each industry or category substantial scientific or commercial habitat designation for a more detailed individually. In estimating the numbers information indicating that the discussion of potential impacts. of small entities potentially affected, we petitioned action may be warranted for also considered whether their activities In summary, we have considered Oculina varicosa. Therefore, we initiate have any Federal involvement. Critical whether the proposed designation status reviews of 82 species of corals to habitat designation will not affect would result in a significant economic determine if listing under the ESA is activities that do not have any Federal impact on a substantial number of small warranted. To ensure these status involvement; designation of critical entities. Information for this analysis reviews are comprehensive, we solicit habitat only affects activities conducted, was gathered from the Small Business scientific and commercial information funded, permitted, or authorized by Administration, stakeholders, and the regarding these coral species. Federal agencies. Service. For the reasons discussed If we finalize this proposed listing above, and based on currently available DATES: Information and comments must rule and critical habitat designation, information, we certify that if be submitted to NMFS by April 12, Federal agencies must consult with us promulgated, the proposed designation 2010. under section 7 of the Act if their would not have a significant economic ADDRESSES: You may submit comments, activities may affect designated critical impact on a substantial number of small information, or data, identified by the habitat. In areas where the 3 mollusks business entities. Therefore, an initial Regulation Identifier Number (RIN),

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0648-XT12, by any of the following development, coastal point source Oculinidae (1). Seventy-five of the methods: pollution, agricultural and land use petitioned species are in the Indo- Electronic Submissions: Submit all practices, disease, predation, reef Pacific region, represented by five electronic public comments via the fishing, aquarium trade, physical families (nine species) in Hawaii: Federal eRulemaking Portal: http:// damage from boats and anchors, marine Acroporidae (4); Agaricidae (1); www.regulations.gov. debris, and aquatic invasive species. Poritidae (1); Faviidae (2); Mail: Assistant Regional The petition briefly summarizes the Siderastreidae (1); and 11 families and Administrator, Protected Resources description, taxonomy, natural history, one order in the rest of the Indo-Pacific Division, NMFS, Pacific Islands distribution, and status for each region: Acroporidae (31); Agaricidae (7); Regional Office, 1601 Kapiolani Blvd., petitioned species, and discusses the Poritidae (6); Faviidae (2); Suite 1110, Honolulu, HI 96814 (for status of each oceanic basin’s coral Dendrophylliidae (4); Euphyllidae (4); species occurring in the Pacific Ocean); reefs. It also describes current and Oculinidae (1); Pectiniidae (1); or Assistant Regional Administrator, future threats that the petitioners assert Mussidae (4); Pocilloporidae (3); Protected Resources Division, NMFS, are affecting or will affect these species. Milleporidae (2); Order Helioporacea Southeast Regional Office, 263 13th The 83 species included in the (1). All 83 species can be found in the Avenue South, St. Petersburg, FL 33701 petition are: Acanthastrea brevis, United States, its territories (Puerto (for species occurring in the Atlantic Acanthastrea hemprichii, Acanthastrea Rico, U.S. Virgin Islands, Navassa, Ocean). ishigakiensis, Acanthastrea regularis, Northern Mariana Islands, Guam, Facsimile (fax): (907) 586–7012 (for Acropora aculeus, Acropora acuminate, American Samoa, Pacific Remote Island species occurring in the Pacific Ocean); Acropora aspera, Acropora dendrum, Areas), or its freely associated states (727) 824–5309 (for species occurring in Acropora donei, Acropora globiceps, (Republic of the Marshall Islands, the Atlantic Ocean). Acropora horrida, Acropora Federated States of Micronesia, and Instructions: All comments received jacquelineae, Acropora listeri, Acropora Republic of Palau), though many occur are a part of the public record and will lokani, Acropora microclados, Acropora more frequently in other countries. The petition states that all of these generally be posted to http:// palmerae, Acropora paniculata, species are classified as vulnerable (76 www.regulations.gov without change. Acropora pharaonis, Acropora species), endangered (six species: All personal identifying information polystoma, Acropora retusa, Acropora Acropora rudis, Anacropora spinosa, (e.g., name, address, etc.) voluntarily rudis, Acropora speciosa, Acropora Montipora dilatata, Montastraea submitted by the commenter may be striata, Acropora tenella, Acropora publicly accessible. Do not submit annularis, M. faveolata, Millepora vaughani, Acropora verweyi, Agaricia tuberosa), or critically endangered (one confidential business information or lamarcki, Alveopora allingi, Alveopora otherwise sensitive or protected species: Porites pukoensis) by the World fenestrate, Alveopora verrilliana, Conservation Union (IUCN). Montipora information. Anacropora puertogalerae, Anacropora NMFS will accept anonymous dilatata and Oculina varicosa are also spinosa, Astreopora cucullata, on our Species of Concern list. comments. Attachments to electronic Barabattoia laddi, Caulastrea comments will be accepted in Microsoft echinulata, Cyphastrea agassizi, ESA Statutory Provisions and Policy Word, Excel, WordPerfect, or Adobe Cyphastrea ocellina, Dendrogyra Considerations PDF file formats only. cylindrus, Dichocoenia stokesii, Section 4(b)(3)(A) of the ESA of 1973, Interested persons may obtain a copy Euphyllia cristata, Euphyllia as amended (U.S.C. 1531 et seq.), of this coral petition from the above paraancora, Euphyllia paradivisa, requires, to the maximum extent addresses or online from the NMFS HQ Galaxea astreata, Heliopora coerulea, practicable, that within 90 days of website: http://www.nmfs.noaa.gov/pr/ Isopora crateriformis, Isopora cuneata, receipt of a petition to list a species as species/invertebrates/. Leptoseris incrustans, Leptoseris yabei, threatened or endangered, the Secretary FOR FURTHER INFORMATION CONTACT: Millepora foveolata, Millepora tuberosa, of Commerce (Secretary) make a finding Lance Smith, NMFS Pacific Islands Montastraea annularis, Montastraea on whether that petition presents Region, (808) 944–2258; Jennifer Moore, faveolata, Montastraea franksi, substantial scientific or commercial NMFS Southeast Region, (727) 824– Montipora angulata, Montipora information indicating that the 5312; or Marta Nammack, NMFS, Office australiensis, Montipora calcarea, petitioned action may be warranted (16 of Protected Resources, (301) 713–1401. Montipora caliculata, Montipora U.S.C. 1533(b)(3)(A)). Joint ESA- SUPPLEMENTARY INFORMATION: dilatata, Montipora flabellata, implementing regulations issued by Montipora lobulata, Montipora patula, NMFS and the U.S. Fish and Wildlife Background Mycetophyllia ferox, Oculina varicosa, Service (FWS) (50 CFR 424.14(b)) define On October 20, 2009, we received a Pachyseris rugosa, Pavona bipartite, ‘‘substantial information’’ in this context petition from the Center for Biological Pavona cactus, Pavona decussate, as the amount of information that would Diversity to list 83 species of coral as Pavona diffluens, Pavona venosa, lead a reasonable person to believe that threatened or endangered under the Pectinia alcicornis, Physogyra the measure proposed in the petition ESA. The petitioner also requested that lichtensteini, Pocillopora danae, may be warranted. critical habitat be designated for these Pocillopora elegans, Porites In making a finding on a petition to corals concurrent with listing under the horizontalata, Porites napopora, Porites list a species, the Secretary must ESA. The petition asserts that nigrescens, Porites pukoensis, consider whether the petition: (i) clearly synergistic threats of ocean warming, Psammocora stellata, Seriatopora indicates the administrative measure ocean acidification, and other impacts aculeata, Turbinaria mesenterina, recommended and gives the scientific affect these species, stating that Turbinaria peltata, Turbinaria and any common name of the species immediate action is needed to reduce reniformis, and Turbinaria stellula. involved; (ii) contains detailed narrative greenhouse gas concentrations to levels Eight of the petitioned species are in the justification for the recommended that do not jeopardize these species. The Caribbean and belong to the following measure, describing, based on available petition also asserts that the species are families: Agaricidae (1); Faviidae (3); information, past and present numbers being affected by dredging, coastal Meandrinidae (2); Mussidae (1); and distribution of the species involved

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and any threats faced by the species; subtropical seas around the world. The already suffered an 80 percent decline (iii) provides information regarding the rapid calcification rates of these in hard coral cover, from an average of status of the species over all or a organisms have been linked to the 50 percent to an average of 10 percent significant portion of its range; and (iv) mutualistic association with single- throughout the region. is accompanied by the appropriate celled dinoflagellate algae, The abundance and trend information supporting documentation in the form zooxanthellae, found in the coral tissues presented by the petitioner for each of bibliographic references, reprints of (Goreau et al., 1979). Massive and species is limited to an estimate of the pertinent publications, copies of reports branching stony corals are the major percentage loss of its habitat and/or or letters from authorities, and maps (50 framework builders of shallow tropical population over a 30–year period CFR 424.14(b)(2)). To the maximum reefs. Some stony corals occur in deep (including 20 years into the past and 10 extent practicable, this finding is to be water and are azooxanthellate, but years into the future), as assessed by the made within 90 days of the date the typically do not form extensive reefs, IUCN. However, the petition also asserts petition was received, and the finding is with few exceptions (e.g., Oculina that these corals face significant threats. to be published promptly in the Federal varicosa; Reed, 1981). Corals provide To support this assertion, the petitioner Register. When it is found that substrate for colonization by benthic cites Alvarez-Filip et al. (2009) in noting substantial information indicating that organisms, construct complex protective the dramatic decline of the three- the petitioned action may be warranted habitats for myriad other species, dimensional complexity of Caribbean is presented in the petition, we are including commercially important reefs over the past 40 years, resulting in required to promptly commence a invertebrates and fishes, and serve as a phase shift from a coral-dominated review of the status of the species food resources for a variety of animals. ecosystem to fleshy macroalgal concerned during which we will overgrowth in reef systems across the Analysis of Petition conduct a comprehensive review of the Caribbean. The petitioner notes that, in best available scientific and commercial Of the 83 petitioned species, eight our 2008 critical habitat designation for information. In such cases, within 1 species occur in the U.S. waters of the elkhorn (Acropora palmata) and year of receipt of the petition, we shall Caribbean, and 75 occur in the U.S. staghorn (A. cervicornis) corals, we conclude the review with a finding as to waters of the Indo-Pacific. The petition identified chronic overfishing of whether, in fact, the petitioned action is includes species accounts (i.e., herbivorous species and the die-off of 95 warranted. Because the finding at the description of the species’ morphology, percent of the regions’ long-spined sea 12–month stage is based on a more life history, habitat, distribution, and urchins (Diadema antillarum) in the thorough review of the available loss estimates over 30 years (20 years early 1980s as primary factors in this information, as compared to the narrow into the past and 10 years into the ecological shift (73 FR 72210; November scope of review at the 90–day stage, a future)) of each of the 83 species, threats 26, 2008). The petitioner cites the same ‘‘may be warranted’’ finding does not facing each species, and descriptions of source in concluding that, in the prejudge the outcome of the status the status of coral reef ecosystems of the absence of grazing pressure from review. wider Caribbean and Indo-Pacific areas. herbivorous fish and urchins, fast- Under the ESA, a listing The petition asserts that all of the growing algae, macroalgae, and other determination may address a ‘‘species,’’ petitioned species have suffered epibenthic organisms easily out- which is defined to also include population reductions of at least 30 compete coral larvae by preempting subspecies and, for any vertebrate percent over a 30–year period, relying available space, producing toxic species, a distinct population segment on information from the IUCN. metabolites that inhibit larval which interbreeds when mature (DPS) The majority of coral species included settlement, and trapping excess (16 U.S.C. 1532(16)). Because corals are in this petition belongs to either the sediment in algal turfs. The petitioner invertebrate species, we are limited to wider Caribbean or Indo-Pacific areas cites Gledhill et al. (2008) in asserting assessing the status of species or and occur in similar habitats and face that ocean acidification led to a decrease subspecies of corals. A species or the same threats. Eight of the petitioned in mean sea surface aragonite saturation subspecies is ‘‘endangered’’ if it is in species occur in the Caribbean, and 75 state in the Greater Caribbean Region danger of extinction throughout all or a in the Indo-Pacific. between 1996 and 2006. The petitioner significant portion of its range, and The Caribbean, according to the states that Hoegh-Guldberg et al. (2007) ‘‘threatened’’ if it is likely to become petitioner, has the largest proportion of found marked reductions in resilience endangered within the foreseeable corals classified as being in one of the accompanied by increased grazing future throughout all or a significant high extinction risk categories by the requirements to facilitate reef recovery portion of its range (ESA sections 3(6) IUCN. The petitioner asserts that the after modeling the impacts of a 20 and 3(20), respectively, 16 U.S.C. region suffered massive losses of corals percent decline in coral growth rate in 1532(6) and (20)). in response to climate-related events of response to ocean acidification on a 2005, including a record-breaking series Caribbean forereef. Biology of Coral Species of 26 tropical storms and elevated ocean Seventy-five percent of the world’s Stony corals (Class Anthozoa, Order water temperatures. Further, the coral reefs can be found in the Indo- Scleractinia) are marine invertebrates petitioner asserts that the U.S. Virgin Pacific, which stretches from the that secrete a calcium carbonate Islands lost 51.5 percent of live coral Indonesian island of Sumatra in the skeleton. Stony corals can be cover, and that Florida, Puerto Rico, the west to French Polynesia in the east hermatypic (significant contributors to Cayman Islands, St. Maarten, Saba, St. (Bruno and Selig (2007), as cited by the the reef-building process) or Eustatius, Guadeloupe, Martinique, St. petitioner). As recently as 1,000 to 100 ahermatypic, and may or may not Barthelemy, Barbados, Jamaica, and years ago, this region averaged about 50 contain endosymbiotic algae Cuba suffered bleaching of over 50 percent coral cover, but 20–50 percent (zooxanthellae) (Schumacher and percent of coral colonies, citing of that total has been lost, according to Zibrowius, 1985). The largest colonial Carpenter et al. (2008). The petitioner the petitioner. The petitioner cites members of the Scleractinia help cites Gardner et al. (2003) in asserting Bruno and Selig (2007), stating that produce the carbonate structures known that, over the three decades prior to the regional total coral cover averaged 42.5 as coral reefs in shallow tropical and 2005 events, Caribbean reefs had percent during the early 1980s, 36.1

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percent in 1995, and 22.1 percent in already impacted coral reef ecosystems from the IUCN Redlist of Threatened 2003. The petitioner asserts, citing on a global scale, and that these threats Species for information on the Bruno and Selig (2007), that this are currently accelerating in severity population status and threats regarding reduced coral cover was relatively such that the quantity and quality of this species. Read as a whole, however, consistent across 10 subregions of the coral reef ecosystems are likely to be the IUCN Species Account presents Indo-Pacific in 2002–2003. Although greatly reduced in the next few decades. conflicting information and does not these corals have recovered in the past Petition Finding ultimately support the petition, as is (Colgan, 1987, as cited by the discussed further below. The other two petitioner), anthropogenic stressors are We have reviewed the petition, the references included a general corals text increasing the frequency and intensity literature cited in the petition, and other describing morphology and habitat and of mortality events and interfering with literature and information available in a NMFS’ Species of Concern fact sheet the natural ability of coral communities our files. Based on that literature and for O. varicosa, dated November 2007, to recover (McClanahan et al., 2004; information, we find that the petition which is also discussed further below. meets the aforementioned requirements Pandolfi et al., 2003, as cited by the The IUCN Species Account presents of the ESA regulations under 50 CFR petitioner). The future of Indian Ocean conflicting information on the threats 424.14(b)(2) for most of the species reefs is a particular concern to the affecting O. varicosa and ultimately which are the subject of the petition. petitioner because over 90 percent of does not support the petition. The Specifically, we determine that the corals on many shallow water reefs died Species Account states that deep-water petition presents substantial in 1998 in response to elevated sea populations off the coast of Florida to information indicating that the surface temperatures, and average North Carolina (Oculina Banks) have requested listing actions may be temperatures in the Indian Ocean are undergone declines exceeding 50 warranted for 82 of the 83 subject expected to rise above 1998 levels percent since the 1970s due to species. As required by 50 CFR within a few decades (Sheppard, 2003, destructive fishing practices, but also 424.14(b)(2), for the 82 species, the as cited by the petitioner). As elevated recognizes that there is no evidence of petition: sea surface temperatures and associated extensive declines beyond those areas or climate-induced mass mortality events (1) clearly indicates the administrative measure recommended throughout the species’ entire range, occur more frequently, it becomes less which includes shallow-water likely that there will be enough time (listing as threatened or endangered) and gives the scientific and any populations and deeper populations in between events for Indian Ocean reefs to the Gulf of Mexico in addition to the recover (Sheppard, 2003, as cited by the common names of the species involved; (2) contains detailed narrative populations where declines have been petitioner). justification for the recommended observed (Aronson et al., 2008). The The ESA requires us to determine measure, describing, based on available IUCN Species Account also states that whether species are threatened or information, past and present numbers the species is ‘‘relatively common’’ endangered because of any of the and distribution of the species involved throughout its range, but also states that following section 4(a)(1) factors: the and any threats faced by the species; there is ‘‘no species specific population present or threatened destruction, (3) provides information regarding the information available’’ (Aronson et al., modification, or curtailment of habitat status of the species over all or a 2008). Also, while many of the IUCN or range; overutilization for commercial, significant portion of its range; and Species Accounts for species of corals recreational, scientific, or educational (4) is accompanied by the appropriate that are found in other shallow tropical purposes; disease or predation; supporting documentation for 82 of the waters infer population information inadequacy of existing regulatory 83 species in the form of bibliographic from habitat decline (a practice that is mechanisms; and any other natural or references and maps. reasonable for species that actually manmade factors affecting the species’ Further, it is reasonable to conclude, occur within the declining habitat), the existence (16 U.S.C. 1533(a)(1)). The after reviewing the information O. varicosa Species Account attempts to petition describes factors which it presented in this petition, that these draw inappropriate inferences on this asserts have led to the current status of species may be threatened or point. In particular, the Species Account these corals, as well as threats which it endangered. A population decline of at infers that the shallow-water asserts the species currently face, least 30 percent throughout the populations of O. varicosa have categorizing them under the section Caribbean and Indo-Pacific regions, undergone population declines as a 4(a)(1) factors. The petition focuses on combined with large-scale threats of result of the threats that are affecting habitat threats, asserting that the habitat increased abundance of macroalgae those other shallow-water coral reefs, of the petitioned coral species, and (which compete for available space, even though the species does not occur indeed all reef-building coral species, is produce toxins that inhibit larval in the same habitats as those other under threat from several processes settlement, and trap excess sediment), shallow-water tropical coral species. linked to anthropogenic greenhouse gas ocean acidification, decreased resilience Similarly, while the IUCN Species emissions, including increasing of corals, and elevated sea surface Account states clearly that O. varicosa seawater temperatures, increasing ocean temperatures (which cause mass is not affected by disease and bleaching, acidification, increasing storm mortalities of corals), could cause coral it also appears to rely on the fact that intensities, changes in precipitation, populations to collapse and make it the main threat to reefs is global climate and sea-level rise. The petition also difficult for them to recover. change (in particular, temperature asserts that these global habitat threats However, we have determined that extremes leading to bleaching and are exacerbated by local habitat threats the petition does not present substantial increased susceptibility to disease). posed by ship traffic, dredging, coastal scientific or commercial information However, the only threat identified in development, pollution, and that the petitioned action may be the Species Account to actually affect O. agricultural and land use practices that warranted as to Oculina varicosa. The varicosa is destructive fishing practices. increase sedimentation and nutrient- petition cited only three references in NMFS identified O. varicosa as a loading. The petition asserts that this the section addressing O. varicosa. The Species of Concern in 1991 based on the combination of habitat threats has petition relied on the Species Account documented declines of the species in

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the deep-water Oculina Banks, off the and consider the best available scientific efforts and that permit adaptive Southeast United States (NMFS, 2007). and commercial information. Therefore, management (Policy on the Evaluation A Species of Concern is defined as we open a 60–day public comment of Conservation Efforts; 68 FR 15100; ‘‘species about which [NMFS] has some period to solicit information from the March 28, 2003). In some cases, concerns regarding status and threats, public, government agencies, the conservation efforts may be relatively but for which insufficient information is scientific community, industry, and any new or may not have had sufficient time available to indicate a need to list the other interested parties on the status of to demonstrate their biological benefit. species under the ESA’’ (71 FR 61022; these 82 coral species throughout their In such cases, provision of adequate October 17, 2006). We maintain a fact range, including: monitoring and funding for sheet on our website for each Species of (1) Historical and current distribution conservation efforts is essential to Concern, and these sheets are updated and abundance of these species ensure that the intended conservation periodically. The O. varicosa fact sheet throughout their ranges (U.S. and benefits will be realized. We encourage was updated, most recently on foreign waters); all parties to submit information on November 1, 2007 (http:// (2) historic and current condition of ongoing efforts to protect and conserve www.nmfs.noaa.gov/pr/pdfs/species/ these species and their habitat; any of these 82 coral species, as well as ivorytreecoralldetailed.pdf). (3) population density and trends; information on recently implemented or The petition presents no new (4) the effects of climate change on the planned activities and their likely information to indicate that O. varicosa distribution and condition of these coral impact(s). meets the definition of endangered or species and other organisms in coral reef ecosystems over the short- and Information Regarding Potential Critical threatened or that better information has Habitat become available since we last updated long-term; the fact sheet. While we acknowledge (5) the effects of other threats Critical habitat is defined in section that the largest known population of O. including dredging, coastal 3(5) of the ESA as: (1) the specific areas varicosa, in the Oculina Banks, has development, coastal point source within the geographical area occupied undergone extensive decline compared pollution, agricultural and land use by the species, at the time it is listed in to 1970’s levels (as the IUCN Species practices, disease, predation, reef accordance with the ESA, on which are Account notes), we also note that this fishing, aquarium trade, physical found those physical or biological area has been protected as the Oculina damage from boats and anchors, marine features (a) essential to the conservation Habitat Area of Particular Concern since debris, and aquatic invasive species on of the species and (b) which may require 1984, prohibiting trawling, dredging, the distribution and abundance of these special management considerations or bottom longlines, and anchoring coral species over the short- and long- protection; and (2) specific areas outside (NMFS, 2007). These are the only term; and the geographical area occupied by the (6) management programs for documented threats to O. varicosa; there species at the time it is listed upon a conservation of these coral species, are no known threats to the shallow- determination that such areas are including mitigation measures related to water populations. Id. While destructive essential for the conservation of the any of the threats listed under (5) above. species (16 U.S.C. 1532(5)). Once fishing practices have resulted in a 50% We will base our findings on a review critical habitat is designated, section decline in the deep-water populations, of the best scientific and commercial 7(a)(2) of the ESA requires Federal this threat has not been shown to affect information available, including all agencies to ensure that they do not fund, the shallow-water populations information received during the public authorize or carry out any actions that throughout the species’ range. comment period. are likely to destroy or adversely modify Therefore, it is inappropriate to that habitat (16 U.S.C. 1536(a)(2)). This extrapolate the decline in the deep- Information Regarding Protective Efforts requirement is in addition to the section water populations to a 30% decline Section 4(b)(1)(A) of the ESA requires 7(a)(2) requirement that Federal throughout the species’ range. the Secretary to make listing agencies ensure that their actions do not Viewing all the information cited by determinations solely on the basis of the jeopardize the continued existence of the petitioner in its entirety, we best scientific and commercial data listed species. conclude that the petition fails to available after conducting a review of Section 4(a)(3)(A)(i) of the ESA present substantial scientific or the status of a species and after taking requires that, to the extent prudent and commercial information to suggest that into account efforts being made to determinable, critical habitat be the petitioned action may be warranted protect the species (16 U.S.C. designated concurrently with the listing for O. varicosa. In particular, we note 1533(b)(1)(A)). Therefore, in making its of a species(16 U.S.C. 1533(a)(3)(A)(i)). the species’ wide distribution, the lack listing determinations, we first assess Designations of critical habitat must be of rangewide declines, and the existing the status of the species and identify based on the best scientific data protections for the deep-water factors that have led to its current status. available and must take into populations, alleviating our concerns We then assess conservation measures consideration the economic, national stemming from the declines that to determine whether they ameliorate a security, and other relevant impacts of occurred following the 1970s. species’ extinction risk (50 CFR specifying any particular area as critical Information Solicited 424.11(f)). In judging the efficacy of habitat (16 U.S.C. 1533(b)(2)). In conservation efforts, we consider the advance of any determination to Information on Status of the Species following: the substantive, protective, propose listing any of the petitioned As a result of this finding, we are and conservation elements of such coral species as threatened or commencing status reviews on all of the efforts; the degree of certainty that such endangered under the ESA, we solicit petitioned species (except O. varicosa) efforts will reliably be implemented; the information that would assist us in to determine whether listing any of degree of certainty that such efforts will developing a critical habitat proposal. these coral species under the ESA is in be effective in furthering the Joint NMFS/FWS regulations for fact warranted. We intend that any final conservation of the species; and the listing endangered and threatened action resulting from these reviews be as presence of monitoring provisions to species and designating critical habitat accurate and as effective as possible, determine effectiveness of recovery (50 CFR 424.12(b)) state that the agency

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‘‘shall consider those physical and We also seek information on the scientific data (59 FR 34270). The intent biological features that are essential to economic impact of designating of the peer review policy is to ensure the conservation of a given species and particular areas as part of the critical listings are based on the best scientific that may require special management habitat designation. In keeping with the and commercial data available. The considerations or protection.’’ Pursuant guidance provided by the Office of Office of Management and Budget to the regulations, such requirements Management and Budget (2000, 2003), issued its Final Information Quality include, but are not limited to the we seek information that would allow Bulletin for Peer Review on December following: (1) space for individual and the monetization of these effects to the 16, 2004. The Bulletin went into effect population growth, and for normal extent possible, as well as information June 16, 2005, and generally requires behavior; (2) food, water, air, light, on qualitative impacts to economic that all ‘‘influential scientific minerals, or other nutritional or values. We also seek information on information’’ and ‘‘highly influential physiological requirements; (3) cover or impacts to national security and any scientific information’’ disseminated on shelter; (4) sites for breeding, other relevant impacts of designating or after that date be peer reviewed. reproduction, rearing of offspring, critical habitat in these areas. Because the information used to germination, or seed dispersal; and, In accordance with our regulations evaluate this petition may be considered generally, (5) habitats that are protected (50 CFR 424.13) we will consult, as ‘‘influential scientific information,’’ we from disturbance or are representative of appropriate, with affected states, solicit the names of recognized experts the historic geographical and ecological interested persons and organizations, in the field that could take part in the distributions of a species. Id. other affected Federal agencies, and, in peer review process for this status Section 4(b)(2) of the ESA requires the cooperation with the Secretary of State, review (see ADDRESSES). Independent Secretary to consider the ‘‘economic with the country or countries in which peer reviewers will be selected from the impact, impact on national security, and the species concerned are normally academic and scientific community, any other relevant impact’’ of found or whose citizens harvest such tribal and other Native American designating a particular area as critical species from the high seas. Data groups, Federal and state agencies, the habitat (16 U.S.C. 1533(b)(2)). Section reviewed may include, but are not private sector, and public interest 4(b)(2) further authorizes the Secretary limited to, scientific or commercial groups. to exclude any area from a critical publications, administrative reports, habitat designation if the Secretary finds Authority: The authority for this action is maps or other graphic materials, the Endangered Species Act of 1973, as that the benefits of exclusion outweigh information received from experts, and amended (16 U.S.C. 1531 et seq.). the benefits of designation, unless comments from interested parties. excluding that area will result in Dated: February 4, 2010. extinction of the species. Id. We seek Peer Review Samuel D. Rauch III, information regarding the benefits of On July 1, 1994, NMFS, jointly with Assistant Administrator for Regulatory designating specific areas the FWS, published a series of policies Programs, National Marine Fisheries Service. geographically throughout the range of regarding listings under the ESA, [FR Doc. 2010–2939 Filed 2–9–10; 8:45 am] these coral species as critical habitat. including a policy for peer review of BILLING CODE 3510–22–S

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