Listing Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List Eastern Oyster as Threatened or Endangered under the Endangered Species Act, 28510-28513 [05-9918]

Download as PDF 28510 Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Notices for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the Federal Register identifying the applicant and summarizing its proposed export conduct. Request for Public Comments Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 1104H, Washington, DC 20230. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as ‘‘Export Trade Certificate of Review, application number 88–9A016.’’ Wood Machinery Manufacturers of America’s original Certificate was issued on February 3, 1989 (54 FR 6312, February 9, 1989) and previously amended on June 22, 1990 (55 FR 27292, July 2, 1990); August 20, 1991 (56 FR 42596, August 28, 1991); December 13, 1993 (58 FR 66344, December 20, 1993); August 23, 1994 (59 FR 44408, August 29, 1994); September 20, 1996 (61 FR 50471, September 26, 1996); June 20, 1997 (62 FR 34440, June 26, 1997); and June 8, 1998 (63 FR 35567, June 30, 1998). A summary of the application for an amendment follows. Proposed Amendment: Wood Machinery Manufacturers of America seeks to amend its Certificate to: 1. Add each of the following companies as a new ‘‘Member’’ of the Certificate within the meaning of § 325.2(1) of the Regulations (15 CFR 325.2(1)): Wood-Mizer Products, Inc., Indianapolis, Indiana; and The Original Saw Co., Britt, Iowa; 2. Delete the following companies as ‘‘Members’’ of the Certificate: CEMCO, Inc.,Whitesburg, Tennessee; Delta International Machinery Corporation, Pittsburgh, Pennsylvania; Industrial Woodworking Machine Company, Garland, Texas; Jenkins Division, Kohler General Corporation, Sheboygan Falls, Wisconsin; Machine Systems L.L.C., Bend, Oregon; Midwest Automation, Inc., Minneapolis, Minnesota; Onsrud Machine Corporation, Wheeling, Illinois; A.G. Raymond & Company, Inc., Raleigh, North Carolina; Powermatic, McMinnville, Tennessee; Ritter Manufacturing, Inc., Antioch, California; Terrco, Inc., Waterloo, South Dakota; Timesavers, Inc., Minneapolis, Minnesota; Viking Engineering and Development, Inc., Fridley, Minnesota; Wisconsin Knife Works, Beloit, Wisconsin; Yates-American Machine Co., Beloit, Wisconsin; North American Products Corporation, Jasper, Indiana; and Alexander Dodds Company, Grand Rapids, Michigan; and 3. Change the listing of the following Members: ‘‘Unique Machine & Tool Co., Tempe, Arizona’’ to the new listing ‘‘Unique Machine & Tool Co., Phoenix, Arizona’’; ‘‘Carter Products, Inc., Grand Rapids, Michigan’’ to the new listing ‘‘Carter Products Co., Inc., Grand Rapids, Michigan’’; ‘‘Safranek Ent., Inc., Atascadero, California’’ to the new listing ‘‘Safranek Enterprises, Inc., Atascadero, California’’; and ‘‘Tyler Machinery Company, Inc., Warsaw, Indiana’’ to the new listing ‘‘Warsaw Machinery, Inc., Warsaw, Indiana.’’ Dated: May 12, 2005. Jeffrey Anspacher, Director, Export Trading Company Affairs. [FR Doc. E5–2492 Filed 5–17–05; 8:45 am] BILLING CODE 3510–DR–P Summary of the Application Applicant: Wood Machinery Manufacturers of America, 100 North 20th Street, 4th Floor, Philadelphia, Pennsylvania 19103. Contact: Harold Zassenhaus, Export Director, Telephone: (215) 564–3484. Application No.: 88–9A016. Date Deemed Submitted: May 9, 2005. VerDate jul<14>2003 14:03 May 17, 2005 Jkt 205001 PO 00000 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No. 050509124–5124–01; I.D. 050305B] Listing Endangered and Threatened Wildlife and Plants; 90–Day Finding on a Petition to List Eastern Oyster as Threatened or Endangered under the Endangered Species Act National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of petition finding; request for information. AGENCY: SUMMARY: NMFS announces the 90–day finding for a petition to list eastern oyster (Crassostrea virginica) as endangered or threatened under the Endangered Species Act (ESA). NMFS finds that the petition presents substantial scientific information indicating the petitioned action may be warranted. NMFS will conduct a status review of eastern oysters to determine if the petitioned action is warranted. To ensure that the review is comprehensive, NMFS is soliciting information pertaining to this species from any interested party. NMFS also seeks suggestions from the public for peer reviewers to take part in the peer review process for the forthcoming status review. DATES: Information related to this petition finding must be received by July 18, 2005. ADDRESSES: You may submit comments by any of the following methods: • E-mail: EasternOyster.Info@noaa.gov. Include docket number (050509124–5124–01) in the subject line of the message. • Fax: 978–281–9394, Attention Ms. Kimberly Damon-Randall. • Mail: Information on paper, disk, or CD-ROM should be addressed to the Assistant Regional Administrator for Protected Resources, NMFS Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930 FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Damon-Randall, NMFS, Northeast Regional Office, (978) 281– 9300 x6535, or Marta Nammack, NMFS, HQ, (301) 713–1401 x180; or Jennifer Moore, NMFS Southeast Regional Office, (727) 824–5312. SUPPLEMENTARY INFORMATION: Background On January 11, 2005, NMFS received a petition from Mr. Wolf-Dieter N. Busch, Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\18MYN1.SGM 18MYN1 Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Notices Ecosystem Initiatives Advisory Services, requesting that NMFS list eastern oyster (Crassostrea virginica) as endangered or threatened under the ESA. The petition contained information on the species, including the taxonomy; ecological and economic importance; distribution; physical and biological characteristics of its habitat and ecosystem relationships; population status and trends; and factors contributing to the population’s decline. The petition addressed the five factors identified in section 4(a)(1) of the ESA: (1) Current or threatened habitat destruction or modification or curtailment of habitat or range; (2) overutilization for commercial purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) other natural or man-made factors affecting the species’ continued existence. ESA Statutory Provisions and Policy Consideration Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires that NMFS make a finding as to whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating the petitioned action may be warranted. ESA implementing regulations define ‘‘substantial information’’ as the amount of information that would lead a reasonable person to believe the measure proposed in the petition may be warranted (50 CFR 424.14(b)(1)). In determining whether substantial information exists for a petition to list a species, NMFS takes into account several factors, including information submitted with, and referenced in, the petition and all other information readily available in NMFS files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the finding is to be published promptly in the Federal Register. If NMFS finds that a petition presents substantial information indicating that the requested action may be warranted, section 4 (b)(3)(A) of the ESA requires the Secretary of Commerce (Secretary) to conduct a status review of the species. Section 4 (b)(3)(B) requires the Secretary to make a finding as to whether the petitioned action is warranted within 12 months of the receipt of the petition. The Secretary has delegated the authority for these actions to the NOAA Assistant Administrator for Fisheries. Under the ESA, a listing determination can address a species, subspecies, or a distinct population segment (DPS) of a vertebrate species VerDate jul<14>2003 14:03 May 17, 2005 Jkt 205001 (16 U.S.C. 1532 (16)). Since the eastern oyster is an invertebrate species, the entire species would have to be listed under the ESA (or a subspecies, if information indicates that there are subspecies of the eastern oyster) if it is endangered or threatened. A species is endangered if it is in danger of extinction throughout all or a significant portion of its range (ESA section 3(6)). It is threatened if is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA section 3(19)). Under section 4(a)(1) of the ESA, a species shall be listed if it is determined to be threatened or endangered as a result of any one of the following factors: (1) present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. Listing determinations are made solely on the basis of the best scientific and commercial data available, after conducting a review of the status of the species and taking into account efforts made by any state or foreign nation to protect such species. Life History of the Eastern Oyster The eastern oyster is an estuarine bivalve, inhabiting subtidal and intertidal zones. Oysters form reefs, which are a dominant feature of many coastal estuaries. Oysters are often considered a ‘‘keystone species,’’ providing valuable shelter and habitat for many other estuarine organisms, improving water quality, and reducing bank erosion. Oysters are typically found in estuaries, sounds, bays, and tidal creeks from brackish water (5 parts per thousand [ppt] salinity) to full strength seawater (35 ppt salinity). The eastern oyster is distributed from the Gulf of St. Lawrence to the Gulf of Mexico and south through the Caribbean to the Yucatan Peninsula. They are very tolerant organisms, able to withstand wide variations in temperature, salinity, suspended sediments, and dissolved oxygen. Intertidal oysters typically have elongated, irregularly shaped shells. When submerged by the tide, oysters feed by filtering phytoplankton (microscopic plants) from the water column. Adult oysters begin reproduction when water temperatures become greater than 68°F (20°C). Oysters are broadcast spawners, meaning they release eggs and sperm into the water PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 28511 column. A fertilized egg develops into a planktonic (free-swimming) trochophore larva in about 6 hours. A fully shelled veliger larva is formed within 12 to 24 hours. The larva remains planktonic for about 3 weeks. Towards the end of this period it develops a foot (hence, pediveliger) and settles to the bottom of the water column where it seeks a hard substrate. When a suitable surface (ideally adult oyster shell) is located, the larva cements itself and metamorphoses to the adult form. This newly attached oyster is known as a ‘‘spat.’’ Analysis of Petition The petition asserts that the species warrants listing based on all five of the factors specified in the ESA (16 USC 1533(a)(1)). The petitioner contends that listing the eastern oyster is necessary because of the historic failure to protect the species’ habitats from numerous documented anthropogenic stresses, resulting in a well-documented crash of the population. The petition states that while ‘‘the living resources management agencies (LRMAs)’’ had information regarding the catastrophic declines of the species off the Atlantic Coast and in the Chesapeake Bay, they did nothing other than increase the harvest restrictions. The petitioner contends that the LRMAs should have used their ‘‘advisory authority under the Fish and Wildlife Coordination Act, the National Environmental Policy Act, and the Magnuson-Stevens Fishery Conservation and Management Act to force improvements and restoration of the quality and quantity of the degraded habitats.’’ Habitat factors cited by the petitioner as leading to the decline of this species include sediment load and dredging of shipping channels and harbors, which have changed water flow patterns. Also, overall freshwater inflow has been reduced by consumptive water withdrawal and by dams. Excessive nutrients from point and non-point sources frequently overload the estuaries, and toxic chemicals and endocrine disrupters are discharged into the watersheds. The petitioner includes harvest data for different regions of the Atlantic coast during the period 1880 through 2003, indicating that the annual Atlantic coastal landings of eastern oyster have decreased to less than two percent of their recorded historic value, and harvest from the Chesapeake Bay has decreased to 0.2 percent of its recorded historic value. The petitioner states that this is near ‘‘extinction level.’’ The petition states that two protozoan diseases have stressed the eastern E:\FR\FM\18MYN1.SGM 18MYN1 28512 Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Notices oyster, especially in the Chesapeake Bay. MSX is caused by Haplosporidium nelsoni, and Dermo is caused by Perkinsus marinus. In high salinity areas of both the Delaware Bay and Chesapeake Bay, H. nelsoni was responsible for the mortality of close to 100 percent of the adult standing stock biomass during a 3–year period in the late 1950s and early 1960s. Initially, MSX was found in coastal bays from North Carolina, Virginia, Maryland, Delaware, New Jersey, Connecticut, and New York, but associated mortalities did not occur south of Virginia or north of New Jersey. A range extension of the disease occurred in the 1980s, and MSX has now been documented from Maine to Florida. Since 1995, the range of MSX associated mortalities has expanded to include both Maine and New York. P. marinus is distributed along the East Coast of the United States from Maine to Florida and along the Gulf of Mexico coast. This parasite inhibits normal growth of the gonads in oysters and as such, reduces their reproductive capacity. Mortalities of up to 95 percent have occurred during the second summer following transfer to disease enzootic areas. The petition states that harvest restrictions and enhancement efforts have not succeeded in restoring the eastern oyster populations. In addition, according to the petitioner, the LRMAs have not provided detailed water quality and physical habitat goals to the environmental enforcement agencies, making it difficult for them to address the needs of the living resources through enforcement under the Fish and Wildlife Coordination Act, the National Environmental Policy Act, and the Magnuson-Stevens Fishery Conservation and Management Act. Finally, the petition expresses concern about the proposed introduction of the exotic Asian oyster, Crassostrea ariakensis, because it could result in the extinction of the eastern oyster through competition and hybridization, or because of its susceptibility to polydora (a native worm) and the introduction of diseases or activation of dormant diseases. The petition alleges the threats to the eastern oyster population continue to occur and are accompanied by increased siltation and in some areas, periodic low levels of oxygen. These factors, which have led to the decreased abundance of the species, may lead to the extinction of the eastern oyster. While the exotic Asian oyster has not yet been introduced into the Chesapeake Bay, it presents a threat because there is a proposal to introduce it, and an Environmental Assessment is underway VerDate jul<14>2003 14:03 May 17, 2005 Jkt 205001 to evaluate its impacts on the environment. NMFS concludes that the petition presents substantial information concerning some or all of the factors identified in ESA section 4(a)(1) with respect to the eastern oyster along the Atlantic Coast. Because the petitioner presents substantial information on the status of and threats to the Atlantic Coast populations of eastern oyster but little information regarding the status or threats in other areas such as the Gulf Coast and Caribbean, he apparently seeks one of two alternatives: (1) a determination that the Atlantic coast populations constitute a separate subspecies that is in danger of extinction throughout all or a significant portion of its range (i.e., endangered) or likely to become so in the foreseeable future (i.e., threatened); or alternatively, (2) a determination that the eastern oyster is in danger of extinction throughout a significant portion of its range (e.g., along the Atlantic coast or in the Chesapeake Bay) or likely to become so in the foreseeable future. There is some limited information in our files to indicate that it is possible to differentiate between eastern oysters from the Gulf and Atlantic Coasts using mtDNA analyses. During the status review, we intend to analyze additional data to determine whether the best available information supports the existence of subspecies of eastern oysters. Existence of two or more subspecies may influence a listing determination. For example, if the available genetic information indicates that the Chesapeake Bay population is part of a separate subspecies, there may be evidence that this subspecies is threatened or endangered. Even if a subspecies does not coincide with the exact areas where major threats exist, a particular portion of such a subspecies’ range may be more likely to constitute a significant portion of the subspecies’ range than a significant portion of the entire species’ range. If we determine that no subspecies exist, we will evaluate whether the Chesapeake Bay, entire Atlantic Coast, or other areas constitute a significant portion of the range of the species so that we can make a determination on whether the species is in danger of extinction throughout that portion of its range or likely to become so in the foreseeable future. Petition Finding Based on the above information and the criteria specified in 50 CFR 424.14(b)(2), NMFS finds the petition presents substantial scientific and commercial information indicating that the petitioned action concerning the PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 eastern oyster may be warranted. NMFS will consider whether there is a separate subspecies that is threatened or endangered and whether the entire species is in danger of extinction throughout all or a significant portion of its range or likely to become so in the foreseeable future. Under section 4(b)(3)(A) of the ESA, this finding requires NMFS to commence a status review of the species. NMFS is now initiating this review. The eastern oyster is now considered to be a candidate species (69 FR 19976, April 15, 2004). Within 12 months of the receipt of the petition (January 11, 2006), a finding will be made as to whether listing the eastern oyster as endangered or threatened is warranted, as required by section 4(b)(3)(B) of the ESA. If warranted, NMFS will publish a proposed rule and solicit public comments before developing and publishing a final rule. Information Solicited To ensure the status review is based on the best available scientific and commercial data, NMFS is soliciting information on whether the eastern oyster is endangered or threatened. Specifically, NMFS is soliciting information in the following areas: (1) historical and current distribution and abundance of this species throughout its range; (2) historic and current condition; (3) population status and trends; (4) information on any current or planned activities that may adversely impact the species, especially as related to the five factors specified in section 4(a)(1) of the ESA and listed above; (5) ongoing efforts to protect and restore the species and its habitat; (6) information indicating the existence of separate subspecies of eastern oysters based upon genetic data or other information; and (7) information on whether any particular portions of the range of the eastern oyster constitute significant portions of the range of the species or of any potential subspecies that may exist. NMFS requests that all information be accompanied by: (1) supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter’s name, address, and any association, institution, or business that the person represents. Peer Review On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife Service, 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 E:\FR\FM\18MYN1.SGM 18MYN1 Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Notices based on the best scientific and commercial data available. NMFS is soliciting the names of recognized experts in the field that could take part in the peer review process for this status review. 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: 16 U.S.C. 1531 et seq. Dated: May 13, 2005. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. 05–9918 Filed 5–17–05; 8:45 am] BILLING CODE 3510–22–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Commerce (Secretary) on February 17, 1972, to advise the Secretary on all living marine resource matters that are the responsibility of the Department of Commerce. This Committee advises and reviews the adequacy of living marine resource policies and programs to meet the needs of commercial and recreational fisheries, and environmental, state, consumer, academic, tribal, and other national interests. Matters to be Considered June 7, 2005 General overview and full committee discussion regarding status of the U.S. Ocean Action Plan initiative and offshore aquaculture legislation. The Committee will also spend time on strategic planning and committee organization. June 8, 2005 [I.D. 051005B] Marine Fisheries Advisory Committee; Public Meetings National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meetings. AGENCY: SUMMARY: Notice is hereby given of meetings of the Marine Fisheries Advisory Committee (MAFAC). This will be the second of two meetings held in fiscal year 2005 to review and advise on management policies for living marine resources. Agenda topics are provided under the SUPPLEMENTARY INFORMATION section of this notice. DATES: The meetings will be held June 7–9, 2005, from 9 a.m. to 5 p.m. and June 10, 2005, from 9 a.m. to 12 p.m. ADDRESSES: The meetings will be held at the Phoenix Park Hotel 520 North Capitol Street, N.W., Washington, D.C. 20001. Requests for special accommodations may be directed to MAFAC, Office of Constituent Services, National Marine Fisheries Service, 1315 East-West Highway #9508, Silver Spring, MD 20910. FOR FURTHER INFORMATION CONTACT: Laurel Bryant, MAFAC Executive Director; telephone: (301) 713–2379 x171. As required by section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1982), notice is hereby given of meetings of MAFAC. MAFAC was established by the Secretary of SUPPLEMENTARY INFORMATION: VerDate jul<14>2003 14:03 May 17, 2005 Jkt 205001 The Committee will receive briefings on status of ecosystem approach to managing fisheries, strengthening science in management, offshore aquaculture, and status updates on reauthorization of the MagnusonStevens Fishery Conservation and Management Act. The Committee will then adjourn into breakout groups to take up these issues in more depth. June 9, 2005 The full Committee will reconvene to receive and discuss breakout group reports. June 10, 2005 The full committee will meet to continue any necessary discussions and actions on the issue reports, and complete any unfinished administrative issues. Committee will adjourn sine day on completion of business. Time will be set aside for public comment on agenda items. Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to MAFAC (see ADDRESSES). Dated: May 12, 2005. Gordon J. Helm Acting Director, Office of Constituent Services, National Marine Fisheries Service. [FR Doc. 05–9927 Filed 5–17–05; 8:45 am] BILLING CODE 3510–22–S PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 28513 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 051305A] Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; request for comments. AGENCY: SUMMARY: The Assistant Regional Administrator for Sustainable Fisheries, Northeast Region, NMFS (Assistant Regional Administrator) has made a preliminary determination that the subject Exempted Fishing Permit (EFP) application contains all the required information and warrants further consideration. The Assistant Regional Administrator has also made a preliminary determination that the activities authorized under the EFP would be consistent with the goals and objectives of the Northeast (NE) Multispecies Fishery Management Plan (FMP). However, further review and consultation may be necessary before a final determination is made to issue the EFP. Therefore, NMFS announces that the Assistant Regional Administrator proposes to recommend that an EFP be issued that would allow one commercial fishing vessel to conduct fishing operations that are otherwise restricted by the regulations governing the fisheries of the Northeastern United States. The EFP, which would enable researchers to investigate the feasibility of using low profile gillnets to catch flounders while limiting cod bycatch, would allow for exemptions from the FMP as follows: Gulf of Maine (GOM) Rolling Closure Areas III, IV, and V. Regulations under the MagnusonStevens Fishery Conservation and Management Act (Magnuson-Stevens Act) require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs. DATES: Comments must be received on or before June 2, 2005. ADDRESSES: Written comments should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope ‘‘Comments on the GOM Low Profile Gillnet Study.’’ Comments may also be sent via fax to (978) 281– 9135, or submitted via e-mail to the following address: da5–21@noaa.gov. E:\FR\FM\18MYN1.SGM 18MYN1

Agencies

[Federal Register Volume 70, Number 95 (Wednesday, May 18, 2005)]
[Notices]
[Pages 28510-28513]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-9918]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 050509124-5124-01; I.D. 050305B]


Listing Endangered and Threatened Wildlife and Plants; 90-Day 
Finding on a Petition to List Eastern Oyster as Threatened or 
Endangered under the Endangered Species Act

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

ACTION: Notice of petition finding; request for information.

-----------------------------------------------------------------------

SUMMARY: NMFS announces the 90-day finding for a petition to list 
eastern oyster (Crassostrea virginica) as endangered or threatened 
under the Endangered Species Act (ESA). NMFS finds that the petition 
presents substantial scientific information indicating the petitioned 
action may be warranted. NMFS will conduct a status review of eastern 
oysters to determine if the petitioned action is warranted. To ensure 
that the review is comprehensive, NMFS is soliciting information 
pertaining to this species from any interested party. NMFS also seeks 
suggestions from the public for peer reviewers to take part in the peer 
review process for the forthcoming status review.

DATES: Information related to this petition finding must be received by 
July 18, 2005.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: EasternOyster.Info@noaa.gov. Include docket number 
(050509124-5124-01) in the subject line of the message.
     Fax: 978-281-9394, Attention Ms. Kimberly Damon-Randall.
     Mail: Information on paper, disk, or CD-ROM should be 
addressed to the Assistant Regional Administrator for Protected 
Resources, NMFS Northeast Regional Office, One Blackburn Drive, 
Gloucester, MA 01930

FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Damon-Randall, NMFS, 
Northeast Regional Office, (978) 281-9300 x6535, or Marta Nammack, 
NMFS, HQ, (301) 713-1401 x180; or Jennifer Moore, NMFS Southeast 
Regional Office, (727) 824-5312.

SUPPLEMENTARY INFORMATION:

Background

    On January 11, 2005, NMFS received a petition from Mr. Wolf-Dieter 
N. Busch,

[[Page 28511]]

    Ecosystem Initiatives Advisory Services, requesting that NMFS list 
eastern oyster (Crassostrea virginica) as endangered or threatened 
under the ESA. The petition contained information on the species, 
including the taxonomy; ecological and economic importance; 
distribution; physical and biological characteristics of its habitat 
and ecosystem relationships; population status and trends; and factors 
contributing to the population's decline. The petition addressed the 
five factors identified in section 4(a)(1) of the ESA: (1) Current or 
threatened habitat destruction or modification or curtailment of 
habitat or range; (2) over-utilization for commercial purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
and (5) other natural or man-made factors affecting the species' 
continued existence.

ESA Statutory Provisions and Policy Consideration

    Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires 
that NMFS make a finding as to whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating the petitioned action may be warranted. ESA 
implementing regulations define ``substantial information'' as the 
amount of information that would lead a reasonable person to believe 
the measure proposed in the petition may be warranted (50 CFR 
424.14(b)(1)). In determining whether substantial information exists 
for a petition to list a species, NMFS takes into account several 
factors, including information submitted with, and referenced in, the 
petition and all other information readily available in NMFS files. To 
the maximum extent practicable, this finding is to be made within 90 
days of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the 
finding is to be published promptly in the Federal Register. If NMFS 
finds that a petition presents substantial information indicating that 
the requested action may be warranted, section 4 (b)(3)(A) of the ESA 
requires the Secretary of Commerce (Secretary) to conduct a status 
review of the species. Section 4 (b)(3)(B) requires the Secretary to 
make a finding as to whether the petitioned action is warranted within 
12 months of the receipt of the petition. The Secretary has delegated 
the authority for these actions to the NOAA Assistant Administrator for 
Fisheries.
    Under the ESA, a listing determination can address a species, 
subspecies, or a distinct population segment (DPS) of a vertebrate 
species (16 U.S.C. 1532 (16)). Since the eastern oyster is an 
invertebrate species, the entire species would have to be listed under 
the ESA (or a subspecies, if information indicates that there are 
subspecies of the eastern oyster) if it is endangered or threatened. A 
species is endangered if it is in danger of extinction throughout all 
or a significant portion of its range (ESA section 3(6)). It is 
threatened if is it likely to become endangered within the foreseeable 
future throughout all or a significant portion of its range (ESA 
section 3(19)).
    Under section 4(a)(1) of the ESA, a species shall be listed if it 
is determined to be threatened or endangered as a result of any one of 
the following factors: (1) present or threatened destruction, 
modification, or curtailment of habitat or range; (2) over-utilization 
for commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
or (5) other natural or manmade factors affecting its continued 
existence. Listing determinations are made solely on the basis of the 
best scientific and commercial data available, after conducting a 
review of the status of the species and taking into account efforts 
made by any state or foreign nation to protect such species.

Life History of the Eastern Oyster

    The eastern oyster is an estuarine bivalve, inhabiting subtidal and 
intertidal zones. Oysters form reefs, which are a dominant feature of 
many coastal estuaries. Oysters are often considered a ``keystone 
species,'' providing valuable shelter and habitat for many other 
estuarine organisms, improving water quality, and reducing bank 
erosion. Oysters are typically found in estuaries, sounds, bays, and 
tidal creeks from brackish water (5 parts per thousand [ppt] salinity) 
to full strength seawater (35 ppt salinity). The eastern oyster is 
distributed from the Gulf of St. Lawrence to the Gulf of Mexico and 
south through the Caribbean to the Yucatan Peninsula. They are very 
tolerant organisms, able to withstand wide variations in temperature, 
salinity, suspended sediments, and dissolved oxygen. Intertidal oysters 
typically have elongated, irregularly shaped shells. When submerged by 
the tide, oysters feed by filtering phytoplankton (microscopic plants) 
from the water column.
    Adult oysters begin reproduction when water temperatures become 
greater than 68[deg]F (20[deg]C). Oysters are broadcast spawners, 
meaning they release eggs and sperm into the water column. A fertilized 
egg develops into a planktonic (free-swimming) trochophore larva in 
about 6 hours. A fully shelled veliger larva is formed within 12 to 24 
hours. The larva remains planktonic for about 3 weeks. Towards the end 
of this period it develops a foot (hence, pediveliger) and settles to 
the bottom of the water column where it seeks a hard substrate. When a 
suitable surface (ideally adult oyster shell) is located, the larva 
cements itself and metamorphoses to the adult form. This newly attached 
oyster is known as a ``spat.''

Analysis of Petition

    The petition asserts that the species warrants listing based on all 
five of the factors specified in the ESA (16 USC 1533(a)(1)). The 
petitioner contends that listing the eastern oyster is necessary 
because of the historic failure to protect the species' habitats from 
numerous documented anthropogenic stresses, resulting in a well-
documented crash of the population. The petition states that while 
``the living resources management agencies (LRMAs)'' had information 
regarding the catastrophic declines of the species off the Atlantic 
Coast and in the Chesapeake Bay, they did nothing other than increase 
the harvest restrictions. The petitioner contends that the LRMAs should 
have used their ``advisory authority under the Fish and Wildlife 
Coordination Act, the National Environmental Policy Act, and the 
Magnuson-Stevens Fishery Conservation and Management Act to force 
improvements and restoration of the quality and quantity of the 
degraded habitats.''
    Habitat factors cited by the petitioner as leading to the decline 
of this species include sediment load and dredging of shipping channels 
and harbors, which have changed water flow patterns. Also, overall 
freshwater inflow has been reduced by consumptive water withdrawal and 
by dams. Excessive nutrients from point and non-point sources 
frequently overload the estuaries, and toxic chemicals and endocrine 
disrupters are discharged into the watersheds.
    The petitioner includes harvest data for different regions of the 
Atlantic coast during the period 1880 through 2003, indicating that the 
annual Atlantic coastal landings of eastern oyster have decreased to 
less than two percent of their recorded historic value, and harvest 
from the Chesapeake Bay has decreased to 0.2 percent of its recorded 
historic value. The petitioner states that this is near ``extinction 
level.''
    The petition states that two protozoan diseases have stressed the 
eastern

[[Page 28512]]

oyster, especially in the Chesapeake Bay. MSX is caused by 
Haplosporidium nelsoni, and Dermo is caused by Perkinsus marinus. In 
high salinity areas of both the Delaware Bay and Chesapeake Bay, H. 
nelsoni was responsible for the mortality of close to 100 percent of 
the adult standing stock biomass during a 3-year period in the late 
1950s and early 1960s. Initially, MSX was found in coastal bays from 
North Carolina, Virginia, Maryland, Delaware, New Jersey, Connecticut, 
and New York, but associated mortalities did not occur south of 
Virginia or north of New Jersey. A range extension of the disease 
occurred in the 1980s, and MSX has now been documented from Maine to 
Florida. Since 1995, the range of MSX associated mortalities has 
expanded to include both Maine and New York. P. marinus is distributed 
along the East Coast of the United States from Maine to Florida and 
along the Gulf of Mexico coast. This parasite inhibits normal growth of 
the gonads in oysters and as such, reduces their reproductive capacity. 
Mortalities of up to 95 percent have occurred during the second summer 
following transfer to disease enzootic areas.
    The petition states that harvest restrictions and enhancement 
efforts have not succeeded in restoring the eastern oyster populations. 
In addition, according to the petitioner, the LRMAs have not provided 
detailed water quality and physical habitat goals to the environmental 
enforcement agencies, making it difficult for them to address the needs 
of the living resources through enforcement under the Fish and Wildlife 
Coordination Act, the National Environmental Policy Act, and the 
Magnuson-Stevens Fishery Conservation and Management Act.
    Finally, the petition expresses concern about the proposed 
introduction of the exotic Asian oyster, Crassostrea ariakensis, 
because it could result in the extinction of the eastern oyster through 
competition and hybridization, or because of its susceptibility to 
polydora (a native worm) and the introduction of diseases or activation 
of dormant diseases.
    The petition alleges the threats to the eastern oyster population 
continue to occur and are accompanied by increased siltation and in 
some areas, periodic low levels of oxygen. These factors, which have 
led to the decreased abundance of the species, may lead to the 
extinction of the eastern oyster. While the exotic Asian oyster has not 
yet been introduced into the Chesapeake Bay, it presents a threat 
because there is a proposal to introduce it, and an Environmental 
Assessment is underway to evaluate its impacts on the environment. NMFS 
concludes that the petition presents substantial information concerning 
some or all of the factors identified in ESA section 4(a)(1) with 
respect to the eastern oyster along the Atlantic Coast.
    Because the petitioner presents substantial information on the 
status of and threats to the Atlantic Coast populations of eastern 
oyster but little information regarding the status or threats in other 
areas such as the Gulf Coast and Caribbean, he apparently seeks one of 
two alternatives: (1) a determination that the Atlantic coast 
populations constitute a separate subspecies that is in danger of 
extinction throughout all or a significant portion of its range (i.e., 
endangered) or likely to become so in the foreseeable future (i.e., 
threatened); or alternatively, (2) a determination that the eastern 
oyster is in danger of extinction throughout a significant portion of 
its range (e.g., along the Atlantic coast or in the Chesapeake Bay) or 
likely to become so in the foreseeable future. There is some limited 
information in our files to indicate that it is possible to 
differentiate between eastern oysters from the Gulf and Atlantic Coasts 
using mtDNA analyses. During the status review, we intend to analyze 
additional data to determine whether the best available information 
supports the existence of subspecies of eastern oysters. Existence of 
two or more subspecies may influence a listing determination. For 
example, if the available genetic information indicates that the 
Chesapeake Bay population is part of a separate subspecies, there may 
be evidence that this subspecies is threatened or endangered. Even if a 
subspecies does not coincide with the exact areas where major threats 
exist, a particular portion of such a subspecies' range may be more 
likely to constitute a significant portion of the subspecies' range 
than a significant portion of the entire species' range. If we 
determine that no subspecies exist, we will evaluate whether the 
Chesapeake Bay, entire Atlantic Coast, or other areas constitute a 
significant portion of the range of the species so that we can make a 
determination on whether the species is in danger of extinction 
throughout that portion of its range or likely to become so in the 
foreseeable future.

Petition Finding

    Based on the above information and the criteria specified in 50 CFR 
424.14(b)(2), NMFS finds the petition presents substantial scientific 
and commercial information indicating that the petitioned action 
concerning the eastern oyster may be warranted. NMFS will consider 
whether there is a separate subspecies that is threatened or endangered 
and whether the entire species is in danger of extinction throughout 
all or a significant portion of its range or likely to become so in the 
foreseeable future. Under section 4(b)(3)(A) of the ESA, this finding 
requires NMFS to commence a status review of the species. NMFS is now 
initiating this review. The eastern oyster is now considered to be a 
candidate species (69 FR 19976, April 15, 2004). Within 12 months of 
the receipt of the petition (January 11, 2006), a finding will be made 
as to whether listing the eastern oyster as endangered or threatened is 
warranted, as required by section 4(b)(3)(B) of the ESA. If warranted, 
NMFS will publish a proposed rule and solicit public comments before 
developing and publishing a final rule.

Information Solicited

    To ensure the status review is based on the best available 
scientific and commercial data, NMFS is soliciting information on 
whether the eastern oyster is endangered or threatened. Specifically, 
NMFS is soliciting information in the following areas: (1) historical 
and current distribution and abundance of this species throughout its 
range; (2) historic and current condition; (3) population status and 
trends; (4) information on any current or planned activities that may 
adversely impact the species, especially as related to the five factors 
specified in section 4(a)(1) of the ESA and listed above; (5) ongoing 
efforts to protect and restore the species and its habitat; (6) 
information indicating the existence of separate subspecies of eastern 
oysters based upon genetic data or other information; and (7) 
information on whether any particular portions of the range of the 
eastern oyster constitute significant portions of the range of the 
species or of any potential subspecies that may exist. NMFS requests 
that all information be accompanied by: (1) supporting documentation 
such as maps, bibliographic references, or reprints of pertinent 
publications; and (2) the submitter's name, address, and any 
association, institution, or business that the person represents.

Peer Review

    On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife 
Service, 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

[[Page 28513]]

based on the best scientific and commercial data available. NMFS is 
soliciting the names of recognized experts in the field that could take 
part in the peer review process for this status review. 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: 16 U.S.C. 1531 et seq.

    Dated: May 13, 2005.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 05-9918 Filed 5-17-05; 8:45 am]
BILLING CODE 3510-22-S