[Federal Register Volume 70, Number 95 (Wednesday, May 18, 2005)]
[Notices]
[Pages 28510-28513]
From the Federal Register Online via the Government Publishing 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.
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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: [email protected]. 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]
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