Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-1229; Directorate Identifier 2009-NM-106-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

Transport Canada Civil Aviation, which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2009-19, dated April 29, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

Bombardier has issued Service Bulletin 601R-32-104, dated March 3, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 652 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $40 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $78,240, or $120 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-1231; Directorate Identifier 2009-NM-212-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directives 2009-07-01 and 2009-07-02, both effective July 13, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The required actions include a detailed inspection for gaps, voids, or holes in the sealant. Corrective actions include applying sealant in any gaps, voids, or holes. You may obtain further information by examining the MCAI in the AD docket.

Embraer has issued Service Bulletin 170-57-0036, dated March 13, 2009; and Service Bulletin 190-57-0027, dated March 18, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 197 products of U.S. registry. We also estimate that it would take about 5 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $78,800, or $400 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-1228; Directorate Identifier 2009-NM-015-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received reports of fatigue cracks of the lower surface of the center wing box. Large fatigue cracks, some with multiple origins indicating link-up of smaller fatigue cracks, and generalized small fatigue cracks have been found during wing durability testing and in-service operations. This condition, if not corrected, could result in reduced wing residual strength below the design limit load capacity, which could result in the structural failure of the wings.

We have reviewed Lockheed Service Bulletin 382-57-85 (82-790), Revision 2, dated August 23, 2007, including Appendices A, B, C, D, E, F, and G, Revision 1, dated March 8, 2007. The service bulletin describes procedures for doing repetitive nondestructive inspections of the lower surface of the center wing box (including the panel, stringers, beam caps, panel repairs, fittings, and cold-work holes) for any damage (including cracking, corrosion, structural deformation, and dents), and corrective action, if necessary. The corrective action includes contacting Lockheed for repair instructions.

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Relevant Service Information.”

Although the service bulletin specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions using a method approved by the FAA.

Although the service bulletin specifies that operators can adjust thresholds and intervals, use alternate repetitive inspection intervals, and use alternate inspection methods if applicable, this proposed AD would require any alternate methods to be approved by the Manager, Atlanta ACO.

Although the service bulletin provides a longer compliance time of 22,000 flight hours to inspect cold-worked holes, this AD would require all holes to be inspected within 10,000 flight hours, as reports indicate that fatigue cracks are of sufficient size and density, requiring a shorter compliance time.

Operators should note that, although the Accomplishment Instructions of Lockheed Service Bulletin 382-57-85 (82-790), Revision 2, dated August 23, 2007, including Appendixes A, B, C, D, E, F, and G, Revision 1, dated March 8, 2007, describe procedures for submitting a report of any damages, this proposed AD would not require such action.

We estimate that this proposed AD would affect 15 airplanes of U.S. registry. We also estimate that it would take about 2,000 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $2,400,000, or $160,000 per airplane.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866,

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-1004; Directorate Identifier 2009-NE-36-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, notified us that an unsafe condition may exist on Rolls-Royce plc RB211 Trent 800 series turbofan engines. The MCAI states:

Rolls-Royce plc has issued Alert Service Bulletin (ASB) No. RB.211-72-AE362, Revision 1, dated April 3, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of the United Kingdom (U.K.) and is approved for operation in the United States. Pursuant to our bilateral agreement with the U.K., EASA has notified us of the unsafe condition described in the MCAI. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require inspection of the HP/IP turbine vent tube and bearing chamber during each shop visit of the engine for coking and carbon buildup in the HP/IP turbine bearing oil vent tube.

Based on the service information, we estimate that this proposed AD would affect about 138 RB211 Trent 800 series turbofan engines installed on airplanes of U.S. registry. We also estimate that it would take about one work-hour per engine to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $2,000 per engine. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $287,040.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. If appropriate to a specific comment, the commenter should reference the specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

This document proposes amendments to title 19 of the Code of Federal Regulations (19 CFR) to reflect the centralization of the continuous bond program at CBP's Revenue Division (RD), Office of Finance, in Indianapolis, Indiana. Pursuant to this centralization, continuous bonds must be filed, reviewed and, if approved, maintained at the RD. It is proposed that the documentation for these types of bonds, including CBP Form 301, applications, riders, terminations, power of attorney forms, and Importer ID Input Records (CBP Form 5106), must be filed at the RD via mail, fax, or in an electronic format as prescribed by CBP. The RD will assume the bond functions previously performed at the port level, with the noted exception that the authority to approve single transaction bonds will remain with port directors.

It is noted that most continuous basic importation bonds are no longer processed and retained on file at the ports, and the majority of bond sufficiency matters concerning these bonds are currently processed at the RD. In 2003, CBP port directors delegated the authority to review and process these types of bonds to the RD. Consequently, under existing procedures, any person who is required to post a continuous basic importation bond to secure a CBP transaction or multiple transactions has the option of filing the bond directly with the port director (as per 19 CFR 113.11), or indirectly to the RD. In fact, continuous basic importation bonds that are submitted directly to the port are subsequently referred to the RD by the port director. Also in 2003, the Director of the International Trade Compliance Division authorized, per 19 CFR 113.15, port directors to allow the retention of approved continuous bonds at the RD.

Many of the changes to 19 CFR part 113 proposed in this document are intended to facilitate the use of electronic submission of continuous bond documentation. The requirements for the electronic submission of bond documentation will be available on the CBP Web site, http://www.cbp.gov. The Web site will feature a direct link to CBP bond program directives.

The changes proposed in this document implement recommendations set forth in a review of the continuous bond program commissioned by CBP. See “Grant Thornton Review of Customs Continuous Transaction (Entry) Bonds,” dated April 3, 2003. The study found that centralization of the continuous bond program would strengthen the effectiveness of the program by enhancing efficiency and uniformity. Arrangements for public inspection of the document may be made by calling Joseph Clark at (202) 572-8768.

This document also proposes non-substantive amendments to 19 CFR to reflect the nomenclature changes made necessary by the transfer of the legacy U.S. Customs Service of the Department of the Treasury to the Department of Homeland Security (DHS) and DHS' subsequent renaming of the agency as U.S. Customs and Border Protection on March 31, 2007 (see 72 FR 20131, dated April 23, 2007). As a consequence of these changes, this document proposes certain non-substantive nomenclature changes to reflect the realities just described, and the issuance of new definitions in the regulations whereby the term “Customs” means “Customs and Border Protection,” the terms “Commissioner” and “Commissioner of Customs” mean “Commissioner of Customs and Border Protection,” the acronym “CBP” means “Customs and Border Protection,” and the acronym “RD” means “Revenue Division.”

It is proposed to amend title 19 of the CFR to reflect the consolidation of the continuous bond program at the Revenue Division (RD), the use of electronic filing for the submission of continuous bonds and related documentation, and the transfer of Customs and Border Protection (CBP) to the Department of Homeland Security (DHS). A more detailed explanation of the proposed amendments, other than those involving technical corrections or minor wording and editorial changes, is set forth below.

Section 101.1 of title 19 of the CFR (19 CFR 101.1) sets forth the meaning of certain terms as used throughout Chapter 1 of title 19. To reflect certain nomenclature changes made necessary by the transfer of the U.S. Customs Service from the Department of the Treasury to DHS and the subsequent renaming of the agency as the U.S. Customs and Border Protection (CBP), it is proposed to add new definitions to § 101.1 whereby:

• The terms “Customs” and “Customs Service” mean “Customs and Border Protection.”

• The terms “Customs Regulations” and “CBP Regulations” mean “title 19 of the Code of Federal Regulations (19 CFR).”

• The terms “Commissioner” and “Commissioner of Customs” mean “Commissioner of Customs and Border Protection.”

• The acronym “CBP” means “Customs and Border Protection.”

• The acronym “RD” means “Revenue Division, Office of Finance, Customs and Border Protection.”

Section 113.1 of title 19 of the CFR (19 CFR 113.1) provides that where a bond or other security is not specifically required by law, the Commissioner of Customs, pursuant to Treasury Department Order No. 165 Revised, as amended (T.D. 53654, 19 FR 7241, November 6, 1954), may by regulation or specific instruction require, or authorize the port director to require, such bonds or other security as may be considered necessary to protect the revenue or to assure compliance with the law.

It is proposed to amend § 113.1 to reflect:

• The transfer of authority over certain functions from the Secretary of the Treasury to the Secretary of Homeland Security effected by the Homeland Security Act of 2002;

• The delegation of the authority to approve certain customs revenue functions from the Secretary of the Treasury Department to the Secretary of Homeland Security pursuant to Treasury Department Order No. 100-16, dated May 15, 2003, Appendix to part 0 of title 19 of the CFR (19 CFR part 0); and

• The subsequent delegation of authority from the Secretary of Homeland Security to the Commissioner of CBP pursuant to DHS Delegation Order 7010.3, dated May, 2006.

Section 113.11 of title 19 of the CFR (19 CFR 113.11) provides, in pertinent part, that bonds must be submitted on CBP Form 301 to the appropriate port director where they will undergo review for sufficiency. Section 113.12 of title 19 (19 CFR 113.12) sets forth the required elements of an application for both single transaction and continuous bonds.

This document proposes reversing the order of these provisions so that the section pertaining to bond applications (existing § 113.12) will appear first in the regulations at § 113.11, and the section pertaining to bond approval (existing § 113.11) will appear at § 113.12. It is also proposed to revise these provisions to more accurately reflect the sequence of events and current procedures that comprise the bond application and approval process.

To that end, it is proposed to amend newly designated § 113.11 (existing § 113.12) to more specifically identify the information required in a bond application, and to state that continuous bond applications must be submitted to the RD via mail, fax, or in an electronic format as prescribed by CBP. This section will provide that mail, fax, and electronic (e-mail) submissions must be sent to the addresses/fax number listed on the CBP Web site located at http://www.cbp.gov.

It is also proposed to amend the certification requirements set forth in newly designated § 113.11(e) (existing § 113.12(c)), to provide for and facilitate electronic filing on the bond application. As noted above, this document proposes amendments to the continuous bond application process that would permit certain documentation to be submitted to the RD in an electronic format. Such electronic submissions will not contain a written signature or seal, as is required by various bond provisions throughout part 113. It is therefore proposed to add alternative certification language that states that bonds submitted electronically are legally binding to the same extent as if signed and under seal. Accordingly, it is proposed to divide newly designated § 113.11(e) (existing § 113.12(c)) into separate subparagraphs. Paragraph (e)(1) will set forth the existing certification language applicable to paper bond submissions and require that a bond be affixed with a corporate seal if required by § 113.33. New paragraph (e)(2) will state that electronic bond documentation containing the requisite certification language will be legally binding to the same extent as if signed and submitted under seal. New paragraph (e)(3) will state that CBP is entitled to presume, without verification, that submitted bond applications and related documentation, which include the bond, are properly executed, complete, accurate, and in full compliance with all applicable laws.

The changes proposed to newly designated § 113.12 involve separating the approval procedures applicable to single transaction and continuous bonds. It is proposed to add language stating that when CBP approves a bond, it will notify filers, sureties and principals by sending them a CBP- assigned bond number. It is also proposed to add a new paragraph (c) that states that CBP may refuse to accept any new obligations under a previously approved bond that requires modification, or where there has been a failure to comply with § 113.11(d) (failure to provide application updates) or § 113.24(d) (failure to provide rider).

Lastly, in order to accurately reflect the agency's name, it is proposed to change the name “Customs Form 301” where it appears in this section and elsewhere in part 113, to “CBP Form 301.”

Section 113.13 of title 19 of the CFR (19 CFR 113.13) sets forth the guidelines for determining bond amounts. Specifically, this section addresses minimum bond amounts, guidelines for determining the sufficiency of bond amounts, and the procedures by which CBP will periodically review bond sufficiency and request additional security.

As noted above, most continuous basic importation bonds are no longer reviewed and approved at the port level. The vast majority of bond sufficiency matters concerning continuous bonds are processed at the RD. To reflect this centralization, it is proposed to amend § 113.13 (b), (c), and (d) by replacing the references to “port director” and “drawback office” with a more generalized reference to “CBP.” Also, it is proposed to remove the language in paragraph (c) that permits a principal 30 days from the date of notification to remedy a deficiency. If a deficiency is identified, CBP believes that in some instances 30 days is too long to permit the condition to continue. Accordingly, in recognition of the importance of bond sufficiency and to ensure compliance with all applicable laws and regulations in a more timely fashion, it is proposed to amend this provision to state that if a deficiency is identified, CBP may require additional securities for any and all of the principal's transactions until the deficiency is remedied. Similarly, it is proposed to amend paragraph (d) to state that CBP may immediately require additional security.

Section 113.14 of title 19 of the CFR (19 CFR 113.14) states that if none of the conditions contained in subpart G of part 113 is applicable to a transaction sought to be secured, the port director may draft conditions to cover the transaction and the bond may be executed upon approval by the Director, Border Security and Trade Compliance Division at CBP Headquarters.

As a result of the centralization of the bond program, continuous bonds will no longer be approved at the port level. The issuance of single transaction bonds, however, will remain under the authority of port directors. It is therefore proposed to amend § 113.14 to reflect that either the Director, Revenue Division or the port director, as appropriate, will draft conditions to secure a transaction when the conditions contained in subpart G of part 113 do not apply. It also proposed to remove the reference to “Director, Border Security and Trade Compliance Division” and provide, instead, that additional bond conditions to secure a transaction, where the conditions contained in subpart G of part 113 do not adequately secure the transaction, must be approved by the Executive Director, Regulations and Rulings, Office of International Trade.

Section 113.15 of title 19 of the CFR (19 CFR 113.15) provides, in pertinent part, that all bonds approved by the port director, except the bond containing the agreement to pay court costs (condemned goods), shall remain on file in the port office unless the port director is directed in writing as to other disposition.

It is proposed to amend this section to provide that approved continuous bonds will be retained on file at the RD or approved CBP back-up sites and approved single transaction bonds will remain on file at the port office.

Section 113.21 of title 19 of the CFR (19 CFR 113.21) prescribes the information required on the bond.

This document revises paragraph (e) by removing the requirement that lines must be drawn through all blank spaces and blocks on the bond and adds language stating that CBP is entitled to presume, without verification, that submitted bond applications and related documentation, which include the bond, are properly executed, complete, accurate, and in full compliance with all applicable laws.

Section 113.22 of title 19 of the CFR (19 CFR 113.22) sets forth the witness requirements applicable to bonds. The witness requirement originated during a time when bonds were approved at the district level. If a party unknown to the Customs district office sought to execute a bond, witnesses were required to verify the party's identity. It is proposed to remove this section. CBP recognizes that the witness requirement is unnecessary inasmuch as a party who makes entry under a bond is obligated by that bond.

Section 113.23 of title 19 of the CFR (19 CFR 113.23) describes the types of changes that may be made to a bond and the process by which to effect such changes. Paragraph (c) describes the type of changes that are permitted to a bond after it is signed, but prior to approval by CBP. Paragraph (d) provides that, except in limited circumstances, the port director will not permit changes to a bond after it has been approved and if changes are desired, a new bond is required.

This document proposes to amend § 113.23(c) to provide that CBP will not permit substantive changes to be made to a bond after it has been signed. In such circumstances the existing bond will be cancelled and a new bond must be executed. To reflect the centralization of the continuous bond program at the RD, this document also proposes to amend paragraph (d) by replacing the reference to “port director” with a more general reference to “CBP.”

Section 113.24 of title 19 of the CFR (19 CFR 113.24) sets forth the terms pertaining to when riders may be attached to a bond and prescribes their appropriate formats. Paragraph (a) describes the types of riders that port directors may accept. Paragraph (b) describes where riders must be filed. Paragraph (c) requires that riders be attached to their related bond. Paragraph (d) prescribes the format of the rider and requires that riders be signed, sealed, witnessed and executed.

Although the riders listed in § 113.24(a) are the most common types of riders, they are not intended to represent an exhaustive list. For this reason, it is proposed to revise the first sentence of paragraph (a) so as to make clear that the list of enumerated riders is not comprehensive. Also, as a result of the centralization of the continuous bond program, it is proposed to state, in paragraph (b), that riders must be filed at the RD. Due to the fact that riders may be in an electronic format, it is proposed to amend paragraph (c) to state that riders submitted in this manner must contain a reference to the related bond's CBP-issued bond number. As this rulemaking proposes to remove the witness requirement set forth in § 113.22 from the regulations, it is similarly proposed to remove this requirement from paragraph (d) and to require that riders submitted in an electronic format contain the certification language set forth in newly designated § 113.11(e)(2). Lastly, to encourage the submission of complete and correct bonds, it is proposed to add a new paragraph that states that CBP may refuse to accept new conditions under a previously approved bond where there has been a failure to provide CBP with a required rider.

Section 113.25 of title 19 of the CFR (19 CFR 113.25) sets forth the requirements for bonds under seal. This section provides that seals must be affixed adjoining the signatures of the principal and surety and that bonds under seal must meet the requirements of the law of the State in which the bond was executed.

As this document proposes to permit bonds to be submitted to the RD electronically, the seal requirements set forth in § 113.25 require modification to accommodate electronic filing. It is proposed to separately describe the certification requirements applicable to paper bond submissions, and those applicable to bonds submitted in an electronic format. To that end, it is proposed that continuous bonds submitted electronically do not have to be affixed with a seal; however, where the law of the State in which the bond is executed requires a seal, the party executing the bond must include electronic certification language (set forth in newly designated § 113.11(e)(2) of this chapter, discussed supra), whereby the applicant certifies that he or she is acting under authority of the corporation and the certification constitutes legally binding evidence of the corporate seal. Additionally, it is proposed to require that where the law of the State in which the bond is executed requires a seal, the party executing the electronic bond must retain a copy of the paper seal and make such seal available to CBP for inspection upon request. This section also includes language stating that CBP is entitled to presume, without verification, that submitted bond applications and related documentation, which include the bond, are properly executed, complete, accurate, and in full compliance with all applicable laws.

Section 113.26 of title 19 of the CFR (19 CFR 113.26) prescribes the effective dates of bonds and riders for both single transaction and continuous bonds. Paragraph (a) of this section provides that bonds and riders may be filed up to 30 days before the effective date in order to provide CBP with adequate time for administrative review and processing. Paragraph (e) states that a rider to delete trade names and unincorporated divisions of a corporate principal will be effective on the date identified in the rider if the date is at least 10 business days after the date the port receives the rider.

In an effort to permit both bond filers and CBP additional time for the filing and processing of bonds in advance of their effective date, it is proposed to extend the 30-day time period to 60 days. It is also proposed to require that the effective date of a rider is the date stated, so long as that date is at least 15 business days from the date CBP receives the rider.

Section 113.27 of title 19 of the CFR (19 CFR 113.27) sets forth the effective dates of bond terminations made by the principal or surety, and describes the effect of such termination.

It is proposed to make changes to paragraph (a), which provides for bond termination by the principal, and to paragraph (b), which provides for bond termination by the surety, to ensure that the terms of these provisions conform to one another. To that end, it is proposed to amend paragraph (a) to require that a principal's request to terminate a continuous bond be sent to the RD and that the termination will take effect on the date requested if that date is at least 15 business days from the date the termination request was received by the RD. Otherwise, the termination will be effective on the close of business 15 business days from the date the termination request was received by the RD. It is proposed to amend paragraph (b) to require that a surety's notice of bond termination be sent to the RD, as well as to the principal. The surety's obligation under a bond will terminate on the date requested by the surety in the written notice of termination so long as that date is at least 15 business days from the date a request meeting all requirements was received by CBP. It is proposed to add language to both paragraphs (a) and (b) stating that once the RD has received a bond termination request, the termination cannot be withdrawn. Lastly, it is proposed to add language to paragraph (c) that provides that when a principal intends to continue to engage in the same activity as that secured by a bond to be terminated pursuant to this section, and the principal has submitted a replacement bond to secure that continued activity, no termination requested by a principal or surety will take effect until CBP has reviewed and approved the replacement bond.

Section 113.32 describes the various partnership requirements and liabilities as they pertain to bonds.

It is proposed to revise paragraph (a) of this section by removing the bond requirements that pertain specifically to limited partnerships. As CBP's importer records in the automated systems make no distinction between limited partnerships and other partnerships, it is not necessary to collect this information from limited partnerships. It is also proposed to replace the more specific reference to ”port director or drawback office” in paragraph (a) with a more general reference to “CBP.”

Section 113.33 of title 19 of the CFR (19 CFR 113.33) sets forth the requirements pertaining to corporations that execute a bond as principal. This section also describes when a power of attorney is necessary for either a corporate officer or attorney, and states that the provisions of this section apply to a corporate subsidiary that joins its parent corporation by signing the bond as co-principal.

As the proposals in this document would permit continuous bonds to be submitted to the RD in an electronic format, this document proposes to amend § 113.33 to reflect the use of this technology. It is also proposed to clarify within this section that a Limited Liability Corporation (LLC) is included within the concept of corporation.

In paragraph (a), it is proposed to remove the signature requirement as this requirement is discussed in paragraph (b). In paragraph (b), it is proposed to add language stating that where the bond of a corporate principal is submitted in an electronic format, the bond must contain the certification language set forth in newly designated § 113.11(e)(2) and the party executing the bond may be required to retain a copy of the seal, as per § 113.25 as it is proposed to be amended. Also, it is proposed to add language stating that CBP is entitled to presume, without verification, that submitted bond applications and related documentation, which include the bond, are properly executed, complete, accurate, and in full compliance with all applicable laws. It is proposed to amend paragraph (c) by removing the language that states that a power of attorney will not be required if the person signing the bond on behalf of the corporation is known to the port director or drawback office to be the president, vice-president, treasurer, or secretary of the corporation. Due to the fact that most bonds will now be sent to a centralized location at the RD, personal knowledge of an individual's position within a company is an unrealistic concept upon which to base the need for a power of attorney. It is also proposed to add in paragraph (c) that CBP is entitled to presume, without verification, that submitted bond applications and related documentation, which include the bond, are properly executed, complete, accurate, and in full compliance with all applicable laws. Lastly, it is proposed to amend paragraph (d) by replacing the reference to “port director” with “RD.”

Section 113.35 of title 19 of the CFR (19 CFR 113.35) prescribes the criteria applicable to individuals who sign as sureties on a bond.

The types of changes proposed to this section are the same as those discussed above (i.e., references to “port director” and “Customs” are replaced with references to “CBP”). Regarding the surety qualifications set forth in § 113.35(b), it is proposed to remove the requirement in paragraph (b)(2) that states that a married woman may be accepted as a surety, unless the State in which the bond is executed prohibits her from acting in that capacity. Similarly, it is proposed to remove the reference to married women in paragraph (b)(3). CBP will permit individuals who are legally authorized to act as sureties to do so. Also, it is proposed to amend paragraph (b)(4) which currently provides that each individual surety must have property available as security within the limits of the port where the contract of suretyship is to be approved. The local property requirement is no longer relevant and it is therefore proposed to amend the regulations to provide that individuals who sign as sureties on any type of bond must possess property within the customs territory of the United States. Lastly, it is proposed to amend paragraph (d) to remove the reference to “special agent-in-charge” and replace it with a reference to “Immigration and Customs Enforcement (ICE).” This change is necessary to reflect the fact that the former Customs Service special agents-in-charge are now part of ICE as a result of the transfer of the U.S. Customs Service to DHS and the subsequent division of the Customs Service into CBP and ICE.

Section 113.37 of title 19 of the CFR (19 CFR 113.37) sets forth the rules pertaining to corporations executing a bond as surety.

This document proposes to amend paragraph (e) to state that where a corporate surety submits a continuous bond to the RD in an electronic format the bond must contain the certification language prescribed by newly designated § 113.11(e)(2) and the party executing the bond must retain a copy of the seal in accordance with § 113.25(b). It is proposed to add to paragraph (e) that CBP is entitled to presume, without verification, that submitted bond applications and related documentation, which include the bond, are properly executed, complete, accurate, and in full compliance with all applicable laws.

In § 113.37(f), it is proposed to amend the last paragraph in the “Corporate Sureties Agreement for Limitation of Liability,” in the signature block, to require that an authorized CBP officer, and not specifically the Port Director or Director of the Drawback Office, sign the Agreement.

Section 113.37(g) prescribes how corporations may execute powers of attorney to act on their behalf. Paragraphs (g)(1)(iii) and (g)(5)(iii) within this section pertain to the identification of specific ports on the CBP Form 5297 where an agent or attorney is authorized to act. As centralization of the bond program requires that all continuous bonds and the accompanying CBP Form 5297 be filed and processed at the RD, the identification of specific ports in this regard is no longer necessary, and it is proposed to remove these provisions from the regulations.

Sections 113.37(g)(1)(v) and (vi) provide that the corporate surety power of attorney must contain the signatures of two principal officers of the corporation and be under seal. If the CBP Form 5297 is submitted to the RD in an electronic format, it is proposed to require that the document contain the certification language prescribed in newly designated § 113.11(e)(2) and the corporate surety retain a copy of the seal as per § 113.25(b).

As noted above, as a result of the centralization of the bond program, it is proposed to amend § 113.37(g)(2) to provide that a corporate surety power of attorney executed on a CBP Form 5297 in conjunction with a continuous bond must be filed at the RD via mail, fax, or in an electronic format. The RD will retain a copy of the CBP Form 5297 and return a RD-validated copy to the grantee.

Section 113.37(g)(3) provides that if a grantee desires to use a power of attorney at a port covered by the power of attorney, other than the port where the power of attorney was filed, but before the first computer printout reflecting this power of attorney is received, the CBP Form 5297 must be filed in triplicate (original and two copies), rather than duplicate. As notice of approval of a power of attorney is electronically transmitted to the ports, it is proposed to remove this provision from the regulations.

It is proposed to add a new paragraph (g)(5) to § 113.37 that provides that CBP is entitled to presume, without verification, that submitted bond applications and related documentation, which include the bond, are properly executed, complete, accurate, and in full compliance with all applicable laws.

Section 113.38 of title 19 of the CFR (19 CFR 113.38) prescribes the extent to which a principal or surety on a CBP bond which is in default will be accepted on another CBP bond.

It is proposed to amend § 113.38(c)(1) to state that an internal advice request made pursuant to § 177.11 should be directed to the Executive Director, Regulations and Rulings, Office of International Trade. It is proposed to amend paragraph (c)(2) to reflect the centralization of the continuous bond program at the RD by adding that the Director, Revenue Division, in addition to the Commissioner, may instruct CBP officers to not accept a bond secured by a corporate surety for the reasons specified. It is also proposed to require in § 113.38(c)(4) that a copy of the notice of CBP's refusal to accept a surety's bonds, if not originating from the RD, must be sent to the Director, Revenue Division.

Section 113.39 of title 19 of the CFR (19 CFR 113.39) sets forth the procedures by which CBP may seek to remove a surety company from Treasury Department Circular 570, which sets forth the list of approved surety companies.

The changes proposed in this document would amend this section by removing references to port director and Fines, Penalties, and Forfeitures Officers and replacing them with a more general reference to “appropriate CBP officer.” This change is to reflect the fact that CBP personnel from the RD may also initiate the surety removal process.

Section 113.40 of title 19 of the CFR (19 CFR 113.40) prescribes the terms by which cash deposits or other types of U.S. obligations (i.e., certificates of indebtedness, Treasury notes, Treasury bills) may be accepted by CBP in lieu of sureties on bonds.

To reflect the delegation of authority discussed earlier in this document, it is proposed to amend paragraph (a) of this section to include the Secretary of Homeland Security as among those who may authorize the enforcement of bond laws and regulations. To reflect the centralization of the continuous bond program at the RD, it is also proposed to amend this paragraph by stating that the Director, Revenue Division, and not the Port Director, is authorized to accept cash deposits in lieu of sureties on bonds. It is also proposed to add clarifying language that provides that cash deposits or other types of U.S. obligations accepted by CBP in lieu of sureties on bonds must be in an amount equal to the face amount of the bond that would be required if CBP were to elect to accept a bond. It is also proposed to amend the language to make clear that the option to deposit cash or U.S. obligations is at the option of the importer.

Paragraph (b) is amended to reflect that the Director, Revenue Division, and not the port director, is authorized to sell U.S. obligations in case of any default in the performance of any of the conditions of the bond.

In § 113.40(c), it is proposed to amend the heading and text to reflect that the provision pertains to United States obligations, as well as cash deposited in lieu of sureties on the bond.

Lastly, it is proposed to add new paragraphs (d) through (g) to clarify CBP's requirements with regards to these alternatives to surety bonds.

Section 113.43 of title 19 of the CFR (19 CFR 113.43) provides that the port director, in certain circumstances, may extend the 120 day time period within which a document for which a bond or stipulation is given must be produced (see 19 CFR 113.42). The port director may extend this period for an additional period of 2 months.

To lend more specificity to the time frames cited in this provision, it is proposed to state in paragraph (a) that the port director may extend the time period to produce documents for a period “not to exceed 60 days.” It is also proposed to use the more specific 60-day time frame in paragraph (b) that provides for late applications for bond extensions.

Section 113.62 of title 19 of the CFR (19 CFR 113.62) prescribes the conditions applicable to basic importation and entry bonds.

The proposed changes to this section are predominantly editorial in nature, with the exception of a change proposed to paragraph (a) which clarifies that the bond covers payments of duties, taxes and other charges made via periodic monthly statement, and to paragraph (a)(3) which would remove the reference to port director and replace it with a reference to “CBP” to reflect the fact that pursuant to the consolidation of the bond program at the RD, most bonds will no longer be filed with the port director.

Section 113.64 of title 19 of the CFR (19 CFR 113.64) pertains to international carrier bond conditions. Paragraph (a) describes a principal's and surety's agreement to pay penalties, duties, taxes, and other charges. The last sentence of paragraph (a) prescribes the penalties (liquidated damages) applicable to principals who fail to timely pay passenger processing fees to CBP.

In an effort to more clearly describe when an obligor will be subject to liquidated damages for failure to timely pay certain fees, it is proposed to restructure this section so as to create a new paragraph (b) that specifically addresses situations where an obligor must pay liquidated damages for failure to timely submit passenger user fees, railroad car processing fees, and express courier consignment fees. It is also proposed to clarify that this section applies not only to collected fees, but to fees that were required to be collected but not timely remitted to CBP.

Sections 133.21, 133.25 and 133.42 concern bonds relating to allegations of counterfeit trademarks. It is proposed to amend these provisions to allow these bonds to be continuous bonds.

Executive Order 12866 requires Federal agencies to conduct economic analyses of significant regulatory actions as a means to improve regulatory decision making. Significant regulatory actions include those that may: “(1) [h]ave an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) [c]reate a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) [m]aterially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) [r]aise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.” These proposed amendments do not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires Federal agencies to examine the impact a rule would have on small entities. A small entity may be: A small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people).

The entities affected by this proposed rule are importers and various other parties who file continuous bonds with CBP as required by CBP regulations. “Importers” are not defined as a “major industry” by the Small Business Administration (SBA) and do not have a unique North American Industry Classification System (NAICS) code; rather, virtually all industries classified by SBA include entities that import goods and services into the United States. Thus, entities affected by this proposed rule would likely consist of the broad range of large, medium, and small businesses operating under the customs laws and other laws that CBP administers and enforces. These entities include, but are not limited to, importers, brokers, and freight forwarders, as well as other businesses that conduct various activities under continuous bonds.

The proposed amendments, if adopted as final, would align regulations with current common practice and improve efficiency by explicitly requiring importers to file continuous bonds at the Revenue Division via mail, fax, or in an electronic format. The changes proposed in this document support CBP's bond program by ensuring an efficient and uniform approach to the approval, maintenance, and periodic review of continuous bonds. Additionally, the proposed changes update provisions to accommodate the use of information technology and modern business practices by removing requirements for signatures and seals on electronic submissions.

Because these amendments to the regulations affect such a wide-ranging group of entities involved in the importation of goods to the United States, the number of entities subject to this proposed rule would be considered “substantial.” It is not anticipated that there will be additional costs associated with filing continuous bonds with the Revenue Division instead of the local port, and many importers already file continuous bonds directly with the Revenue Division. Additionally, these changes to the regulations would confer a benefit to the entities as a result of the removal of the requirement for signatures and seals on electronic submissions. The effects of these amendments, however, would not rise to the level of being considered a “significant” economic impact. We welcome comments on this conclusion. If we do not receive any comments contradicting our findings, we may certify that this rule will not have a significant economic impact on a substantial number of small entities at the final rule stage.

The collection of information contained in this proposed rulemaking was previously reviewed and approved by the Office of Management and Budget (OMB) in accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) under control number 1651-0050. There are no new collections of information proposed in this document.

This document is being issued in accordance with 19 CFR 0.1(a)(1).

For the reasons stated above, it is proposed to amend parts 101 and 113 of title 19 of the Code of Federal Regulations (19 CFR parts 101 and 113) as follows:

The Postal Service published a Federal Register proposed rule (73 FR 12321) on March 7, 2008 to prohibit replica and inert munitions from the mail. Upon further review and in consideration of respondents' comments, we are revising our proposal to:

1. More specifically identify these items as “replica or inert explosive devices” rather than “replica or inert munitions” and,

2. Identify a process for mailing such items rather than prohibiting them from the mail altogether.

In the past, postal operations have been disrupted and facilities have been evacuated when replica or inert explosive devices have been discovered in the mail. Such evacuations result in unnecessary expense and loss of productivity to the Postal Service and can jeopardize USPS® service commitments. We believe this revised proposed rule will minimize the chances of operational disruptions caused by replica or inert explosive devices and at the same time allow mailers to continue to use the mail for shipping these items.

All comments received in response to the original proposed rule were in opposition to the proposal, falling into four major categories. Comments are summarized and presented below followed by our responses:

Comment: The Postal Service proposal is vague and overly broad when identifying all replica or inert “munitions” as being prohibited from mailing.

The Postal Service agrees that the language in the rule could be more descriptive. We have, therefore, termed these articles as “inert or replica explosive devices” to distinguish them from inert munitions, such as empty shell casings and the like. In the revised proposed rule, replica or inert items that clearly look like a bomb or an explosive device, to an untrained observer, must be presented for mailing in accordance with the proposed standards in this document. This proposed rule is intended to discourage indiscriminate mailing of articles that appear to be explosive devices.

Comment: Respondents dispute whether there really is a problem of inert munitions in the mail.

In the past three years, the Postal Service has recorded numerous incidents involving the discovery of mail that exhibited characteristics of possible explosives. Postal facilities have been evacuated due to these occurrences. Postal Inspectors or local emergency first responders were contacted and required to respond to each of these occurrences.

Comment: The proposal is in violation of the Second Amendment.

We no longer propose to prohibit the mailing of items currently allowed by law to be mailed. In this revised proposed rule we are limiting the mailing of articles that have the appearance of real explosive devices. This revised proposed rule requires customers to present packages containing replica or inert explosive devices at a retail counter and that they be sent via Registered Mail. This process will ensure that packages containing these items remain separate and easily identifiable during the mailing process.

Comment: The Postal Service lacks the authority to ban mailing of this matter.

While the Postal Service does not necessarily agree with the legal arguments presented by certain respondents in response to its prior proposed rule, in reconsideration, we believe we can achieve the goal of reducing operational interruptions and maintaining the safety of the mail and postal employees by limiting the mailing process of replica or inert explosive devices rather than prohibiting them from being mailed.

Although we are exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. of 553 (b), (c)] regarding proposed rulemaking by 39 U.S.C. 410(a), we invite public comments on the following proposed revisions to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

Accordingly, 39 CFR part 111 is proposed to be amended as follows:

On October 7, 2009, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a revision to its SIP for an amendment to Regulation No. 1146—Electric Generating Unit Multi-Pollutant Regulation.

On November 16, 2006, DNREC submitted a revision to the Delaware SIP. This SIP revision pertained to a new regulation, Regulation No. 1146—Electric Generating Unit (EGU) Multi-Pollutant Regulation. The regulation was adopted in order to impose lower emissions limits of nitrogen oxides (NOx), SO2 and mercury in order to help Delaware attain and maintain the national ambient air quality standards (NAAQS) for ozone and fine particulate matter (PM2.5), as well as to assist Delaware in achieving the emissions reductions needed to support the State's 8-hour ozone reasonable further progress plan (RFP). EPA approved the SIP revision on August 28, 2008 (73 FR 50723).

On October 7, 2009, EPA received a SIP revision to amend to Regulation No. 1146. This SIP revision was the result of a settlement agreement between Conectiv Delmarva Generating, Inc. and DNREC in December 2008. Conectiv had filed an appeal challenging the regulation for their Edge Moor 5 facility. The emissions limit of 2,427 tons per year limited the facility from operating in extreme circumstances in the event that failure at other production units would require them to exceed that limit in order to supply the needed electricity. The limit of 4,600 tons per year was determined to be an adequate limit after an analysis of the facility's history of operation and the estimate of future operations using the low sulfur (0.5%) residual fuel to generate electricity at the 446 megawatt oil-fired steam generating unit. Currently, the facility operates at a 10% capacity factor. If so required, the new emissions limit would allow the facility to operate at a 45% capacity factor.

This amendment to Regulation No. 1146 is a reasonable compromise between Conectiv and DNREC, which prevented a potential overturning of the regulation. Analysis supports that the increase in the SO2 emissions limit for the Edge Moor 5 facility will not lead to increased SO2 emissions on an annual basis, but will enable the facility to operate at a higher capacity if in the unusual circumstance it should be needed. Given that an increase in SO2 emissions is not expected from what they currently are at the facility, this revision will continue to help Delaware attain and maintain NAAQS for PM2.5.

EPA is proposing to approve the Delaware SIP revision for the amendment to Regulation No. 1146—Electric Generating Unit Multi-Pollutant Regulation submitted on October 7, 2009. This revision pertains to a modification of the SO2 emissions limit for the Conectiv Edge Moor Unit 5 from 2,427 tons per year to 4,600 tons per year. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

On October 26, 2009, Public Citizen, et al. (Petitioners) and FMCSA entered into a settlement agreement under which Petitioners' petition for judicial review of the November 19, 2008 Final Rule on drivers' hours of service will be held in abeyance pending the publication of an NPRM. The settlement agreement states that FMCSA will submit the draft NPRM to the Office of Management and Budget (OMB) within nine months, and publish a Final Rule within 21 months, of the date of the settlement agreement. The current rule will remain in effect during the rulemaking proceedings.

As described above, FMCSA is holding three public listening sessions across the country to solicit comments and information on potential revisions to the HOS rule. The Agency will provide further opportunity for public comment when the NPRM is published.

The listening sessions are open to the public. Speakers' remarks will be limited to 10 minutes each. The public may submit material to the FMCSA staff at each session for inclusion in the public docket, FMCSA-2004-19608.

In preparing their comments, meeting participants should consider the following questions about possible alternatives to the current HOS requirements. These scenarios are merely set forth for discussion; FMCSA will not necessarily include them in an NPRM but would request similar information and data in an NPRM. Answers to these questions should be based upon the experience of the participants and any data or information they can share with FMCSA.

1. Would mandatory short rest periods during the work day improve driver alertness in the operation of a CMV? How long should these rest periods be? At what point in the duty cycle or drive-time would short rest periods provide the greatest benefit? What are the unintended consequences if these short rest periods are mandatory? Should the on-duty period be extended to allow for mandatory rest periods?

2. If rest or other breaks from driving improve alertness, could a driver who chooses to take specified minimum breaks be given scheduling flexibility—the ability to borrow an hour from another driving day once a week, for example—if that flexibility would not increase safety risks or adversely impact driver health?

3. How many hours per day and per week would be safe and healthy for a truck driver to work?

4. Would an hours-of-service rule that allows drivers to drive an hour less when driving overnight improve driver alertness and improve safety? Are there any adverse consequences that could arise from the implementation of a separate night time hours of service regulation?

1. Is a 34-consecutive-hour off-duty period long enough to provide restorative sleep regardless of the number of hours worked prior to the restart? Is the answer different for a driver working a night or irregular schedule?

2. What would be the impact of mandating two overnight off-duty periods, e.g., from midnight to 6 a.m., as a component of a restart period? Would such a rule present additional enforcement challenges?

3. How is the current restart provision being used by drivers? Do drivers restart their calculations after 34 consecutive hours or do drivers take longer periods of time for the restart?

1. If sleeper-berth time were split into two periods, what is the minimum time in each period necessary to provide restorative sleep?

2. Could the 14-hour on-duty limitation be extended by the amount of some additional sleeper-berth time without detrimental effect on highway safety? What would be the appropriate length of such a limited sleeper-berth rest period?

1. What effect has the fixed 14-hour driving “window” had on the time drivers spend waiting to load or unload? Have shippers and receivers changed their practices to reduce the amount of time drivers spend waiting to load or unload?

1. Are there aspects of the current rule that do not increase safety risks or adversely impact driver health and that should be preserved?

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions on this proposed rule. We particularly seek comments concerning:

(1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats.

(2) Additional information concerning the taxonomy, range, distribution, and population size of these species, including the locations of any additional populations of these species.

(3) Any information on the biological or ecological requirements of these species.

(4) Current or planned activities in the areas occupied by these species and possible impacts of these activities on these species.

(5) Any information concerning the effects of climate change on these species or their habitats.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not accept comments sent by e-mail or fax or to an address not listed in ADDRESSES. If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. Please note that comments submitted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy comments on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:

(1) You can view them on http://www.regulations.gov. In the Search Documents box, enter FWS-R9-ES-2009-0084, which is the docket number for this action. Then in the Search panel on the left side of the screen, select the type of documents you want to view under the Document Type heading.

(2) You can make an appointment, during normal business hours, to view the comments and materials in person at U.S. Fish and Wildlife Service, Endangered Species Program, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203; telephone 703-358-2171.

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), requires us to make a finding (known as a “90-day finding”) on whether a petition to add a species to, remove a species from, or reclassify a species on the Federal Lists of Endangered and Threatened Wildlife and Plants has presented substantial information indicating that the requested action may be warranted. To the maximum extent practicable, we must make the finding within 90 days following receipt of the petition and must publish it promptly in the Federal Register. If we find that the petition has presented substantial information indicating that the requested action may be warranted (a positive finding), section 4(b)(3)(A) of the Act requires us to commence a status review of the species if we have not already initiated one under our internal candidate assessment process. In addition, section 4(b)(3)(B) of the Act requires us to make a finding within 12 months following receipt of the petition (“12-month finding”) on whether the requested action is warranted, not warranted, or warranted but precluded by higher priority actions. Section 4(b)(3)(C) of the Act requires that when we make a warranted but precluded finding on a petition, we are to treat such a petition as one that is resubmitted on the date of such finding. Thus, we are required to publish new 12-month findings on these “resubmitted” petitions on an annual basis. We publish an annual notice of resubmitted petition findings (annual notice) for all foreign species for which we previously found listings to be warranted but precluded.

In this proposed rule, we propose to list six foreign bird species as endangered, under the Act. These species are: Cantabrian capercaillie (Tetrao urogallus cantabricus); Marquesan Imperial Pigeon (Ducula galeata); Eiao Polynesian warbler (Acrocephalus percernis aquilonis), previously referred to as (Acrocephalus mendanae aquilonis); greater adjutant (Leptoptilos dubius); Jerdon's courser (Rhinoptilus bitorquatus); and slender-billed curlew (Numenius tenuirostris). These species range widely from islands in French Polynesia to Europe, Southeast Asia, and Africa, and all are considered terrestrial species, with one exception, the slender-billed curlew. The slender-billed curlew is a water bird that undertakes a long annual migration.

On November 28, 1980, we received a petition (1980 petition) from Dr. Warren B. King, Chairman, U.S. Section of the International Council for Bird Preservation (ICBP), to add 70 native and foreign bird species to the list of Threatened and Endangered Wildlife (50 CFR 17.11), including three species (Cantabrian capercaillie, Marquesan Imperial Pigeon, and Eiao Polynesian warbler) that are the subject of this proposed rule. Two of the foreign species identified in the petition were already listed under the Act. In response to the 1980 petition, we published a substantial 90-day finding on May 12, 1981 (46 FR 26464), for 58 foreign species and initiated a status review. On January 20, 1984 (49 FR 2485), we published a 12-month finding within an annual review on pending petitions and description of progress on all pending petition findings. In this notice, we found that listing all 58 foreign bird species in the 1980 petition was warranted but precluded by higher priority listing actions. On May 10, 1985, we published the first annual notice (50 FR 19761) in which we continued to find that listing all 58 foreign bird species in the 1980 petition warranted but precluded by higher priority listing actions. We published additional annual notices on the 58 foreign bird species on January 9, 1986 (51 FR 996); July 7, 1988 (53 FR 25511); December 29, 1988 (53 FR 52746); April 25, 1990 (55 FR 17475); November 21, 1991 (56 FR 58664); and May 21, 2004 (69 FR 29354). These notices indicated that listing of the Cantabrian capercaillie, Marquesan imperial pigeon, and Eiao Polynesian warbler, along with the remaining species in the 1980 petition, continued to be warranted but precluded.

On May 6, 1991, we received a petition (1991 petition) from Alison Stattersfield, of ICBP, to list 53 additional foreign birds under the Act, including the three remaining bird species (greater adjutant, Jerdon's courser, and slender-billed curlew) that are the subject of this proposed rule. On December 16, 1991, we published a positive 90-day finding and announced the initiation of a status review of the 53 foreign birds listed in the 1991 petition (56 FR 65207). On March 28, 1994 (59 FR 14496), we published a proposed rule to list 30 African bird species from both the 1980 and 1991 petitions. In the same Federal Register document, we included a notice of findings in which we announced our determination that listing the 38 remaining species from the 1991 petition was warranted but precluded; this group included greater adjutant, Jerdon's courser, and slender-billed curlew. On July 29, 2008 (73 FR 44062), we published an annual notice of findings on resubmitted petitions for foreign species and annual description of progress on listing actions within which we ranked species for listing by assigning each a Listing Priority Number per our listing priority guidelines, published on September 21, 1983 (48 FR 43098). Based on this ranking and priorities, we determined that listing the six previously petitioned species that are the subject of this proposed rule— Cantabrian capercaillie, Marquesan imperial pigeon, Eiao Polynesian warbler, greater adjutant, Jerdon's courser, and slender-billed curlew— was warranted.

On September 8, 2008, we received a 60-day notice of intent to sue from the Center for Biological Diversity (CBD) over violations of section 4 of the Act for failure to promptly publish listing proposals for the 30 warranted species identified in our 2008 Annual Notice of Review. Under a settlement agreement approved by the U.S. District Court for the Northern District of California on June 15, 2009 (CDB v. Salazar, 09-cv-02578-CRB), we must submit to the Federal Register proposed listing rules for the Cantabrian capercaillie, Marquesan imperial pigeon, Eiao Polynesian warbler, greater adjutant, Jerdon's courser, and slender-billed curlew by December 29, 2009.

These six species were selected from the list of warranted-but-precluded species because of the significance and similarity of the threats to the species. We assigned all six of these species a listing priority ranking number of 2 or 3. Combining species that face similar threats into one proposed rule allows us to maximize our limited staff resources and thus increases our ability to complete the listing process for warranted-but-precluded species.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on any of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.

Despite the fact that global climate changes are occurring and affecting habitat, the climate change models that are currently available do not yet enable us to make meaningful predictions of climate change for specific, local areas (Parmesan and Matthews 2005, p. 354). In addition, we do not have models to predict how the climate in the range of these Eurasian and Asian bird species will change, and we do not know how any change that may occur would affect these species. Nor do we have information on past and future weather patterns within the specific range of these species. Therefore, based on the current lack of information, we did not evaluate climate change as a threat to these species. We are, however, seeking additional information on this subject (see Public Comment Procedures section) that can be used in preparing the final rule.

Below is a species-by-species description and analysis of the five factors. The species are considered in alphabetical order, beginning with the Cantabrian capercaillie, followed by the Eiao Polynesian warbler, greater adjutant, Jerdon's courser, Marquesan Imperial Pigeon, and the slender-billed curlew.

The Cantabrian capercaillie (Tetrao urogallus cantabricus) is a subspecies of the western capercaillie (T. urogallus) in the family Tetraonidae. The species in general is a large grouse, of 80 to 115 centimeters (cm) in length (31 to 45 inches (in)), and the female is much smaller than the male. The species is characterized by having dark gray plumage with fine blackish vermiculation (wavelike pattern) around the head and neck. The breast is glossy greenish-black. This bird has a long, rounded tail, an ivory white bill, and a scarlet crest (World Association of Zoos and Aquaria 2009, unpaginated).

The Cantabrian capercaillie once existed along the whole of the Cantabrian mountain range from northern Portugal through Galicia, Astruias, and Leon, to Santander in northern Spain (IUCN Redbook 1979, p. 1). Currently its range is restricted to the Cantabrian mountains in northwest Spain. The subspecies inhabits an area of 1,700 square kilometers (km2) (656 square miles (mi2)), and its range is separated from its nearest neighboring subspecies of capercaillie (T. u. aquitanus) in the Pyrenees mountains by a distance of more than 300 km (186 mi) (Quevedo et al. 2006b, p. 268).

The Cantabrian capercaillie occurs in mature beech (Fagus sylvatica) forest and mixed forests of beech and oaks (Quercus robur, Q. petraea, and Q. pyrenaica) at elevations ranging from 800 to 1,800 m (2,600 to 5,900 ft). The Cantabrian capercaillie also uses other microhabitat types (broom (Genista spp.), meadow, and heath (Erica spp.)) selectively throughout the year (Quevedo et al. 2006b, p. 271).

The species feeds on beech buds, catkins of birch (Betrula alba), and holly leaves (Ilex aquifolium). It also feeds on bilberry (Vaccinium myrtillus), a commonly eaten component of its diet (Rodriguez and Obeso 2000 as reported in Pollo et al. 2005, p. 398).

Storch et al. estimates the population to be 627 birds, of which approximately 500 are adults, according to the most recent population data collected from 2000 through 2003 (2006, p. 654). Population estimates for species of grouse are commonly assessed by counting males that gather during the breeding season to sing and display at leks (traditional places where males assemble during the mating season and engage in competitive displays that attract females). Pollo et al. (2005, p. 397) estimated a 60-to-70 percent decline in the number of male leks since 1981. This is equivalent to an average decline of 3 percent per year, or 22 percent over 8 years. There is also evidence of a 30-percent decline in lek occupancy in the northern watershed of the species' range between 2000 and 2005 (Banuelos and Quevedo, unpublished data, as reported in Storch et al. 2006, p. 654).

Based on data collected between 2000 and 2003 by Pollo et al. (2005, p. 401), the distribution of Cantabrian capercaillie on the southern slope of the Cantabrian Mountains is fragmented into 13 small subpopulations: four in the western area and 9 in the eastern. Six subpopulations (5 in the eastern and 1 in the western) contained only one singing male, which indicates a very small subpopulation, since presence of singing males is a direct correlate to population numbers.

The area occupied by Cantabrian capercaillie in 1981-1982 covered up to approximately 2,070 km2 (799 mi2) of the southern slope 972 km2 (375 mi2) in the west and 1,098 km2 (424 mi2) in the east). Between 2000 and 2003, the area of occupancy had declined to 693 km2 (268 mi2), specifically 413 km2 (159 mi2) in the west and 280 km2 (108 mi2) in the east. Thus, over a 22-year period, there was a 66-percent reduction in the areas occupied by this subspecies on the southern slope of the Cantabrian Mountains (Pollo et al. 2005, p. 401). Based on this data, the subpopulation in the eastern portion of the range appears to be declining at a faster rate than the subpopulation in the western portion of the range.

Although Storch, et al. 2006 (p. 653) noted that the Cantabrian capercaillie meets the criteria to be listed as “Endangered” on the IUCN Redlist due to “rapid population declines, small population size, and severely fragmented range,” it is currently not classified as such by the IUCN. The species is classified as “vulnerable” in Spain under the National Catalog of Endangered Species. The species has not been formally considered for listing in the CITES Appendices (http://www.cites.org).

Numerous limiting factors influence the population dynamics of the capercaillie throughout its range, including habitat degradation, loss, and fragmentation (Storch 2000, p. 83; 2007, p. 96). Forest structure plays an important role in determining habitat suitability and occupancy. Quevedo et al. (2006b, p. 274) found that open forest structure with well-distributed bilberry shrubs were the preferred habitat type of Cantabrian capercaillie. Management of forest resources for timber production has caused and continues to cause significant changes in forest structure such as: species composition, density and height of tress, forest patch size, and understory vegetation (Pollo et al. 2005, p. 406).

The historic range occupied by this subspecies (3,500 km2 (1,350 mi2)) has declined by more than 50 percent (Quevedo et al. 2006b, p. 268). The current range is severely fragmented, with low forest habitat cover (22 percent of the landscape) and most of the suitable habitat remaining in small patches less than 10 hectares (ha) (25 acres (ac)) in size (Garcia et al. 2005, p. 34). Patches of good-quality habitat are scarce and discontinuous, particularly in the central parts of the range (Quevedo et al. 2006b, p. 269), and leks in the smaller forest patches have been abandoned during the last few decades. The leks that remain occupied are now located farther from forest edges than those occupied in the 1980s (Quevedo et al. 2006b, p. 271).

Based on population surveys, forest fragments containing occupied leks in 2000 were significantly larger than fragments containing leks in the 1980s that have since been abandoned (Quevedo et al. 2006b, p. 271). The forest fragments from which the Cantabrian capercaillie has disappeared since the 1980s are small in size, and are the most isolated from other forest patches. In addition, the Cantabrian capercaillie have disappeared from forest patches located closest to the edge of the range in both the eastern and western subpopulations of the south slope of the Cantabrian Mountains, suggesting that forest fragmentation is playing an important role in the population dynamics of this subspecies (Quevedo et al. 2006b, p. 271). Research conducted on other subspecies of capercaillie indicate that the size of forest patches is correlated to the number of males that gather in leks to display, and that below a certain forest patch size, leks are abandoned (Quevedo et al. 2006b, p. 273).

In highly fragmented landscapes, forest patches are embedded in a matrix of other habitats, and forest dwellers like capercaillies frequently encounter open areas within their home range. Quevedo et al. (2006a, p. 197) developed a habitat suitability model for the Cantarian capercaillie that assessed the relationship between forest patch size and occupancy. He determined that the subspecies still remains in habitat units that show habitat suitability indices below the cut-off values of the two best predictive models (decline and general), which may indicate a high risk of local extinction. Other researchers suggested that, should further habitat or connectivity loss occur, the Cantabrian capercaillie population may become so disaggregated that the few isolated subpopulations will be too small to ensure their own long-term persistence (Grimm and Storch 2000, p. 224).

A demographic model based on Bavarian alpine populations of capercaillie suggest a minimum viable population size of the order of 500 birds (Grimm and Storch 2000, p. 222). However, genetic data show clear signs of reduced variability in populations with numbers of individuals in the range of fewer than 1,000 birds, which indicates that a demographic minimum population of 500 birds may be too small to maintain high genetic variability (Segelbacher et al. 2003, p. 1779). Genetic consequences of habitat fragmentation exist for this species in the form of increased genetic differentiation due to increased isolation of populations (Segelbacher et al. 2003, p. 1779). Therefore, anthropogenic habitat deterioration and fragmentation not only leads to range contractions and extinctions, but may also have significant genetic, and thus, evolutionary consequences for the surviving populations (Segelbacher et al. 2003, p. 1779).

Recent population surveys show this subspecies is continuing to decline throughout its current range, and subpopulations may be isolated from one another due to range contractions in the eastern and western portions of its range, leaving the central portion of the subspecies range abandoned (Pollo et al. 2005, p. 401). Some remaining populations may already have a high risk of local extinction (Quevedo et al. 2006a, p. 197). Management of forest resources for timber production continues to negatively affect forest structure, thereby affecting the quality, quantity, and distribution of suitable habitat available for this subspecies. In addition, the structure of the matrix of habitats located between forest patches is likely affecting the ability of capercaillies to disperse between subpopulations. Therefore, we find that present or threatened destruction, modification, or curtailment of the habitat or range is a threat to the continued existence of the Cantabrian capercaillie throughout its range.

Currently hunting of the Cantabrian capercaillie is illegal in Spain; however, illegal hunting still occurs (Storch 2000, p. 83; 2007, p. 96). Because this species congregates in leks, individuals are particularly easy targets, and poaching of protected grouse is considered common (Storch 2000, p. 15). It is unknown what the incidence of poaching is or what impact it is having on this subspecies; however, given the limited number of birds remaining and the reduced genetic variability already evident at current population levels, the further loss of breeding adults could have substantial impact on the subspecies. Therefore, we find that overutilization for recreational purposes is a threat to the continued existence of the Cantabrian capercaillie throughout its range.

Diseases and parasites have been proposed as factors associated with the decline of populations of other species within the same family of birds as the capercaillie (Tetraonidae) (Obeso et al. 2000, p. 191). In an attempt to determine if parasites were contributing to the decline of the Cantabrian capercaillie, researchers collected and analyzed fecal samples in 1998 from various localities across the range of this subspecies. The prevalence of common parasites (Eimeria sp. and Capillaria sp.) was present in 58 percent and 25 percent of the samples collected, respectively. However, both the intensity and average intensity of these parasites were very low compared to other populations of species of birds in the Tetraonidae family. Other parasites were found infrequently. The researchers concluded that it was unlikely that intestinal parasites were causing the decline of the Cantebrian capercaillie.

Based on the information above, we do not believe that parasite infestations are a significant factor in the decline of this subspecies. We are not aware of any species-specific information currently available that indicates that predation poses a threat to the species. Therefore, we are not considering disease or predation to be contributing threats to the continued existence of the Cantabrian capercaillie throughout its range.

Although it meets the qualifications, the Cantabrian capercaillie is currently not classified as endangered by the IUCN. Nor is the species listed under any Appendix of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

This subspecies is currently classified as “vulnerable” in Spain under the National Catalog of Endangered Species, which affords it special protection (e.g., additional regulation of activities in the forests of its range, regulation of trails and roads in the area, elimination of poaching, and protection of areas important to young). Although it is classified as vulnerable, as mentioned above (see Factor B), illegal hunting still occurs.

The European Union (EU) Habitat Directive 92/43/EEC addresses the protection of habitat and species listed as endangered at the European scale (European Union 2008). Several habitat types valuable to capercaillie have been included in this Directive, such as in Appendix I, Section 9, Forests. The EU Bird Directive (79/407/EEC) lists the capercaillie in Annex I as a “species that shall be subject to special habitat conservation measures in order to ensure their survival.” Under this Directive, a network of Special Protected Areas (SPAs) comprising suitable habitat for Annex I species is to be designated. This network of SPAs and other protected sites are collectively referred to as Natura 2000. Several countries in Europe, including Spain, are in the process of establishing the network of SPAs. The remaining Cantabrian capercaillie populations occur primarily in recently established Natural Reserves in Spain that are part of the Natura 2000 network (Muniellos Biosphere Reserve). Management of natural resources by local communities is still allowed in areas designated as an SPA; however, the development of management plans to meet the various objectives of the Reserve network is required.

This subspecies is also afforded special protection under the Bern Convention (Convention on the Conservation of European Wildlife and Natural Habitats; European Treaty Series/104; Council of Europe 1979). The Cantabrian capercaillie is listed as “strictly protected” under Appendix II, which requires member states to ensure the conservation of the listed taxa and their habitats. Under this Convention, protections of Appendix-II species include the prohibition of: The deliberate capture, keeping and killing of the species; deliberate damage or destruction of breeding sites; deliberate disturbance during the breeding season; deliberate taking or destruction of eggs; and the possession or trade of any individual of the species. We were unable to find information on the effectiveness of this designation in preventing further loss of Cantabrian capercaillie or its habitat.

In November 2003, Spain enacted the “Forest Law,” which addresses the preservation and improvement of the forest and rangelands in Spain. This law requires development of plans for the management of forest resources, which are to include plans for fighting forest fires, establishment of danger zones based on fire risk, formulation of a defense plan in each established danger zone, the mandatory restoration of burned area, and the prohibition of changing forest use of a burned area into other uses for a period of 30 years. In addition, this law provides economic incentives for sustainable forest management by private landowners and local entities. We do not have information on the effectiveness of this law with regard to its ability to prevent negative impacts to Cantabrian capercaillie habitat.

Despite recent advances in protection of this subspecies and its habitat through EU Directives and protection under Spanish law and regulation, illegal poaching still occurs (Storch 2000, p. 83; 2007, p. 96). Further, we were unable to find information on the effectiveness of many of these measures at reducing threats to the species. Therefore, we find that existing regulatory mechanisms are inadequate to ameliorate the current threats to the Cantabrian capercaillie throughout its range.

Suarez-Seoane and Roves (2004, pp. 395, 401) assessed the potential impacts of human disturbances in core populations of Cantabrian capercaillie in Natural Reserves in Spain. They found that locations selected as leks were located at the core of larger patches of forest and were less subject to human disturbance. They also found that Cantabrian capercaillie disappeared from leks situated in rolling hills at lower altitudes closer to houses, hunting sites, and repeatedly burned areas.

Recurring fires have also been implicated as a factor in the decline of the subspecies. An average of 85,652 ha (211,650 ac) of forested area per year over a 10-year period (1995-2005) has been consumed by fire in Spain (Lloyd 2007a, p. 1). On average, 80 percent of all fires in Spain are set intentionally by humans (Lloyd 2007a, p. 1). Suarez-Seoane and Garcia-Roves (2004, p. 405) found that the stability of Cantabrian capercaillie breeding areas throughout a 20-year period was mainly related to low fire recurrence in the surrounding area and few houses nearby. In addition, the species avoids areas that are recurrently burned because the areas lose their ability to regenerate and cannot produce the habitat the species requires (Suarez-Seoane and Garcia-Roves 2004, p. 406). We were unable to find information as to how many hectares of suitable Cantabrian capercaillie habitat is consumed by fire each year. However, since the species requires a low recurrence of fire, and both disturbance and fire frequency are likely to increase with human presence, this could be a potential threat to both habitat and individual birds where there is a high prevalence of disturbance and fire frequency.

In summary, disturbance from humans appears to impact the species; birds are typically found in areas of less anthropogenic disturbance and further from homes. Natural Protected Areas in Spain have seen an increase in human use for recreation and hunting. As human population centers expand and move closer to occupied habitat areas, increased disturbance to important breeding, feeding, and sheltering behaviors of this species is expected to occur. Additionally, as human presence increases, it is likely that both fires and disturbances will increase. Either or both of these factors have the potential to impact both individuals and their habitat. Therefore, we conclude that other natural or manmade factors affecting the continued existence of the species, in the form of forest fires and disturbance, are threats to the continued existence of the Cantabrian capercaillie throughout its range.

We have carefully assessed the best available scientific and commercial information regarding the past, present, and potential future threats faced by the Cantabrian capercaillie. The species is currently at risk throughout all of its range due to ongoing threats of habitat destruction and modification (Factor A), inadequacy of existing regulatory mechanisms (Factor D), and other natural or manmade factors affecting its continued existence in the form of forest fires and disturbance (Factor E).

Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Based on the magnitude of the ongoing threats to the Cantabrian capercaillie throughout its entire range, as described above, we determine that this subspecies is in danger of extinction throughout all of its range. Therefore, on the basis of the best available scientific and commercial information, we propose to list the Cantabrian capercaillie as an endangered species throughout all of its range. Because we find that the Cantabrian capercaillie is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range.

Due to the similarity of the reed-warblers of Polynesia, all of these warblers were once considered a single, widespread species known as the long-billed reed-warbler (Acrocephalus caffer). The 1980 petition from Dr. Warren B. King included the Eiao Polynesian warbler (Acrocephalus caffer aquilonis), a subspecies of reed-warbler. The subspecies aquilonis denoted those warblers found on Eiao Island. The species was later split into three separate species: those of the Society Islands (Acrocephalus caffer), Tuamotu (A. atyphus), and Marquesas (A. mendanae) (Cibois et al. 2007, p. 1151). This subspecies then became known as A. mendanae aquilonis. Recent genetic research on Marquesan reed-warblers found two independent lineages: warblers found in the northern islands of the Marquesas Archipelago (Nuku Hiva, Eiao, Hatuta'a, and Ua Huka) and those found on the southern islands (Hiva Oa, Tahuata, Ua Pou, and Fatu Iva). As a result, the Marquesas species was split into two separate species; those of the four most northern islands (A. percernis) and those in the southern islands (A. mendanae). The reed-warblers found on Eiao are now classified as a subspecies of Northern Marquesan reed-warblers (A. percernis aquilonis) (Cibois et al. 2007, pp. 1155, 1160).

The Eiao Polynesian warbler (Eiao warbler) is a large, insectivorous reed-warbler of the family Acrocephalidae. It is characterized by brown plumage with bright yellow underparts (Cibois et al. 2007, p. 1151). The Eiao warbler is endemic to the island of Eiao in the French Polynesian Marquesas Archipelago in the Pacific Ocean. The Marquesas Archipelago is a territory of France located approximately 1,600 km (994 mi) northeast of Tahiti. Eiao Island is one of the northernmost islands in the Archipelago and encompasses 40 km2 (15 mi).

Population densities of the Eiao warbler are thought to be high within the remaining suitable habitat; one singing bird was found nearly every 40-50 m (131-164 ft). The total population is estimated at more than 2,000 birds (Raust 2007, pers. comm.). This population estimate is much larger than the 100-200 individuals last reported in 1987 by Thibault (as reported in USFWS 2007). It is unknown if the population actually increased from 1987 to 2007, or if the differences in the population estimates are a result of using different survey methodologies. We have no reliable information on the population trend of this subspecies.

Reed-warblers of the Polynesian islands utilize various habitats, ranging from shrubby vegetation in dry, lowland areas to humid forest in wet montane areas (Cibois et al. 2007, pp. 1151, 1153). Reed-warblers in general display strong territorial behavior (Cibois et al. 2007, p. 1152). The Eiao warbler is a subspecies of Northern Marquesan reed- warblers, which at one time were all considered one species, the Marquesan reed-warbler. Like other reed-warblers, the female reed-warbler builds the nest with little or no help from the male. Vines, coconut fiber, and grasses are the most common nesting material (Mosher and Fancy 2002, p. 8). Warbler nests are found in the tops of trees and on vertical branches (Thibault et al. 2002, pp. 166, 169). Eggs of Pacific island reed-warblers range from blue to olive, containing black or brown spots, and the clutch size for Marquesan reed-warblers is up to five eggs (Mosher and Fancy 2002, p. 9).

Marquesan reed-warblers (A. mendanae) are classified as “of least concern” by the IUCN (IUCN 2009a, unpaginated). However, it appears that the recent split of the Marquesan reed-warblers into the Northern and Southern Marquesan reed-warblers is not yet reflected in the IUCN assessment. Northern Marquesan reed-warblers (A. percernis) are protected under Law Number 95-257 in French Polynesia. The species has not been formally considered for listing in the CITES Appendices (http://www.cites.org).

Eiao Island was declared a Nature Reserve in 1971 and is not currently inhabited by humans. However, the entire island has been heavily impacted by introduced domestic livestock that have become feral (Manu 2009, unpaginated). Feral sheep have been identified as the main threat to the forest on the island (Thibault et al. 2002, p. 167). Sheep and pigs have devastated much of the vegetation and soil on Eiao, and native plant species have been largely replaced by introduced species (Merlin and Juvik 1992, pp. 604-606). Sheep have overgrazed the island, leaving areas completely denuded of vegetation. The exposed soil erodes from rainfall, further preventing native plants from regenerating (WWF 2001, unpaginated). Currently, only 10-20 percent of the island contains suitable habitat for the Eiao warbler (Raust 2007, pers. comm.). These areas of suitable habitat are likely restricted to small refugia inaccessible to the feral livestock. We are not aware of any current efforts or future plans to reduce the number of feral domestic livestock on the island.

In summary, the ongoing habitat degradation from overgrazing livestock continues to have significant and ongoing impacts to the natural habitat for this subspecies. The current level of grazing on the island prevents recovery of native vegetation. Without active management of the feral livestock population on the island, the population of Eiao warblers will continue to be restricted to small portions of the island which are inaccessible to the feral livestock. Furthermore, although the current estimated population is 2,000 individuals, the subspecies will not be able to expand to the rest of the island and recover beyond this current population level due to habitat loss. Because the Eiao warbler is limited to one small island, the continuing loss of habitat makes this subspecies extremely vulnerable to extinction. Therefore, we find that present or threatened destruction, modification, or curtailment of the habitat or range are threats to the continued existence of the Eiao warbler throughout its range.

We are unaware of any information currently available that indicates the use of this subspecies for any commercial, recreational, scientific, or educational purpose. As a result, we are not considering overutilization for commercial, recreational, scientific, or educational purposes to be a contributing factor to the continued existence of the Eiao warbler throughout its range.

Avian diseases are a concern for species with restricted ranges and small populations, especially if the species is restricted to an island. Hawaii's avian malaria is a limiting factor for many species of native passerines and is dominant on other remote oceanic islands, including French Polynesia (Beadell et al. 2006, p. 2935). This strain was found in 9 out of 11 Marquesan reed-warblers collected on Nuku Hiva in 1987. However, because these birds were thought to be more robust (all Marquesan reed-warblers were considered A. mendanae), avian malaria was not thought to pose a threat to the species (Beadell et al. 2006, p. 2940). We have no data on whether Hawaii's avian malaria is present on Eiao or what effects it may have on the population of reed-warblers.

Black rats (Rattus rattus) were introduced to Eiao, Nuku Hiva, Ua Pou, Hiva Oa, Tahuata, and Fatu Iva of the Marquesas Archipelago in the early 20th century (Cibois et al. 2007, p. 1159); although Thibault et al. (2002, p. 169) state that the presence of black rats on Eiao is only suspected. A connection between the presence of rats and the decline and extirpation of birds has been well documented (Blanvillain et al. 2002, p. 146; Thibault et al. 2002, p 162; Meyer and Butaud 2009, pp. 1169-1170). Specifically, predation on eggs, nestlings, or adults by rats has been implicated as an important factor in the extinction of Pacific island birds (Thibault et al. 2002, p. 162). However, Thibault et al. (2002, pp. 165, 169) did not find a significant effect of rats on the abundance of Polynesian warblers. It is thought that the position of warbler nests on vertical branches close to the tops of trees makes them less accessible to rats (Thibault et al. 2002, p. 169), even though rats are known to be good climbers.

The common myna (Acridotheres tristis), an introduced bird species, may contribute to the spread of invasive plant species by consuming their fruit and may also prey on the eggs and nestlings of native birds species or out-compete native bird species for nesting sites. The myna is thought to have contributed to the decline of another reed-warbler endemic to the Marquesas (A. caffer mendanae) (Global Invasive Species Database 2009, unpaginated). Mynas do not currently occur on Eiao Island. Furthermore, Thibault et al. (2002, p. 165) found no significant effect of mynas on Polynesian warblers in Marquesas. If the myna expands its range and colonizes Eiao Island, it is unknown to what extent predation would affect the Eiao warbler.

In summary, although the presence of avian malaria has been documented on Eiao and the presence of introduced rats is suspected, there is no data indicating that either is affecting the warbler population on Eiao. Nest location appears to be high enough in the trees to avoid significant predation from the introduced rat. Mynas are not known to inhabit Eiao Island, and it is not clear that they would negatively impact the warbler population if they were to colonize Eiao. Therefore, we find that disease and predation are not a threat to the continued existence of the Eiao warbler throughout its range.

The Eiao warbler is a protected species in French Polynesia. Northern Marquesan reed-warblers (A. percernis) are classified as a Category A species under Law Number 95-257. Article 16 of this law prohibits the collection and exportation of species listed under Category A. In addition, under part 23 of Law 95-257, the introduced myna bird species, which is commonly known to outcompete other bird species, is considered a danger to the local avifauna and is listed as “threatening biodiversity.” Part 23 also prohibits importation of all new specimens of species listed as “threatening biodiversity,” and translocation from one island to another is prohibited.

The French Environmental Code, Article L411-1, prohibits the destruction or poaching of eggs or nests; mutilation, destruction, capture or poaching, intentional disturbance, the practice of taxidermy, transport, peddling, use, possession, offer for sale, and the sale or the purchase of nondomestic species in need of conservation. It also prohibits the destruction, alteration, or degradation of habitat for these species.

Hunting and destruction of all species of birds in French Polynesia were prohibited by a 1967 decree (Villard et al. 2003, p. 193); however, destruction of birds which have been listed as “threatening biodiversity” is legal. Furthermore, restrictions on possession of firearms in Marquesas are in place (Thorsen et al. 2002, p. 10). Hunting is not known to be a threat to the survival of this subspecies.

In addition, the entire island Eiao Island was declared an officially protected area in 1971. It is classified as Category IV, an area managed for habitat or species. However, of the nine protected areas in French Polynesia, only one (Vaikivi on Ua Huka) is actively managed (Manu 2009, unpaginated).

In summary, regulations exist that protect the subspecies and its habitat. However, as described under Factor A, habitat destruction continues to threaten this subspecies. Although legal protections are in place, there are none effectively protecting the suitable habitat on the island from damage from overgrazing sheep as described in Factor A. Therefore, we find that the existing regulatory mechanisms are inadequate to ameliorate the current threats to the Eiao warbler throughout its range.

Island populations have a higher risk of extinction than mainland populations. Ninety percent of bird species that have been driven to extinction were island species (as cited in Frankham 1997, p. 311). Based on genetics alone, endemic island species are predicted to have higher extinction rates than nonendemic island populations (Frankham 2007, p. 321). Small, isolated populations may experience decreased demographic viability (population birth and death rates, immigration and emigration rates, and sex ratios), increased susceptibility of extinction from stochastic environmental factors (e.g., weather events, disease), and an increased threat of extinction from genetic isolation and subsequent inbreeding depression and genetic drift.

Although the population of Eiao warblers appears to be stable, the subspecies is found on only one island and is vulnerable to stochastic events. Furthermore, the warblers are limited to the fraction of the island's area that contains suitable habitat. Eradication of feral livestock is needed to allow recovery of native vegetation and provide additional suitable habitat throughout the island. Expansion and recovery of native vegetation will permit the subspecies to recover beyond the current population of 2,000 individuals and buffer the subspecies against impacts from stochastic events.

In summary, the limited range of the Eiao warbler makes this subspecies extremely vulnerable to stochastic events and, therefore, extinction. Additional habitat is needed to expand the population and buffer the subspecies from the detrimental effects typical of small island populations. Therefore, we find that other natural or manmade factors threaten the continued existence of the Eiao warbler throughout its range.

We have carefully assessed the best available scientific and commercial information regarding the past, present, and potential future threats faced by the Eiao Polynesian warbler. The subspecies is currently at risk on Eiao Island due to ongoing threats of habitat destruction and modification (Factor A) and stochastic events associated with the subspecies' restricted range (Factor E). Furthermore, we have determined that the existing regulatory mechanisms (Factor D) are not adequate to ameliorate the current threats to the subspecies.

Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Based on the magnitude of the ongoing threats to the Eiao Polynesian warbler throughout its entire range, as described above, we determine that this subspecies is in danger of extinction throughout all of its range. Therefore, on the basis of the best available scientific and commercial information, we propose to list the Eiao Polynesian warbler as an endangered subspecies throughout all of its range. Because we find that the Eiao Polynesian warbler is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range.

The greater adjutant (Leptoptilos dubius) is a very large (145 to 150 cm long (4.7 to 4.9 ft)) species of stork in the family Ciconiidae. This species is characterized by a naked pink head and a low-hanging neck pouch. Its bill is very thick and yellow in color. The plumage ruff of the neck is white, and other than a pale grey leading edge on each wing, the rest of the greater adjutant's body is dark grey (Birdlife International (BLI) 2009a, unpaginated).

This species of bird once was common across much of Southeast Asia, occurring in India, Bangladesh, Burma, Thailand, Cambodia, Malaysia, Myanmar, Vietnam, Sumatra, Java, and Borneo. Large breeding colonies occurred in Myanmar; however, this colony collapsed in the mid-1900s (Singha and Rahmani 2006, p. 264).

The current distribution of this species consists of two breeding populations, one in India and the other in Cambodia. Recent sighting records of this species from the neighboring countries of Nepal, Bangladesh, Vietnam, and Thailand are presumed to be wandering birds from one of the two populations in India and Cambodia (BLI 2009a, unpaginated).

India: The most recent range-wide population estimate for this species in India (600 to 800 birds) comes from data collected in 1995 through 1996 (Singha et al. 2003, p. 146). Approximately 11 breeding sites are located in the Brahmaputra Valley in the State of Assam (Singha et al. 2003, p.147). Recent information indicates that populations of this species continue to decline in India. At two breeding sites near the city of Guwahati in the State of Assam, the most recent survey data show that the number of breeding birds has declined from 247 birds in 2005 to 118 birds in 2007 (Hindu 2007, unpaginated).

In India, much of the greater adjutant's native habitat has been lost. The greater adjutant uses habitat in three national parks in India; however, almost all nesting colonies in India are found outside of the national parks. The greater adjutant often occurs close to urban areas; the species feeds in and around wetlands in the breeding season, and disperses to scavenge at trash dumps, burial grounds, and slaughter houses at other times of the year. The natural diet of the greater adjutant consists primarily of fish, frogs, reptiles, small mammals and birds, crustaceans, and carrion (Singha and Rahmani 2006, p. 266).

This species breeds in colonies during the dry season (winter) in stands of tall trees near water sources. In India, the greater adjutant prefers to nest in large, widely branched trees in a tightly spaced colony with little foliage cover and food sources nearby (Singha et al. 2002, p. 214). The breeding sites are also commonly associated with bamboo forests which provide protection from heavy rain during the pre-monsoon season (Singha et al. 2002, p. 218). Each adult female greater adjutant commonly lays two eggs each year (Singha and Rahmani 2006, p. 266).

Cambodia: Currently there are two known breeding populations in Cambodia. The larger of these two populations occurs in the Tonle Sap Biosphere Reserve (TSBR) near Tonle Sap Lake and has recently been estimated at 77 breeding pairs (Clements et al. 2007, p. 7). The Tonle Sap floodplain (and associated rivers) is considered one of the few remaining remnants of freshwater swamp forest in the region. Approximately 5,490 km2 (2,120 mi2) of the freshwater swamp forest ecoregion is protected in Cambodia. Of this amount, the Tonle Sap Great Lake Protected Area (which includes the Tonle Sap floodplain) makes up 5,420 km2 (2,092 mi2) of that protected habitat (WWF 2007, p. 3).

A smaller population of greater adjutants was recently discovered in the Kulen Promtep Wildlife Sanctuary in the Northern Plains of Cambodia. This population has been estimated at 40 birds (Clements 2008, pers. comm.; BLI 2009, unpaginated). Although other breeding sites have not yet been found in Cambodia, researchers expect that the greater adjutant may nest along the Mekong River in the eastern provinces of Mondulkiri, Ratanakiri, Stung Treng, and Kratie in Cambodia (Clement 2008, pers. comm.).

In Cambodia, the greater adjutant breeds in freshwater flooded forest, and disperses to seasonally inundated forest, tall wet grasslands, mangroves, and intertidal flats to forage. These forests are characterized by deciduous tropical hardwoods (Dipterocarpaceae family) and semi-evergreen forest (containing a mix of deciduous and evergreen trees) interspersed with meadows, ponds, and other wetlands (WWF 2006b, p. 1).

The IUCN classifies the greater adjutant as critically endangered. In India, the greater adjutant is listed under Schedule I of the Indian Wildlife Protection Act of 1972. The species is not listed in the Appendices of CITES (http://www.cites.org).

India: The greater adjutant occurs in Kaziranga, Manas, and Diburu-Saikhowa National Parks. However, nearly all breeding sites for this species are located outside of protected areas (Singha et al. 2003, p. 148). The ongoing loss of habitat through habitat conversion for development and agriculture is a primary threat to the greater adjutant. The clearing of trees that are suitable for breeding sites is a serious threat to this species. The recent decline in the population at the breeding colonies near Guwahai, India, is believed to be caused by tree removal at the breeding site and filling of wetlands in an area near the city that had been used by the greater adjutant as feeding areas (Hindu 2007, unpaginated). These activities were undertaken for the purpose of expanding residential developments in the city. The species is also seasonally dependent on wetlands for forage. These sites are impacted in India by drainage, encroachment, and overfishing. For instance, some sites have reportedly experienced encroachment from rice cultivation (BLI 2001, p. 284).

Singha et al. 2002 (pp. 218-219) found that preferred nest trees were significantly larger and different in structure to non-nest trees near Nagaon in central Assam. The nest trees were large and widely branched with thin foliage cover (Singha et al. 2002, p. 214). Researchers believe that removal of preferred nesting trees at breeding may result in adjutants nesting in suboptimal trees at existing nest sites or relocating to other suboptimal nest sites. The trees and their limbs at suboptimal breeding sites are smaller in diameter, and the structure of the limbs does not always support the combined weight of the nest, adults, and chicks. As chicks grow older, nest limbs often break, sending the half grown chicks tumbling from the nest. Approximately 15 percent of chicks die after falling from their nests, for a variety of causes, including injuries and abandonment (Singha et al. 2006, p. 315). Some efforts have been made to reduce chick mortality, like those employed at two breeding sites near Nagaon from 2001 to 2003 (Singha et al. 2006, pp. 315-320). Safety nets are placed under the canopy of nest trees to catch falling chicks. Chicks are either replaced in their nest, if on-site monitors can determine which nest the chick came from, or raised in captivity and later released. Juvenile birds were monitored after their release, and the program is considered a success (Singha and Rahmani 2006, p. 268; Singha et al. 2006, pp. 315-320). Though some efforts have been undertaken to reduce chick mortality due to falls from nests, loss of chicks based on nesting in sub-optimal breeding sites is likely still occurring at other breeding sites.

Cambodia: The largest breeding colonies are located in the Tonle Sap Biosphere Reserve, which consists primarily of the Tonle Sap Lake and its floodplain. A second breeding population occurs in the Kulen Promtep Wildlife Sanctuary in the Northern Plains. Poole (2002, p. 35) reported that large nesting trees around Cambodia's Tonle Sap floodplain, particularly crucial to greater adjutants for nesting, are under increasing pressure by felling for firewood and building material. Poole (2002, p. 35) concluded that a lack of nesting trees, both at Tonle Sap and in the Northern Plains, may be the most serious threat in the future to large water bird colonies.

The Mekong River Basin flows through several countries in Southeast Asia, including Tibet, China, Myanmar, Vietnam, Thailand, Cambodia, and Laos, traveling over 4,800 km (2,980 mi) from start to finish. In Cambodia, the Mekong River flows into the Tonle Sap floodplain. Tonle Sap Lake expands and contracts throughout the year as a result of rainfall from monsoons and the flow of the Mekong River. The lake acts as a storage reservoir at different times of the year to regulate flooding in the Mekong Delta (Davidson 2005, p. 3). This flooding also results in flooded forests and shrublands, which provides seasonal habitat to several species. The Tonle Sap Biosphere Reserve is one of Southeast Asia's most important wetlands for biodiversity and is particularly crucial for birds, reptiles, and plant assemblages (Davidson 2005, p. 6).

Upstream developments in the Mekong have already led to significant trapping of sediments and nutrients in upstream reservoirs, which could lead to increased bed and bank erosion downstream, as well as decreased productivity (Kummu and Varis 2007, pp. 289, 291). According to the Asian Development Bank (ADB 2005, p. 2), 13 dams have been built, are being built, or are proposed to be built along the Mekong River. Proposed hydroelectric dams along the Mekong River in countries upstream from Cambodia have the potential to adversely affect the habitat of the greater adjutant by affecting the hydrology of the basin and reducing the overall foraging habitat and the abundance of prey species during the breeding season (Clements et al. 2007, p. 59). In addition, decline in productivity of the habitat, and thereby prey species abundance, may increase competition for food, and increased releases from upstream dams during the dry season could result in permanent flooding of these forests that will eventually kill the trees in these areas (Clements et al. 2007, p. 59). Under some scenarios, up to half of the core area (21,342 ha (52,737 ac)) of the Prek Toal area in the Tonle Sap Biosphere Reserve could be affected.

This species continues to face significant ongoing threats to its breeding and foraging habitat in both India and Cambodia. In India, activities such as the draining and filling of wetlands (Hindu 2007, unpaginated), removal of nest trees, and encroachment on habitat significantly impact this species (BLI 2001, p. 284). In Cambodia, threats include tree removal (Poole 2002, p. 35) and large-scale hydrologic changes due to existing dams and proposed dam construction (Clements et al. 2007, p. 59; Kummu and Varis, pp. 287-288). The latter threat could potentially eliminate habitat in protected areas such as the Tonle Sap Biosphere Reserve, and it could additionally reduce productivity of these areas, which would further impact the species by affecting the foraging base and potentially increasing competition with other species (Clements et al. 2007, p. 59). Therefore, we find that the present or threatened destruction, modification, or curtailment of the habitat or range is a threat to the continued existence of the greater adjutant throughout its range.

Local communities collect bird eggs and chicks for consumption and for trade in both India and Cambodia. This is considered a primary threat to the birds in Cambodia, where fledglings are also taken (Clements 2008, pers. comm.). Due to their rarity, greater adjutants are believed to have a high market value, which increases the likelihood this type of activity will continue. The implementation of bird nest protection programs has been developed by the Wildlife Conservation Society, working with local villages such as the program at Kulen Promtep Wildlife Sanctuary (ACCB 2009, unpaginated). Although the impacts from large-scale collection of bird eggs and chicks has been reduced through these programs, collection still remains a threat to the species.

Accounts of poisoning, netting, trapping, and shooting of adult birds were also reported at various locations in both India and Cambodia during the 1990s (BLI 2001, pp. 285-286). In India, some birds were shot because of perceived impact on fish stocks, others in hunts (BLI 2001, p. 285). In Cambodia, some birds were captured to be sold as food and for use as pets, and some were also hunted (BLI 2001, p. 286). Birds are also likely inadvertently injured or killed as a result of destructive fishing techniques in Cambodia such as electro-fishing and the use of poisons (Clements 2008, pers. comm.). In a 1999 article, the Phnom Penh Post (as reported in Environmental Justice Foundation 2002, p. 25) reported that pesticides are used to kill both fish and wildlife species at Tonle Sap.

In summary, although we are unaware of any scientific or educational purpose for which the adjutant is used, local communities are known to collect bird eggs, chicks, and adults for consumption and other purposes (e.g., pet trade and perceived threat to fish stocks) in either or both India or Cambodia (BLI 2001, pp. 285-286). Further, even though nest protection programs are being implemented, these programs are insufficient to adequately protect the species. Therefore, we find that overutilization due to commercial and recreational purposes is a threat to the continued existence of the greater adjutant throughout its range.

Highly pathogenic avian influenza (HPAI) H5N1 continues to be a serious problem for this species. This strain of avian influenza first appeared in Asia in 1996, and spread from country to country with rapid succession as found by Peterson et al. (2007, p. 1). By 2006, the virus was detected across most of Europe and in several African countries. Influenza A viruses, to which group strain H5N1 belongs, infects domestic animals and humans, but wildfowl and shorebirds are considered the primary source of this virus in nature (Olsen et al. 2006, p. 384). Though it is still unclear if the greater adjutant is a carrier, lack of an avian influenza wild bird surveillance program in Cambodia will make it difficult to resolve this question.

Until recently, there was no information on predation affecting the greater adjutant. However, recent research on other waterbirds suggests that predation may impact the greater adjutant in Cambodia. For example, nesting surveys for several waterbirds were conducted between 2004 and 2007 at the Prek Toal area in Tonle Sap Biosphere Reserve. These surveys included monitoring of nest sites. Human disturbances at nest sites due to illegal collection of chicks and eggs resulted in an increase of predation by crows (Corvus spp.) on spot-billed pelicans in the 2001-2002 breeding season, causing up to 100 percent loss of reproduction, and again in the 2002-2003 breeding season, resulting in up to 60 percent loss in reproduction due to a combination of collection and predation. In some locations, the spot-billed pelicans abandoned their nests for the remainder of the breeding season (Clements et al. 2007, p. 57). It is likely that other waterbirds, such as the greater adjutant at Prek Toal would be similarly affected due to illegal collection of eggs by humans, nest site disturbance, and subsequent increase in crow presence, thereby increasing the predation of their chicks and eggs.

In summary, although incidence of local residents collecting eggs and chicks for consumption has been reduced in some areas due to educational and enforcement programs, these impacts still occur. At the largest breeding sites for this species in India, reproductive success is low, less than one chick per nest per year. Because the total population of the greater adjutant is fewer than 1,000 birds, the loss of eggs and chicks in populations in India and Cambodia is a significant threat to the species. In addition, there may be secondary impacts due to predation by crows. Therefore, we find that predation is a threat to the continued existence of the greater adjutant throughout its range.

The greater adjutant is classified as critically endangered by the IUCN. Although there is evidence of commercial trade across the Cambodia border into Laos and Thailand, this species is currently not listed under CITES.

India: The greater adjutant is listed under Schedule I of the Indian Wildlife Protection Act of 1972 (IWPA). Schedule I provides absolute protection, with the greatest penalties for offenses. This law prohibits hunting, possession, sale, and transport of listed species. The IWPA also provides for the designation and management of sanctuaries and national parks for the purposes of protecting, propagating, or developing wildlife or its environment. Protected areas in India allow for regulated levels of human use and disturbance and are managed to prevent widespread clearing and complete loss of suitable habitat. Although the greater adjutant uses habitat in three national parks in India, almost all nesting colonies of this species in India are found outside of protected areas (Singha et al. 2003, p. 148). Some of the species' foraging areas are also located outside of protected areas. As stated above in Factor A, the ongoing loss of habitat through habitat conversion for development and agriculture is a primary threat to this species. The regulatory mechanisms currently in place in India do not provide protection of habitat for the greater adjutant outside of existing protected areas such as national parks, and therefore are not adequate.

Cambodia: Areas designated as natural areas by the Ministry of Environment, such as the Tonle Sap Biosphere Reserve, are to be managed for the protection of the natural resources contained within. Portions of the Biosphere Reserve have also been designated as areas of importance under the Convention of Wetlands of International Importance of 1971.

The Mekong River Commission (MRC) was formed between the governments of Cambodia, Lao PDR, Thailand, and Vietnam in 1995 as part of the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin. The signatories agreed to jointly manage their shared water resources and the economic development of the river (MRC 2007, p. 1-2). According to the Asian Development Bank, 13 dams have been built, are being built, or are proposed to be built along the Mekong River (ADB 2005, p. 2). The continued modification of greater adjutant habitat has been identified as a primary threat to this species (Factor A), and this regional regulatory mechanism is not effective at reducing that threat.

Several laws exist in Cambodia to protect the greater adjutant from two of the primary threats to the species: habitat destruction and hunting. However, they are ineffective at reducing those threats. In Cambodia, Declaration No. 359, issued by the Ministry of Agriculture, Forestry and Fisheries in 1994, prohibits the hunting of greater adjutant. However, reports of severe hunting pressure within the greater adjutant's habitat exist and illegal poaching of wildlife in Cambodia continues (Bird et al. 2006, p. 23; Poole 2002, pp. 34-35; UNEP-SEF 2005, pp. 23, 27).

The Creation and Designation of Protected Areas regulation (November 1993) established a national system of protected areas. In 1994, through Declaration No. 1033 on the Protection of Natural Areas, the following activities were banned in all protected areas:

(1) Construction of saw mills, charcoal ovens, brick kilns, tile kilns, limestone ovens, tobacco ovens;

(2) hunting or placement of traps for tusks, bones, feathers, horns, leather, or blood;

(3) deforestation;

(4) mining minerals or use of explosives;

(5) the use of domestic animals such as dogs;

(6) dumping of pollutants;

(7) the use of machines or heavy cars which may cause smoke pollution;

(8) noise pollution; and

(9) unpermitted research and experiments.

In addition, the Law on Environmental Protection and Natural Resource Management of 1996 sets forth general provisions for environmental protection. Under Article 8 of this law, Cambodia declares that its natural resources (including wildlife) shall be conserved, developed, and managed and used in a rational and sustainable manner.

Protected Areas have been established within the range of the greater adjutant, such as the Tonle Sap Lake Biosphere Reserve. The Tonle Sap Great Lake protected area was designated a multi-purpose protected area in 1993 (Matsui et al. 2006, p. 411). Under this decree, Multiple Use Management Areas are those areas which provide for the sustainable use of water resources, timber, wildlife, fish, pasture, and recreation; the conservation of nature is primarily oriented to support these economic activities. In 1997, the Tonle Sap region was nominated as a Biosphere Reserve under UNESCO's (United Nations Educational, Scientific and Cultural Organization) “Man and the Biosphere Program.” The Cambodian government developed a National Environmental Action Plan (NEAP) in 1997, supporting the UNESCO site goals. Among the priority areas of intervention are fisheries and floodplain agriculture at Tonle Sap Lake, biodiversity and protected areas, and environmental education. NEAP was followed by the adoption of the Strategy and Action Plan for the Protection of Tonle Sap (SAPPTS) in February 1998 (Matsui et al. 2006, p. 411), and the issuance of a Royal Decree officially creating Tonle Sap Lake a Biosphere Reserve (TSBR) on April 10, 2001. The royal decree was followed by a subdecree by the Prime Minister to establish a Secretariat, along with its roles and functions, for the TSBR with the understanding that its objectives could not be achieved without cooperation and coordination among relevant stakeholders (TSBR Secretariat 2007, p. 1).

Joint Declaration No. 1563, on the Suppression of Wildlife Destruction in the Kingdom of Cambodia, was issued by the Ministry of Agriculture, Forestry, and Fisheries in 1996. Although the Japan International Cooperation Agency (JICA 1999, p. 19) reported that this regulatory measure was ineffectively enforced, some strides have been made recently through the combined efforts of WCS, the Cambodian government, and local communities at Tonle Sap Lake. WCS Cambodia (2009, unpaginated) reports that the illegal wildlife trade in Cambodia is “enormous” and driven by demand for meat and traditional medicines in Thailand, Vietnam, and China. Substantial progress has been made in protecting seven species of waterbirds at Prek Toal Core Area in the TSBR, increasing populations of some species tenfold by working with the primary management agencies and working at the field level to improve community engagement, law enforcement, and long-term research and monitoring (WCS Cambodia 2009, unpaginated).

The Forestry Law of 2002 strictly prohibits hunting, harming, or harassing wildlife (Article 49) (Law on Forestry 2003). This law further prohibits the possession, trapping, transport, or trade in rare and endangered wildlife (Article 49). However, to our knowledge, Cambodia has not yet published a list of endangered or rare species. Thus, this law is not currently effective at protecting the greater adjutant from threats by hunting.

In 2006, the Cambodian government created Integrated Farming and Biodiversity Areas (IFBA), including over 161 km (100 mi) of grassland (over 30,000 ha (74,132 ac)) near Tonle Sap Lake to protect the Bengal florican, an endangered bird in that region (WWF 2006a, pp. 1-2). The above measures have focused attention on the conservation situation at TSBR and have begun to improve the conservation of the area and its wildlife there, but several management challenges remain. These challenges include overexploitation of flooded forests and fisheries; negative impacts from invasive species; lack of monitoring and enforcement; low level of public awareness of biodiversity values; and uncoordinated research, monitoring, and evaluation of species' populations (Matsui et al. 2006, pp. 409-418; TSBR Secretariat 2007, pp. 1-6).

Even though these wildlife laws exist, greater adjutant habitat within Cambodian protected areas faces several challenges. The legal framework governing wetlands management is institutionally complex. It rests upon legislation vested in government agencies responsible for land use planning (Land Law 2001), resource use (Fishery Law 1987), and environmental conservation (Environmental Law 1996, Royal Decree on the Designation and Creation of National Protected Areas System 1993); however, there is no interministerial coordinating mechanism nationally for wetland planning and management (Bonheur et al. 2005, p. 9). As a result of this institutional complexity and lack of defined jurisdiction, natural resource use goes largely unregulated (Bonheur et al. 2005, p. 9). Thus, the protected areas system in Cambodia is ineffective in removing or reducing the threats of habitat modification and hunting faced by the greater adjutant.

Existing regulatory mechanisms in both India and Cambodia are ineffective at reducing or removing threats to the species such as habitat modification and collection of eggs and chicks for consumption. Although progress has been made recently in the protection of nests and birds at specific locations, this has largely been driven by measures from the private sector. We believe that the inadequacy of regulatory mechanisms, especially with regard to lack of law enforcement and habitat protection, is a significant risk factor for the greater adjutant. Therefore we find that existing regulatory mechanisms are inadequate to ameliorate the current threats to the greater adjutant throughout its range.

India: Due to a lack of natural foraging areas and availability of native wildlife carcasses to feed upon, the greater adjutant is known to commonly forage in refuge dumps and slaughterhouses during certain times of the year. Researchers believe that along with the refuse at these sites, these birds are inadvertently ingesting household contaminants and plastics that can adversely affect their health and reproductive capability (Singha et al. 2003, p. 148; BLI 2009a, unpaginated). In addition, pesticide has been used in winter to kill fish at a national park in India, and may be a widespread practice throughout the Brahmaputra lowlands (BLI 2001, p. 287). As the remaining natural foraging habitat for this species continues to shrink, the level of foraging at refuge dumps and slaughter houses is expected to increase, thereby increasing the incidence of greater adjutants ingesting contaminants at these sites. Also, the use of pesticides in and near water sources in the Brahmaputra lowlands may result in further contamination to the species.

Cambodia: Increasing use of agro-chemicals, especially pesticides, is a major concern in the TSBR and throughout Cambodia. A survey conducted in Cambodian agriculture practices in 2000 showed that 67 percent of farms used pesticides. Of these farms, 44 percent began using pesticides in the 1980s, and 23 percent began using them in the 1990s (Environmental Justice Foundation (EJF) 2002, p. 13). All of the pesticides used in Cambodia are produced outside of the country, and the labels, which include information on the appropriate use of these chemicals, are often not written in a language understandable to local villagers (EJF 2002, p. 18). A Food and Agriculture Organization of the United Nations (FAO) study found that only 1 percent of vegetable farmers received technical training in pesticide use (EJF 2002, p. 17). This problem often leads to overuse of these highly toxic compounds.

In Cambodia, organochlorine insecticides, such as dichloro-diphenyl-trichloroethane (DDT), and organophosphate insecticides such as methyl-parathion are commonly used. Organochlorine insecticides are known to accumulate in aquatic systems and concentrate in the organs of species of waterbirds such as the greater adjutant. The effects of persistent organic pesticides are variable depending on concentration and species, but can include direct mortality, feminization of embryos, reduced hormones for egg-laying, and egg-shell thinning (EJF 2002, p. 24).

In the 1970s and 1980s, agricultural use of DDT was banned in most developed countries; however, it is still used for agriculture in Cambodia. In recent years, mong bean farmers in Siem Reap province are estimated to have applied 10 tons of a pesticide mix of DDT, Thiodan (endosulfan), and methyl-parathion on fields that are submerged in the wet season and thus capable of polluting the Tonle Sap basin (EJF 2002, p. 25). In addition, methyl-parathion and endosulfan are used in illegal fishing (EJF 2002, p. 14). Methyl-parathion is considered highly toxic to birds and may take 2 weeks to degrade in lakes and rivers. The decline in the number of some bird species from around the Tonle Sap Lake may be partly due to pesticide poisoning (EJF 2002, p. 25). Further, because higher levels of persistent organochlorines have been recorded in freshwater fish and mussels than marine fish and mussels, the source of these compounds is likely inland watersheds (EJF 2002, p. 24). Although we could not locate any specific contaminant reports on the amount of these toxic chemicals found in greater adjutants based on the above data, it is likely that the persistent use of these compounds is contributing to the decline of this species.

The use of pesticides occurs in both India and Cambodia for a variety of reasons, including agriculture, fishing, and insect control. As human interactions with the adjutant continue to increase, the chances of poisoning of the species, both directly and indirectly, also continue to rise. Therefore we find that other natural or manmade factors affecting the continued existence of the species in the form of pesticide use and ingesting other contaminants is a threat to the greater adjutant throughout its range.

We have carefully assessed the best available scientific and commercial information regarding the past, present, and potential future threats faced by the greater adjutant. The species is currently at risk throughout all of its range due to ongoing threats of habitat destruction and modification (Factor A); overutilization for commercial, recreational, scientific, or educational purposes in the form of hunting, egg and chick collection, and trapping (Factor B); predation (Factor C); inadequacy of existing regulatory mechanisms (Factor D); and other natural or manmade factors affecting its continued existence in the form of overuse of toxic compounds (Factor E).

Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Based on the magnitude of the ongoing threats to the greater adjutant throughout its entire range, as described above, we determine that this species is in danger of extinction throughout all of its range. Therefore, on the basis of the best available scientific and commercial information, we propose to list the greater adjutant as an endangered species throughout all of its range. Because we find that the greater adjutant is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range.

The Jerdon's courser, also known as the double-banded courser (Rhinoptilus bitorquatus), is a small, nocturnal bird, which is specialized for running and belongs to the family Glareolidae (Bhushan 1986, pp. 1, 6; Jeganathan et al. 2004a, p. 225; Jeganathan et al. 2004b, p. 7). It was first described by T. C. Jerdon in 1848 (Bhushan 1986, p. 1; Jeganathan et al. 2004b, p. 1). This species averages 27 cm (11 in) in length, its plumage consists of two brown bands around its breast, a blackish colored crown, a broad buff-colored supercilium (eyebrow stripe), an orange patch that runs from its throat down to its chest, and it has a short yellow bill with a black tip (BLI 2009b, unpaginated).

The Jerdon's courser is a rare species of bird that is endemic to the Eastern Ghats of the states of Andhra Pradesh and extreme southern Madhya Pradesh in India (BLI 2009b, unpaginated). The size of the population is not known. Historically, this species was reported in the Khamman, Nellore, and Anantapur districts of Andhra Pradesh and the Gadchiroli District of Maharashtra (Jeganathan et al. 2005, p. 5). Until 1900, its presence was periodically recorded, including some records in the Pennar and Godavari river valleys and near Anantapur (Bhushan 1986, p. 2; Jeganathan et al. 2004a, p. 225; Jeganathan et al. 2004b, p. 7; Jeganathan et al. 2006, p. 227). Efforts by various ornithologists in the early 1930s and mid to late 1970s to record the presence of this species failed, leading to the belief that the species was extinct (Bhushan 1986, p. 2; Jeganathan et al. 2004b, p. 7). In 1986, the Jerdon's courser was rediscovered near Reddipalli village, Cuddapah District, Andhra Pradesh (Bhushan 1986, pp. 8-9; Jeganathan et al. 2004a, p. 225; Jeganathan et al. 2004b, p. 7; Jeganathan et al. 2005, p. 3; Jeganathan et al. 2006, p. 227; Senapathi et al. 2007, p. 1).

The area where the species was rediscovered was designated as the Sri Lankamaleswara Wildlife Sanctuary (SLWS) (Jeganathan et al. 2004b, p. 7; Jeganathan et al. 2005, p. 3). After its rediscovery, it was only observed regularly at a few sites in and around the SLWS (Jeganathan et al. 2004b, p. 7, 18; Jeganathan et al. 2005, p. 5; Jeganathan et al. 2006, p. 227; Senapathi et al. 2007, p. 1), including reports of its presence in Sri Penusula Narasimha Wildlife Sanctuary (SPNWS) in the Cuddapah and Nellore districts, Andhra Pradesh (Jeganathan et al. 2005, p. 3). It has since been found at three additional localities (Jeganathan et al. 2004a, p. 228; Jeganathan et al. 2004b, p. 20; BLI 2009b, unpaginated).

Due to the nocturnal nature of the species and the wooded nature of its habitat, individuals are rarely seen; therefore, very little information is available on the distribution, ecology, population size, and habitat requirements of the Jerdon's courser (Jeganathan et al. 2004a, p. 225; Jeganathan et al. 2004b, p. 7; Jeganathan et al. 2005, p. 3; Jeganathan et al. 2006, p. 227; Senapathi et al. 2007, p. 1). New survey techniques have allowed researchers to detect the presence and absence of Jerdon's courser using track strips and a tape playback of the species call. These methods can be useful in mapping the geographic range of the Jerdon's courser and in estimating the population size, and have contributed to a better understanding of habitat preferences. Surveys have not been conducted in all areas with suitable habitat characteristics; additional surveys are needed to confirm the current range and population size of this species. Although the size of the population is not known, it is believed to be a small, declining population (Jeganathan 2004b, p. 7; BLI 2009b, unpaginated; IUCN 2009c, unpaginated).

The Jerdon's courser inhabits open patches within scrub-forest interspersed with patches of bare ground, in gently undulating, rocky foothills (Jeganathan et al. 2005, p. 5; Senapathi et al. 2007, p. 1). Studies show that this species is most likely to occur where the density of large bushes (greater than 2 m (6 ft) tall) ranges from 300 to 700 per ha (121-283 large bushes per acre) and the density of smaller bushes (less than 2 m (6 ft) tall) is less than 1,000 per ha (404 per acre) (Jeganathan et al. 2004a, p. 228; Jeganathan et al. 2004b, p. 22; Jeganathan et al. 2005, p. 5; Senapathi et al. 2007, p. 1). The dominant woody vegetation includes species of shrub, particularly Zizyphus rugosa, Carissa carandas, and Acacia horrida (Jeganathan et al. 2004a, p. 228; Jeganathan et al. 2004b, p. 22).

The amount of suitable habitat that existed for this species in 2000 was estimated to be approximately 3,847 km2 (1,485 mi2) of scrub habitat in the Cuddapah and Nellore districts of the State of Andhra Pradesh (Senapathi et al. 2007, p. 6). Jeganathan (2008, pers. comm.) further stated that the amount of suitable habitat available in and around the SLWS is approximately 132 km2 (51 mi2). A comprehensive habitat assessment of all the shrub habitat areas within the historic range of this species has not yet been completed; therefore, suitable habitat may occur elsewhere for this species.

Little information is known about feeding habits or feeding areas of this species. The only information known comes from the analysis of two Jerdon's courser fecal samples, which consisted mainly of termites and ants. Jeganathan (2004a, p. 234) suggested that despite being nocturnal and affected by the shadowing effects of the canopy, coursers may be able to see invertebrate prey on the ground by selecting relatively well-illuminated open areas.

There is no information on the life history of the Jerdon's courser; no nests or young birds have ever been found, although the footprints of a young bird along with an adult Jerdon's courser suggests successful breeding is taking place (Jeganathan et al. 2004b, pp. 17, 29). The calling period is brief, starting approximately 45 to 50 minutes after sunset and continuing for a few minutes to approximately 20 minutes.

Due to the single, small, and declining population of the Jerdon's courser, it is classified as “critically endangered” by the IUCN (Jeganathan et al. 2004b, p. 7; Senapathi et al. 2007, p. 1; Jeganathan et al. 2008, p. 73; IUCN 2009c, unpaginated), a category assigned to species facing an extremely high risk of extinction in the wild. It is also listed under Schedule I of the Indian Wildlife Protection Act of 1972. The species has not been formally considered for listing in the Appendices of CITES (http://www.cites.org).

The primary threat to the persistence of the Jerdon's courser is habitat destruction and alteration due to conversion of suitable habitat to agriculture lands, grazing, and construction within and around the SLWS and SPNWS, and increasing settlements (Jeganathan 2005 et al. 2005, p. 6; Norris 2008, pers. comm.; Jeganathan 2009, pers. comm..). Agriculture is the main occupation of the people living in the area. The State of Andhra Pradesh has experienced growth of intensive agricultural practices in recent years (Senapathi et al. 2007, pg. 2), with paddy (Oryza sativa), sunflower (Helianthus annuus), cotton (Gossypium sp.), groundnut (Arachis hypogaea), finger millet (Eleusince coracana), turmeric (Curcuma longa), and onion (Allium cepa) being the major crops of the area (Jeganathan et al. 2008, p. 77). From 1991 to 2000, scrub habitat in the Cuddapah District and parts of the Nellore District in Andhra Pradesh decreased by 11-15 percent, while the area occupied by agricultural land more than doubled (109 percent increase) during the same time period. Remaining scrub patches were also found to be smaller (38.4 percent decrease) and further from human settlements (Senapathi et al. 2007, pp. 1, 4; Jeganathan et al. 2008, p. 76).

The main causes for the loss of scrub habitat were human settlements and subsequent conversions of scrub habitat to agriculture and cleared areas (Senapathi et al. 2007, p. 6). From 2001 to 2004, an estimated 480 ha (1,186 ac) of scrub habitat were cleared within and around the SLWS, 275 ha (680 ac) of which were cleared to provide land for agriculture to the people of India who were displaced by floods and for farming of lemons and forestry plantations. These cleared areas fall within 1 km (0.6 mi) of previously known and newly discovered Jerdon's courser areas (Jeganathan et al. 2008, p. 76). From 2000 to 2005, Jeganathan et al. (2008, p. 77) noted that approximately 215 ha (531 ac) of scrub habitat outside of the SLWS were cleared and most likely will become lemon farms. The irrigation required to sustain agricultural activities will likely further fragment any remaining suitable habitat (Senapathi et al. 2007, p. 7).

The Jerdon's courser inhabits open patches within scrub-forest and prefers areas with moderate densities of trees and brush (Jeganathan et al. 2004a, p. 234). Researchers believe this open habitat is maintained by grazing animals and some woodcutting (Norris 2008, pers. comm.). Known Jerdon's courser sites are already being used for grazing livestock and woodcutting, but at moderate levels that maintain the appropriate vegetation structure (Jeganathan 2005, p. 15). Mechanical clearing of bushes to create pasture, orchards, and tilled land; high levels of woodcutting; and high level of use by domestic livestock are likely to cause deterioration in scrub habitat by creating a scrub forest that is too open for the Jerdon's courser. However, low levels of grazing by livestock or absence of woodcutting may also lead to habitat that is more closed and, therefore, unsuitable (Jeganathan et al. 2004a, p. 234; Jeganathan et al. 2004b, p. 23; Norris 2008, pers. comm.).

Land in SLWS and adjacent areas is used by the people from villages in Sagileru valley for grazing herds of domestic buffalo (Bubalus bubalis), sheep (Ovis aries), and goats (Capra hircus), and for woodcutting (Jeganathan et al. 2004b, p. 9). Jeganathan (2008, pers. comm.) states that most of the potentially suitable habitat for Jerdon's courser is located on the fringe of the forest and can be easily accessed by locals for grazing and woodcutting. Jeganathan et al. (2008, p. 77) notes three types of grazing within and around the SLWS and SPNWS. The first includes shepherds who bring goats, sheep, and buffalo into the scrub habitat in and around the sanctuaries every morning, grazing 2-3 km (1-2 mi) into the forest before returning to the villages in the evening. The second includes nomads with 200-300 cattle. Although they are invited by farmers to help fertilize the lemon farms, they stay 3 to 4 months and graze in the forested areas in and around the sanctuaries. The third includes sheep that graze inside the sanctuaries throughout the year; however, this type of grazing did not occur in scrub habitat. Furthermore, a common practice is to cut and bend the branches of scrub and tree species to facilitate better access for grazing (Jeganathan et al. 2008, p. 78). In addition, the people of the local villages also use the sanctuaries for timber and nontimber forest products; including fuel wood, illegal wood collecting, grass, and bamboo. From 2001 to 2003, Jeganathan et al. (2008, pp. 77-78) regularly observed wood loads being removed by either head loads, bullock cart, or tractor.

Development activities within the SLWS, including the construction of check dams, and percolation ponds, and digging of trenches, have been observed in known and newly recorded areas of the Jerdon's courser (Jeganathan et al. 2004a, pp. 26, 28; Jeganathan et al. 2008, p. 76). Approximately 0.5 to 1 ha (1-2 ac) of scrub forest was cleared for each of five percolation ponds dug near the main Jerdon's courser area and exotic plant species planted on the embankment. In addition, scrub habitat was thinned (removal of all scrub species except saplings), and pits for collecting rainwater were dug (Jeganathan et al. 2008, p. 76). Furthermore, various sizes of stones were collected from the scrub jungle within and around the SLWS for road construction every year. Collection included digging of stones with crowbars, collection of stones in heavy vehicles, and the excavation of 15 large pits (Jeganathan et al. 2008, p. 76).

Construction of dams and reservoirs and river floods in the area has resulted in the relocation of villages near the SLWS and SPNWS. Fifty-seven villages were relocated closer to SLWS after the construction of the Somasila dam. Fifteen were displaced due to the construction of the Sri Potuluri Veera Brahmendraswamy (SPVB) Reservoir. Currently, there are approximately 146 villages between the SLWS and SPNWS (Jeganathan et al. 2008, pp. 76-77). There are more villages in the area of Somasila and SPVB Reservoir that could be relocated near the sanctuaries in the future, and there are plans to increase the height of the Somasila dam, which will cause the displacement of more villages near the southeastern part of SLWS (Jeganathan et al. 2008, p. 77). With the relocation and expansion of human settlements, there is concern over additional land conversion for agriculture, increased pressure for grazing and woodcutting, and further development.

At the time of the Jerdon's courser rediscovery in 1986, the only known site where the species was found was under threat from a project to construct the Telugu-Ganga canal through its habitat. The Andhra Pradesh Forestry Department (APFD) and the State Government of Andhra Pradesh responded by designating the site as the SLWS to protect the species. The proposed route of the canal was adjusted to avoid the sanctuary (Jeganathan et al. 2005, p. 6; Jeganathan et al. 2008, p. 78). However, in 2005, construction of the Telugu-Ganga canal began, illegally, within the SLWS. Construction was stopped immediately once the APFD was notified (Jeganathan et al. 2005, p. 6; Kohli 2006, unpaginated). Illegal excavation was reported even after construction was stopped and the contracting company fined (Kohli 2006, unpaginated). A report by the Bombay National History Society (BNHS) found that 80 to 100 m (263 to 328 ft) were cleared for canals that were 16 to 20 m (53 to 66 ft) wide. It also found that approximately 22 ha (54 ac) of potentially suitable habitat were cleared and one of the three newly recorded sites for the Jerdon's courser was destroyed by the illegal construction within the SLWS (Jeganathan et al. 2005, p. 12; BNHS 2007, p. 1; Jeganathan et al. 2008, p. 73). The report also assessed the potential impacts of the proposed realignment and determined that the construction of the canal would still impact 650 ha (1,606 ac) of suitable habitat around the SLWS and would pass within 500 m (1640 ft) of recent records of the Jerdon's courser and pass very close to the only place where the species has been regularly sighted since 1986 (Jeganathan et al. 2005, p. 12; Jeganathan et al. 2008, p. 80). Plans for the Telugu-Ganga canal included another canal project along the western boundary of the SPNWS. Unauthorized work near the Sanctuary boundary was stopped by the Cuddapah Forest Division in October 2005. In some locations along the canal route, forest had been cleared and roads developed inside of the Sanctuary boundary (Jeganathan et al. 2005, p. 9). Approximately 163 ha (403 ac) were cleared for the construction of the canal in and around the SPNWS (Jeganathan et al. 2005; Jeganathan et al. 2008, p. 80). It is unknown how much of this area is occupied by the Jerdon's courser.

Following the illegal construction of the canal within the SLWS and SPNWS, the issue was raised to the Central Empowered Committee (CEC), a monitoring body on forest matters set up by the Supreme Court (Kholi 2006, unpaginated). The CEC ruled in favor of a realignment route completely avoiding courser habitat. Also, the government of Andhra Pradesh has transferred approximately 1,000 ha (2,4711 ac) of land between the canal and the SLWS to the APFD (BLI 2009b, unpaginated; Jeganathan 2009, pers. comm.).

During the BNHS study on the construction of the Telugu-Ganga canal, additional threats were identified in association with the construction. Roads were built along the canal route and from the main roads to the canal, which subsequently provided easy access to the forest for unauthorized woodcutting. Furthermore, the SLWS is known to have red sanders (Pterocarpus santalinus), a highly valued species of trees sought after by illegal woodcutters. APDF records from 1984 to 2003 show that over 116,000 kilograms (255,736 pounds) of matured red sanders were seized from smugglers (Jeganathan et al. 2005, p. 13). Pressure from smugglers on mature red sanders, coupled with the increased access points into the SLWS due to canal construction activities, has caused extensive unauthorized woodcutting within the SLWS (Jeganathan et al. 2005, p. 13).

In summary, the scrub habitat known to be occupied by the species and potentially suitable habitat on adjacent lands in and around the SLWS and SPNWS in the Cuddapah District of India have been destroyed and diminished due to conversion of land for agriculture purposes, grazing livestock, construction, and woodcutting. These actions are a result of human expansion and the subsequent increase in human activity in and around the SLWS and SPNWS. Additional relocation of villages around SLWS and SPNW is anticipated. Because the two most common livelihoods are agriculture and cattle rearing and because the establishment of additional villages will require more land to accommodate agriculture and livestock needs, the scrub habitat that is vital to the Jerdon's courser remains at risk of further curtailment. The population of the Jerdon's courser is extremely small and believed to be declining, so any further loss or degradation of remaining suitable habitat represents a significant threat to the species. Therefore, we find that present or threatened destruction, modification, or curtailment of the habitat or range are threats to the continued existence of the Jerdon's courser throughout its range.

We are not aware of any information currently available that indicates the use of this species for any commercial, recreational, scientific, or educational purpose. As a result, we are not considering overutilization to be a contributing threat to the continued existence of the Jerdon's courser throughout its range.

We are not aware of any information currently available that indicates disease or predation pose a threat for this species. As a result, we are not considering disease or predation to be contributing threats to the continued existence of the Jerdon's courser throughout its range.

The Jerdon's courser is listed under Schedule I of the Indian Wildlife Protection Act of 1972. Schedule I provides absolute protection with the greatest penalties for offenses. This law prohibits hunting, possession, sale, and transport of listed species and allows the State Government to designate an area as a sanctuary or national park for the purpose of protecting, propagating, or developing wildlife or its environment. The SLWS and SPNWS were established for the purpose of protecting the habitat of the Jerdon's courser. The sanctuaries allow for regulated levels of human use and disturbance while preventing complete loss of scrub habitat (Senapathi et al. 2007, p. 8). In addition, the SLWS and SNPWS are designated as Important Bird Areas (IBA) in India (Jeganathan et al. 2005, p. 5). IBAs are sites of international importance for the conservation of birds, as well as other animals and plants, and are meant to be used to focus conservation efforts and reinforce the existing protected areas network. However, designation as an IBA provides no legal protection of these areas (BNHS 2009, unpaginated).

The Jerdon's courser is also listed as a priority species under the National Wildlife Action Plan (2002-2016) of India. This National Plan includes guidance to expand and strengthen the existing network of protected areas, develop management plans for protected areas in the country, restore and manage degraded habitats outside of protected areas, and control activities such as poaching and illegal trade, among others. We are unaware of any management plans for the protected areas in Andhra Pradesh where the Jerdon's courser occurs. Additionally, the SLWS and SPNWS are protected by the Forest Conservation Act of 1980. Section 2 of this law restricts the use of forest land for nonforest purposes, such as the fragmentation or clearing of any forest.

In summary, although protections for the species exist, the primary threat to this species is ongoing loss of habitat. Senapathi et al. (2007, pp. 7-8) found an extensive and rapid decline in scrub habitat, with most removal of scrub occurring up to sanctuary boundaries and little loss occurring within the wildlife sanctuaries. Due to the threat of an increasing number of settlements near the sanctuaries, and the subsequent further loss of scrub habitat to agriculture and livestock, protection of scrub habitat used by the Jerdon's courser will be important for the species' continued existence. Jeganathan et al. (2004, p. 28) classified many areas in the Cuddapah District as suitable habitat for the Jerdon's courser; however, with the exception of one sanctuary, the rest of the suitable habitats are not protected. Therefore, current regulatory mechanisms do not provide enough protection of suitable habitat for this species outside of existing protected areas. We are also unaware of any grazing standards within SLWS and SPNWS to ensure the maintenance of open scrub habitat and that prevent overgrazing by livestock. When combined with Factor A (the present or threatened destruction, modification, or curtailment of the habitat or range), we find that the existing regulatory mechanisms are inadequate to ameliorate the current threats to the Jerdon's courser throughout its range.

There are particular species characteristics which render a species vulnerable to extinction (Primack 2002, p. 193). For example, species with a narrow geographic range, small population size, declining population, and specialized habitat requirements are more susceptible to extinction than others without these characteristics (Primack 2002, pp. 193-200). Although exact population estimates and distribution of the Jerdon's courser are not available, the species has been reported as a small, declining population (Jeganathan 2004b, p. 7; BLI 2009b, unpaginated; IUCN 2009c, unpaginated) and only reported from a small patch of scrub habitat in and around the SLWS (Jeganathan et al. 2008, p. 73). Furthermore, certain species characteristics, such as those found in this species, predispose it to particular sources of extinction (Owens and Bennett 2000, p. 12147). Owens and Bennett (2000, p. 12147) found that extinction risks for birds with specialized habitat and small body size increased with habitat loss. The Jerdon's courser is a small bird dependent on scrub habitat of moderate density for survival. Habitat loss, as described under Factor A, is the primary threat to this species. Further loss of Jerdon's courser habitat may fragment remaining suitable habitat adjacent to the SLWS and increase the extinction risk for the species. In addition, small, isolated populations may experience decreased demographic viability and increased susceptibility of extinction from stochastic environmental factors (e.g., weather events, disease) and an increased threat of extinction from genetic isolation and subsequent inbreeding depression and genetic drift.

In conclusion, the single known population of Jerdon's courser may be vulnerable to threats associated with low population sizes. Because the known population is small in size, and restricted in range, and depends on a special habitat for survival, any factor (i.e., habitat change, a loss of demographic viability, etc.) that results in a decline in habitat or individuals may be problematic for the long-term recovery of this species. Therefore, we find that other natural or manmade factors pose a threat to the Jerdon's courser throughout its range.

We have carefully assessed the best available scientific and commercial information regarding the past, present, and potential future threats faced by the Jerdon's courser. The species is currently at risk throughout all of its range due to ongoing threats of habitat destruction and modification (Factor A), and demographic, genetic, and environmental stochastic events and other complications associated with the species' low population and restricted range (Factor E). Furthermore, we have determined that the existing regulatory mechanisms (Factor D) are not adequate to ameliorate the current threats to the species.

Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Based on the magnitude of the ongoing threats to the Jerdon's courser throughout its entire range, as described above, we determine that this species is in danger of extinction throughout all of its range. Therefore, on the basis of the best available scientific and commercial information, we propose to list the Jerdon's courser as an endangered species throughout all of its range. Because we find that the Jerdon's courser is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range.

The Marquesan Imperial Pigeon (Ducula galeata), known locally as Upe, is a very large arboreal pigeon belonging to the family Columbidae. It was first described by Charles Lucien Bonaparte in 1855 (Villard et al. 2003, p. 198; BLI 2009, unpaginated). The species measures 55 cm (22 in) in length, is dark slate-grey with bronze-green reflections on the upperparts, rufous-chestnut undertail-coverts, white eyes, and a white and grey-black cere protruding almost to the tip of the bill (Blanvillain et al. 2007, unpaginated; BLI 2009c, unpaginated).

The pigeon is endemic to the French Polynesian Marquesas Archipelago in the Pacific Ocean. The Marquesas Archipelago is a territory of France located approximately 1,600 km (994 mi) northeast of Tahiti. Based on subfossil records, the pigeon was historically present on four islands in the Marquesas Archipelago, Hiva Oa, Ua Huka, Tahuata, and Nuku Hiva, as well as the Cook, the Pitcairn, and Society Island chains (Steadman 1997, p. 740; Thorsen et al. 2002, p. 6; Blanvillain and Thorsen 2003, p. 381; Blanvillain et al. 2007, unpaginated). At the time of its discovery, the pigeon was already restricted to Nuku Hiva, a 337 km2 (130 sq mi2) island. Researchers believe that hunting, degradation of local forest, invasive weeds and trees, and predation were the probable causes of its decline (Thorsen et al. 2002, pp. 8-9; Blanvillian et al. 2007, unpaginated). On Nuku Hiva, the pigeon is restricted to 7 sites which are difficult to access by hunters and livestock and appear to be resistant to colonization by rats (Villard et al. 2003, p. 191; BLI 2009c, unpaginated). In an effort to protect the remaining population from extinction due to catastrophic events, the pigeon was reintroduced to Ua Huka, an island 50 km (31 mi) east of Nuku Hiva in 2000 (Thorsen et al. 2002, p. 14; Blanvillain and Thorsen 2003, p. 385; BLI 2009c, unpaginated). Ua Huka was chosen as a reintroduction site primarily because the pigeon was historically found on the island, and due to availability of suitable habitat located in a protected area, a lack of black rats (Rattus rattus), and a smaller human population compared to other Marquesan islands (Thorsen et al. 2002, p. 13).

Population estimates on Nuku Hiva have ranged from 75 to 300 birds since 1975; however, the most recent survey, conducted in 2000, estimated the population to be approximately 80-150 birds (Villard et al. 2003, p. 194). In 2000, five birds were translocated to Ua Huka and an additional five translocated in 2003. As of 2006, approximately 32 birds were present. The population objective for the reintroduction project is to establish a population of 50 individuals on Ua Huka by 2010 (BLI 2009c, unpaginated).

The species is almost exclusively arboreal and prefers the intermediate and upper canopy forest layers consisting of Guettarda speciosa, Cerbera manghas, Ficus spp., Terminalia cattapa, and Sapindus saponaria; however, individuals have also been observed perched on shrubs (Blanvillain and Thorsen 2003, p. 382; Villard et al. 2003, p. 191). These pigeons heavily rely on this canopy forest for roosting and feeding. Based on observations of pigeons in 2000, this species appears to return to the same feeding and night roosting areas.

Species of Ducula are primarily frugivorous (fruit eaters). The diet of Marquesan imperial pigeons consists mainly of fruits, which are usually swallowed whole, from Ficus spp. and Psidium guajava (guava; an introduced species); however, it has been reported that caterpillars from S. saponaria and the foliage and flowers of other tree and shrub species also make up a portion of the pigeon's diet. The species' consumption of an introduced shrub species, the guava, is likely due to the degradation of native habitat (Blanvillain and Thorsen 2003, p. 384) and the subsequent loss of native fruits, foliage, and flowers. Gleaning and browsing are the two main feeding methods (Blanvillain and Thorsen 2003, pp. 382-383).

Courtship behavior includes the male and female sitting next to one another and allopreening the breast and neck areas and mirroring each other's actions (Blanvillain and Thorsen 2003, p. 383). The breeding season is long, occurring from mid-May to December (Thorsen et al. 2002, p. 6). Nests are constructed of intermingled branches, approximately 60 cm (24 in) in diameter, 10 to 18 m (33 to 59 ft) above ground at the top of the canopy (Blanvillain and Thorsen 2003, p. 384); clutch size is only one egg (Villard et al. 2003, pp. 192, 195). Abundance of fruit is critical in determining the breeding success of frugivorous birds (Thorsen et al. 2002, p. 10). However, studies suggest that the pigeon is successfully breeding in different areas where it exists (Thorsen et al. 2002, p. 17; Villard et al. 2003, p. 195).

The Marquesan imperial pigeon was originally classified as “critically endangered” by the IUCN. In 2008, however, this species was downlisted to “endangered” status due to the establishment of a second population through the translocation of birds to Ua Huka (IUCN 2009b, unpaginated). The Marquesan imperial pigeon is also protected under Law Number 95-257 in French Polynesia. The species has not been formally considered for listing in the Appendices of CITES (http://www.cites.org).

Destruction of habitat associated with human colonization is one of the main threats to the remaining populations of the Marquesan imperial pigeon. Since Polynesian occupation and discovery of the area by Europeans, substantial changes to the Nuku Hiva landscape have occurred (Thorsen et al. 2002, p. 8; Villard et al. 2003, p. 190) and are still occurring. These changes include clearing of land for agriculture and development, introduction of domestic livestock, introduction of exotic plants, and introduction of rats (Rattus spp.) and cats (Felis catus) (Thorsen et al. 2002, pp. 8-9).

Most of Nuku Hiva was originally covered by forest, with the exception of the drier northwestern plain where shrub savanna is predominant. Since colonization of Nuku Hiva, the native landscape has been cleared for agriculture and settlement. Fires have been used to clear land for agriculture and plantations (Manu 2009, unpaginated). In more recent times (between 1974 and 1989), all natural vegetation on a large area of the main plateau (de Toovii) on the island was cut down or burned to be converted into grassland for pasture, and 1,100 ha (2,718 ac) were planted with Caribbean pine (Pinus caribaea), an exotic tree species. By 2000, modern facilities, such as roads, an airport, and other buildings had been built (Villard et al. 2003, pp. 190, 195).

Suitable habitat for this species has also been modified and degraded by introduced domestic livestock and exotic plant species. Domestic livestock have become feral, and while cattle and horses are mostly controlled, feral goats (Capra hircus) and pigs (Sus scrofa) continue to be a major concern (Villard et al. 2003, p. 193). Goats are particularly destructive; they have caused devastation to natural habitats on several other islands (Sykes 1969, pp. 13-16; Parkes 1984, pp. 95-101; Thorsen et al. 2002, p. 9).

The Nuku Hiva goat population has been increasing since the 1970s, and both goats and pigs are found everywhere on the island (Villard et al. 2003, p. 195). Goats have the potential to damage and alter the vegetative composition of an area by overgrazing indigenous and endemic species to the point at which seedlings are consumed before they are able to mature to a height which is out of the reach of goats and, therefore, survive (Sykes 1969, p. 14; Parkes 1984, pp. 95, 96, 101; Villard et al. 2002, p. 189). Subsequently, exotic plant species are able to flourish and outcompete native species, which results in little or no regeneration of native trees (Sykes 1969, p. 15; Thorsen et al. 2002, p. 9). Large patches of natural forest have been destroyed by goats and pigs in areas where Marquesan imperial pigeons are found and there is poor natural forest regeneration (Villard et al. 2003, p. 193). Blanvillain and Thorsen (2003, pp. 382-383) found most of the ground covered by several introduced plant species, including guava, African basil (Ocimum gratissimum), and soft elephants foot (Elephantopus mollis). Overgrazing, combined with the introduction of exotic species, prohibits the tall trees that comprise the canopy layer of the forest from regenerating and from providing feeding and roosting sites needed by pigeons.

In addition, introduced rats on the island of Nuka Hiva inhibit regeneration of native trees because they consume the flowers, fruits, seeds, seedlings, leaves, buds, roots, and rhizomes (Thorsen et al. 2002, p. 9; Meyer and Butaud 2009, p. 1570), thus further contributing to the alteration of the vegetation composition. Thorsen et al. (2002, p. 9) noted that seed caches containing many seeds that are part of the Marquesan imperial pigeon's food supply were common.

Marquesan imperial pigeons are frugivorous birds and act as seed dispersal agents for those trees from which they feed and roost. Habitat loss, predation, or any other factor resulting in the decline of pigeons indirectly contributes to a decrease in seed dispersal, possibly contributing to low recruitment of the vital native tree species. Therefore, hunting may also contribute to the destruction and modification of habitat (See also Factor B).

The habitat in the Vaiviki Valley on the island of Ua Huka, where the pigeon was reintroduced, was classified as a protected area in 1997 (Thorsen et al. 2002, p. 13). There are no indications that ongoing habitat degradation from livestock grazing is occurring in this area.

In summary, the Marquesan imperial pigeon prefers to inhabit the canopy forest layer of mature forests and relies on the fruits of these trees as a food source. This habitat on Nuku Hiva has been destroyed, and continues to be destroyed by conversion of land for agriculture and development, overgrazing, and competition with exotic plant species. The species is currently restricted to seven small sites in the most remote areas of Nuku Hiva (Villard et al. 2003, p. 191). An intact canopy of native species is rare; in addition, the native understory and shrub layers are absent and composed mostly of browse-resistant species (Thorsen et al. 2002, p. 9). Poor natural forest regeneration is evident in areas where pigeons are found (Villard et al. 2003, p. 193). Overgrazing by goats and competition with exotic species remain a threat to the pigeon's habitat on Nuku Hiva; any additional loss of suitable habitat is likely to have a large impact on the distribution of this species. Since the largest population of pigeons is located on Nuka Hiva and impacts to the suitable habitat on this island are ongoing, we find that present or threatened destruction, modification, or curtailment of the habitat or range is a threat to the continued existence of the Marquesan imperial pigeon on Nuku Hiva. Since Ua Huka is classified as a protected area and there is no indication of ongoing habitat degradation from livestock grazing in this area, we find that present or threatened destruction, modification, or curtailment of the habitat or range are not threats to the continued existence of the Marquesan imperial pigeon on Ua Huka.

Two researchers found that hunting is the primary reason for the current restricted range of the species to remote areas of Nuku Hiva (Thorsen et al. 2002, p. 8; Villard et al. 2003, p. 193). By 1922, most of the modification of habitat by man had already occurred, yet Marquesan imperial pigeons were still abundant (Villard et al. 2003, p. 195). In 1922, 82 birds were killed during an expedition; Villard et al. (2003, p. 194) theorized that this represented a significant portion of the estimated several hundred birds present at that time. After these killings, the pigeon was reported as “not so abundant.” In 1944, many birds were reported on the northern coast of Nuku Hiva and hunters were known to bring back full bags of birds. In 1951, the population of pigeons appeared to be decreasing and, with the introduction of shotguns in the 1950s, the effect was amplified. During the construction of the airport from 1978 to 1979, workers were known to hunt for pigeons (Villard et al. 2003, pp. 193, 195). On Ua Huka, a local agreement now exists not to hunt pigeons (Thorsen et al. 2002, p. 13).

Bird hunting in the French Polynesia was banned in 1967; however, the law is rarely enforced and hunting still occurs (Thorsen et al. 2002, p. 10) on Nuku Hiva. Most Marquesan imperial pigeons that are killed are opportunistic kills by those hunting goats and pigs, but some intentionally target pigeons for sale to local inhabitants (Thorsen et al. 2002, p. 10). In an effort to reduce illegal hunting and engage the public in conservation of local endemic species, the Societed'Ornithologie de Polynesie (Manu), a conservation organization in French Polynesia, developed a public outreach and educational program for local schools about the importance of this species. However, poaching remains a potential threat to the remaining small population (BLI 2009c, unpaginated). To protect the remaining populations from hunting, an agreement by the inhabitants of Nuku Hiva to stop hunting pigeons or the appointment of a ranger to enforce current laws (Thorsen et al. 2002, p. 11).

An adult Marquesan imperial pigeon lays only one egg per year, suggesting this species is long lived (Villard et al. 2003, pp. 192, 195). Populations of species that are long-lived with low fecundity rates tend to be more affected by loss of breeding adults than those species with shorter lifespans and high fecundity. Therefore, an increase in adult mortality due to illegal hunting would likely have a substantial impact on the survival of this species. Furthermore, because pigeons are frugivorous and act as seed dispersal agents for those trees from which they feed and roost, further declines in pigeons may indirectly contribute to low recruitment of the vital native tree species.

In summary, hunting was likely a major contributing factor to the current restricted range and small population of Marquesan imperial pigeon. On the island of Ua Huka, because the species is in a protected area, there is a smaller human population compared to other Marquesan islands, and since there is no information indicating hunting is a threat to this species on the island of Ua Huka, we find that overutilization is not a threat to the continued existence of the pigeon. On the island of Nuku Hiva, although hunting of pigeons is illegal, the law is not enforced and poaching remains a potential threat. Because this species has a clutch size of one egg, poaching would have a substantial impact on the species' continued existence. Therefore, we find that overutilization is a threat to the continued existence of Marquesan imperial pigeon on the island of Nuku Hiva.

Avian diseases are a concern for species with restricted ranges and small populations, especially if the species is restricted to an island. Extensive human activity in previously undisturbed or isolated areas can lead to the introduction and spread of exotic diseases, some of which (e.g., West Nile virus) can negatively impact endemic bird populations (Neotropical News 2003, p. 1; Naugle et al. 2004, p. 704). The introduction and transmittal of an avian disease could result in the extinction of the Marquesan imperial pigeon (Blanvillian et al. 2007, unpaginated). Beadell et al. (2006, p. 2940) found the presence of Hawaii's avian malaria in reed-warblers on Nuku Hiva; however, there is no data on the effects of this malaria on the population of pigeons on the island. Although large and stable populations of wildlife species have adapted to natural levels of disease and predation within their historic ranges, any additive mortality to the Marquesan imperial pigeon population or a decrease in its fitness due to an increase in the incidence of disease or predation could adversely impact the species' overall viability (see Factor E). However, while these potential influences remain a concern for future management of the species, we are not aware of any information currently available that specifically indicates the occurrence of disease in the Marquesan imperial pigeon. No other diseases are known to affect the pigeons. In addition, the reintroduction of the pigeons to the island of Ua Huka reduces the likelihood of diseases causing extinction of the species.

Black rats were introduced to Nuku Hiva in 1915 and are now found everywhere pigeons are located on Nuku Hiva (Villard et al. 2003, pp. 193, 195). Rats may prey upon the eggs and nestlings of Marquesan Imperial pigeons, even if the nests are located in the tops of trees (Thorsen et al. 2002, p. 10). However, due to the large size of this species, adult pigeons may be able to chase away rats from their nests (Villard et al. 2003, p. 195). Furthermore, Thorsen et al. (2002, p. 10) observed juveniles and Villard et al. (2003, p. 195) noted a significant proportion of young pigeons, suggesting that black rats are not affecting breeding success. Due to the potential threat of black rats, pigeons were introduced to Ua Huka where black rats were not present. As an additional measure, poison bait stations were established around the wharf area of Ua Huka to prevent introduction of black rats (Thorsen et al. 2002, p. 17).

Cats have also been introduced to both the islands of Nuku Hiva and Ua Huka. While predation of adult and juvenile birds by cats is possible when pigeons are forced to feed on low shrubs, such as guava, due to destruction and absence of native species (See Factor A) (Thorsen et al. 2002, p. 10), we are not aware of any information currently available that specifically indicates that predation by cats is a threat to the survival of this species.

In summary, while avian diseases such as avian malaria in reed-warblers was found to be present on Nuku Hiva, no avian diseases are known to affect Marquesan imperial pigeons. Although predation has been indicated as a contributing factor to the decline of the species (Thorsen et al. 2002, pp. 9, 10; Blanvillain et al. 2007, unpaginated), we did not find information to suggest that predation is currently a threat to the survival of this species. Further, while black rats are found everywhere pigeons are found, the observation of a significant proportion of juveniles suggests that predation of pigeon's eggs and nestlings by black rats on Nuku Hiva is not a significant threat to pigeons. Cats are present on both islands, and there is potential for predation when pigeons are forced to feed on low shrubs, such as guava; however, there is no information to substantiate cat predation as a threat to the species' survival. Therefore, we find that disease and predation are not contributing threats to the continued existence of the pigeon throughout its range.

The Marquesan imperial pigeon is a protected species in French Polynesia; it is classified as a Category A species under Law Number 95-257. Article 16 of this law prohibits the collection and exportation of species listed under Category A. Under Article L411-1 of the French Environmental Code, the destruction or poaching of eggs or nests, mutilation, destruction, capture or poaching, intentional disturbance, the practice of taxidermy, transport, peddling, use, possession, offer for sale, or the sale or the purchase of non-domestic species in need of conservation is prohibited. The French Environmental Code also prohibits the destruction, alteration, or degradation of habitat for these species.

Hunting of this species is believed to be one of the main reasons for the species' decline (Thorsen et al. 2002, p. 10; Villard et al. 2003, p. 195). Hunting and destruction of all species of birds in French Polynesia was prohibited by a decree enacted in 1967 (Villard et al. 2003, p. 193). Furthermore, although restrictions on possession of firearms in Marquesas are in place, firearms are made available through visiting boats (Thorsen et al. 2002, p. 10). On Ua Huka, there is an agreement in force not to hunt pigeons (Thorsen et al. 2002, p. 13). Although this species is fully protected, and hunting has been banned, illegal hunting of the Marquesan Imperial pigeon still occurs (see Factor B) and remains a threat on Nuku Hiva.

The Marquesas Archipelago is designated as an Endemic Bird Area (EBA) (Manu 2009, unpaginated, BLI 2009c). EBAs are territories less than 50,000 km2 (19,300 mi2) where at least two bird species with restricted ranges are found together, and represent priority areas for biodiversity. Nord-Ouest de Nuku Hiva is 9,000 ha area designated as an Important Bird Area (IBA) (Manu 2009, unpaginated). Designation as an IBA constitutes recognition of the area as a critical site for conservation of birds. In addition, Nuku Hiva is designated as an Alliance for Zero Extinction (AZE) (Manu 2009, unpaginated). AZEs are considered areas that are in the most urgent need of conservation. Although Nuku Hiva and Ua Huka are designated as areas of importance to the conservation of birds, these designations only serve to identify areas of biodiversity and focus conservation efforts; there is no legal protection of these areas. There is one officially protected area on Ua Huka (Vaikivi), established in 1997, which is actively managed.

In summary, regulations exist to protect the species and its habitat. The threats that affect the species on each island are different. On the island of Ua Huka, also described under Factors A and B, destruction and modification of habitat are not known to threaten this species and illegal hunting is not occurring. This is likely because the protected area on Ua Huka is actively managed, the human population is less substantial, and there is a local agreement preventing hunting on this island. Furthermore, pigeons were reintroduced to Ua Huka due to the absence of threats to the species. Therefore, we find that the inadequacy of existing regulatory mechanisms is not applicable to Ua Huka. However, as described in Factors A and B, habitat destruction continues to threaten this species and illegal hunting continues to occur on the island of Nuku Hiva. Therefore, we find that the existing regulatory mechanisms are inadequate to ameliorate the current threats to the Marquesan imperial pigeon on the island of Nuku Hiva.

Introduced animal and plant species threaten the habitat and survival of the Marquesan imperial pigeon by inhibiting the growth of canopy tree species needed for nesting and roosting and creating competition for food sources.

As described under Factor A, the introduction of livestock, including cattle, horses, goats and pigs, has caused and continues to cause substantial changes in the forest composition, affecting the amount of suitable habitat available for pigeons. Horses are now under control and cattle were eradicated by hunters (Thorsen et al. 2002, p. 9; Villard et al. 2003, p. 193). However, goats, in particular, overgraze native species to a level at which seedlings are consumed before they mature to a height out of goats' reach (Sykes 1969, p. 14; Parkes 1984, pp 95, 96, 101; Villard et al. 2002, p. 189). Consequently, exotic plant species such as guava are able to proliferate, preventing regeneration of natural forest (Sykes 1969, p. 15; Thorsen et al. 2002, p. 9). To restore native forests, measures to control feral goats are needed. Local inhabitants hunt goats and pigs (Thorsen et al. 2002, p. 10); however, overgrazing continues to be a problem. Fenced enclosures would exclude any livestock and allow regeneration of native species (Thorsen et al. 2002, p. 11). In addition, introduced rats on the island of Nuka Hiva inhibit regeneration of native trees by consuming the flowers, fruits, seeds, seedlings, leaves, buds, roots, and rhizomes (Thorsen et al. 2002, p. 9; Meyer and Butaud 2009, p. 1570) of native tree species, further contributing to the alteration of forest composition. Introduced species are not known to threaten pigeons on Ua Huka.

Introduced rats on Nuku Hiva may also be a source of competition for food resources that would otherwise be available to pigeons. The diet for the Marquesan imperial pigeon consists of fruits from Ficus spp. and guava, foliage of S. saponaria, T. cattapa, and Misceltum spp., and the flowers of H. tiliaceus, C. manghas, and G. speciosa (Blanvillain and Thorsen 2003, p. 382). Rats are known to consume the flowers, fruits, and leaves of the same tree species, including guava, T. cattapa, Ficus spp., and S. saponaria (Thorsen et al. 2002, p. 9). The consumption of these fruits and foliage by rats may reduce the available food supply for this frugivorous bird. Furthermore, during periods of limited fruit availability, the pigeons may also compete with the white-capped fruit pigeon (Ptilinopus dupetitbouarsii), a wider ranging pigeon found in French Polynesia (including Nuku Hiva and Ua Huka), for food sources (Thorsen et al. 2002, p. 10). Abundance of fruit is critical to the breeding success of frugivorous birds. When food resources are limited, breeding output and fledgling and adult survival may also be affected (Thorsen et al. 2002, p. 10). This may be especially critical to the Marquesan imperial pigeon since it is a long-lived species with low fecundity. An increase in adult mortality due to decreased food availability would likely have a substantial impact on the breeding success and, ultimately, on the survival of this species.

Island populations have a higher risk of extinction than mainland populations. Ninety percent of bird species driven to extinction were island species (as cited in Frankham 1997, p. 311). Based on genetics alone, endemic island species are predicted to have higher extinction rates than nonendemic island populations (Frankham 2007, p. 321). Small, isolated populations may experience decreased demographic viability (population birth and death rates, immigration and emigration rates, and sex ratios), increased susceptibility of extinction from stochastic environmental factors (e.g., weather events, disease), and an increased threat of extinction from genetic isolation and subsequent inbreeding depression and genetic drift. As discussed above, there are two small extant populations of Marquesan imperial pigeons, one on Nuku Hiva and a reintroduced population on Ua Huka. Because the species now present on Ua Huka originated from the Nuku Hiva population, there is no genetic variation between the two populations. Furthermore, we have no indication that there is natural dispersion between the populations and, thus, no genetic interchange. The lack of genetic variation may lead to inbreeding and associated complications, including reduced fitness. Species with low fecundity, like the pigeon, are particularly vulnerable to inbreeding depression because they can withstand less decrease in survival before population growth rates are affected and they recover more slowly (Lacy 2000, p. 47). In addition, genetic threats associated with small populations will exacerbate other threats to the species and likely increase the risk of extinction of island populations (Frankham 1997, p. 321).

In summary, introduced livestock and rats are altering the native forests of Nuku Hiva on which the Marquesan imperial pigeon depends. Native tree species are unable to regenerate due to overgrazing by goats; allowing graze-resistant exotic plant species to proliferate. Through consumption of fruits, flowers, seeds, and foliage, rats contribute to the alteration of the native forest and also serve as a source of competition for food. On Nuku Hiva and Ua Huka, the white-capped fruit pigeon may also serve as a source of competition for food during periods of limited fruit availability. When food resources are limited, breeding output and fledgling and adult survival may also be affected, which may be particularly critical for a species with low fecundity.

Both pigeon populations are subject to detrimental effects typical of small island populations. Decreased demographic viability, environmental factors, and genetic isolation may lead to inbreeding depression and associated complications, including reduced fitness. Species with low fecundity are particularly vulnerable because they can withstand less decrease in survival and recover more slowly. These genetic threats will exacerbate other threats to the species and likely increase the risk of extinction. Therefore, we find that other natural or manmade factors are threats to the continued existence of the Marquesan imperial pigeon on both Nuku Hiva and Ua Huka.

We have carefully assessed the best available scientific and commercial information regarding the past, present, and potential future threats faced by the Marquesan Imperial Pigeon. The species is currently at risk on Nuku Hiva due to ongoing threats of habitat destruction and modification (Factor A); illegal hunting (Factor B); and demographic, genetic, and environmental stochastic events associated with the species' low population, restricted range, and low fecundity (Factor E). Furthermore, we have determined that the existing regulatory mechanisms (Factor D) are not adequate to ameliorate the current threats to the species. In addition, we have determined that Factors A, B, C, and D are not factors affecting the continued existence of the species on Ua Huka. However, we have determined that the Ua Huka population is at risk due to demographic, genetic, and environmental stochastic events associates with the species' low population, restricted range, and low fecundity (Factor E).

Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Based on the magnitude of the ongoing threats to the Marquesan Imperial Pigeon throughout its entire range, as described above, we determine that this species is in danger of extinction throughout all of its range. Therefore, on the basis of the best available scientific and commercial information, we propose to list the Marquesan Imperial Pigeon as an endangered species throughout all of its range. Because we find that the Marquesan Imperial Pigeon is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range.

The slender-billed curlew (Numenius tenuirostris) is a species of wading bird, one of the six curlews of the same genus within the family Scolopacidae. It is medium-sized and mottled brown-grey in color. It has white underparts marked with black heart-shaped spots on the flanks. It has a decurved bill that tapers to a distinctly fine tip. It has pale, barred inner primary feathers and its secondary feathers contrast markedly with its brown-black primary feathers. Its tail is virtually unmarked, with a few dark bars on a white background (BLI 2006, p. 1).

Though this species was regarded as common in the 19th century, it declined precipitously in the 20th century (Hirschfeld 2008, p. 139). The species is believed to breed in Northwest Siberia (though the only two confirmed cases of breeding were in 1914 and 1924). The species migrates 5,000 - 6,000 km (3,100 - 3,700 mi) towards the west-southwest, passing north of the Caspian and Black Seas through southeast and southern Europe to its overwintering grounds in southern Europe and northwest Africa (Gretton 1996, p. 6; Chandrinos 2000, p. 1; Hirschfeld 2008, p. 139). There are also records of wintering birds in the Middle East, but verification of a second wintering area has not been confirmed (Gretton 1996, p. 6).

The species has been sighted in Eastern Europe, including in Russia, Kazakhstan, Ukraine, Bulgaria, Hungary, Romania, and Yugoslavia; in Southern Europe, including Greece, Italy, and Turkey; and in North Africa, including Algeria, Morocco, and Tunisia (BLI 2006, p. 2). It has also been reported in Slovenia, Uzbekistan, and Turkmenistan (BLI 2006, p. 2).

During the second half of the 19th century and up until 1920, the slender-billed curlew was considered an abundant bird. Its population density frequently exceeded that of two relative species: The Eurasian curlew (Nemenius arquata) and the whimbrel (Numenius phaeopus) (Chandrinos 2000, p. 1). Flocks of slender-billed curlew over 100 birds in size were recorded in Morocco as late as the 1960s and 1970 (Gretton 1996, p. 6). The population was estimated to be between 80 and 400 birds in 1990, but this estimate was later adjusted to 50 to 270 birds (Gretton 1996, p. 6). In recent years, records consist of sightings of 1 to 3 birds, with one exception in 1995, when a flock of 19 birds was sighted in Italy (BLI 2006, p. 3; Hirschfeld 2008, p. 139). The most recent population estimate is fewer than 50 birds (BLI 2006, p. 3; Hirschfeld 2008, p. 139). Surveys have been conducted in recent years (1987 through 2000) in various parts of the species' historic breeding range, which covered several thousand kilometers of habitat. No slender-billed curlews were found during these survey efforts (Gretton et al. 2002, p. 341; CMS update 2004, p. 2). This species has not been seen at its last regular wintering ground in Morocco since 1995 (Gretton 1996, p. 6; Chandrinos 2000, p. 2), and the last confirmed sighting anywhere in the world was in 1999 in Greece (Chandrinos 2000, p. 2).

There are only two confirmed accounts of slender-billed curlew nests. These accounts were both in the early 1900s and are described in four papers by V.E. Ushakav that were later translated. These nests were both located in a wet marsh at Krasnoperovaya, south of Tara, Siberia. The habitat was described as open marsh containing some birch (Betula) and marshy areas adjacent to pine (Pinus) forests. The nests were located in the middle of the marsh on grassy hillocks or on small dry islands. Based on these early accounts, complete clutch sizes were found to be four eggs per nest between May 11 and June 1, 1900. The young fledged in early July, and family groups of five to six birds were seen wandering around the marsh in early August. Overall, slender-billed curlews were seen in their nesting grounds in Siberia from mid-May until early August (Gretton et al. 2002, pp. 335-336).

During seasonal migrations and in the winter months, the species is known to use a variety of habitats, including steppe grassland, saltmarsh, fishponds, brackish lagoons, saltpans, tidal mudflats, semidesert, brackish wetlands, and sandy farmland near lagoons (Hirschfeld 2008, p. 139).

There is little information on the diet of this species. The birds at Merja Zerga (wintering grounds in Morocco) have been recorded eating earthworms and tipulid larvae. Elsewhere, the species has been recorded eating other insects (grasshoppers, earwigs, and beetles), mollusks, and crustaceans (Gretton 1996, p. 7).

The slender-billed curlew is classified as critically endangered by the IUCN and is listed under CITES Appendix I. Live wild specimens, and parts and products of wild specimens of this species listed under Appendix I of CITES, are prohibited from being traded commercially internationally. The species is also listed on Annex I of the European Union (EU) Wild Bird Directive (Europa Environment 2009, unpaginated) and Appendix I of the Convention on the Conservation of Migratory Species of Wild Animals (also known as CMS or Bonn Convention), which encourages international cooperation for the conservation of species.

Krasnoperovaya, near Tara, where Ushakav made his observation in the early 1900s, is located towards the northern limits of the forest-steppe zone, with parts of the marsh having some characteristics of the taiga, such as the presence of conifers. Surveyors noted that in 1990 and 1994 there were still substantial areas of marsh at Krasnopervaya that were quite similar to that described by Ushakov, with possibly more trees being present than in the early 1900s. By 1997, the area had changed dramatically, with the higher grassland areas next to marsh under cultivation, and the marsh itself completely covered with young forest (Boere & Yurlov, as reported in Gretton et al. 2002, p. 342).

Threats on the breeding grounds are largely unknown due to the lack of information on this species' nesting localities. Within its potential breeding range, the habitat has been subject to some modification, the taiga is little modified, the forest-steppe has been partially cultivated, and much of the steppe has been modified by intensive agriculture. The impacts to the species from these types of modifications would vary depending on which of these habitat types are used for nesting (Gretton 1996, p. 8).

Habitat loss in the wintering grounds is of unknown importance; however this species has not been seen at the last regular wintering ground in Morocco since 1995 (BLI 2004, unpaginated). Threats to potential wintering habitat are summarized in the 1996 version of the International Action Plan for the Slender-billed Curlew (Gretton 1996, pp. 8-9). Parts of the wintering grounds (e.g., the Rharb plain of northwest Morocco) have undergone extensive drainage of wetlands. In Tunisia also, temporary freshwater marshes (e.g. Kairouan) have been seriously damaged by construction of dams for flood control and the provision of water supplies to these marshes. In other parts of North Africa, other types of wetland have been less affected, including coastal sites and inland sites, such as temporary brackish wetlands. In the Middle East, the permanent marshes in the central (Qurnah) area were reduced to 40 percent of their 1985 extent by 1992, from 1,133,000 ha to 457,000 ha (2,800,000 ac to 1,129,000 ac), with further loss expected (Gretton 1996, p. 8).

In conclusion, this species annually migrates 5,000 to 6,500 km (3,100 to 4,000 mi) between its presumed breeding grounds in Siberia to its wintering grounds in Morocco, passing though many European countries. Many of the areas along the migratory route, such as steppe areas in central and eastern Europe and the area around the Aral Sea, have experienced substantial anthropogenic impacts. There has also been a loss of wetlands in the Palearctic. However, since the species uses a wide variety of habitats along its migratory route and in its wintering grounds, it is unlikely that habitat loss in these areas has played a substantial part in the decline of this species, especially since many other wading birds using these areas have not shown such a decline (Gretton 1996, pp. 7-8). The situation is hard to assess, because Merja Zerga remains the only known regular wintering site for the species. Loss of breeding ground habitat would better explain such a drastic population decline, since the species is thought to use a more specialized habitat for breeding. Belik (1994, p. 37) argued that the species may nest primarily in steppe areas. If this is the case, then the species population decline would be better explained by the extensive loss of this habitat type, particularly in Kazakhstan (Gretton 1996, p. 7). Therefore, we find that present or threatened destruction, modification, or curtailment of the habitat or range threaten the continued existence of the slender-billed curlew throughout its range.

Large-scale hunting of waders was known to occur across most of Europe during the early 20th century, with curlews being preferred (Gretton 1996, p. 8). This species has a reputation for being “tame,” meaning that it does not show fear of humans, and was an easy target during a hunt. A significant number of slender-billed curlew specimens, notably from Hungary and Italy, date from this time (Gretton 1991, pp. 37-38). Between 1962 and 1987, 17 slender-billed curlew were known to have been shot (13 of these in Italy and former Yugoslovia) (Gretton 1996, p. 9). Additionally, as late as 1980, one guide described the taking of “a great number” from a flock of about 500 in Morocco (Gretton 1991, p. 38).

In summary, hunting has been indicated as a factor in the range-wide decline of this species during the first half of the 20th century. Both legal and illegal hunting is likely to still occur throughout the range of this species. Based on the very small population size and the long-range migratory habits of this species, loss of individual birds is expected to have a significant impact on the remaining population. Therefore, we find that overutilization is a threat to the continued existence of the slender-billed curlew throughout its range.

We are unaware of any threats due to disease or predation for this subspecies. As a result, we are not considering disease or predation to be contributing threats to the continued existence of the slender-billed curlew throughout its range.

As stated above, the slender-billed curlew is listed on Annex I of the European Union (EU) Wild Bird Directive, which includes protection for habitat, bans for activities that directly threaten wild birds, and a network of protected areas for wild birds found within the EU (Europa Environment 2009, unpaginated), and Appendix I of the CMS or Bonn Convention, which includes strictly protected fauna species. This convention encourages international cooperation for the conservation of species.

Inclusion in Appendix I of CMS means that member states work toward strict protection, conserving and restoring the habitat of the species, controlling other reasons for endangerment, and mitigating obstacles to migration, whereas Appendix II encourages multistate and regional cooperation for conservation (CMS 2009, unpaginated). A Memorandum of Understanding (MOU) was developed under CMS auspices and became effective on September 10, 1994.

The MOU area covers 30 Range States in Southern and Eastern Europe, Northern Africa, and the Middle East. As of December 31, 2000, the MOU had been signed by 18 Range States and three cooperating organizations. In early 1996, a status report was produced and distributed by the CMS Secretariat. An International Action Plan for the Conservation of the Slender-billed Curlew was prepared by BLI in 1996, which was later approved by the European Commission and endorsed by the Fifth Meeting of the CMS. The Action Plan is the main tool for conservation activities for the species under the MOU. Conservation priorities include: effective legal protection for the slender-billed curlew and its look-alikes; locating its breeding grounds and key wintering and passage sites; appropriate protection and management of its habitat; and increasing the awareness of politicians in the affected countries (CMS 2009, unpaginated).

The Convention on Migratory Species website (CMS 2004) includes an update on the progress being made under the Slender-billed curlew MOU. It states that conservation activities have already been undertaken or are under way in Albania, Bulgaria, Greece, Italy, Morocco, the Russian Federation, Ukraine, and Iran (CMS 2009, unpaginated). However, no details of these activities are provided. The website also notes that population size may have stabilized at a low level (CMS 2009, unpaginated), although no data or references are provided to support this claim.

Based on the lack of information available on this species (location of breeding and wintering areas and its current population status), it is difficult to assess the adequacy of existing regulatory mechanisms in preventing the extinction of this species. Although progress is under way in various countries to better protect the habitat, prevent loss of individuals from hunting and misidentification, and educate the public about the precarious status of this species, not all 30 Range States of this species have signed the MOU (CMS 2009, unpaginated). Further, Gretton et al. 2002 (p. 344) reported that the combined efforts devoted to research and conservation of this species (from 1997-2002) had limited direct impact on this species' chance of survival. Therefore, we find that the inadequacy of existing regulatory mechanisms is a threat to the continued existence of the slender-billed curlew throughout its range.

The status of the slender-billed curlew is extremely precarious. As stated above, the most recent population estimate for this species is fewer than 50 birds. The last confirmed sighting of a slender-billed curlew was of a single bird in 1999. Information on the nesting habits and locality of the breeding grounds for this species is extremely limited, and despite survey efforts over the last 20 years, slender-billed curlews have not been located on the only known historic nesting area of this species in the steppes of Siberia.

In smaller populations, additional threats to persistence and stability often surface, resulting from the stochastic nature of these events, which can lead to instability of population dynamics. Among these factors are rates of mate acquisition, breeding success, transmission of genetic material, dispersal, survival, and sex determination. Further, fluctuations in rates as described above can couple with reduction in growth rate to act synergistically (Lacy 2000, pp. 39-40).

Due to the distance of annual migration, the geographic spread of the range, and the limited numbers of birds, the slender-billed curlew is likely vulnerable to one or more threats associated with small population size. Early records of this species often referred to large flocks on migration and in winter. Based on what we know of other similar migratory bird species, it is likely that the experience of older birds was important in guiding such flocks along the migration route. As slender-billed curlew numbers declined, individuals would be more likely to join flocks of other species, notably the Eurasian curlew. The chances of slender-billed curlews meeting each other on the breeding grounds would become increasingly low (as was described for the Eskimo curlew by Bodsworth in 1954). The smaller the population, the less likely it is that this species would be able to locate another slender-billed curlew and successfully reproduce. Since this species has not been recorded on the only known historic breeding grounds for a number of years (Gretton 1996, p. 6), it is difficult to assess whether a breakdown of social behavior patterns has already occurred.

In summary, breakdown of social behavior patterns is increasingly likely to occur in addition to the general threats posed by small population size such as increased susceptibility to demographic, environmental, and genetic stochasticity, as this species' population levels decline. Because so few individuals have been found in recent years, it is difficult to assess whether the breakdown of social behavior patterns has already occurred. However, given the species' low numbers, this and other threats of small population size could already be occurring. Therefore, we find that demographic, genetic, and environmental stochastic events are threats to the continued existence of the slender-billed curlew throughout its range.

We have carefully assessed the best available scientific and commercial information regarding the past, present, and potential future threats faced by the slender-billed curlew. The species is currently at risk throughout all of its range due to ongoing threats of habitat destruction and modification (Factor A); overutilization for commercial, recreational, scientific, or educational purposes in the form of hunting (Factor B); and threats associated with small population size (Factor E).

Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Based on the magnitude of the ongoing threats to the slender-billed curlew throughout its entire range, as described above, we determine that this species is in danger of extinction throughout all of its range. Therefore, on the basis of the best available scientific and commercial information, we propose to list the slender-billed curlew as an endangered species throughout all of its range. Because we find that the slender-billed curlew is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and foreign governments, private agencies and interest groups, and individuals.

Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is being designated. However, given that the Cantabrian capercaillie, Marquesan Imperial Pigeon, Eiao Polynesian warbler, greater adjutant, Jerdon's courser, and slender-billed curlew are not native to the United States, we are not proposing critical habitat for these species under section 4 of the Act.

Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered and threatened species and to provide assistance for such programs in the form of personnel and the training of personnel.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. As such, these prohibitions would be applicable to the Cantabrian capercaillie, Marquesan Imperial Pigeon, Eiao Polynesian warbler, greater adjutant, Jerdon's courser, and slender-billed curlew. These prohibitions, under 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (take includes: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to engage in any such conduct) any endangered wildlife species within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22, for endangered species, and 17.32 for threatened species. With regard to endangered wildlife, a permit may be issued for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

In accordance with our joint policy with National Marine Fisheries Service, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate independent specialists regarding this proposed rule. The purpose of peer review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register. We will invite these peer reviewers to comment during the public comment period on our specific assumptions and conclusions regarding the proposal to list the species listed in this proposed rule. We will consider all comments and information we receive during the comment period on this proposed rule during our preparation of a final determination. Accordingly, our final decision may differ from this proposal.

The Act provides for one or more public hearings on this proposal, if we receive any requests for hearings. We must receive your request for a public hearing within 45 days after the date of this Federal Register publication (see DATES). Such requests must be made in writing and be addressed to the Chief of the Branch of Listing at the address shown in the FOR FURTHER INFORMATION CONTACT section. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the first hearing.

This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under 44 U.S.C. 3501 et seq. The regulation will not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations adopted under section 4(a) of the Act. A notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

We are required by Executive Orders 12866 and 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

A complete list of all references cited in this proposed rule is available upon request (see FOR FURTHER INFORMATION CONTACT section).

The primary authors of this proposed rule are staff members of the Branch of Listing, Endangered Species, U.S. Fish and Wildlife Service (see ADDRESSES section).

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The Cook's petrel (Pterodroma cookii) is a small, grey and white gadfly petrel that is endemic to the New Zealand archipelago (del Hoyo et al. 1992, p. 11; Rayner et al. 2007b, p. 59; Birdlife International (BLI) 2009, unpaginated). Its darker grey wings show an “M” in flight. It is distinguished from other petrels by a whiter underwing (BLI 2009, unpaginated). The species was first taxonomically described by Gray in 1843 (Sibley and Monroe 1990, p. 322).

The New Zealand archipelago comprises two main islands, the North and South islands, and numerous smaller islands. The total land area of the archipelago covers 103,363 square miles (mi2) (267,710 square kilometers (km2)) (CIA 2009, unpaginated). Birds migrate to the east Pacific Ocean, mainly between 34 degrees south (°S) and 30 degrees north (°N) (Heather and Robertson 1997, as cited in BLI 2009, unpaginated).

The species' diet consists primarily of cephalopods, fish, crustaceans, and bioluminescent tunicates that can be hunted at night (Imber 1996, p. 189). It breeds in burrows on forested ridges and steep slopes. Ideal breeding habitat is unmodified forests close to ridge tops with a low and open canopy and many large stems (Marchant and Higgins 1990, as cited in BLI 2009, unpaginated; Rayner et al. 2007b, p. 59; Rayner et al. 2007c, p. 243; Rayner et al. 2007, as cited in BLI 2009). Historically, Cook's petrels were harvested in large numbers as a food source by native Moriori (Oliver 1955, p. 10).

Although the Cook's petrel was once considered a dominant species on these New Zealand islands, the species' breeding and nesting activities are now restricted to islands at the northern and southern limits of its former breeding range, including Great Barrier (Aotea), Little Barrier (Hauturu), and Codfish (Whenua Hou) islands (del Hoyo et al. 1992, p. 15).

BLI (2009, unpaginated) estimates the range of the Cook's petrel to be 124 mi2 (320 km2). However, BLI (2000, pp. 22, 27) defines “range” as the “Extent of Occurrence, the area contained within the shortest continuous imaginary boundary which can be drawn to encompass all the known, inferred, or projected sites of present occurrence of a species, excluding cases of vagrancy.” Therefore, this reported range includes a large area of nonbreeding habitat (i.e., the sea).

The population of the Cook's petrel on Little Barrier Island was thought to be about 50,000 pairs (BLI 2007, unpaginated). Using GIS (Geographic Information System) technology, Rayner et al. (2007c, pp. 241-242) and Rayner (2008, in litt.) determined that the population is approximately 286,000 pairs. The population on Codfish Island is approximately 5,000 breeding pairs (Rayner 2008, in litt.). In 2006, the Great Barrier Island population was considered to be in danger of extirpation because only four nest burrows had been located in recent years, and it was estimated that fewer than 20 pairs continued to breed on the island. However, the populations on Little Barrier and Codfish islands are increasing following predator eradications (Rayner 2008, in litt.; BLI 2009, unpaginated). The minimum world population for Cook's petrel is estimated to be approximately 1,300,000 individuals, with an increasing population trend (Rayner et al. 2007c, p. 245; Rayner 2008, in litt.; BLI 2009, unpaginated).

On November 28, 1980, we received a petition (1980 petition) from Dr. Warren B. King, Chairman of the International Council for Bird Preservation (ICBP), to add 60 foreign bird species to the List of Endangered and Threatened Wildlife (50 CFR 17.11(h)), including Cook's petrel. Two of the foreign species identified in the petition were already listed under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.); therefore, in response to the 1980 petition, we published a substantial 90-day finding on May 12, 1981 (46 FR 26464), for 58 foreign species and initiated a status review. On January 20, 1984 (49 FR 2485), we published a 12-month finding within an annual review on pending petitions and description of progress on all pending petition findings. In that notice, we found that all 58 foreign bird species from the 1980 petition were warranted but precluded by higher priority listing actions. On May 10, 1985, we published the first annual notice (50 FR 19761) in which we continued to find that listing all 58 foreign bird species from the 1980 petition was warranted but precluded. We published additional annual notices on the 58 species included in the 1980 petition on January 9, 1986 (51 FR 996), July 7, 1988 (53 FR 25511), December 29, 1988 (53 FR 52746), April 25, 1990 (55 FR 17475), November 21, 1991 (56 FR 58664), and May 21, 2004 (69 FR 29354).

On May 6, 1991, we received a petition (1991 petition) from ICBP to add an additional 53 species of foreign birds to the List of Endangered and Threatened Wildlife. The 1991 petition also confirmed the 1980 petition's request to add Cook's petrel to the List of Endangered and Threatened Wildlife.

Per the Service's listing priority guidelines (September 21, 1983; 48 FR 43098), in our April 23, 2007, Annual Notice on Resubmitted Petition Findings for Foreign Species (72 FR 20184), we determined that listing six seabird species of the family Procellariidae, including Cook's petrel, was warranted. In selecting these six species from the list of warranted-but-precluded species, we took into consideration the magnitude and immediacy of the threats to the species, consistent with the Service's listing priority guidelines.

On December 17, 2007 (72 FR 71298), we published in the Federal Register a proposal to list the Chatham petrel, Fiji petrel, and the magenta petrel as endangered under the Act, and the Cook's petrel, Galapagos petrel, and the Heinroth's shearwater as threatened under the Act. We implemented the Service's peer review process and opened a 60-day comment period to solicit scientific and commercial information on the species from all interested parties following publication of the proposed rule.

On December 30, 2008, the Service received a 60-day notice of intent to sue from the Center for Biological Diversity (CBD) over violations of section 4 of the Act and the Administrative Procedure Act (APA) for the Service's failure to issue a final determination regarding the listing of these six foreign birds. Under a settlement agreement approved by the U.S. District Court for the Northern District of California on June 15, 2009 (CBD v. Salazar, 09-cv-02578-CRB), the Service must submit to the Federal Register final determinations on the proposed listings of the Chatham petrel, Fiji petrel, and magenta petrel by September 30, 2009, and final determinations on the proposed listings of the Cook's petrel, Galapagos petrel, and Heinroth's shearwater by December 29, 2009.

We listed the Chatham petrel, Fiji petrel, and magenta petrel as endangered in a final rule published on September 14, 2009 (74 FR 46914). We are listing the Galapagos petrel and Heinroth's shearwater in a final rule published in the Rules and Regulations section of today's Federal Register. This document addresses only the Cook's petrel.

In the proposed rule published on December 17, 2007 (72 FR 71298), we requested that all interested parties submit information that might contribute to development of a final rule. We received nine comments addressing the proposed listing of the six Procellariid species: six from members of the public, one from an international conservation organization, one from the U.S. National Marine Fisheries Service (NMFS), and one from the New Zealand Department of Conservation (NZDOC). In all, four commenters supported the proposed listings. Five commenters provided information but did not express support or opposition to the proposed listings. We address the comments we received below.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from 14 knowledgeable individuals with scientific expertise that included familiarity with the six Procellariid species, the geographic region in which the six species occur, and conservation biology principles. We received a response from six of the peer reviewers from whom we requested comments. The peer reviewers generally agreed that the description of the biology and habitat for each species was accurate and based on the best available information. New or additional information on the current population numbers for the Cook's petrel and threats to the species was provided and incorporated into this determination as appropriate (as indicated in the citations by “in litt.”).

Comment 1: Provide the taxonomic list(s) of birds used to identify the six species.

Our Response: We have added information on taxonomy of the Cook's petrel to this determination.

Comment 2: One peer reviewer disagreed with our conclusion in the proposed rule that there was a likelihood of extinction for Cook's petrel within the foreseeable future. The peer reviewer provided us with new information on the population levels and threats to this species.

Our Response: Based on this new information (which is discussed above in the Background section of this document), we have reexamined our proposal to list the Cook's petrel (Pterodroma cookii) as a threatened species, and we are withdrawing our proposal to list this species under the Act. We concur with the peer reviewer and do not believe this species is likely to become an endangered species within the foreseeable future throughout all, or a significant portion, of its range.

Comment 3: Listing under the Act provides substantial benefits to foreign species, such as drawing attention to their needs and providing much-needed funding and expertise to address the significant threats they face.

Our Response: We agree that listing a foreign species under the Act provides benefits to the species in the form of conservation measures, such as recognition, requirements for Federal protection, and prohibitions against certain practices. However, we did not find any threats of such magnitude to warrant listing of this species. In addition, we found evidence of active support for the conservation of this species, which has contributed to the increasing population.

Comment 4: We would encourage the U.S. Fish and Wildlife Service to carefully consider how listing these species under the Act will benefit their conservation. Would listing under the Act prompt U.S.-based actions that the species would otherwise not receive?

Our Response: As part of the conservation measures provided to foreign species listed under the Act, recognition through listing results in public awareness and encourages and results in conservation actions by Federal and State governments, private agencies and groups, and individuals. In addition, section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered and threatened species and to provide assistance for such programs in the form of personnel and the training of personnel.

Comment 5: The general statement that the “long-line fishery...is the single greatest threat to all seabirds” erroneously indicates long-line fishing as a threat to all seabirds. The main species of seabirds killed in long-line fisheries are albatrosses and other species of petrels (not Pterodroma species). The characteristics of a petrel species vulnerable to long-line fishing (seabird that is aggressive and good at seizing prey, or baited hooks, at the water's surface, or is a proficient diver) do not describe the five Pterodroma species or the Heinroth's shearwater that are proposed for listing under the Act. Fisheries by catch has not been identified as a key threat for any of these species; thus it is inaccurate to characterize long-line fishing as a threat to these species or to all seabird species.

Our Response: We received several comments disputing our statement that long-line fisheries threaten all seabirds and Cook's petrel, Galapagos petrel, and the Heinroth's shearwater in particular, and we have amended this determination for the Cook's petrel accordingly (see the Summary of Factors Affecting the Cook's Petrel section of this document).

Comment 6: The serious threats to the species are impacts from extremely small populations, limited breeding locations or foraging ranges, loss and degradation of nesting habitat, invasive alien species, introduced predators, and hunting.

Our Response: Although this may be true of the other Procellariid species included in the 2007 proposed rule, we are not aware of any information that indicates that the Cook's petrel is currently threatened by hunting or over collection in New Zealand.

Comment 7: The primary threats to these species are predation by introduced predators and risk at breeding colonies.

Our Response: Although this may be true of the other Procellariid species included in the 2007 proposed rule, we are not aware of any information that indicates that the Cook's petrel is currently threatened by nonnative predators.

Section 4 of the Act, and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. The five factors are: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.

Rayner (2008, in litt.) suggested a revision of the conservation status of this species, under IUCN criteria, from endangered to vulnerable based on the refined population numbers mentioned above and discussed below. The IUCN has recently reclassified Cook's petrel from “Endangered” to “Vulnerable” based on an increasing population trend and habitat (BLI 2009, unpaginated).

The range of this species changes intra-annually based on an established breeding cycle. During the breeding season, which appears to vary by population (Taylor 2000, p. 135), birds return to colonies to breed and nest. During the nonbreeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of: (1) The species' breeding habitat and range, and (2) the species' nonbreeding habitat and range.

The Cook's petrel breeds on Little Barrier and Great Barrier islands in the Hauraki Gulf, northeast of New Zealand's North Island, and Codfish Island, west of Stewart Island in southern New Zealand. The species breeds on steep slopes near ridge tops at 984 feet (300 meters) above sea level or higher and prefers unmodified forest habitat with low, open canopies (Rayner et al. 2007b, pp. 65-66). Fire is unlikely to be a threat to this species' breeding habitat because Cook's petrels primarily breed in damp forests (Imber 1985a, as cited in Taylor 2000, p. 135). Breeding burrows are usually long and deep among tree roots and are not easily collapsed, so trampling by introduced species is not likely to be a threat to Cook's petrel nest sites (Taylor 2000, p. 135).

According to the best available information, a large amount of suitable habitat is available to the Cook's petrel on the three islands where it breeds (Rayner et al. 2007b, p. 59; Rayner 2008, in litt.). Of these islands, the largest, the Great Barrier Island covering 110 mi2 (285 km2), is the only island that has a permanent human population. This small population of 1,100 people is located primarily within coastal settlements, away from the species' breeding habitat. Inhabitants mostly make a living from farming and the tourist industry, but the island is not considered a major tourist destination due to its relative remoteness (Wikipedia 2007a, unpaginated). There is no indication that the Cook's petrel's breeding habitat on Great Barrier Island is threatened with human-induced habitat destruction or modification.

The other two islands, Little Barrier and Codfish islands, covering 11 and 9 mi2 (28 km2 and 23 km2), respectively, are wildlife sanctuaries with restricted access. These islands are not inhabited by humans aside from rotational conservation staff (Wikipedia 2007a and b, unpaginated). Therefore, the Cook's petrel's breeding habitat on these islands is not threatened with human-induced habitat destruction or modification.

In 2004, the Maungatautari Ecological Island Trust prepared “An Ecological Restoration Plan for Maungatautari,” which included restoration of habitat and the removal of threats to attract or reintroduce Cook's petrel, as well as a number of other native species, to New Zealand's North Island (McQueen 2004, pp. 13-22). In 2007, the Trust finished construction of a 29-mi (47-km) pest-proof fence around the forest edge of Maungatautari [Mountain] to allow restoration of degraded habitat and reintroduction of native plants and animals that were historically known from this area but no longer occur there (Maungatautari Ecological Island Trust N.D., unpaginated). Reintroduction of Cook's petrel is suggested by McQueen (2004, p. 50) following eradication of all pest species within the fenced area. There is no information to indicate that reintroduction efforts have begun for this species at Maungatautari. However, if successful, this effort would expand the current breeding range of the species.

During the nonbreeding season, the Cook's petrel migrates to the east Pacific Ocean, primarily between 34 °S and 30 °N (Heather and Robertson 1997, as cited in BLI 2009, unpaginated). We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range.

We are not aware of any scientific or commercial information that indicates that the present or threatened destruction, modification, or curtailment of the Cook's petrel's habitat or range poses a threat to this species. As a result, we do not consider the destruction, modification, or curtailment of the species' habitat or range to be a contributing factor to the continued existence of the Cook's petrel.

We are unaware of any scientific or commercial information that indicates that overutilization of the Cook's petrel for commercial, recreational, scientific, or education purposes poses a threat to this species. As a result, we do not consider the destruction, modification, or curtailment of the species' habitat or range to be a contributing factor to the continued existence of the Cook's petrel.

Although several diseases have been documented in other species of petrels, disease has not been documented in the Cook's petrel. Therefore, we have no other information to indicate that disease is a threat to Cook's petrel.

The introduction of predatory species by European settlers is believed to have contributed to the historical population decline in this species. The best available information indicates that the Codfish Island population declined due to predation by rats and the weka, a bird native to the North and South islands and introduced to Codfish Island (Marchant and Higgins 1990, as cited in BLI 2009, unpaginated). In 1934, there were an estimated 20,000 breeding pairs on Codfish Island, but weka predation reduced the population to 100 pairs by 1984 (Bartle et al. 1993, as cited in Taylor 2000, p. 135). On Little Barrier and Great Barrier islands, introduced feral cats and the Pacific rat reduced Cook's petrel population numbers. However, a Pacific rat eradication on Little Barrier Island in 2004 led to a tenfold increase in breeding success of Cook's petrel (Rayner et al. 2007a, p. 20862; Rayner 2008, in litt.). The black rat (Rattus rattus) also contributed to the decline on Great Barrier Island (Heather and Robertson 1997, Marchant and Higgins 1990, as cited in BLI 2009, unpaginated; Taylor 2000, p. 135).

Due to extensive predator eradication programs implemented by NZDOC, by 1980, feral cats had been eradicated from Little Barrier Island. By 1985, weka had been eradicated from Codfish Island (Taylor 2000, p. 135). Rats had been successfully eradicated from Codfish Island by 1998, and from Little Barrier Island by 2006 (NZDOC 2006a, unpaginated).

The NZDOC manages Little Barrier Island under the New Zealand Conservation Act of 1987 as a nature reserve for many of New Zealand's most threatened species as well as other native animals and plants (Little Barrier Island Supporters Trust 2007, unpaginated). Access to the island is restricted by permit for scientific or conservation purposes only, and visitor numbers and movements are strictly regulated. Resident NZDOC rangers are responsible for day-to-day management and for coordinating research activities and volunteer working groups (Little Barrier Island Supporters Trust 2007, unpaginated). While there is an ongoing risk that predators, such as rats or cats, may be inadvertently reintroduced to the island by boats transporting conservation and research groups to the island, we believe the risk of these predators becoming reestablished on the island is quite low because the NZDOC monitors and manages the island intensively to maintain the island as a predator-free habitat. In 2006, Cook's petrels were reported to be breeding in record numbers since rats were eradicated on Little Barrier Island, and 86 percent of eggs in a monitored area hatched with all chicks fledged or about to fledge (NZDOC News 2006, unpaginated).

The NZDOC also manages the 3,459-acre (1,400-hectare) Codfish Island Nature Reserve for several threatened species, as well as the Cook's petrel (NZDOC 2006b, unpaginated). Access is restricted and by permit for scientific or conservation purposes only. In order to prevent the inadvertent introduction of pest plants and animals, incoming bags and equipment are searched at an on-island quarantine facility (Encyclopedia of New Zealand 2007, unpaginated). As stated above, while there is an ongoing risk that predators, such as rats or cats, may be inadvertently reintroduced to the island by boats transporting conservation and research groups to the island, we believe the risk of these predators becoming reestablished on the island is quite low because the NZDOC monitors and manages the island intensively to maintain it as a predator-free habitat.

Although the introduced predators that threaten Cook's petrels have been eradicated from Little Barrier and Codfish Islands, introduced predators have not been removed from Great Barrier Island. As a result, the Cook's petrel population on Great Barrier Island, which has been reduced to 20 breeding pairs, continues to be severely threatened by introduced feral cats, the black rat, and the Pacific rat (Marchant and Higgins 1990, as cited in BLI 2009, unpaginated; Rayner 2008, in litt.), and the risk of extirpation of this species from Great Barrier Island is high. In fact, Rayner (2008, in litt.) believes this population has long since ceased to be viable and that the small number of burrows on Great Barrier Island are due to ongoing recruitment from the large population on Little Barrier Island, 1.9 mi (3 km) away.

We are unaware of any threats to this species from disease affecting the continued existence of this species.

Predators have been successfully eradicated from both Little Barrier Island and Codfish Island. There is a current ongoing effort by NZDOC to monitor for reintroductions of nonnative plants and animals on these islands and immediately eradicate any detected. Therefore, we find that introduced predators are not an immediate threat to Cook's petrel populations on Little Barrier and Codfish islands. We find that introduced predators are a threat to Cook's petrels on Great Barrier Island. According to Rayner (2008, in litt.), burrows that have been found on Great Barrier Island over the last 25 years are likely due to recruitment of birds from nearby Little Barrier Island, and not due to the presence of a viable population on Great Barrier Island.

We are unaware of any threats due to predation on Cook's petrels during the nonbreeding season (while the species is at sea) affecting the continued existence of this species.

Therefore, we find that neither disease nor predation is a threat to the Cook's petrel on Codfish and Little Barrier islands now or in the foreseeable future. Predation is a threat to this species on Great Barrier Island, but it is questionable whether these birds comprise a viable population.

The Cook's petrel is protected from disturbance and harvest under New Zealand's Wildlife Act of 1953 and its Reserves Act of 1977. The petrel is designated as a declining species by the NZDOC, which signifies the species is not seriously threatened, “but may become so over time if population trends continue on their current trajectory” (Hitchmough et al. 2005, p. 49; Townsend et al. 2008, pp. 10-11). As discussed in Factor C above, this species is not threatened by predators such as nonnative rats, feral cats, and weka on Codfish and Little Barrier islands due to the successful efforts of the NZDOC to eradicate and maintain these islands as predator-free. We are not aware of any predator eradication efforts in the burrow areas on Great Barrier Island, and therefore these birds are threatened by nonnative predators. Though currently not classified as a seriously threatened species, the NZDOC and other agencies and organizations have implemented many actions that directly or indirectly benefit the conservation of Cook's petrel. These actions include the removal of all predators on two of the three known islands with petrel breeding sites; the support of research and other studies on the Cook's petrel to better understand its biological and ecological requirements, and the reintroduction of Cook's petrel to predator-free sites in its historical range (e.g., Maungatautari on the North Island) (McQueen 2004, pp. 47, 50, 65; NZDOC News 2007, unpaginated; Taylor 2000, p. 136).

The available regulatory protections conferred by the New Zealand Wildlife and Reserves acts, in combination with the actions implemented for the protection of the Cook's petrel by the NZDOC and other organizations and agencies, provide significant protection to this species on Codfish and Little Barrier islands. Therefore, we find that the inadequacy of existing regulatory mechanisms is not a threat to Cook's petrel on Codfish and Little Barrier islands now and in the foreseeable future. However, while existing regulatory mechanisms have not eliminated the threat from predators on Great Barrier Island, this population is not believed to be viable and the presence of birds on this island is most likely due to ongoing recruitment from the large population on nearby Little Barrier Island.

As previously mentioned, several commenters disputed our statement, in our 2007 proposed rule to list six Procellariid species (72 FR 71298), that long-line fisheries threaten all seabirds and in particular, Cook's petrel, Galapagos petrel, and Heinroth's shearwater. According to the U.S. National Marine Fisheries Service (Mecum, in litt. 2008) and BLI (Small, in litt. 2008), the main seabirds killed in long-line fisheries are albatrosses and other species of petrels (not Pterodroma species). The characteristics of a petrel species vulnerable to long-line fishing (seabird that is aggressive and good at seizing prey, or baited hooks, at the water's surface, or is a proficient diver) do not describe the five Pterodroma species, including Cook's petrel. According to the commenters, fisheries by catch has not been identified as a key threat for any of these species (Small, in litt. 2008; Mecum, in litt. 2008; NZDOC, in litt. 2008, pp. 2-3). Therefore, we do not believe that long-line fishing is a significant threat to the Cook's petrel.

In our 2007 proposal (72 FR 71298), we stated that the loss of the Cook's petrel population on Great Barrier Island would decrease the species' genetic diversity and increase the risk of extinction of this species. However, based on information we received during the public comment period, we now believe that the population on Great Barrier Island is no longer viable and that the small number of burrows on this island are due to ongoing recruitment from the large population on Little Barrier Island, 1.9 mi (3 km) away (Rayner 2008, in litt.). Therefore, the genetic diversity contributed by the Great Barrier Island population is likely already extirpated, and there is a low risk of extinction of this species due to the loss of the Great Barrier Island population because the presence of birds on Great Barrier Island is due to recruitment of birds from Little Barrier Island (i.e., currently there is not a Great Barrier population), the overall population number of the species is quite high (estimated to be approximately 1,300,000 individuals), and the populations on Codfish and Little Barrier islands are increasing.

We are unaware of any threats to this species from other natural or manmade factors affecting the continued existence of this species.

The characteristics of a petrel species vulnerable to long-line fishing do not describe the Cook's petrel; therefore, we do not believe that long-line fishing is a significant threat to the Cook's petrel. Since the birds present on Great Barrier Island are believed to be mostly from recruitment of birds from Little Barrier Island, we find that the Cook's petrel is not threatened by other natural or manmade factors affecting the continued existence of the species throughout all of its range now or in the foreseeable future.

We now consider whether more immediate threats place this species in imminent danger of extinction in any significant portion of the species' range. Having determined that this species does not meet the definition of threatened or endangered throughout its range, we must next consider whether there are any significant portions of its range that are in danger of extinction or are likely to become endangered in the foreseeable future. On March 16, 2007, a formal opinion was issued by the Solicitor of the Department of the Interior, “The Meaning of In Danger of Extinction Throughout All or a Significant Portion of Its Range'' (U.S. Department of the Interior 2007). We have summarized our interpretation of that opinion and the underlying statutory language below.

A portion of a species' range is significant if it is part of the current range of the species and it contributes substantially to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species. In other words, in considering significance, the Service should ask whether the loss of this portion likely would eventually move the species toward extinction, but not necessarily to the point where the species should be listed as threatened throughout its range.

The first step in determining whether a species is threatened or endangered in a significant portion of its range is to identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (i) the portions may be significant and (ii) the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the range that are not significant to the conservation of the species, such portions will not warrant further consideration. If we identify any portions that warrant further consideration, we then determine whether in fact the species is threatened or endangered in any significant portion of its range.

The terms “resiliency,” “redundancy,” and “representation” are intended to be indicators of the conservation value of portions of the range. Resiliency of a species allows the species to recover from periodic disturbance. A species will likely be more resilient if large populations exist in high-quality habitat that is distributed throughout the range of the species in such a way as to capture the environmental variability found within the range of the species. It is likely that the larger size of a population will help contribute to the viability of the species overall. Thus, a portion of the range of a species may make a meaningful contribution to the resiliency of the species if the area is relatively large and contains particularly high-quality habitat or if its location or characteristics make it less susceptible to certain threats than other portions of the range. When evaluating whether or how a portion of the range contributes to resiliency of the species, it may help to evaluate the historical value of the portion and how frequently the portion is used by the species. In addition, the portion may contribute to resiliency for other reasons — for instance, it may contain an important concentration of certain types of habitat that are necessary for the species to carry out its life-history functions, such as breeding, feeding, migration, dispersal, or wintering.

Redundancy of populations may be needed to provide a margin of safety for the species to withstand catastrophic events. This does not mean that any portion that provides redundancy is a significant portion of the range of a species. The idea is to conserve enough areas of the range such that random perturbations in the system act on only a few populations. Therefore, each area must be examined based on whether that area provides an increment of redundancy is important to the conservation of the species.

Adequate representation insures that the species' adaptive capabilities are conserved. Specifically, the portion should be evaluated to see how it contributes to the genetic diversity of the species. The loss of genetically based diversity may substantially reduce the ability of the species to respond and adapt to future environmental changes. A peripheral population may contribute meaningfully to representation if there is evidence that it provides genetic diversity due to its location on the margin of the species' habitat requirements.

The population on Great Barrier Island is approximately 20 breeding pairs. Cook's petrels on Great Barrier Island are threatened by predation from rats and feral cats; however the available information suggests that the population on this island is essentially extirpated. Further, based on the best information available, petrels that use Great Barrier Island are believed to be birds that are dispersing from the other islands; they are not believed to be distinct genetically, nor are they believed to be a wholly separate population. On the basis that the habitat on Great Barrier Island appears to be of low quality and supports feral cats and rats, and because the birds are believed to be dispersing from other nearby islands, we believe that the birds and the habitat on Great Barrier Island are not significant to the species as a whole because they do not contribute significantly to the representation, resiliency, or redundancy of the species. Loss of these birds and the habitat on Great Barrier Island would not result in a meaningful effect on the representation, resiliency, and redundancy of the species. There are large, healthy, populations on two other islands that are protected, and the NZDOC is translocating birds to other protected areas.

Following an evaluation of the best available information, we conclude that the population and the portion of the Cook's petrel range on Great Barrier Island is not significant to the taxon and does not warrant further consideration as a significant portion of the species' range. The population is believed to be locally extirpated, thus limiting its overall contribution to the species. The loss of the birds on Great Barrier Island would not result in a decrease in the ability to conserve the species. Therefore, it is our judgment that the Great Barrier Island is not a significant portion of the range for the Cook's petrel.

We have carefully assessed the best scientific and commercial data available regarding the status of the Cook's petrel and have analyzed the five threat factors described in section 4(a)(1) of the Act. We find, based on the best available scientific data, that there is not sufficient information to justify the earlier proposed rule to list the Cook's petrel as threatened. In our December 2007 proposal (72 FR 71298), we determined that the Cook's petrel was threatened by predation from nonnative feral cats and rats within its breeding range on Little Barrier, Great Barrier, and Codfish islands. However, based on information we received during the proposal's public comment period, including information from the NZDOC, one peer reviewer, and one member of the public, we believe that introduced predators are not an immediate threat to Cook's petrel on Codfish and Little Barrier islands for the reasons discussed above (see Factor C). The overall population number of the Cook's petrel is not as low as previously thought, and the two viable populations of this species, Little Barrier Island and Codfish Island, with 286,000 and 5,000 pairs, respectively, are reported to be increasing (Rayner et al. 2007c, pp. 235, 245; Rayner 2008, in litt.; BLI 2009, unpaginated).

In conclusion, while the NZDOC classified this species as “declining,” and thus of lower priority for conservation, the NZDOC intensively manages both Little Barrier Island and Codfish Island for the conservation of native species, including the Cook's petrel. Nonnative predators have been removed from these islands, access is restricted, and monitoring for new introductions of predators is ongoing. Habitat restoration efforts are also ongoing. In addition, there are plans to translocate Cook's petrels to additional, appropriate, predator-free sites (NZDOC News 2007, unpaginated; Rayner 2008, in litt.). All of these actions are evidence of active support for the conservation of this species, even though the overall population number is not low.

We believe the population of Cook's petrel is likely to be increasing now and is likely to do so into the foreseeable future throughout all or a significant portion of its range due to the eradication of predators from Little Barrier Island and Codfish Island which contain viable populations of this species, and the translocation of birds to additional predator-free sites. Therefore, we do not believe Cook's petrel is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

Based on the information discussed above, we withdraw our December 17, 2007 (72 FR 71298), proposal to list the Cook's petrel as a threatened species under the Act.

A complete list of all references cited in this rule is available on the Internet at http://www.regulations.gov or upon request from the Branch of Listing, Endangered Species, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this final rule are staff members of the Branch of Listing, Endangered Species, U.S. Fish and Wildlife Service.

On October 1, 2009, we received a petition from the Natural Resources Defense Council (NRDC) requesting that the Secretary list the insular population of Hawaiian false killer whales as an endangered species under the ESA and designate critical habitat concurrent with listing. According to the final 2008 and draft 2009 Stock Assessment Reports (SAR) (available at http://www.nmfs.noaa.gov/pr/pdfs/sars/) that NMFS has completed as required by the Marine Mammal Protection Act (MMPA), Hawaiian false killer whales are divided into a Hawaii Pelagic Stock and a Hawaii Insular Stock. NRDC considers the insular population of Hawaiian false killer whales and the Hawaii Insular Stock of false killer whales to be synonymous.

NRDC asserts that the insular population of Hawaiian false killer whales faces the following threats: (1) mortality and/or serious injury from fishing gear; (2) overfishing and prey reductions; (3) potential for increased levels of toxic chemicals; (4) ocean acidification; (5) potential for acoustic impacts on false killer whale behavior; (6) inadequacy of existing regulatory mechanisms; (7) risks inherent to small populations; and (8) synergistic and cumulative effects. The petition contends that the small population size, evidence of a declining population trend, and multiple threats together qualify the insular population of Hawaiian false killer whales to be listed as an endangered species under the ESA.

Section 4(b)(3)(A) of the ESA (16 U.S.C. 1531 et seq.) requires, to the maximum extent practicable, that within 90 days of the receipt of the petition to designate a species as threatened or endangered, the Secretary of Commerce (Secretary) make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Joint ESA-implementing regulations between NMFS and the U.S. Fish and Wildlife Service (USFWS) (50 CFR 424.14) define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.

In making a finding on a petition to list a species, the Secretary must consider whether the petition: (i) clearly indicates the administrative measure recommended, and gives the scientific and any common name of the species involved; (ii) contains a detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (iii) provides information regarding the status of the species over all or a significant portion of its range; and (iv) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)). To the maximum extent practicable, this finding is to be made within 90 days of the date we received the petition, and the finding is to be published promptly in the Federal Register. When it is found that substantial information consistent with the guidelines above is presented in the petition, we are required to promptly commence a review of the status of the species concerned. Within one (1) year of receipt of the petition, we shall conclude the review with a finding as to whether or not the petitioned action is warranted.

Under the ESA, a listing determination may address a species, subspecies, or a distinct population segment (DPS) of any vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). In 1996, the USFWS and NMFS published the Policy on the Recognition of a Distinct Vertebrate Population Segments under the ESA (DPS Policy, 61 FR 4722; February 7, 1996). This policy clarifies the agencies' interpretation of the phrase “distinct population segment of any species of vertebrate fish or wildlife” (ESA section 3(16)) for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). The policy established two criteria that must be met for a population or group of populations to be considered a DPS: (1) the population segment must be discrete in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the population segment must be significant to the remainder of the species (or subspecies) to which it belongs. A population segment may be considered discrete if it satisfies either one of the following conditions: (1) it is markedly separated from other populations of the same biological taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries across which there is a significant difference in exploitation control, habitat management, conservation status, or if regulatory mechanisms exist that are significant in light of section 4(a)(1) of the ESA. If a population is determined to be discrete, the agency must then consider whether it is significant to the taxon to which it belongs. Considerations in evaluating the significance of a discrete population include: (1) persistence of the discrete population in an unusual or unique ecological setting for the taxon; (2) evidence that the loss of the discrete population segment would cause a significant gap in the taxon's range; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere outside its historical geographical range; or (4) evidence that the discrete population has marked genetic differences from other populations of the species.

A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, or “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA section 3(6) and 3(20), respectively). To determine whether a species is threatened or endangered, we conduct a risk analysis to evaluate risks based on specific demographic factors (e.g., abundance, productivity, spatial structure, and diversity), any quantitative or qualitative estimates of overall extinction risk for the species, and the relative contribution of identified demographic risks to the overall assessed level of extinction risk. Section 4(a)(1) of the ESA requires the Secretary of Commerce to determine whether any species is endangered or threatened due to of any of the following factors: (1) the present or threatened destruction, modification, or curtailment of its 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 the species continuing existence. Therefore, to the extent possible, we describe the links between these demographic risks and these causative section 4(a)(1) factors. Listing determinations are based solely on the best available scientific and commercial data, after taking into account any efforts being made by any state or foreign nation to protect the species.

As described above, to be considered a DPS under the ESA, a population must meet both the “discreteness” and “significance” criteria of the DPS policy. NRDC contends that the insular population of Hawaiian false killer whales meets both “discreteness” and “significance” criteria, and thus is a DPS under the ESA.

Discreteness: NRDC states that the insular population of Hawaiian false killer whales is markedly separated from other false killer whales because it: (1) is behaviorally unique from other false killer whales; (2) is genetically distinct from other false killer whales; and (3) constitutes a stock under the MMPA. NRDC cites photo-identification data from Baird et al. (2008) to support its statement that, while false killer whales are considered a wide-ranging pelagic species not typically associated with coastal or island habitats, the insular Hawaiian false killer whales are the only known long-term, island-associated false killer whales in the world. NRDC adds that recent mitochondrial haplotype data from false killer whales throughout the Pacific including Hawaii, the central Indian Ocean, the eastern and western Pacific Ocean, and the western Atlantic Ocean indicate that the insular population of Hawaiian false killer whales includes genetically distinct matrilines (Chivers et al., 2007), and that this suggests unique cultural traits (Whitehead, 1998). Finally, NRDC notes that, while the analysis of whether a given marine mammal population is considered a stock under the MMPA differs from a DPS analysis under the DPS Policy, the classification of Hawaii insular false killer whales as a stock supports the finding that the population is a listable entity under the ESA.

As described in the final 2008 and draft 2009 SARs for the Hawaii Pelagic and Hawaii Insular Stocks of false killer whales, the taxonomy of this group is not well understood, due to the very small number of genetic samples and lack of other biological information. However, the MMPA requires NMFS to use the best available information to delineate stock boundaries. The current delineations of the Hawaii Pelagic and Hawaii Insular Stocks of false killer whales are based on all currently available genetic samples, but only 2 samples are available from each stock. As noted in the 2008 and draft 2009 SARs, the boundary between these two stocks may be revised as additional information becomes available. We will need to review information from SARs for the Hawaii Pelagic and Hawaii Insular Stocks of false killer whales (http://www.nmfs.noaa.gov/pr/pdfs/sars/) and any other information we can obtain to determine whether this population is discrete from other populations of false killer whales. While information on stock delineation under the MMPA can be useful for delineating DPSs under the ESA, it is important to note, as NRDC has done, that an MMPA stock does not necessarily qualify as a DPS under the ESA. MMPA stocks do not need to meet a criterion similar to the “significance” criterion of the DPS Policy.

Significance: NRDC states that the insular population of Hawaiian false killer whales meets the significance criterion of the DPS policy because it: (1) occupies a unique ecological setting; and (2) differs markedly from other populations of the species in its genetic characteristics. Evidence cited in the petition includes the fact that the Hawaiian archipelago is the most isolated island group in the world, leading to high rates of endemism, or ecologically and evolutionarily unique organisms (Briggs, 1961, 1966; Carlquist, 1966). They cite Baird et al. (2008) to support the theory that evolution of island-associated populations such as this population of false killer whales, Bryde's whales, and short-finned pilot whales in the Hawaiian archipelago may occur because the central tropical Pacific is oligotrophic, the oceanographic influence of the islands increases productivity immediately around the islands (Doty and Oguri, 1956; Gilmartin and Revelante, 1974; Seki et al., 2002) and reduces the spatial and temporal variability in prey availability. Also, the insular population of Hawaiian false killer whales is the only population of false killer whales known to be residents of an island system (Baird et al., 2008). The rest of the species occurs in pelagic waters, further indicating that this population occurs in an ecological setting that is unusual and unique to the taxon. Finally, the fact that individuals from this population are uniquely identifiable by their mitochondrial haplotypes indicates that this insular population differs markedly from other populations of the species in its genetic characteristics.

Abundance and Trend Information: NRDC states that recent abundance estimates for this population (Mobley et al., 2000 -121 individuals, line-transect aerial survey form 1993-1998; Baird et al., 2005 - 123 individuals, mark-recapture photo-identification data from 2000-2004) indicate that insular false killer whales may have the smallest population size of any odontocete species within the Hawaiian Exclusive Economic Zone (Barlow, 2006). Additional data cited by NRDC indicate that the insular Hawaiian stock of false killer whales has experienced a decline within the past one or two decades: (1) the largest group of individuals observed in 1989 (470) is larger than the entire estimated abundance today; (2) false killer whales represented 17 percent of sightings in the 1989 aerial survey and only 1.5 percent in boat-based surveys from 2000-2006 (Baird et al., 2008; Reeves et al., 2009); (3) group size has declined from a median of 195 individuals in 1989 to a median of 15 in boat-based surveys from 2000-2006 (Baird et al., 2008; Reeves et al., 2009); (4) aerial surveys within approximately 46 km of the Hawaiian coast conducted throughout the 1990s made 18 sightings of false killer whales during 239 hours of survey effort (Mobley et al., 2000; Mobely et al., unpublished); and (5) re-sighting rates of false killer whales identified in the 1980s are low compared with rates in other species such as pygmy killer whales, Blainville's beaked whales and Cuvier's beaked whales, potentially suggesting a reduced survival rate in the 1990s (Baird, 2009).

Our final 2008 and draft 2009 SARs on the Hawaii Insular Stock of false killer whales confirms the low population size estimates for this population (approximately 120 individuals, with a minimum population size of 76 individuals). The draft 2009 SAR also cites evidence suggesting that this stock/population has declined in size over the past 2 decades.

Analysis of ESA Section 4(a)(1) Factors: NRDC provided information to suggest that the insular population of Hawaiian false killer whales may have been and may continue to be threatened by habitat modification (mortality and serious injury from fishing gear, overfishing and prey reductions, increased levels of toxic chemicals, ocean acidification, and noise-producing activities), inadequate regulatory mechanisms, risk factors such as its high trophic level, low population density, slow growth and large calving interval, and small geographic range, and the synergistic and cumulative effects of these threats.

NRDC states that, from 1994-2005, false killer whales were killed or seriously injured at a rate of 0.81 per 1,000 sets in the Hawaii-based deep-set longline fishery (Forney and Kobayashi, 2007). Our 2008 SAR states that, between 1994 and 2007, at least 24 false killer whales were observed as hooked or entangled in the same fishery. While some of these false killer whales could be from the pelagic stock, fin disfigurations suggest that near-shore individuals of this population experience fisheries interactions and injuries (Baird and Gorgone, 2005). NRDC states that near-shore commercial and recreational fisheries interactions with insular false killer whales also occurs (Nitta and Henderson, 1993; Rhodes et al., 2007).

Observations of large-scale reductions in predatory fish populations such as bigeye tuna (NMFS, 2009) and yellowfin tuna (Sibert et al., 2006) suggest to NRDC that prey reductions may be impacting the insular population of Hawaiian false killer whales.

NRDC cites Ylitalo et al. (2009) as documenting wide ranges of persistent organic pollutants in 9 of 9 samples taken from false killer whales from the insular Hawaiian population, with one third of these samples containing PCB levels above the safety recommendations identified for other species (Kannan et al., 2000).

While NRDC provides no direct evidence that this population is suffering from ocean acidification, it includes a discussion on how atmospheric concentrations of CO2 may further endanger this population by decreasing the availability of prey by reducing the forage base of large game fish such as yellowfin tuna and mahi mahi. Similarly, NRDC provides no direct evidence that this population is threatened by noise-producing activities, but it provides examples of how beaked whales, which vocalize in the same mid-frequencies as false killer whales, are negatively impacted by mid-frequency acoustic sources that occur in the Hawaiian Islands.

NRDC provides examples of state and Federal laws that should provide for the protection of the insular population of Hawaiian false killer whales but do not do so. For example, NRDC notes that the applicability of Hawaii statutes and regulations to this insular population is limited and none has proven effective in conserving this population. Similarly, NRDC notes that we do not presently recognize the population as a “strategic stock” under the MMPA, and, because we have not otherwise decided to address bycatch of the population, the insular stock of false killer whales has not benefited from a take reduction plan for any of the salient Hawaii fisheries. Regardless, they add, the development of a bycatch reduction plan would not address other threats to the stock, such as overfishing of its principal prey species, toxic contamination, and direct shootings of animals by local fishers. The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) also provides some authority to protect marine mammal species, but NRDC states that it does not mandate the use of regulatory mechanisms adequate to conserve the false killer whale because its reach is limited, changes made to the longline fisheries managed under the MSFCMA have not proven adequate to prevent the hooking or entanglement of insular false killer whales, and it has not been successful in preventing the depletion of bigeye tuna, yellowfin tuna, and mahi mahi, primary prey for the insular stock of false killer whales.

In discussing the risks to small populations, NRDC notes that small populations are particularly vulnerable to extinction due to demographic and environmental stochasticity, the risks of local catastrophes, slower rates of adaptation, deleterious effects of inbreeding, and “mutational meltdown” (genetic load that arises from expression of harmful alleles). NRDC emphasizes the Allee effect, also known as depensation, as causing a decline in per capita reproduction at low population densities.

Finally, NRDC discusses the potential cumulative and synergistic impacts on the population, noting that some of these threats may have significant sublethal effects (e.g., contamination with persistent organochlorine pollutants), they may also contribute cumulatively towards reduced survival and reproductive rates (e.g., decline in reproductive rate from toxic contamination combined with the Allee effect) in false killer whales.

We have reviewed the petition, the literature cited in the petition, and other literature and information readily available in our files. Based on our review, we find that the petition satisfies the requirements of 50 CFR 424.14(b)(2) because it: (i) clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (ii) contains a detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (iii) provides information regarding the status of the species over all or a significant portion of its range; and (iv) is accompanied by the appropriate supporting documentation in the form of citations to journals that are readily accessible. This information would lead a reasonable person to believe that the measure proposed in the petition may be warranted. Therefore, we have determined that the petition, the literature cited in the petition, and other literature and information readily available in our files indicate that the petitioned action may be warranted.

As a result of the finding, we will commence a status review of Hawaiian false killer whales to determine: (1) if the insular population of Hawaiian false killer whales is a DPS under the ESA; and, if so (2) the risk of extinction to this DPS. Based on the results of the status review, we will then determine whether listing the insular population of Hawaiian false killer whales under the ESA is warranted. We intend that any final action resulting from this status review be as accurate and as effective as possible. Therefore, we are opening a 30-day public comment period to solicit suggestions and information from the public, government agencies, the scientific community, industry, and any other interested parties on the status of the insular population of Hawaiian false killer whales. Specifically, we solicit information on the following areas:

(1) Taxonomy, abundance, reproductive success, age structure, distribution, habitat selection, food habits, population density and trends, and habitat trends;

(2) Effects of other potential threat factors, including climate change, ocean acidification, acoustic impacts, and persistent organic pollutants;

(3) Interactions with fisheries, including longline, unregulated nearshore, and shortline fisheries;

(4) Unconfirmed interactions from local fishermen; and

(5) Effects of management on the insular population of Hawaiian false killer whales.

We request that all data and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Please send any comments to the ADDRESSES listed above. We will base our findings on a review of best available scientific and commercial information available, including all information received during the public comment period.

The leatherback sea turtle was listed as endangered throughout its range on June 2, 1970 (35 FR 8491). Pursuant to a joint agreement, the U.S. Fish and Wildlife Service (USFWS) has jurisdiction over sea turtles on the land and NMFS has jurisdiction over sea turtles in the marine environment. The USFWS initially designated critical habitat for leatherbacks on September 26, 1978 (43 FR 43688). The critical habitat area consists of a strip of land 0.2 miles (0.32 kilometers) wide (from mean high tide inland) at Sandy Point Beach on the western end of the island of St. Croix in the U.S. Virgin Islands. On March 23, 1979, NMFS designated the marine waters adjacent to Sandy Point Beach as critical habitat from the hundred fathom (182.9 meters) curve shoreward to the level of mean high tide (44 FR 17710).

On October 2, 2007, we received a petition from the Center for Biological Diversity, Oceana, and Turtle Island Restoration Network (“Petitioners”) to revise the leatherback critical habitat designation. The Petitioners sought to revise the designation to include the area currently managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act to reduce leatherback interactions in the California/Oregon drift gillnet fishery targeting swordfish and thresher sharks. This area encompasses roughly 200,000 square miles (321,870 square km) of the U.S. EEZ from 45° N. latitude about 100 miles (160 km) south of the Washington/Oregon border southward to Point Sur, California and along a diagonal line due west of Point Conception, California, and west to 129° W. longitude. Under the current regulations implementing the Highly Migratory Species Fishery Management Plan, the use of large mesh drift gillnet gear is prohibited in this area from August 15th through November 15th (50 CFR 660.713).

On December 28, 2007, we announced our 90-day finding that the petition provided substantial scientific information indicating that the petitioned action may be warranted (72 FR 73745). We did not meet the statutory deadline of October 2, 2008 for deciding whether to proceed with a proposed designation and the Petitioners filed a lawsuit seeking to compel that decision. Per the settlement agreement, we agreed to submit this finding to the Federal Register by December 4, 2009. We were then granted an extension to submit this finding by December 31, 2009.

When initially evaluating the petition to designate critical habitat off the U.S. West Coast, we reviewed a variety of data sources to identify specific areas within and adjacent to the petitioned area that might warrant consideration as critical habitat. Due to the extensive movements of leatherback sea turtles throughout the U.S. West Coast within the U.S. EEZ, we determined that areas adjacent to the petitioned area should also be considered. Additionally, the petitioned area included waters outside the U.S. EEZ, however, joint NMFS and FWS regulations provide that areas outside of U.S. jurisdiction not be designated as critical habitat (50 CR 424.12(h)), so any areas outside of the U.S. EEZ were excluded from our analysis. Therefore, this CH analysis evaluated approximately 292,600 square miles (757,833 square km) of Pacific waters within the U.S. West Coast EEZ.

We considered various alternatives to the critical habitat designation for the leatherback sea turtle. The alternative of not designating critical habitat for leatherbacks would impose no economic, national security, or other relevant impacts, but would not provide any conservation benefit to the species. This alternative was considered and rejected because such an approach does not meet the legal requirements of the ESA and would not provide for the conservation of the species. The alternative of designating all potential critical habitat areas (i.e., no areas excluded) also was considered and rejected because, for a number of areas, the economic benefits of exclusion outweighed the benefits of inclusion, and we determined that exclusion of these areas would not significantly impede conservation or result in extinction of the species. The total estimated annualized economic impact associated with the designation of all potential critical habitat areas would be $3.8 million to $25.5 million (discounted at 7 percent) or $3.5 million to $25 million (discounted at 3 percent). An alternative to designating critical habitat within all of the areas considered for designation is the designation of critical habitat within a subset of those areas. Under section 4(b)(2) of the ESA, we must consider the economic impacts, impacts to national security, and other relevant impacts of designating any particular area as critical habitat. NMFS has the discretion to exclude an area from designation as critical habitat if the benefits of exclusion (i.e., the impacts that would be avoided if an area were excluded from the designation) outweigh the benefits of designation (i.e., the conservation benefits if an area were designated), so long as exclusion of the area will not result in extinction of the species. Exclusion under section 4(b)(2) of the ESA of one or more of the particular areas considered for designation would reduce the total impacts of designation. The determination of which particular areas and how many to exclude depends on NMFS' ESA 4(b)(2) analysis, which is conducted for each area and described in detail in the 4(b)(2) report. Under the preferred alternative, we propose to exclude 5 out of 8 areas considered. The total estimated economic impact associated with this proposed rule is $3.1 million to $20.4 million (discounted at 7 percent) or $2.8 million to $20 million (discounted at 3 percent). We believe that the exclusion of these areas would not significantly impede conservation or result in the extinction of the leatherback sea turtle. We selected this alternative because it would result in a critical habitat designation that provides for the conservation of the species while reducing the economic impacts on entities. This alternative also meets ESA and joint NMFS and USFWS regulations concerning critical habitat.

The leatherback is the sole remaining member of the taxonomic family Dermochelyidae. All other extant sea turtles belong to the family Cheloniidae. Leatherbacks are the largest marine turtle, with a curved carapace length (CCL) often exceeding 150 cm and front flippers that can span 270 cm (NMFS and USFWS, 1998). The leatherback's slightly flexible, rubber-like carapace is distinguishable from other sea turtles that have carapaces with bony plates covered with horny scutes. In adults, the carapace consists mainly of tough, oil-saturated connective tissue raised into seven prominent ridges and tapered to a blunt point posteriorly. The carapace and plastron are barrel-shaped and streamlined. Leatherbacks display several unique physiological and behavioral traits that enable this species to inhabit cold water, unlike other chelonid species. These include a countercurrent circulatory system (Greer et al., 1973), a thick layer of insulating fat (Goff and Lien, 1988; Davenport et al., 1990), gigantothermy (Paladino et al., 1990), and the ability to elevate body temperature through increased metabolic activity (Southwood et al., 2005; Bostrom and Jones, 2007). These adaptations enable leatherbacks to extend their geographic range farther than other species of sea turtles.

The leatherback life cycle is broken into several stages: (1) Egg/hatchling; (2) post-hatchling; (3) juvenile; (4) sub-adult; and (5) adult. There is still uncertainty regarding the age at first reproduction. The most recent study, based on skeletochronological data from scleral ossicles, suggests that leatherbacks in the western North Atlantic may not reach maturity until 29 years of age (Avens et al., 2009), which is longer than earlier estimates (Pritchard and Trebbau, 1984: 2-3 years; Rhodin, 1985: 3-6 years; Zug and Parham, 1996: 13-14 years for females; Dutton et al., 2005: 12-14 years for leatherbacks nesting in the U.S. Virgin Islands). The average size of reproductively active females is generally 150-162 cm CCL for Atlantic, western Pacific, and Indian Ocean populations, and 140-150 cm CCL for eastern Pacific populations (Hirth et al., 1993; Starbird and Suarez, 1994; Benson et al., 2007a; Benson et al., 2007d). However, females as small as 105-125 cm CCL have been observed nesting at various sites (Stewart et al., 2007). Rhodin et al. (1996) speculated that extreme rapid growth may be possible in leatherbacks due to a mechanism that allows fast penetration of vascular canals into the fast growing cartilaginous matrix of their bones. Whether the vascularized cartilage in leatherbacks serves to facilitate rapid growth, or some other physiological function, has not yet been determined.

Female leatherbacks typically nest on sandy, tropical beaches at intervals of 2 to 4 years (McDonald and Dutton, 1996; Garcia and Sarti, 2000; Spotila et al., 2000). Females lay clutches of approximately 100 eggs several times during a nesting season, typically at 8-12 day intervals. Female leatherbacks appear to exhibit more variable nesting site fidelity than cheloniids and may nest at more than one beach in a single season (Eckert et al., 1989a; Keinath and Musick, 1993; Steyermark et al., 1996; Dutton et al., 2005). This nesting behavior has been observed in the western Pacific Ocean; one female nesting on Jamursba-Medi, Indonesia was observed nesting approximately 30 km east on Wermon, Indonesia a few weeks later (S. Benson, NMFS, April 2006, pers. comm.).

A comparison of sex ratios between Atlantic and some Pacific nesting populations suggests that Pacific populations may be more female biased (Binckley et al., 1998) than Atlantic populations (Godfrey et al., 1996; Turtle Expert Working Group, 2007). However, caution is necessary when making basin-wide comparisons because only one study was conducted in the Pacific (Binckley et al., 1998) and sex ratios may vary by beach or even clutch. Chevalier et al. (1999) compared temperature-dependent sex determination patterns between the Atlantic (French Guiana) and the Pacific (Playa Grande, Costa Rica) and found that the range of temperatures producing both sexes was significantly narrower for the Atlantic population.

Reliable estimates of survival and mortality at different life history stages are not easily obtained. The annual mortality for leatherbacks that nested at Playa Grande, Costa Rica, was estimated to be 34.6 percent in 1993-1994 and 34.0 percent in 1994-1995 (Spotila et al., 2000). Leatherbacks nesting in French Guiana and St. Croix had estimated annual survival rates of 91 percent (Rivalan et al., 2005b) and 89 percent (Dutton et al., 2005) respectively. For the St. Croix population, the average annual juvenile survival rate was estimated to be approximately 63 percent, and the total survival rate from hatchling to first year of reproduction for a female was estimated to be between 0.4 and 2 percent, given an assumed age at first reproduction between 9 and 13 years (Eguchi et al., 2006). Spotila et al. (1996) estimated first year survival rates for leatherbacks at 6.25 percent. Individual female leatherbacks have been observed to reproduce as long as 25 years (Hughes, 1996; D. Dutton, Ocean Planet Research, Inc., August 2009, pers. comm.). The data suggest that leatherbacks follow a life history strategy similar to many other long-lived species that delay age of maturity, have low and variable survival in the egg and juvenile stages, and have relatively high and constant annual survival in the subadult and adult life stages (Spotila et al., 1996; 2000; Crouse, 1999; Heppell et al., 1999; 2003; Chaloupka, 2002).

Leatherbacks have the most extensive range of any living reptile and have been reported circumglobally throughout the oceans of the world (Marquez, 1990; NMFS and USFWS, 1998). Leatherbacks can forage in the cold temperate regions of the oceans, occurring at latitudes as high as 71° N. and 47° S.; however, nesting is confined to tropical and subtropical latitudes. In the Pacific Ocean, significant nesting aggregations occur primarily in Mexico, Costa Rica, Indonesia, the Solomon Islands, and Papua New Guinea. In the Atlantic Ocean, significant leatherback nesting aggregations have been documented on the west coast of Africa, from Guinea-Bissau south to Angola, with dense aggregations in Gabon. In the wider Caribbean Sea, leatherback nesting is broadly distributed across 36 countries or territories with major nesting colonies (> 1,000 females nesting annually) in Trinidad, French Guiana, and Suriname (Dow et al., 2007). In the Indian Ocean, nesting aggregations are reported in South Africa, India and Sri Lanka. Leatherbacks have not been reported to nest in the Mediterranean Sea.

Migratory routes of leatherbacks are not entirely known. However, recent satellite telemetry studies have documented transoceanic migrations between nesting beaches and foraging areas in the Atlantic and Pacific Ocean basins (Ferraroli et al., 2004; Hays et al., 2004; James et al., 2005; Eckert, 2006; Eckert et al., 2006; Benson et al., 2007a). In a single year, a leatherback may swim more than 10,000 kilometers (Eckert, 2006; Eckert et al., 2006). Leatherbacks nesting in Central America and Mexico migrate thousands of miles into tropical and temperate waters of the South Pacific (Eckert and Sarti, 1997). After nesting, females from Jamursba-Medi, Indonesia, make long-distance migrations across the equator either to the eastern North Pacific, westward to the Sulawasi and Sulu and South China Seas, or northward to the Sea of Japan (Benson et al., 2007a). One turtle tagged after nesting in July at Jamursba-Medi arrived in waters off Oregon in August (Benson et al., 2007a) coincident with seasonal maxima aggregations of jellyfish (Shenker, 1984; Suchman and Brodeur, 2005). Other studies similarly indicate that leatherbacks arrive along the Pacific coast of North America during the summer and fall months, when large aggregations of jellyfish form (Bowlby, 1994; Starbird et al., 1993; Benson et al., 2007b; Graham, 2009). Leatherbacks primarily forage on cnidarians (jellyfish and siphonophores) and, to a lesser extent, tunicates (pyrosomas and salps) (NMFS and USFWS, 1998). Largely pelagic, leatherbacks forage widely in temperate waters and exploit convergence zones and upwelling areas in the open ocean along continental margins and in archipelagic waters (Morreale et al., 1994; Eckert, 1998; 1999).

Section 4(b)(2) of the ESA requires NMFS to designate critical habitat for threatened and endangered species “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” This section also grants the Secretary of Commerce (Secretary) discretion to exclude any area from critical habitat if he determines “the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” The Secretary's discretion is limited, as he may not exclude areas that “will result in the extinction of the species.”

The ESA defines critical habitat under section 3(5)(A) as: “(i) The specific areas within the geographical area occupied by the species, at the time it is listed * * *, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed * * * upon a determination by the Secretary that such areas are essential for the conservation of the species.”

If critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure they do not fund, authorize, or carry out any actions that will destroy or adversely modify that habitat. This requirement is additional to the section 7 requirement that Federal agencies ensure their actions do not jeopardize the continued existence of listed species.

In the following sections, we describe the relevant definitions and requirements in the ESA, our implementing regulations, and the key information and criteria used to prepare this proposed critical habitat designation. In accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 423.12(a)), this proposed rule is based on the best scientific information available.

To assist with the revision of leatherback critical habitat, we convened a critical habitat review team (CHRT) consisting of biologists from NMFS Headquarters, the Southwest and Northwest Regional Offices, and the Southwest and Northwest Fisheries Science Centers. The CHRT members had experience and expertise on leatherback biology, distribution and abundance of the species along the U.S. West Coast as it relates to oceanography, consultations and management, and/or the critical habitat designation process. The CHRT used the best available scientific data and their best professional judgment to: (1) Verify the geographical area occupied by the leatherbacks at the time of listing; (2) identify the physical and biological features essential to the conservation of the species that may require special management considerations or protection; (3) identify specific areas within the occupied area containing those essential physical and biological features; (4) evaluate the conservation value of each specific area; and (5) identify activities that may affect any designated critical habitat. The CHRT's evaluation and conclusions are described in detail in the following sections.

Joint NMFS and USFWS regulations (50 CFR 424.12(b)) state that in determining what areas are critical habitat, the agencies “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection.” Features to consider may include, but are not limited to: “(1) Space for individual and population growth, and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally; (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.” The regulations also require agencies to “focus on the principle biological or physical constituent elements” (hereafter referred to as “Primary Constituent Elements” or PCEs) within the specific areas considered for designation, which may include, but are not limited to, the following: spawning sites, feeding sites, water quality or quantity, geological formation, and tide.

The northeastern Pacific Ocean is a highly variable environment where the habitat upon which leatherbacks and other marine species depend can change rapidly. Although some relatively permanent features are present, transient oceanographic features, such as eddies or fronts, are strong drivers of ecological interactions. The major current of the region is the southward-flowing California Current, which is the eastern boundary current within the North Pacific Ocean (Huyer, 1983; Hickey, 1979; 1998). The California Current is subject to significant variations in seasonal (Barber and Smith, 1981; Hutchings et al., 1995; Castelao et al., 2006), inter-annual (e.g. El Niño: Barber and Chavez, 1983), and decadal (e.g. Pacific Decadal Oscillation (PDO) cycles: McGowan et al., 1998; 2003) time scales, adding variability to local productivity resulting from upwelling (Longhurst, 1996).

Wind-driven coastal upwelling drives primary productivity within waters off the U.S. West Coast. As nutrient-rich water comes to the surface, phytoplankton blooms occur and are transported offshore. Productivity dissipates as upwelled waters move offshore (away from regions of upwelling) and phytoplankton deplete available nutrients (Thomas and Strub, 2001). Episodic intrusions of offshore, nutrient depleted water and offshore movement of nutrient-rich water occur throughout the year. The characteristics of coastal upwelling vary over the extent of the California Current, with upwelling north of Cape Blanco (~42.8° N.) confined to a narrower band than upwelling farther south (Huyer, 1983; Brodeur et al., 2004). Seasonally, upwelling begins earlier and lasts longer in the southern California Current. The peak time of sea turtle sightings (July-September) in neritic waters corresponds to the period when intermittent relaxation of upwelling causes sea surface temperatures to increase to their warmest annual levels. During these relaxation events, there is less mixing of nutrient rich upwelled waters and greater retention of these waters near the coast.

Eddy and frontal features are also critical elements of regional productivity. The interaction of the California Current and topographic features, such as banks, canyons, and other submerged features, as well as shoreline features, such as Cape Blanco, result in the formation of eddies, jets, and squirts (Barth et al., 2000). The most prominent regional eddy is the Juan de Fuca Eddy, which develops offshore of northern Washington at the mouth of the Strait of Juan de Fuca as a result of wind-driven current interaction with the continental slope (Hickey and Banas, 2003). The eddy is persistent from the spring through the fall and delivers nutrient-rich waters to the surface (Freeland and Denman, 1982; Hickey and Banas, 2003). Where eddy features interact with coastal waters, oceanic fronts are often found. Off Oregon and Washington, these frontal features tend to reoccur in the same places, such as near Cape Blanco in Oregon or off Vancouver Island and the coast of Washington (Freeland and Denman, 1982).

Leatherbacks are often described as a pelagic species; however, it is becoming increasingly evident that they aggregate in productive coastal areas to forage on preferred jellyfish prey (scyphomedusae) (Houghton et al., 2006; Benson et al., 2007b; Witt et al., 2007). While their range spans the entire Pacific, occupation of the California Current is highly seasonal. Most of our current knowledge of leatherback turtle use of the California Current comes from recent and ongoing telemetry studies, aerial surveys, and ship-based research conducted primarily in the nearshore areas off central California. The telemetry work has documented trans-Pacific migrations between the western tropical Pacific and the California Current; however, it is difficult to define specific migratory corridors.

There is likely an important temporal component to the arrival and departure of leatherbacks to and from key nearshore foraging areas. Current research has shown that leatherbacks clearly target the dense aggregations of brown sea nettle (Chrysaora fuscescens) that occur near the central California coast and north through Washington during summer and fall (Peterson et al., 2006; Harvey et al., 2006; Benson et al., 2006; 2008). Leatherbacks have also been observed foraging on other scyphomedusae in this area, particularly moon jellies (Aurelia labiata) (Eisenberg and Frazier, 1983; S. Benson, NMFS, September 2007, pers. comm.). The CHRT hypothesized that leatherbacks are primarily transiting through offshore areas to get to these dense nearshore aggregations of scyphomedusae, and that the boundary between primary coastal foraging habitat and the offshore areas may vary seasonally and inter-annually with changing oceanographic conditions. In some years, the primary foraging habitat may be poor, or oceanographic features may deter migration into the nearshore habitat (Benson et al., 2007c), resulting in a more diffuse or offshore leatherback distribution.

Although jellyfish blooms are seasonally and regionally predictable, their fine-scale local distribution is patchy and dependent upon oceanographic conditions. Some descriptive studies have been conducted on the distribution of scyphomedusae along the west coast of North America; however, much more information is needed to characterize the temporal variability from seasonal patterns to long-term climate-linked variations. Moreover, it is ultimately the benthic polyp stages that contribute to seasonal and annual population variation of the adult medusae, and little information exists on their populations in open coastal systems, including the California Current upwelling system (W.M. Graham, University of South Alabama, September 2009, pers. comm.). Graham et al. (2001) found that jellyfish tend to collect along boundaries: mesoscale oceanic fronts, local circulation patterns, thermoclines, haloclines, etc., and that scyphomedusae (specifically C. fuscescens) are closely linked to the physical structure of the water column and the dynamics of upwelling-related circulations. An important example is the Columbia River plume which can act to aggregate and retain jellyfish in the northern California Current (Shenker, 1984). These hydrographic features can be persistent or recurrent (seasonally) in space and time (Castelao et al., 2006).

Prey concentrating forces may also be fixed in space and time associated with geomorphologic features (e.g. headlands, capes, seamounts, and canyons). Upwelling shadows (e.g. north Monterey Bay) are areas of sustained high productivity (Graham and Largier, 1997) and these areas are favorable for leatherback prey (Graham, 1994; Benson et al., 2007b). Features such as the Monterey Bay upwelling shadow often persist longer than other coastal fronts of similar length scale (Graham, 1993). C. fuscescens are highly abundant north of Cape Blanco off the Oregon Coast (Suchman and Brodeur, 2005; Reese, 2005) where leatherback occurrence has been documented from sighting records and telemetry studies (Bowlby, 1994; Benson et al., 2007a; 2007c). Reese (2005) found that A. labiata was frequently abundant south of Cape Blanco, off the coast of Crescent City, CA (~42° N). Reese (2005) also described areas of persistent jellyfish abundance north and south of Cape Blanco and farther north along the Oregon coast inshore of Heceta Bank (~44° N), all inshore of the 100m isobath line. The abundance of jellyfish close to shore may be enhanced by their need for substrate during the benthic stage of their lifecycle (Suchman and Brodeur, 2005). Jellyfish are largest and most abundant in coastal waters of California, Oregon, and Washington during late summer-early fall months (Shenker, 1984; Suchman and Brodeur, 2005; Graham, 2009), which overlaps with the time when turtles are most frequently sighted near Monterey Bay (Starbird, 1993; Benson et al., 2007b) and in Oregon and Washington waters (Bowlby, 1994).

There is evidence that prey-concentrating hydrographic features can be influenced by El Nino and other climate forcing. Survey data has shown a poleward and offshore re-distribution of C. fuscescens during El Nino events (Lenarz et al., 1995). However, it is likely that the reliable availability of prey associated with fixed or recurrent physical features is the reason for the leatherbacks trans-Pacific migration from Western Pacific nesting beaches and their presence in neritic west coast waters during summer and fall.

Jellyfish, and to a lesser extent tunicates (pyrosomas and salps), have a low nutritive value per unit biomass, although the nutritional value of the entire organism can be quite high in the case of large scyphomedusae (Doyle et al., 2007). Davenport and Balazs (1991) debated the hypothesis that the source of nutrients for leatherbacks may be from the stomach contents of the prey, rather than from the medusae and tunicates themselves. Leatherbacks consuming C. fuscescens might also ingest additional prey items found in the stomach contents of this jellyfish (Suchman et al., 2008). Regardless, leatherbacks must eat a massive amount of jellyfish per day, approximately 20-30 percent of their body weight compared to cheloniids, which eat approximately 2-3 percent of their body weight (Davenport and Balazs, 1991). It has been estimated that an adult leatherback would need to eat about 50 large jellyfish (equivalent to approximately 200 liters) per day to maintain its nutritional needs (Bjorndal, 1997). Leatherbacks have been observed at or near the surface consuming C. fuscescens within upwelling shadows or oceanographic retention areas within neritic waters off central California (Benson et al., 2003; 2007b); however, satellite-linked time-depth recorders suggest foraging can also occur at deeper offshore waters of the U.S. West Coast (S. Benson, NMFS, February 2006, pers. comm.). Leatherbacks likely select C. fuscescens as prey over other scyphomedusae species in neritic central California waters because C. fuscescens is larger and more nutritionally beneficial than other available scyphomedusae species (Graham, 2009). The CHRT considered areas as primary foraging habitat if they contain great densities of C. fuscescens; secondary foraging habitat if they contain A. labiata and some scattered C. fuscescens; and tertiary foraging habitat if they contain only scattered A. labiata.

Although leatherbacks are capable of deep diving (Lutcavage and Lutz, 1997; Hays et al., 2004), the majority of their time is spent at or near the surface. Depth profiles developed for four leatherbacks tagged and tracked from Monterey Bay in 2000 and 2001 (using satellite-linked dive recorders) showed that most dives were to depths of less than 100 meters and leatherbacks spent most of their time shallower than 80 meters. Dutton (NMFS, January 2004, pers. comm.) estimated that leatherbacks spend 75-90 percent of their time at depths of less than 80 meters based on preliminary data analysis. Within neritic central California waters, leatherbacks spend approximately 50 percent of their time at or within one meter of the surface while foraging and over 75 percent of their time within the upper five meters of the water column (Benson et al., 2007b). Leatherback turtles also appear to spend almost the entire dive time traveling to and from maximum depth, suggesting that efficient transit of the water column is of paramount importance (Eckert et al., 1989b). Leatherbacks have been observed periodically resting on the surface, presumably to replenish oxygen stores after repeated dives (Harvey et al., 2006; Benson et al., 2007b).

Based on the aforementioned information, the CHRT identified two PCEs essential for the conservation of leatherbacks in marine waters off the U.S. West Coast: (1) Occurrence of prey species, primarily scyphomedusae of the order Semaeostomeae (Chrysaora, Aurelia, Phacellophora, and Cyanea) of sufficient condition, distribution, diversity, and abundance to support individual as well as population growth, reproduction, and development; (2) Migratory pathway conditions to allow for safe and timely passage and access to/from/within high use foraging areas.

When evaluating the second identified PCE, migratory pathway conditions or passage, the CHRT considered the type of activities that could affect or impede the passage of a leatherback turtle. After reviewing several potential types of impediments, the CHRT determined that only permanent or long-term structures that alter the habitat would be considered as having potential effects on passage. Given this determination, the CHRT did not consider fishing gear or vessel traffic as potential threats to passage.

The CHRT considered a third PCE—water quality to support normal growth, development, viability, and health. This PCE would encompass bioaccumulation of contaminants and pollutants in prey and subsequent accumulation in leatherbacks as well as direct ingestion and contact with contaminants and pollutants. The CHRT eliminated this option because knowledge on how water quality affects scyphomedusae was lacking, and, where data were available, the CHRT believed prey condition, distribution, diversity, and abundance would encompass water quality considerations regarding bioaccumulation. The CHRT also felt that direct ingestion and contact with contaminants and pollutants would be encompassed in a direct effects analysis for the listed species. We encourage public comment on the exclusion of water quality as a PCE (see ADDRESSES).

One of the first steps in the critical habitat revision process was to define the geographical area occupied by the species at the time of listing. As described above, leatherbacks are distributed circumglobally throughout the oceans of the world, and along the U.S. West Coast (including the petitioned area) within the U.S. EEZ. The CHRT reviewed a variety of data sources to identify specific areas within and adjacent to the petitioned area that contain one or more PCE requiring special management considerations or protection. Information reviewed included: turtle distribution data from nearshore aerial surveys (Peterson et al., 2006; Benson et al., 2006; 2007b; 2008; NMFS unpublished data); offshore ship sightings and fishery bycatch records (Bowlby, 1994; Starbird et al., 1993; Bonnell and Ford, 2001; NMFS SWR Observer Program, unpublished data); satellite telemetry data (Benson et al., 2007a; 2007c; 2008; 2009; NMFS unpublished data); distribution and abundance information on the preferred prey of leatherbacks (Peterson et al., 2006; Harvey et al., 2006; Benson et al., 2006; 2008); bathymetry (Benson et al., 2006; 2008); and regional oceanographic patterns along the U.S. West Coast (Parrish et al., 1983; Shenker, 1984; Graham, 1994; Suchman and Brodeur, 2005; Benson et al., 2007b).

Joint NMFS and FWS regulations provide that areas outside of U.S. jurisdiction not be designated as critical habitat (50 CR 424.12(h)), so any areas outside of the U.S. EEZ were excluded from our analysis. Thus, the occupied geographic area under consideration for this designation was limited to areas along the U.S. West Coast within the U.S. EEZ from the Washington/Canada border to the California/Mexico border.

The CHRT recognized that leatherback habitat use appears to vary seasonally and spatially. The boundaries chosen to define each specific area represent the CHRT's best estimate of where these turtles transition from foraging to migrating or where prey composition or abundances change. Most leatherback sightings occur in marine waters within the neritic zone. The species may pursue prey as far as the extent of mean lower low water (S. Benson, NMFS, September 2000, unpublished) so the CHRT considered this as the shoreward extent of distribution in those specific areas with documented nearshore distribution.

The following paragraphs describe each specific area (shown on Figure 1) and summarize the data used to determine that each area is occupied by leatherbacks:

Area 1: Nearshore area from Point Arena (peninsula where the Point Arena Lighthouse is located) to Point Sur California and offshore to the 200 meter isobath. The specific boundaries are the area bounded by Point Sur (36°18′22″ N./121°54′9″ W.) then north along the shoreline following the line of mean lower low water to Point Arena, California (38°57′14″ N./123°44′26″ W.) then west to 38°57′14″ N./123°56′44″ W. then south along the 200 meter isobath to 36°18′22″ N./122°4′13″ W. then east to the point of origin at Point Sur. Leatherback presence is based on aerial surveys, shipboard sightings, and telemetry studies. This area is a principal California foraging area (Benson et al., 2007b) with high densities of primary prey species C. fuscescens occurring here seasonally from April to November (Graham, 1994).

Area 2: Nearshore area from Cape Flattery, Washington, to Umpqua River (Winchester Bay), Oregon and offshore to a line approximating the 2000 meter isobath. The specific boundaries are the area bounded by Winchester Bay, Oregon (at the tip of the south jetty) north along the shoreline following the line of mean lower low water to Cape Flattery, Washington (48°23′10″ N./124°43′32″ W.) then north to the U.S./Canada boundary at 48°29′38″ N./124°43′32″ W. then west and south along the line of the U.S. EEZ to 47°57′38″ N./126°22′54″ W. then south along a line approximating the 2,000 meter isobath that passes through points at 47°39′55″ N./126°13′28″ W., 45°20′16″ N./125°21′ W. to 43°40′8″ N./125°17′ W. then east to the point of origin at Winchester Bay. Leatherback presence is based on aerial surveys, shipboard surveys, fishery interaction data, and telemetry studies. This area is the principal Oregon/Washington foraging area and includes important habitat associated with Heceta Bank, Oregon. The greatest densities of a primary prey species C. fuscescens occur north of Cape Blanco, Oregon and in shallow inner shelf waters (Suchman and Brodeur, 2005).

Area 3: Nearshore area south of Area 2 from Umpqua River (Winchester Bay), Oregon, to Point Arena, California, shoreward of a line approximating the 2000 meter isobath. This line runs from 43°40′ N./125°17′ W. through 43°24′10″ N./125°16′ W., 42°39′3″ N./125°7′37″ W., 42°24′49″ N./125°0′13″ W., 42°3′17″ N./125°9′51″ W., 40°49′38″ N./124°49′29″ W., 40°23′33″ N./124°46′32″ W., to 38°57′14″ N./123°56′44″ W. then east to Point Arena. Leatherback presence is based on aerial survey data. This area includes major upwelling centers between Cape Blanco, Oregon and Cape Mendocino, California and is characterized by cold sea surface temperatures (<13° C) and great densities of the prey species A. labiata. Although leatherback use is limited, this area could experience greater use during warm water episodes such as an El Nino event.

Area 4: Offshore area west and adjacent to Area 2 (see above). Includes waters west to a line from 47°57′38″ N./126°22′54″ W. southwest to 43°40′8″ N./129°1′30″ W. Leatherback presence is based on aerial surveys. This area is used primarily as a region of passage to/from Areas 2 and 5 (see below) although prey species are present and it is used as a secondary foraging area. This area contains large numbers of A. labiata and some C. fuscescens, with greater densities of C. fuscescens found east of Area 4 in Area 2.

Area 5: Offshore area south and adjacent to Area 4 and west and adjacent to the northern portion of Area 3 (see above). This area includes all waters north of a line consistent with the California/Oregon border and west to the boundary of the U.S. EEZ. Leatherback presence is based on aerial surveys, telemetry studies, and fishery interaction data. This area includes prey species within primary offshore foraging habitat and passage to Areas 2, 3 and 4 (see above).

Area 6: Offshore area south and adjacent to Area 5 and west and adjacent to the southern portion of Area 3 (see above) offshore to a line connecting 42° N./129° W. and 38°57′14″ N./126°22′55″ W. Leatherback presence is based on aerial surveys, telemetry studies, and fishery interaction data. This area includes prey species within secondary foraging habitat west of Cape Mendocino and passage between Area 5 (see above) and Area 7 (see below).

Area 7: Nearshore area from Point Arena, California, to Point Vicente, California (35°44′30″ N./118°24′44″ W.), exclusive of Area 1 (see above) and offshore to a line connecting 38°57′14″ N./126°22′55″ W. and 33°44′30″ N./121°53′41″ W. This area includes waters surrounding the northern Santa Barbara Channel Islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa Islands). Leatherback presence is based on aerial surveys, telemetry studies, and fishery interaction data. This area includes prey species within secondary foraging areas characterized by ocean frontal zones west of the continental shelf that are occupied by aggregations of A. labiata and lower densities of C. fuscescens. The frontal zones are created by a series of quasi-permanent, retentive eddies or meanders, associated with offshore-flowing squirts and jets anchored at coastal promontories between Point Reyes and Point Sur, which create linkages between nearshore waters of Area 1 and offshore waters of the California Current. Telemetry data indicate that this area is commonly utilized by leatherbacks, particularly when jellyfish availability in Area 1 is poor. This area also provides passage to/from foraging habitat in Areas 1, 5, and 6 (see above), often through the northern Santa Barbara Channel Islands during the spring and early summer months.

Area 8: Extreme offshore area west and adjacent to Areas 6 and 7 from the California/Oregon border then south of Area 7, including areas closer to the coast, along the U.S. EEZ to the U.S./Mexico border. The western and southern borders of Area 8 are the U.S. EEZ. This area includes waters surrounding the southern Santa Barbara Channel Islands (San Nicholas, Santa Barbara, Catalina, and San Clemente Islands). Leatherback presence is based on aerial surveys, telemetry studies, and fishery interaction data. This area includes prey species within tertiary foraging habitat characterized by warm, low salinity offshore waters and passage to/from foraging habitat in Areas 1, 5, 6, and 7 (see above).

Section 3(5)(A)(ii) of the ESA authorizes designation of “specific areas outside the geographical areas occupied by the species at the time it is listed” if those areas are determined to be essential to the conservation of the species. Joint NMFS and USFWS regulations (50 CFR 424.12(e)) emphasize that the agency shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species. At the present time we have not identified additional specific areas outside the geographic area occupied by leatherbacks that may be essential for the conservation of the species.

An occupied area may be designated as critical habitat if it contains physical and biological features that “may require special management considerations or protection.” Joint NMFS and USFWS regulations (50 CFR 424.02(j)) define “special management considerations or protection” to mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” The CHRT identified a number of activities that may threaten the identified PCEs, as impacts to the PCEs also impact the physical and biological features. The CHRT grouped these activities into eight activity types: Pollution from point sources (e.g. National Pollution Discharge Elimination System (NPDES)); runoff from agricultural pesticide use; oil spills; power plants; aquaculture; desalination plants; tidal energy or wave energy projects; and liquid natural gas (LNG) projects. All of these activities have the potential to affect the PCEs by altering prey abundance, prey contamination levels, and free passage between and within specific areas (Table 1). Some of these activities may also have the potential to impact PCEs positively (e.g. infrastructure for aquaculture may provide substrate and habitat for the benthic polyp stages of medusae).

The CHRT initially considered impacts to PCE's from potential offshore wind energy projects, but due to lack of data and uncertainty regarding the potential for offshore wind energy projects off the U.S. West Coast, they did not have enough information to fully evaluate costs and effects of wind projects alongside the analysis on tidal energy and wave energy projects. Therefore, the CHRT recommended that we exclude wind energy from this analysis and solicit public comment on this issue (see ADDRESSES).

The CHRT also considered impacts to PCE's from commercial fishing activities, but ultimately determined that commercial fisheries would not impact PCE's. When considering the prey PCE, the CHRT looked at potential fisheries that would target jellyfish, but no such fishery was anticipated, within the evaluated areas, in the foreseeable future. The bycatch of jellyfish in existing commercial fisheries was also considered, but it was determined that the level of bycatch was limited. When considering impacts to the passage PCE, the team considered whether fishing gear could be considered an impediment to the passage of leatherbacks to and from their foraging areas, and if the presence of that gear altered the habitat. It was determined that only permanent or long-term structures would be considered for their potential to affect habitat and the passage PCE. Additionally, the direct take of the species in fishing gear is more appropriately considered under the jeopardy standard in ESA section 7 consultations. Therefore, the CHRT recommended that we exclude commercial fishing activities from our analysis and solicit public comment on this issue (see ADDRESSES).

The CHRT also considered ocean acidification (and myriad contributing activities) as possibly affecting the prey PCE. The Class Scyphozoa, which includes C. fuscescens and A. labiata, has calcium sulfate hemihydrate statoliths, which may be affected by acidification. Winans and Purcell (in review) found no pH effect on production of new medusae (ephyrae); statoliths were not decreased in number, but were smaller in low pH. Iglesias-Rodriquez et al. (2008) found increases in biogenic calcification in phytoplankton with increased CO2 using methods they argued were more realistic than those used in previous studies that showed decreased calcification with increasing PCO2. Attrill et al. (2007) suggested that lower pH in parts of the North Sea opened an ecological niche leading to an increase in jellyfish abundance. Yet, Richardson and Gibbons (2008) repeated and expanded the work of Attrill et al. (2007) and found no correlation between ocean acidification and scyphomedusae abundance. Given equivocal or sparse data, the CHRT recommended that we exclude ocean acidification and the contributing activities from our analysis and solicit public comment on this issue (see ADDRESSES).

Recent amendments to the ESA preclude the Secretary from designating military lands as critical habitat if those lands are subject to an Integrated Natural Resource Management Plan (INRMP) under the Sikes Act and the Secretary certifies in writing that the plan benefits the listed species (Section 4(a)(3), Pub. L. 108-136). We are not aware of any INRMPs in the areas under consideration for designation as critical habitat.

Section 4(b)(2) of the ESA requires us to use the best scientific information available in designating critical habitat. It also requires that before we designate any “particular areas,” we must consider the economic impacts, impacts on national security, and any other relevant impacts. The ESA does not define what “particular areas” means in the context of section 4(b)(2), or the relationship of particular areas to “specific areas” that meet the statute's definition of critical habitat. As there was no biological basis to further subdivide the eight “specific areas” identified within the occupied geographical area into smaller units, we treated these areas as the “particular areas” for our initial consideration of impacts of designation. Once impacts are determined, we decide whether to consider exercising discretion to exclude any areas. If we consider exercising such discretion, we are to weigh the benefits of excluding any particular area (avoiding the economic, national security or other costs) against the benefits of designating it (the conservation benefits to the species). If we conclude that the benefits of exclusion in any particular area outweigh the benefits of designation, we have discretion to exclude areas, so long as exclusion will not result in extinction of the species. We determined to proceed with evaluating the benefits of designation.

The primary benefit of designation is the protection afforded under section 7 of the ESA, requiring all Federal agencies to ensure their actions are not likely to destroy or adversely modify critical habitat. This is in addition to the requirement that all Federal agencies ensure that their actions are not likely to jeopardize the continued existence of the species. The designation of critical habitat also provides other benefits such as improved education and outreach by informing the public about areas and features important to species conservation.

For the purposes of conducting the 4(b)(2) analysis, it was not possible to directly compare the benefits to the costs of designation. For a direct comparison, the benefits would need to be monetized, but we are unaware of available data that would allow us to monetize the benefits expected from ESA section 7 consultations, education, and outreach for the considered areas. As an alternative approach, we used the overall conservation value ratings that were calculated for each area by the CHRT to represent the qualitative conservation benefit of designation.

In evaluating the conservation value of each specific area, the CHRT assessed how leatherbacks use each area, the frequency and duration of that use, and the quality and quantity of prey species within each area. After reviewing the best available information, the CHRT determined that the eight specific areas varied in terms of potential conservation value for leatherback turtles. The CHRT used professional judgment to assign a relative biological importance score of 1, 2, or 3 (3 representing the highest importance) to each area for each of our two identified PCEs. Scores were then summed and used to assign an overall conservation rating of “Very Low”, “Low”, “Medium”, or “High” for each specific area. Summed numeric equivalents for each conservation rating were: Very Low = 3 or less; Low = 4; Medium = 5; High = 6. The scoring criteria, parameter scores, and overall conservation rating for each specific area are summarized in Table 2.

To determine the economic benefits of excluding particular areas from designation, we estimated the potential cost of designation associated with each area. To do this we first accounted for the baseline level of protection afforded to leatherbacks based on existing Federal and state regulations. When calculating baseline cost estimates, the CHRT heavily relied on information from the draft economic reports supporting critical habitat designations for the southern resident killer whale (Industrial Economics Incorporated, 2006), green sturgeon (Industrial Economics Incorporated, 2008), and the final economic report for salmon and steelhead (NMFS, 2005). The level of future activities was developed using GIS data and other published data on existing, pending, or future actions (e.g. Federal Energy Regulatory Commission (FERC) permit license data for LNG projects).

In areas where listed species coexist with leatherbacks (particularly green sturgeon), a portion of affected future activities modifications (and associated costs) are expected to occur regardless of leatherback critical habitat designation. Thus, after estimating the number of projects that may potentially require modifications, the CHRT applied an “incremental score” to more accurately represent the portion of the projects that would be affected solely by leatherback critical habitat designation. For activities that occur in areas with more existing protections (e.g. areas with Marine Sanctuaries or overlapping critical habitat with other listed species), the CHRT estimated that 30 percent of costs would be attributable to designated leatherback critical habitat. For activities that occur in areas with fewer existing protections (e.g. areas with other listed species), the CHRT estimated that 50 percent of costs would be attributable to designation of leatherback critical habitat (see economic report for more details).

Annual costs were estimated for each activity in each area and then modified by the incremental score percentage to determine the estimated costs for project modifications due to leatherback critical habitat designation. The majority of activity costs were projected 20 years into the future and where applicable, costs were adjusted for inflation to reflect 2009 values (with a 7 percent discount rate applied to future costs). The CHRT calculated low and high cost scenarios based on spatial considerations for activities that occur on land (e.g. agriculture pesticide application) and the likelihood of modifications to existing activities. Where applicable, the high cost scenario estimated costs for activities within 5 miles of the coastline; the low cost scenario estimated costs for activities within 1 mile of the coastline. Estimated costs were determined for all activities except LNG and aquaculture, therefore only a qualitative assessment was possible for these activities. The median value between the high and low cost scenarios was used as the estimated incremental cost for the designation of each area (see economic report for more details).

The conservation benefit to the species resulting from the designation of a particular area is not directly comparable to the economic benefit resulting from the exclusion of that particular area. As explained above, we had sufficient information to monetize the estimated economic benefits of exclusion, but were not able to monetize the conservation benefits of designation. To qualitatively scale the economic cost estimates in the same manner as the conservation value ratings, we created economic thresholds (see Table 3) and assigned each area an economic rating based on its median annualized cost.

As shown in Table 3 above, we set the high economic threshold at $20 million or more in costs, based on an estimate of 3 percent of total revenue for activities associated with Area 7, the area with the highest estimated revenues and costs. The economic threshold between medium and low economic costs was set at $700,000 based on the median value of cost per area. A very low estimated cost threshold was set at less than $25,000, based on the presumed insignificant distributed burden this would place on affected activities. No areas currently under review as potential leatherback critical habitat have either high or very low economic costs using this economic scale (see the economic and ESA section 4(b)(2) reports for more details).

The dollar thresholds do not represent a judgment that areas with medium conservation value are worth no more than $19,999,999, or that areas with very low conservation value ratings are worth no more than $24,999. These thresholds represent the levels at which we believe the economic impact associated with a particular area would outweigh the conservation benefits of designating that area.

To weigh the benefits of designation against the benefits of exclusion, we compared the conservation value ratings against the economic ratings. Areas were determined to be eligible for exclusion based on economic impacts using three decision rules: (1) Areas with conservation value ratings of “high” or “medium” were eligible for exclusion only if they had an economic rating above the conservation rating, unless decision rule 3 applies; (2) Areas with conservation value ratings of “low” or “very low” were eligible for exclusion if they had an economic rating equal to or above the conservation value rating; and (3) Offshore areas with oil spills as the only activity that may affect PCEs are eligible for exclusion regardless of conservation value or economic ratings (see explanation below). We seek public comment on these decision rules (see ADDRESSES).

The dollar thresholds and decision rules provided a relatively simple process for identifying specific areas warranting consideration for exclusion. See Table 4 for a summary of the information used to determine which areas are eligible for exclusion based on economic impacts.

Based on this analysis, Areas 3, 4, 5, 6 and 8 were identified as eligible for exclusion based on economic impacts. The Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of designating such an area as critical habitat, unless he determines that failure to designate will result in the extinction of the species concerned. Therefore, the CHRT considered whether the exclusion of Areas 3, 4, 5, 6, and 8 would result in the extinction of the endangered leatherback sea turtle.

The CHRT evaluated this question based on the information reviewed when addressing the conservation value ratings and activities that may impact PCEs, and determined that exclusion of Areas 3, 4, 5, 6, and 8 is not likely to cause the extinction of leatherbacks. The CHRT also evaluated whether excluding any of these areas would significantly impede the conservation of the species. After examining relevant scientific and commercial information, the CHRT determined that the exclusion of these areas would not significantly impede conservation. For Area 3 the CHRT based this determination in part on the area's limited overall prey abundance, distribution of preferred prey species, and use of the area by leatherbacks. For Areas 6 and 8 the CHRT based this determination on the fact that these areas have relatively few threats and offer only secondary and tertiary foraging habitat, respectively.

Given their medium conservation value ratings, special attention was given to Areas 4 and 5 to ensure that exclusions would not significantly impede conservation. The CHRT found that although these areas received a medium conservation value rating, oil spills are the only identified activity that may affect PCEs. Based on NOAA's records since the late 1950s, there have been very few and relatively small oil spills documented in these two areas. In general, vessels transiting offshore are widely dispersed and less vulnerable to collisions with one another or with man-made or natural structures. In addition, there has been limited or no response to offshore oil spills when they have occurred off the U.S. West Coast. Therefore, the CHRT reasoned that exclusion of these areas would not impede conservation of leatherback sea turtles since there are few activities within Areas 4 and 5 likely to require special management afforded by critical habitat designation.

Based on the best scientific data currently available, we propose to exclude Areas 3, 4, 5, 6, and 8 from critical habitat designation because the benefits of exclusion outweigh the benefits of inclusion and exclusion will not impede conservation or result in the extinction of the species. We recognize that the lack of documented evidence of leatherbacks in some of these areas may be the result of inadequate monitoring and encourage directed surveys in both offshore and nearshore areas to increase our knowledge of leatherback use of the waters of the U.S. West Coast. We will evaluate any new information in the final rule stage and encourage public comment on these proposed exclusions (see ADDRESSES).

The Secretary must consider possible impacts on national security when determining critical habitat. Discussions with the Department of Defense (DOD) indicate that there is overlap between the areas proposed here as critical habitat and areas off southern California and Washington where the U.S. Navy conducts training exercises. The Navy provided letters to NMFS detailing the operations areas that they believe should be excluded from critical habitat due to national security. We will continue working with the DOD to identify impacts to national security and to determine whether any military areas are eligible for exclusion from the proposed critical habitat designation. We encourage the public to see Appendix 1 of the 4(b)(2) report for additional information.

The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Pursuant to these authorities lands have been retained by Indian Tribes or have been set aside for tribal use. These lands are managed by Indian Tribes in accordance with tribal goals and objectives within the framework of applicable treaties and laws. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests. Indian lands are those defined in the Secretarial Order “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997), including: (1) Lands held in trust by the United States for the benefit of any Indian tribe; (2) land held in trust by the United States for any Indian Tribe or individual subject to restrictions by the United States against alienation; (3) fee lands, either within or outside the reservation boundaries, owned by the tribal government; and (4) fee lands within the reservation boundaries owned by individual Indians.

We reviewed maps indicating that several areas along the Washington coast under consideration as critical habitat overlap with Indian lands. These overlapping areas consist of a narrow intertidal zone associated with Indian lands, from the line of mean lower low water to extreme low water, for the following federally recognized tribes (73 FR 18553, April 4, 2008): The Hoh, Makah, Quileute, and Quinault tribes.

To assess the exclusion of Indian lands under section 4(b)(2) of the ESA, we compared the benefits of designation to the benefits of exclusion. The benefits of exclusion include: (1) The furtherance of established national policies, our Federal trust obligations and our deference to the tribes in management of natural resources on their lands; (2) the maintenance of effective long-term working relationships to promote species conservation on an ecosystem-wide basis; (3) the allowance for continued meaningful collaboration and cooperation in scientific work to learn more about the conservation needs of the species on an ecosystem-wide basis; and (4) continued respect for tribal sovereignty over management of natural resources on Indian lands through established tribal natural resource programs. Given that the affected Indian lands represent a very small proportion of the total critical habitat area and, moreover, the high benefits of exclusion, we determined that the benefits of exclusion outweigh the benefits of designation. We also determined that these proposed exclusions will not result in extinction, or impede conservation, of leatherback turtles. Therefore, we propose the exclusion of the identified Indian lands from the proposed critical habitat designation for leatherback turtles. The 4(b)(2) report provides a more detailed description of our assessment and determination for Indian lands.

We proposed to designate areas 1, 2, and 7, which includes approximately 70,600 square miles (182,854 square km) of marine habitat in California, Oregon, and Washington and offshore Federal waters. The proposed critical habitat areas contain the physical or biological features essential to the conservation of the species that may require special management considerations or protection. We propose to exclude from designation areas 3, 4, 5, 6, and 8, for which the benefits of exclusion outweigh the benefits of designation. We conclude that the exclusion of these areas will not result in the extinction of the species, nor impede conservation of the species.

Section 7(a)(2) of the ESA requires Federal agencies to insure that any action authorized, funded, or carried out by the agency (agency action) does not jeopardize the continued existence of any threatened or endangered species or destroy or adversely modify designated critical habitat. Federal agencies are also required to confer with us regarding any actions likely to jeopardize a species proposed for listing under the ESA, or likely to destroy or adversely modify proposed critical habitat, pursuant to section 7(a)(4). A conference involves informal discussions in which we may recommend conservation measures to minimize or avoid adverse effects. The discussions and conservation recommendations are to be documented in a conference report provided to the Federal agency. If requested by the Federal agency, a formal conference report may be issued; including a biological opinion prepared according to 50 CFR 402.14. A formal conference report may be adopted as the biological opinion when the species is listed or critical habitat designated, if no significant new information or changes to the action alter the content of the opinion. When a species is listed or critical habitat is designated, Federal agencies must consult with NMFS on any agency actions to be conducted in an area where the species is present and that may affect the species or its critical habitat. During the consultation, we would evaluate the agency action to determine whether the action may adversely affect listed species or critical habitat and issue our findings in a biological opinion or concurrence letter. If we conclude in the biological opinion that the agency action would likely result in the destruction or adverse modification of critical habitat, we would also recommend any reasonable and prudent alternatives to the action. Reasonable and prudent alternatives (defined in 50 CFR 402.02) are alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid the destruction or adverse modification of critical habitat. Regulations (50 CFR 402.16) require Federal agencies that have retained discretionary involvement or control over an action, or where such discretionary involvement or control is authorized by law, to reinitiate consultation on previously reviewed actions in instances where: (1) Critical habitat is subsequently designated; or (2) new information or changes to the action may result in effects to critical habitat not previously considered in the biological opinion. Consequently, some Federal agencies may request reinitiation of a consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat. Activities subject to the ESA section 7 consultation process include activities on Federal lands and activities on private or state lands requiring a permit from a Federal agency (e.g. an ESA section 10(a)(1)(B) permit from NMFS) or some other Federal action, including funding (e.g. Federal Highway Administration (FHA)). ESA section 7 consultation would not be required for Federal actions that do not affect listed species or critical habitat and for actions on non-federal and private lands that are not federally funded, authorized, or carried out.

Section 4(b)(8) of the ESA requires that we describe briefly and evaluate, in any proposed or final regulation to designate critical habitat, those activities that may destroy or adversely modify such habitat or that may be affected by such designation. A wide variety of activities may affect critical habitat and, when carried out, funded, or authorized by a Federal agency, will require an ESA section 7 consultation. These Federal actions and/or regulated activities (detailed in the economic report) include: regulation of point source pollution, particularly NPDES facilities and pesticide application (e.g. EPA); oil spills (e.g. U.S. Coast Guard (USCG) and EPA have response authorities); power plants (e.g. Nuclear Regulatory Commission (NRC) regulates commercial nuclear power); desalination plants (e.g. EPA regulates discharge/USCG and U.S. Army Corps of Engineers (USACE) are involved with permitting or approving structures or placing fill that may affect navigation); tidal/wave energy (e.g. FERC permitting or licensing); LNG projects (e.g. FERC or USCG permitting requirement), and aquaculture (e.g. USACE, EPA, or Minerals Management Service permitting requirements). We believe this proposed rule will provide Federal agencies, private entities, and the public with clear notification of critical habitat for leatherback sea turtles and the boundaries of such habitat. This designation will also allow Federal agencies and others to evaluate the potential effects of their activities on critical habitat to determine if ESA section 7 consultation with NMFS is needed. Questions regarding whether specific activities will constitute destruction or adverse modification of critical habitat should be directed to NMFS (see ADDRESSES).

The data and analyses supporting this proposed action have undergone a pre-dissemination review and have been determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the IQA. The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. The peer review requirements of the OMB Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the scientific information that supports the proposal to designate critical habitat for the leatherback sea turtle and incorporated the peer review comments prior to dissemination of this proposed rulemaking.

We solicit comments or suggestions from the public, other concerned governments and agencies, the scientific community, industry, non-governmental organizations, or any other interested party concerning the proposed designation and exclusions, the biological report, the economic report, IRFA analysis, and the 4(b)(2) report. We are particularly interested in comments and information in the following areas: (1) Information describing the abundance, distribution, and habitat use of leatherback sea turtles in the eastern Pacific Ocean; (2) Information on the identification, location, and the quality of physical or biological features and PCEs which may be essential to the conservation of the species, including whether water quality should be a PCE; (3) Information regarding potential benefits of designating any particular area of the proposed critical habitat, including information on the types of Federal actions that may affect the designated critical habitat, the physical and biological features, and/or the PCEs; (4) Information regarding potential impacts of designating any particular area, including the types of Federal actions that may trigger an ESA section 7 consultation and the possible modifications that may be required of those activities; (5) Information regarding the benefits of excluding a particular area of the proposed critical habitat; (6) Current or planned activities in the area proposed as critical habitat and costs of potential modifications to those activities due to critical habitat designation; (7) Any foreseeable economic, national security, or other relevant impact resulting from the proposed designation; (8) Information on water quality, ocean acidification and projected global climate change impacts in the proposed areas and their potential effects on the physical and biological features, and/or the PCEs; (9) Information regarding commercial fishing activities and their potential effects on the physical and biological features, and/or the PCEs; (10) Information on the potential for wind energy projects off the U.S. West Coast, including potential economic costs and effects on the physical and biological features, and/or the PCEs.

You may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES). Copies of the proposed rule and supporting documentation, including the biological report, economic analysis, IRFA analysis, and the 4(b)(2) report, can be found on the NMFS Web site http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents. We will consider all comments pertaining to this designation received during the comment period in preparing the final rule. Accordingly, the final decision may differ from this proposal.

Joint NMFS and USFWS regulations (50 CFR 424.16(c)(3)) state that the Secretary shall promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed regulation to list a species or to designate critical habitat. Requests for public hearings must be made in writing (see ADDRESSES) by February 19, 2010. If a public hearing is requested, a notice detailing the specific hearing location and time will be published in the Federal Register at least 15 days before the hearing is to be held. Information on the specific hearing locations and times will be posted on our Web site at http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents. Such hearings provide the opportunity for interested individuals and parties to give comments, exchange information and opinions, and engage in a constructive dialogue concerning this proposed rule. We encourage the public's participation and involvement in ESA matters.

The Office of Management and Budget (OMB) has determined that this proposed rule is significant under Executive Order 12866. An economic report and 4(b)(2) report have been prepared to support the exclusion process under section 4(b)(2) of the ESA.

We have determined that an environmental analysis as provided for under the National Environmental Policy Act of 1969 for critical habitat designations made pursuant to the ESA is not required. See Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. Denied, 116 S.Ct 698 (1996).

Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency publishes a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis describing the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). We have prepared an initial regulatory flexibility analysis (IRFA). This document is available upon request (see ADDRESSES), via our Web site http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents, or via the Federal eRulemaking Web site at http://www.regulations.gov. The results of the IRFA are summarized below. A description of the action, why it is being considered, and the objectives of and legal basis for this action are contained in the preamble of this proposed rule.

At the present time, little information exists regarding the cost structure and operational procedures and strategies in the sectors that may be directly affected by the potential critical habitat designation. In addition, a great deal of uncertainty exists with regard to how potentially regulated entities will attempt to avoid the destruction or adverse modification of critical habitat. This is because relatively little data exist on the effects to leatherback sea turtles and their prey from aspects of the activities identified (i.e., water quality, water temperature, etc.). With these limitations in mind, we considered which of the potential economic impacts we analyzed might affect small entities. These estimates should not be considered exact estimates of the impacts of potential critical habitat to individual businesses.

The impacts to small businesses were assessed for the following six activities: NPDES activities; agriculture; oil spills; power plants; tidal/wave energy projects; and LNG projects. The impacts on small entities were not assessed for desalination plants and aquaculture facilities due to lack of information.

Small entities were defined by the Small Business Administration size standards for each activity type. The majority (> 97 percent) of entities affected within each specific area would be considered a small entity. A total of 3,458 small businesses involved in the activities listed above would most likely be affected by the proposed critical habitat designation. The estimated annualized costs associated with ESA section 7 consultations incurred per small entity range from $0 to $281,800, with the largest annualized impacts estimated for entities involved in agricultural pesticide application ($5,500 to $281,800) and tidal/wave energy projects ($11,300 to $236,600). These amounts are most likely overestimates, as they are based on assumptions that such actions may not be able to proceed if a consultation found that the project adversely modified critical habitat. The total estimated annualized cost of section 7 consultation incurred by small entities is estimated to be about $930,000. The estimated economic impacts on small entities vary depending on the activity type and location.

As required by the RFA (as amended by the SBREFA), we considered various alternatives to the proposed critical habitat designation for the leatherback. We considered and rejected the alternative of not designating critical habitat for the leatherback because such an approach does not meet the legal requirements of the ESA. Because the benefits of exclusion for particular areas appear to outweigh the benefits of designation, NMFS is proposing to exclude those areas from the designation; however, NMFS is seeking comments on the alternative of designating all potential critical habitat areas (i.e., no areas excluded), and will evaluate comments received.

We have considered and evaluated each of these alternatives in the context of the ESA section 4(b)(2) process of weighing benefits of exclusion against benefits of designation, and we believe that the current proposal provides an appropriate balance between conservation needs and the associated economic and other relevant impacts. It is estimated that small entities will avoid $578,300 in compliance costs, due to the proposed exclusions made in this designation. We seek information regarding the information in the economic analysis and the impacts to small entities (see ADDRESSES).

Section 307(c)(1) of the Federal Coastal Zone Management Act of 1972 requires that all Federal activities that affect the land or water use or natural resource of the coastal zone be consistent with approved state coastal zone management programs to the maximum extent practicable. We have determined that this proposed designation of critical habitat is consistent to the maximum extent practicable with the enforceable policies of approved Coastal Zone Management Programs of California, Oregon, and Washington. The determination has been submitted for review by the responsible agencies in the aforementioned states.

Executive Order 13132 requires agencies to take into account any Federalism impacts of regulations under development. It includes specific consultation directives for situations where a regulation will preempt state law, or impose substantial direct compliance costs on state and local governments (unless required by statute). We have determined that the proposed rule to designate critical habitat for the leatherback sea turtle under the ESA is a policy that does not have federalism implications. Consistent with the requirements of Executive Order 13132, recognizing the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, and in keeping with Department of Commerce policies, the Assistant Secretary for Legislative and Intergovernmental Affairs will provide notice of the proposed action and request comments from the appropriate officials in states where leatherback sea turtles occur.

This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

In accordance with the Unfunded Mandates Reform Act, we make the following findings: (a) The designation of critical habitat does not impose an “enforceable duty” on state, local, tribal governments or the private sector and therefore does not qualify as a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an “enforceable duty” upon non-federal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” Under the ESA, the only regulatory effect is that Federal agencies must ensure that their actions do not jeopardize the continued existence of the species or destroy or adversely modify critical habitat under section 7. While non-federal entities who receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid jeopardy and the destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply. (b) We do not believe that this proposed rule would significantly or uniquely affect small governments because it is not likely to produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. In addition, the designation of critical habitat imposes no obligations on local, state or tribal governments. Therefore, a Small Government Agency Plan is not required.

Under Executive Order 12630, Federal agencies must consider the effects of their actions on constitutionally protected private property rights and avoid unnecessary takings of property. A taking of property includes actions that result in physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use. In accordance with Executive Order 12630, the proposed critical habitat designation does not pose significant takings implications. A takings implication assessment is not required. This proposed designation affects only Federal agency actions (i.e. those actions authorized, funded, or carried out by Federal agencies). Therefore, the critical habitat designation does not affect landowner actions that do not require Federal funding or permits. This designation would not increase or decrease the current restrictions on private property concerning take of leatherback sea turtles, nor do we expect the final critical habitat designation to impose substantial additional burdens on land use or substantially affect property values. Additionally, the final critical habitat designation does not preclude the development of Habitat Conservation Plans and issuance of incidental take permits for non-Federal actions. Owners of areas included within the proposed critical habitat designation would continue to have the opportunity to use their property in ways consistent with the survival of listed leatherback sea turtles.

The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests. If NMFS issues a regulation with tribal implications (defined as having a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes) we must consult with those governments or the Federal Government must provide funds necessary to pay direct compliance costs incurred by tribal governments. The proposed critical habitat designation does not have tribal implications. The proposed critical habitat designation excludes tribal lands (see Exclusions for Indian Lands section above) and does not affect tribal trust resources or the exercise of tribal rights.

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects when undertaking a “significant energy action.” According to Executive Order 13211, “significant energy action” means any action by an agency that is expected to lead to the promulgation of a final rule or regulation that is a significant regulatory action under Executive Order 12866 and is likely to have a significant adverse effect on the supply, distribution, or use of energy. We have considered the potential impacts of this action on the supply, distribution, or use of energy (see economic report). Activities associated with the supply, distribution, or use of energy that may be affected by the critical habitat designation include the operation of: (1) Power plants; (2) proposed and potential tidal, wave and wind energy projects; (3) LNG projects.

The economic analysis identified seven power plants that may be affected by the potential critical habitat designation. Future management and required project modifications for leatherback critical habitat related to power plants under ESA Section 7 consultation include: Cooling of thermal effluent before release to the environment; treatment of any contaminated waste materials; and modifications associated with permits issued under NPDES. All of the power plants are located on the California coast and are subject to existing regulations through the NRC and California Energy Commission.

The economic analysis identified twelve tidal/wave energy projects that may be affected by the potential critical habitat designation. Eight of these energy projects have received preliminary permits from the FERC and four of the projects have pending applications. Given the necessary timeframes for project construction, it may be reasonable to assume that this set of projects will incur project modification costs related to leatherback critical habitat within the next 20 years. However, it should also be noted that other new permit applications are likely to be filed in the future, and that rate of application may be increasing. We seek comment on the likely number of projects within the timeframe of this analysis (see ADDRESSES). Relevant information received will inform our final analysis of energy effects.

Given that these projects are in their preliminary stages, it is not clear what effects the projects will have on habitats and natural resources, nor what effects a critical habitat designation would have on these projects. The exact nature of habitat impacts is difficult to predict; however, possible impacts to features of the potential leatherback critical habitat include obstruction of passage or migration and disturbance to prey species during their benthic, polyp stage. It is unknown whether the passage PCE could also be affected by the electromagnetic fields generated by these types of projects.

The economic analysis identified seven LNG projects that may be affected by potential leatherback critical habitat. FERC regulates LNG projects. There are three proposed LNG projects and four potential LNG projects within the analyzed areas. Like the alternative energy projects, there is a high degree of uncertainty regarding whether these proposed projects will be implemented. As a result, it is unclear at this time what effects a critical habitat designation would have on these proposed LNG projects; however, using available information, project modifications may include: biological monitoring; spatial restrictions on project installation; and specific measures to respond to catastrophes. We seek information on the nature and extent of likely modifications from LNG projects resulting from the designation of leatherback critical habitat (see ADDRESSES). Relevant information received will inform our final analysis.

We have determined that the energy effects of this proposed rule are unlikely to exceed the energy impact thresholds identified in Executive Order 13211 and that this proposed rulemaking is, therefore, not a significant energy action (see economic report).

A complete list of all references cited in this rule making can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents, and is available upon request from the NMFS (see ADDRESSES).

For the reasons set out in the preamble, we propose to amend 50 CFR part 226 to read as follows: