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CFR Citation: 50 CFR Part 223

Docket ID: [Docket No. 071120724-7618-01]

RIN ID: RIN 0648-AU92

NOTICE: PROPOSED RULES

ACTION: Endangered and threatened species:

DOCUMENT ACTION: Proposed rule; request for comments; notice of availability of a draft environmental assessment.

SUBJECT CATEGORY: Endangered and Threatened Species; Conservation of Threatened Elkhorn and Staghorn Corals

DATES: Comments on this proposal must be received by March 13, 2008.

DOCUMENT SUMMARY: We, NMFS, are proposing to issue protective regulations under of the Endangered Species Act (ESA) for two species listed as threatened, the elkhorn
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coral and the staghorn coral. The proposed regulations would apply all the prohibitions enumerated in the ESA to these two coral species, with limited exceptions for two specified classes of activities that contribute to the conservation of the listed corals. In addition, we are announcing the availability of an environmental assessment (EA) that analyzes the impacts of promulgating these regulations. We are furnishing this notification to allow other agencies and the public an opportunity to review and comment on the proposed rule. All comments received will become part of the public record and will be available for review.

SUMMARY: Elkhorn and staghorn corals,

SUPPLEMENTAL INFORMATION

On May 9, 2006, we published a final rule listing elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals as threatened under the ESA (71 FR 26852). The final listing rule describes the background of the listing actions for elkhorn and staghorn corals and provides a summary of our conclusions regarding the status of the listed corals. We have not previously proposed any regulations pursuant to section 4(d) of the ESA for listed corals.

Section 4(d) of the ESA provides that whenever a species is listed as threatened, the Secretary of Commerce (Secretary) shall issue such regulations as the Secretary deems necessary and advisable to provide for the conservation of the species. Such regulations may include any or all of the prohibitions in ESA section 9(a)(1) that apply automatically to species listed as endangered. Those section 9(a)(1) prohibitions make it unlawful with limited specified exceptions, for any person subject to the jurisdiction of the United States to: ``(A) import any such species into, or export any such species from the United States; (B) take any such species within the United States or the territorial sea of the United States; (C) take any such species upon the high seas; (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C); (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species; (F) sell or offer for sale in interstate or foreign commerce any such species; or (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 4 of this Act and promulgated by the Secretary pursuant to authority provided by this Act.'' Section 11 of the ESA provides for civil and criminal penalties for violation of section 9 or regulations issued under the ESA.

Whether section 9(a)(1) prohibitions or other regulations are necessary and advisable to provide for the conservation of species depends in large part upon the biological status of the species, the potential impacts of various activities on the species, and on factors such as the existence and efficacy of other conservation activities. The two acroporid coral species have survived for millions of years through cycles in ocean conditions and climate. However, as a part of the listing process, we concluded their abundances have been dramatically reduced to less than three percent of former population levels by disease, elevated sea surface temperature, and hurricanes. Additionally, given the extremely reduced population sizes of these species, we determined that the following lesser stressors are contributing to the threatened status of the species: sedimentation, anthropogenic abrasion and breakage, competition, excessive nutrients, predation, contaminants, loss of genetic diversity, African dust, elevated carbon dioxide levels, and sponge boring. We concluded that, within the jurisdiction of the United States, existing regulations have abated the threat posed by collection of the two species; however, existing regulatory mechanisms are inadequate to abate the myriad other threats causing the species' status. Although elkhorn and staghorn corals are not currently endangered, they are likely to become so within the foreseeable future because of a combination of four of the five factors listed in section 4(a)(1) of the ESA, and this status is not being ameliorated by state or foreign government efforts to protect the species. Therefore, as discussed below, we have determined it is necessary and advisable in most circumstances to apply the section 9 prohibitions to both these threatened coral species, in order to provide for their conservation.

Application of Section 9 Prohibitions to Listed Corals

As discussed above, the two coral species have declined to less than three percent of their former abundances and are currently impacted by myriad stressors that are acting simultaneously on the species throughout their ranges. We determined the major stressors (i.e., disease, elevated sea surface temperature, and hurricanes) to these species' persistence are severe, unpredictable, likely to increase in the foreseeable future, and, at current levels of knowledge, unmanageable. While the lesser stressors, enumerated above, have not been the primary causes of the species' decline, managing them will contribute to the conservation of the two species by slowing the rate of decline and reducing the synergistic effects of multiple stressors on the species. Therefore, we believe that the ESA section 9(a)(1) prohibitions are necessary and advisable for the conservation of threatened elkhorn and staghorn corals, specifically to address the lesser stressors that are amenable to management. We believe that the prohibitions are not necessary and advisable in specific circumstances, and we are proposing specific exceptions for importation, exportation, and take, which are more fully described in the next section. Below is our discussion of the section 9 prohibitions which we are proposing to extend to the two listed corals.

Section 9(a)(1)(A) prohibits the importation and exportation of endangered species to or from the United States. We believe that it is necessary and advisable to extend this prohibition to elkhorn and staghorn
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corals. Existing laws prohibit and restrict extraction and trade of live elkhorn and staghorn corals. International agreement restricts international trade of both elkhorn and staghorn corals (Convention on the International Trade of Endangered Species or CITES). Federal regulations prohibit harvest or possession of elkhorn or staghorn coral in Federal waters (e.g., Caribbean and Gulf of Mexico and South Atlantic Coral Fisheries Management Plans), and the Lacey Act prohibits trade of illegally obtained specimens. Sale of coral extracted from any waters is illegal in the U.S. Virgin Islands (U.S.V.I.), Puerto Rico, and Florida, except that the sale of live elkhorn and staghorn corals extracted from Florida waters or the Exclusive Economic Zone (EEZ) is legal when these corals are products of aquaculture (e.g., the corals have settled and grown on live rock products). Neither threatened coral species, however, is a product of commercial aquaculture anywhere within the United States, nor is there a directed market for either elkhorn or staghorn corals. More information on the specific Federal, state, and local laws and regulations concerning the import and export of corals is available in the Atlantic Acropora Status Review Document (BRT, 2005) or the Regulatory Impact Review for this proposed rule.

As discussed in the status review document, prior to listing the two species as threatened under the ESA, there was no evidence of extraction of live specimens from Federal or state waters, nor evidence of trade of live specimens taken from foreign waters and imported into the United States for aquaria or other uses. Lack of extraction and trade of live specimens prior to the listing of these corals can be attributed mostly to existing laws and regulations. However, it is possible that the ESA listing might encourage a black market for the trade of these species, as evidenced by the trade of other threatened and endangered species (e.g., sturgeon eggs, elephant ivory). The increased public exposure to these rare corals due to the ESA listing may make the two species more desirable for aquaria or other uses. Therefore, to prevent this activity and to support existing regulations concerning the import and export of these corals, we find it necessary and advisable to extend the ESA section 9(a)(1)(A) prohibition to elkhorn and staghorn corals in order to provide for the conservation of the two species.

Section 9(a)(1)(B) of the ESA prohibits the take of endangered species within the United States or the territorial sea of the United States, and section 9(a)(1)(C) of the ESA prohibits the take of endangered species upon the high seas for any person subject to the jurisdiction of the United States. Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Activities that constitute harm may include significant habitat modification or degradation that actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns including breeding, spawning, rearing, migrating, feeding or sheltering (50 CFR 222.102). At the time of the drafting of the ESA, the high seas were defined as those waters not under any country's legal jurisdiction, and no country had yet designated an Exclusive Economic Zone (i.e., 200 nautical miles). Thus, ``take on the high seas'' is interpreted as take beyond any country's territorial seas, in the meaning of the ESA when it was first enacted. Based on available information, the territorial seas of countries within the range of the two threatened coral species end no more than 12 nautical miles NM (22.2 km) offshore (See, ``Table of claims to maritime jurisdiction'' as at December 29, 2006, at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf ).

Take of the listed corals can result from numerous private and public activities, including recreational and commercial activities, by direct and indirect impacts, and intentionally or incidentally. Protecting listed corals from direct forms of take, such as physical injury or killing, whether intentional or incidental, will help preserve the species' remaining populations and slow their rate of decline. Protecting listed corals from indirect forms of take, such as harm that results from habitat degradation, will likewise help preserve the species' populations and also decrease synergistic, negative effects from other stressors. We therefore propose to extend the ESA section 9(a)(1)(B) prohibition to elkhorn and staghorn corals to manage for these threats. There are likely few locations where elkhorn and staghorn corals may possibly occur farther than 12 NM (22.2 km) from land, because typically the depth is too great. However, due to the dramatic decline in abundance and the myriad threats facing them, it is necessary and advisable for these species' conservation to protect the species from take everywhere they occur, including on the high seas, and thus we propose extending the ESA section 9(a)(1)(C) prohibition to the listed corals. Ensuring that take is prohibited everywhere the corals may be found will also avoid difficulty in enforcing these regulations based on claims about the origin of coral specimens.

Sections 9(a)(1)(D), (E), and (F) of the ESA prohibit, among other things, the possession, sale, and transport of endangered species that are taken illegally or that are entered into interstate or foreign commerce. For the same reasons discussed above regarding the prohibition pursuant to ESA section 9(a)(1)(A), it is necessary and advisable to extend these prohibitions to the two corals. The ESA listing of these two species may make them a desirable commodity and encourage a black market. Therefore, the extension of these prohibitions will discourage the development of a black market and reinforce existing regulations on commercial activities involving corals.

Lastly, we are extending the section 9(a)(1)(G) prohibition against violating this and any other regulations we promulgate pertaining to these two corals.

Summary of Exceptions to Section 9 Prohibitions

The ESA allows for specific exceptions to the section 9 prohibitions through interagency consultation as prescribed by ESA section 7 or a permit issued pursuant to section 10. If this proposed rule becomes final and the section 9 prohibitions are extended to these two species, these exceptions would apply.

Section 7 of the ESA requires all Federal agencies to consult with us if actions they fund, authorize, or carry out may affect threatened corals or any other species listed under the ESA. We consult on a broad range of activities conducted, funded, or authorized by Federal agencies. These activities include, but are not limited to, national water quality standards and discharge permits, coastal and nearshore construction, dredging or discharge of fill material, navigation regulation, fishery regulation, and liverock aquaculture. Incidental take of these two threatened corals that results from federally funded, authorized, or implemented activities for which section 7 consultations are completed, will not constitute violations of section 9 prohibitions against take, provided the activities are conducted in accord with all reasonable and prudent measures (RPMs) and terms and conditions contained in any biological opinion and incidental take statement issued by us.

Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide us with the authority
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to grant exceptions to the ESA's prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may authorize exceptions to any of the section 9 prohibitions and may be issued to Federal and non Federal entities conducting research or conservation activities that involve a directed take of listed species. A directed take refers to the intentional take of listed species. Section 10(a)(1)(B) incidental take permits may be issued to nonFederal entities performing activities that may incidentally take listed species in the course of an otherwise lawful activity; these permits provide an exception to the section 9(a)(1)(B) prohibitions.

We determined that in certain circumstances described below, extending the ESA section 9(a)(1)(A), (B), and (C) prohibitions to the two corals is not necessary and advisable. We are proposing exceptions to these prohibitions for two classes of activities that provide for the conservation of listed corals. Under specified conditions, (1) scientific research and enhancement activities conducted under six specific existing Federal, state, or territorial research permitting programs are exempt from the section 9(a)(1)(A), (B) and (C) prohibitions; and (2) restoration activities carried out by an authorized (under current laws) Federal, state, territorial, or local natural resource agency are exempt from the section 9(a)(1)(B) and (C) prohibitions. These exceptions are described in more detail in the following sections. These classes of activities are not excepted from the Section 9(a)(1)(D) through (F) prohibitions because allowing commercial activities does not provide for the conservation of the two species. The 9(a)(1)(G) prohibition will be applied to these activities so that it is unlawful to violate this rule or subsequent rules that we may promulgate under the ESA and pertaining to the corals.
Exception to Prohibitions for Scientific Research and Enhancement Activities

This exception would apply to both threatened corals covered by this proposed rule. In carrying out their resource management responsibilities, several Federal, state, and territorial natural resource management agencies permit scientific research and enhancement activities, including monitoring and other studies that are directed at, and occur within the geographic areas occupied by, the listed corals. Research or enhancement activities may involve collection of specimens from one location for study in another location, thus requiring an exception to the import and export, as well as the take prohibitions. The following six agencies have permit programs that include corals, and we have evaluated and found that they provide for the conservation of the listed corals: National Ocean Service (National Marine Sanctuary Program), National Park Service, U.S. Fish and Wildlife Service (FWS), including CITES permit for research purpose only, Florida Fish and Wildlife Conservation Commission, Puerto Rico Department of Natural and Environmental Resources (DNER), and the U.S.V.I. Department of Planning and Natural Resources (DPNR). We compared each of these programs' substantive and procedural requirements to ESA section 10(a)(1)(A) scientific research and enhancement permit regulations. Review of the permitting process used by each of the six specific programs identified above revealed that each of these permit programs allow research activities that yield sufficient data to support the research objectives while limiting, to the maximum extent practicable, the amount of resources collected or impacted. We determined that the programs are restrictive enough to provide important conservation benefits to the listed corals without the additional requirements of section 10(a)(1)(A) scientific research permits. Additionally, we reviewed examples of the types of acroporid research that have been permitted in the past by these agencies (e.g., gene flow, disease etiology) and concluded that the continuation and future permitting of these types of research will provide for the conservation of these species by improving our understanding of the status and risks facing these threatened corals, and providing critical information for assessing the effectiveness of current and future management practices. Each of these programs has application requirements similar to those of the ESA section 10 permitting program. Each requires detailed background information, justifications, and descriptions of expected impacts prior to approval for all proposed scientific research. Additionally, each of these permitting programs has data reporting requirements and the ability to apply stringent terms and conditions on issued permits. If research directed at elkhorn and staghorn coral is in compliance with one of the permit programs listed above, any importation, exportation, or take that occurs under such a permit would not constitute a violation of the prohibitions, and an ESA section 10(a)(1)(A) permit would not be required. The original of the issued permit must be carried and available for inspection during the research or enhancement activity.
Exception to Prohibitions for Certain Restoration Activities

This exception applies to both threatened corals and would except certain Federal, state, and territorial agency personnel, or their designees as applicable, from the prohibitions when they are performing specific restoration activities directed at the listed corals under an existing legal authority that provides for such restoration. For purposes of this exception, a ``restoration activity'' is the methods and processes used to provide immediate aid to injured individuals. For example, reattachment of colonies or fragments dislodged or broken by vessel groundings onto suitable hard substrates would be excepted from the prohibition when it is implemented under an existing legal authority. Thus, Florida Keys National Marine Sanctuary staff actions under the National Marine Sanctuaries Act's authority to undertake all necessary actions to prevent or minimize the destruction or loss of, or injury to, sanctuary resources, (16 U.S.C. 1443), would be excepted from the prohibitions when the restoration activity described in this prohibition is implemented for either of the two acroporid corals. Through this exception, we are not authorizing any activities which are not currently authorized under an existing statute, rather we are excepting these activities from the section 9(a)(1)(B) and (C) take prohibitions for the two listed corals. The activity which caused the injury is not excepted by this rule. Any person claiming this exception shall provide proof they are acting under the authority of the listed laws upon request by a law enforcement agent.

Several Federal, state, and territorial government agencies have authorization to engage in the specific type of restoration activities covered by this proposed exception. We have included response, removal, or remedial authority under several Federal statutes in this proposed exception, because one or more of these authorities have been interpreted to include the type of natural resource restoration activity described above; for example, actions required to respond to a substantial threat of a discharge may dislodge or break coral fragments, and reattaching those fragments are legitimate response activities. However, we are not including removal or remedial authority in state or territorial laws, because we are not aware that these authorities have
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been interpreted to include restoration activities. For state and territorial authorities, the following table currently only includes those that expressly provide for direct restoration of natural resources including corals. We are specifically requesting the states and territories included in Table 1 to comment on whether we have included all their authorities that could encompass the restoration activities proposed to be excepted from the prohibitions. The following table lists the authorizing statute, the specific provision, and specific agencies or offices authorized under existing statutes to implement the coral restoration activities defined in this proposed exception. We are also requesting that the agencies listed ensure the rule correctly identifies the specific offices authorized to implement the statutory provisions.
Table 1. Agencies and authorizing statutes whose coral restoration activities would be excepted from the section 9(a)(1)(B) and (C) prohibition by this proposed rule if finalized.

FOR FURTHER INFORMATION CONTACT Jennifer Moore or Sarah Heberling, NMFS, at the address above or at 7278245312; or Marta Nammack, NMFS, at 3017131401.