National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We, the National Marine Fisheries Service (NMFS), are publishing this final rule to implement our determination to list elkhorn (
The effective date of this rule is June 8, 2006. Responses to the request for information regarding a subsequent ESA section 4(d) Rule and critical habitat designation must be received by June 2, 2006.
NMFS, Southeast Regional Office, Protected Resources Division, 263 13th Ave. South, St. Petersburg, FL 33701.
Jennifer Moore or Stephania Bolden, NMFS, Southeast Region, at the address above or at (727) 824–5312, or Marta Nammack, NMFS, Office of Protected Resources, at (301) 713–1401. Reference materials regarding these determinations are available upon request or on the Internet at
On June 11, 1991, we identified elkhorn and staghorn corals as “candidates” for listing under the ESA (56 FR 26797). Both species were subsequently removed from the candidate list on December 18, 1997, because we were not able to obtain sufficient information on their biological status and threats to meet the scientific documentation required for inclusion on the 1997 candidate species list (62 FR 37560).
Using data from a 1998 analysis and information obtained during a public comment period, we again added the two species to the ESA candidate species list on June 23, 1999 (64 FR 33466). These two species qualified as ESA candidate species at that time because there was some evidence they had undergone substantial declines in abundance or range from historic levels. On April 15, 2004, we established a “species of concern” list to differentiate those species for which we had concerns regarding their status from those species that were truly candidates for listing under the ESA (69 FR 19976). When we established this new list, we transferred both elkhorn and staghorn corals from the candidate species list to the species of concern list.
On March 4, 2004, the Center for Biological Diversity (CBD) petitioned us to list elkhorn, staghorn, and fused-staghorn corals as either threatened or endangered under the ESA and to designate critical habitat. On June 23, 2004, we made a positive 90–day finding (69 FR 34995) that CBD had presented substantial information indicating the petitioned actions may be warranted and announced the initiation of a formal status review as required by section 4(b)(3)(A) of the ESA. Concurrently, we solicited additional information from the public on these Acroporid corals regarding historic and current distribution and abundance, population status and trends, areas that may qualify as critical habitat, any current or planned activities that may adversely affect them, and known conservation efforts. Additional information was also requested during two public meetings held in December 2004 on: (1) distribution and abundance; (2) areas that may qualify as critical habitat; and (3) approaches or criteria that could be used to assess listing potential of the Acroporids (e.g., viability assessment, extinction risk, etc.).
In order to conduct a comprehensive status review, we convened an Atlantic Acropora Biological Review Team (BRT) to compile and analyze the best available scientific and commercial information on these species. The
On March 3, 2005, we determined that elkhorn and staghorn corals were likely to become endangered within the foreseeable future throughout their entire ranges, and, therefore, a proposal to list the two species as threatened under the ESA was warranted (70 FR 13151; March 18, 2005). We also found that fused-staghorn coral was a hybrid and did not warrant listing. On May 9, 2005, we published a proposed rule (70 FR 24359) to place both elkhorn and staghorn corals on the list of threatened species under the ESA and commenced a 90–day public comment period, which included public meetings.
The ESA defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range, and a threatened species as one that is likely to become endangered in the foreseeable future throughout all or a significant portion of its range (sections 3(6) and 3(19) of the ESA, respectively). Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened because of any one or a combination of the following factors: the present or threatened destruction, modification or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are required to make this determination based solely on the best scientific and commercial data available after conducting a review of the status of the species, and after taking into account those efforts being made by states or foreign nations to protect or conserve the species.
Finally, section 4(b)(1)(B) of the ESA requires us to give consideration to species which: (1) have been designated as requiring protection from unrestricted commerce by any foreign nation or pursuant to an international agreement; or (2) have been identified as in danger of extinction, or likely to become so within the foreseeable future, by any state agency or by any agency of a foreign nation.
Below we address the comments received pertaining to the proposed listing for the Acroporid corals. For additional background and a summary of Acropora spp. natural history and threats to the species, the reader is referred to the March 3, 2005, Atlantic Acropora Status Review report (available at http://sero.nmfs.noaa.gov/pr/protres.htm). In response to our request for public comments, we received 1,393 written and verbal responses to the proposed threatened listings.
In addition to population trends, we considered the significance of individual threats, and the cumulative and synergistic effects of the threats, acknowledging that the major threats (i.e., disease, hurricanes, and elevated sea surface temperature) to the elkhorn and staghorn corals are severe, unpredictable, and likely to increase in the foreseeable future. However, given the large number of colonies, the species' large geographic ranges that remain intact, and the fact that asexual reproduction (fragmentation) provides a source for new colonies (albeit clones) that can buffer natural demographic and environmental variability, it is likely both species retain significant potential for persistence, and are not currently at risk of extinction throughout all or a significant portion of their ranges.
One commenter discussed a number of court cases invalidating decisions not to list species where the U.S. Fish and Wildlife Service (FWS) or NMFS only analyzed a species' rangewide status and did not separately evaluate whether a species was endangered or threatened in a significant portion of its range (SPOIR). One commenter stated that we must apply this statutory term such that
One commenter stated that if a species is threatened or endangered in a SPOIR, it must be listed as threatened or endangered throughout its range.
Consistent with prior court holdings, we performed a separate SPOIR analysis. We analyzed the relative biological importance of portions of the species' ranges and found that no area was more or less important (i.e., functionally, ecologically) than any other area. As discussed in further detail (see Species and Risk of Extinction section), we evaluated a recent study that examined genetic exchange and clonal population structure of
We concur with the commenters that, without an ESA listing, the species' abundance and distribution are likely to become further reduced in the next 30 years, with some local extirpations likely. Those considerations contributed to our determination to list the species as threatened. Given that we made a determination to list the species as threatened using the 30–year timeframe for foreseeable future, a shorter timeframe would have been no more protective. We believe our 30–year timeframe is both appropriate and protective.
Similarly, because section 9 prohibitions are not automatically applied to these two species, this final rule will have no direct effects on the activities of private citizens. However, Federal agencies that fund, authorize, or carry out actions that are likely to adversely affect elkhorn or staghorn coral will be required to consult with us pursuant to section 7 of the ESA to ensure their actions are not likely to jeopardize the continued existence of either species.
Section 4(a)(3)(A) of the ESA requires that critical habitat be designated, to the maximum extent prudent and determinable, concurrently with a determination that a species is endangered or threatened. When such a designation is not determinable at the time of final listing of a species, section 4(b)(6)(C)(ii) of the ESA provides for an additional year to promulgate a critical habitat designation. We have concluded that critical habitat for elkhorn and staghorn corals is not determinable at this time. Through the status review and public comment process, we have begun to collect information on the biological and physical features essential to the conservation of the two species. More information is still required to identify those features. Throughout the next year, we intend to gather and review current and ongoing studies on the habitat use and requirements of elkhorn and staghorn corals; this information is crucial for the designation of critical habitat. We will also gather information on the benefits and impacts of the designation.
In addition to the comments relating to the proposed listing, the following were also received: (1) peer-reviewed journal articles regarding climate change; effectiveness of the ESA; and coral resistance, resilience, and bleaching; (2) additional detail pertaining to existing regulatory mechanisms evaluated in the status review; (3) geographic information identifying land development, runoff, sewer outfalls, and land-use; (4) statements regarding the functional role of corals as keystone and indicator species; (5) references to oceanographic processes and circulation patterns; (6) reiteration of biological information included in the status review report; (7) summary of the 2005 NOAA Fisheries Public Employees for Environmental Responsibility survey; and (8) information on the umbrella effect, ecosystem management, limitations in funding opportunities, bryozoans, mari- and aquaculture, coral nurseries, species' status, effectiveness of potential listing, recruitment fitness and success, application of the ESA, obtaining permits, and an Illinois State bill. After careful consideration, we conclude the additional information received, as summarized above, was considered previously or did not pertain to the listing determination for the Acroporid corals.
In the proposed rule to add elkhorn and staghorn corals to the list of
We first considered whether all three of the corals identified in the petition met the definition of “species” pursuant to section 3 of the ESA. The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Based on this language and the regulations at 50 CFR 424.11(a), “species” is given its ordinary, accepted biological meaning for these corals. Species diagnoses for both elkhorn and staghorn are not disputed; both species are recognized as separate taxa in the literature, have separate and discrete diagnoses and morphologies, produce offspring via asexual fragmentation, and produce viable gametes, larvae, and successful sexual offspring, which is typical of all species in the
We then carefully examined whether the coral species met the definitions of endangered or threatened species in section 3 of the ESA: (1) “endangered species” is defined as “any species which is in danger of extinction throughout all or a significant portion of its range;” and (2) “threatened species” is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."
Corals are invertebrates, and, therefore, only species or subspecies can be listed under the ESA. Distinct population segments of invertebrates cannot be listed. Further, we must also base a listing decision on whether a species is endangered or threatened throughout all or a significant portion of its range.
To assess if a geographic area could constitute a significant portion of the range of either elkhorn or staghorn coral, we examined the relative biological importance of populations throughout the species' ranges. We considered the single genetic study available at the time of this determination that might support identification of portions of the species' ranges that are distinguishable or separable (i.e., “distinct or discrete” as used in the May 9, 2005, proposed rule (70 FR 24359). The study examined genetic exchange and clonal population structure in
We determined that neither elkhorn nor staghorn corals are currently in danger of extinction throughout their entire ranges and neither meets the definition of endangered under the ESA. While the number and percent coverage of elkhorn and staghorn corals rangewide has declined precipitously over the last 30 years, the total number of colonies and presumably individuals remains very large (e.g., 0.8 colonies/sq m; therefore, over the species' ranges, on the order of billions of individuals), though the absolute number of colonies or percent coverage is unquantified. Given the high number of colonies, the species' large geographic ranges that remain intact (no evidence of current range constriction), and the fact that asexual reproduction (fragmentation) provides a source for new colonies (albeit clones) that can buffer natural demographic and environmental variability, we believe both species retain significant potential for persistence and are not currently at risk of extinction throughout their ranges. Additionally, as evidenced by the geologic record, both elkhorn and staghorn corals have persisted through climate cooling and heating fluctuation periods over millions of years, whereas other corals have gone extinct.
We believe that, while elkhorn and staghorn corals are not currently in danger of extinction, as described above, they are likely to become so within the foreseeable future throughout their entire ranges. In making this determination, we established that the appropriate period of time corresponding to the foreseeable future is a function of the threats, life-history characteristics, and the specific habitat requirements for the species under consideration. We determined it is also consistent with the purpose of the ESA that the timeframe for the foreseeable future be adequate to provide for the conservation and recovery of threatened species and the ecosystems upon which they depend. The aspects of the species' life histories that are relevant are slow growth rate, late maturation, and both sexual (annual broadcast spawning) and asexual (fragmentation) modes of reproduction. Given this conceptual framework, the fact that some threats are short term (e.g., hurricanes, major disease outbreaks) and others long term (e.g., habitat degradation, changes in sea
We then considered the following information on a 30–year timescale when evaluating the status of elkhorn and staghorn corals:
1. Recent drastic declines in abundance of both species have occurred throughout their ranges, and abundances, though still high, are at historic lows;
2. The species are vulnerable to range constrictions due to local extirpations resulting from a single stochastic event (e.g., hurricanes, new disease outbreak);
3. Sexual recruitment is limited in some areas and unknown in most; fertilization success from clones is virtually zero; and settlement of larvae is often unsuccessful, given limited amount of appropriate habitat; and
4. Fertilization success is declining as a result of greatly reduced densities of adult colonies (the Allee effect).
Based on these facts, we believe that abundance and distribution of both elkhorn and staghorn coral are likely to become further reduced. Furthermore, a number of local extirpations is likely to occur within the next 30 years. The major threats to the species' persistence (i.e., disease, elevated sea surface temperature, and hurricanes) are severe, unpredictable, likely to increase in the foreseeable future, and, at current levels of knowledge, unmanageable.
Section 4 of the ESA and regulations promulgated to implement the listing provisions of the ESA (50 CFR part 424) set forth the procedures for adding species to the Federal list. Section 4 requires that listing determinations be based solely on the best scientific and commercial data available, without consideration of possible economic or other impacts of such determinations. Section 4(a)(1) of the ESA provides that the Secretary of Commerce shall determine whether any species is endangered or threatened because of any of five specified factors; our analysis of these factors and their relevance to the status of elkhorn and staghorn corals is briefly discussed below.
The BRT categorized threats to
Seven stressors (natural abrasion and breakage, anthropogenic abrasion and breakage, sedimentation, persistent elevated sea surface temperature, competition, excessive nutrients and sea level rise) were identified as affecting both species through present or threatened destruction, modification, or curtailment of their habitats or ranges. These stressors consist of destruction or disruption of substrate to grow on, and modification or alteration of the aquatic environment in which the corals live. Although habitat loss has occurred, the range of these two species has not been reduced, to date. However, because of the species' extremely low abundance, local extirpations are possible in the foreseeable future, which would likely lead to a reduction in range.
Elkhorn and staghorn corals, like most corals, require hard, consolidated substrate (i.e., attached, dead coral skeleton) for their larvae to settle or fragments to reattach. When the substrate is physically disturbed and when the attached corals are broken and reduced to unstable rubble or sediment, settlement and re-attachment habitat is lost. The most common causes of natural abrasion and breakage are severe storm events, including hurricanes. Severe storms can lead to the complete destruction and mortality of entire reef zones dominated by these species as well as destruction of the habitat on which these species depend (i.e., by covering settlement, reattachment, and growing surfaces with unstable rubble and sediment). Major storms have physically disrupted reefs throughout the wider Caribbean and are among the primary causes of elkhorn and staghorn coral habitat loss in certain locations.
Human activity in coral reef areas is another source of abrasion and breakage likely to result in destruction of
Optimal water temperatures for elkhorn and staghorn coral range from 25 to 29° C, with the species being able to tolerate higher temperatures for a brief period of time (i.e., days to weeks, depending on the magnitude of the temperature elevation). Documented increases in global air and sea surface temperatures make shallow reef habitats especially vulnerable. Water with temperatures above the optimal range does not provide suitable habitat for either of the two species.
Because of their fast growth rates (relative to other corals) and canopy-forming morphology,
Nutrients are added to coral reefs from both point sources (readily identifiable inputs where pollutants are discharged to receiving surface waters from a pipe or drain) and non-point sources (inputs that occur over a wide area and are associated with particular land uses). Generally, coral reefs have been considered nutrient-limited systems, meaning levels of accessible nitrogen and phosphorus limit the rates of plant growth. When nutrients levels are raised in such a system, plant growth can be expected to increase; the widespread increase in algae abundance on Caribbean coral reefs has been attributed to nutrient enrichment. As a result of this increased algal growth, less habitat is available for elkhorn and staghorn coral larval settlement or fragment reattachment. Thus, destruction, modification, and curtailment of elkhorn and staghorn corals' habitat has been identified as contributing to these species' threatened status.
Only one stressor under this ESA section 4(a)(1) factor was identified as having the potential to impact the status of elkhorn and staghorn corals: overharvest for curio/aquarium. Given current regulation and management, overutilization does not appear to be a significant threat to either of these two species or a factor contributing to the status of either species.
Diseases were identified as the single largest cause of both elkhorn and staghorn coral mortality and decline. These stressors present the greatest threat to the two species' persistence and recovery, given their widespread, episodic, and unpredictable occurrence and high resultant mortality. The threat from these stressors is exacerbated by the fact that coral diseases, though clearly severe, are poorly understood in terms of etiology and possible links to anthropogenic sources. Although the number or identity of specific disease conditions affecting Atlantic
We evaluated existing regulatory mechanisms directed at managing threats to elkhorn and staghorn corals. Most existing regulatory mechanisms are not specific to these two coral species but were promulgated to manage corals or coral reefs in general. While the impacts of many stressors were determined to be slightly reduced as a result of implementation of existing regulations, none were totally abated. For example, the Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico and South Atlantic (under the Magnuson-Stevens Fishery Conservation and Management Act) protects all corals on the seabed in U.S. Federal waters from harvest, sale, and destruction from fishing related activities. However, in some cases, elkhorn and staghorn corals are incidentally destroyed during fishing practices, and, therefore, the regulation does not fully abate the threat from damaging fishing practices.
The major threats to these species' persistence (i.e., disease, elevated sea surface temperature, and hurricanes) are severe, unpredictable, have increased over the past 3 decades, and, at current levels of knowledge, the threats are unmanageable. There is no apparent indication these trends will change in the foreseeable future. No regulatory mechanisms are currently in place, or expected to be in place in the foreseeable future, to control or prevent these major threats. Therefore, the inadequacy of existing regulatory mechanisms is contributing to the threatened status of these species.
We identified 11 other stressors with the potential to impact the status of elkhorn and staghorn corals: Elevated sea surface temperature, competition, elevated nutrients, sedimentation, sea level rise, abrasion and breakage, contaminants, loss of genetic diversity, African dust, elevated carbon dioxide, and sponge boring. Many of these stressors are the same as those identified in the first factor (habitat destruction) because the same mechanisms can cause direct impacts to the organisms in addition to destroying or disrupting their habitat. Impacts from some of these stressors are complex, resulting in synergistic habitat impacts.
Elevation of the sea surface temperature in tropical and subtropical oceans stresses
Along with elevated sea surface temperature, atmospheric carbon dioxide levels have increased in the last century, and there is no apparent evidence the trend will not continue. As atmospheric carbon dioxide is dissolved in surface seawater, seawater becomes more acidic, shifting the balance of inorganic carbon away from carbon dioxide and carbonate toward bicarbonate. This shift decreases the ability of corals to calcify because corals are thought to use carbonate, not bicarbonate, to build their aragonite skeletons. Experiments have shown a reduction of coral calcification in response to elevated carbon dioxide
Rapid sea level rise was identified as a potential threat to these species; however, under current conditions, we conclude that this particular stressor is not affecting either of the two species' status.
Increased sediments in the water column can result from, among other things, land development and run-off; dredging and disposal activities; and major storm events. In addition to the habitat impacts, sedimentation has been shown to cause direct physiological stress to elkhorn and staghorn corals. Direct deposition of sediments on coral tissue and shading due to sediments in the water column have caused tissue death in these species; therefore, sedimentation is contributing to the status of the two species.
In addition to the habitat impacts described above, natural and anthropogenic sources of abrasion and breakage (e.g., severe storms, vessel groundings, fishing debris) cause direct mortality to elkhorn and staghorn corals. Their branching morphology makes them particularly susceptible to breakage. The creation of fragments through breakage is a natural means of asexual reproduction for these species. However, the fragments must encounter suitable habitat to be able to reattach and create a new colony. Under current conditions, suitable habitat is often not available, and entire elkhorn and staghorn reefs have been destroyed after these events; therefore, abrasion and breakage are contributing to the status of these two species.
Many of the stressors identified as contributing to the status of elkhorn and staghorn coral are minor in intensity, but have an impact because of the extremely reduced population sizes of these coral species. For example, direct competition with other species, skeleton bioerosion by clionid sponges, and effects from African dust all are minor stressors, but they are exacerbating the species' current status.
The severity of all of the stressors (natural or manmade) ranges from high (e.g., elevated sea surface temperature) to low (e.g., sponge boring). Some stressors (e.g., contaminants and loss of genetic diversity) are known to be adversely affecting these two species, but the magnitude of their effect on the status of elkhorn and staghorn corals is undetermined and understudied.
No one factor alone is responsible for the threatened status of elkhorn and staghorn corals; we conclude that four of the five ESA section 4(a)(1) factors (all but overutilization) to some degree are contributing to the threatened status of the species. Although the interaction of individual stressors is difficult to study in a rigorous, controlled experiment, it is clear
In making listing determinations, section 4(b)(1) of the ESA requires us to take into account the efforts, if any, being made by states or foreign nations to protect the species and to give consideration to species which have been designated as requiring protection from unrestricted commerce by foreign nations or under international agreements or have been identified as in danger of extinction or likely to become so by any state or foreign nation. Acknowledging their reefs' extreme importance to the ecosystem, the State of Florida and Commonwealth of Puerto Rico protect all corals to varying extents; however, neither provide specific protection to elkhorn or staghorn corals. Additionally, all corals, including elkhorn and staghorn corals, are protected under the U.S.V.I. Indigenous and Endangered Species Act of 1990, and both species have been listed recently in the “red book” of threatened marine invertebrates of Colombia by a technical commission coordinated by the Ministry of the Environment.
All corals are listed under Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, which regulates international trade of species to ensure survival. Thus, a determination to include the two
After reviewing the public comments received, we find that there is no substantive information that would cause us to reconsider the extinction risk assessments of the BRT or our assessment of the factors causing the threatened status of these two corals. We believe that abundance and distribution of both elkhorn and staghorn coral are likely to become further reduced. Furthermore, a number of local extirpations is likely to occur within the next 30 years. The major threats (e.g., 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. We believe that elkhorn and staghorn coral are not currently in danger of extinction throughout their ranges. However, 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 efforts to protect the species by state or foreign governments. Accordingly, the two species warrant listing as threatened.
ESA section 9(a) take prohibitions (16 U.S.C. 1538(a)(1)(B)) apply to all species listed as endangered. In the case of threatened species, section 4(d) of the ESA directs the Secretary to issue regulations he considers necessary and advisable for the conservation of the species. The 4(d) protective regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species. These section 9(a) prohibitions and section 4(d) regulations apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. Subsequent to this rulemaking, we will evaluate the necessity and advisability of proposing protective regulations pursuant to section 4(d) of the ESA for these two coral species.
On July 1, 1994, we and the FWS published a policy requiring us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA (59 FR 34272). The intent of this policy is to increase public
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Public Law 106–554), is intended to enhance the quality and credibility of the Federal government's scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005.
Pursuant to our 1994 policy on peer review (59 FR 34270; July 1, 1994), we have solicited the expert opinions of at least three appropriate and independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, genetics, and supportive biological and ecological information for species under consideration for listing. We conclude that these expert reviews satisfy the requirements for “adequate [prior] peer review” contained in the Bulletin (sec. II.2.).
“Critical habitat” is defined in section 3 of the ESA (16 U.S.C. 1532(3)) as: “(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the [ESA], 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.” “Conservation” is defined as the use of all methods and procedures necessary to bring the species to the point at which the measures of the ESA are no longer necessary.
Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. Section 4(b)(6)(C)(ii) of the ESA provides for additional time to promulgate a critical habitat designation if such designation is not determinable at the time of final listing of a species. Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat.
The designation of critical habitat is not determinable at this time due to the extremely complex biological and physical requirements of these two Acroporid species. Although we have gathered information through the status review and public comment processes, we currently do not have enough information to determine which of these features are essential to the conservation of elkhorn and staghorn corals and may require special management considerations or protection. We will continue to gather and review other ongoing studies on the habitat use and requirements of elkhorn and staghorn corals to attempt to identify these features. Additionally, we need more time to gather the information needed to perform the required analyses of the impacts of the designation. Once areas containing these features are identified and mapped, and economic, national security, and other relevant impacts are considered, we will publish, in a separate rule, to the maximum extent prudent, a proposed designation of critical habitat for elkhorn and staghorn corals.
To ensure subsequent rulemaking resulting from this Final Rule will be as accurate and effective as possible, we are soliciting information from the public, other governmental agencies, the scientific community, industry, and any other interested parties. Specifically, we are interested in information that will inform the ESA section 4(d) rule making and the designation of critical habitat for elkhorn and staghorn corals, including: (1) current or planned activities within the range of these two species and their possible impact on these species; (2) necessary prohibitions on take to promote the conservation of these two species; (3) evaluations describing the quality and extent of their habitats (occupied currently or occupied in the past, but no longer occupied); (4) information on areas that may qualify as critical habitat including those physical and biological features essential for the conservation of these two species; (5) activities that could be affected by an ESA section 4(d) rule and/or critical habitat designation; and (6) the economic costs and benefits likely to result from protective regulations and designation of critical habitat (see
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this rule is exempt from review under E.O. 12866. This final determination 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) This final rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon state, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide
(b) Due to current public knowledge of coral protection in general and the prohibition on collection of these species, we do not anticipate that this final rule will significantly or uniquely affect small governments. As such, a Small Government Agency Plan is not required.
E.O. 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). Neither of those circumstances is applicable to this final listing determination. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, the proposed rule was provided to the relevant agencies in each state in which the subject species occurs, and these agencies were invited to comment. Their comments were addressed with other comments in the Summary of Comments Received section.
Endangered and threatened species, Exports, Imports, Transportation.
16 U.S.C. 1531 1543; subpart B, § 223.201–202 also issued under 16 U.S.C. 1361
The species determined by the Secretary of Commerce to be threatened pursuant to section 4(a) of the Act, as well as species listed under the Endangered Species Conservation Act of 1969 by the Secretary of the Interior and currently under the jurisdiction of the Secretary of Commerce, are listed in the table below. The table lists the common and scientific names of threatened species, the locations where they are listed, and the