[Federal Register Volume 71, Number 89 (Tuesday, May 9, 2006)]
[Rules and Regulations]
[Pages 26852-26872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4321]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 050304058-6116-03; I.D. No. 060204C]
RIN No. 0648-XB29
Endangered and Threatened Species: Final Listing Determinations
for Elkhorn Coral and Staghorn Coral
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), are
publishing this final rule to implement our determination to list
elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals as
threatened species under the Endangered Species Act (ESA) of 1973, as
amended. We have reviewed the status of the species and efforts being
made to protect the species, and we have made our determinations based
on the best scientific and commercial data available. We also solicit
information that may be relevant to our analysis of protective
regulations and to the designation of critical habitat for these two
species.
DATES: 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.
ADDRESSES: NMFS, Southeast Regional Office, Protected Resources
Division, 263 13th Ave. South, St. Petersburg, FL 33701.
FOR FURTHER INFORMATION CONTACT: 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 http://sero.nmfs.noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
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
[[Page 26853]]
members of the BRT were a diverse group of experts in their fields and
included coral biologists and ecologists; specialists in coral disease,
coral monitoring and restoration, climate, water quality, and coral
taxonomy; regional experts in coral abundance/distribution throughout
the Caribbean Sea; and state and Federal resource managers. The
comprehensive, peer-reviewed status review report developed by the BRT
incorporates and summarizes the best scientific and commercial data
available as of March 2005. The report addresses the status of the
species, the factors identified in section 4(a)(1) of the ESA, and
current regulatory, conservation, and research efforts yielding
protection to the corals. The BRT also reviewed and considered the
petition and materials we received as a result of the Federal Register
announcement of the 90-day finding (69 FR 34995) and the public
meetings.
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.
Statutory Framework for ESA Listing Determinations
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.
Summary of Comments Received
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.
Comment 1: Numerous commenters stated that the elkhorn and staghorn
corals qualified for an endangered listing based on the declines in
abundance and the significant threats faced by the species throughout
their ranges.
Response: During the status review, we carefully analyzed threats
facing the species and declines in abundance and considered this
analysis when determining the status of the species. As depicted and
described in the status review report, abundance of both species has
declined over the past 30 years rangewide; however, recent surveys
indicate an increase in abundance in some areas (e.g., Buck Island,
U.S.V.I.), no change in some areas (e.g., Florida Keys), and
fluctuating abundance in some areas (e.g., Belize). At present, the
total numbers of colonies and presumably individuals remain very large,
though the absolute number of colonies or percent coverage is
unquantified. For example, one study of A. palmata in the Florida Keys
in 2001 estimated colony density to be 0.8 colonies per square meter;
expanding this same density to the overall available habitat within the
wider Caribbean (on the order of thousands of square kilometers) would
correspond to individual colony counts on the order of billions.
Further, the species persist across a very large geographic range, and
there is no current evidence of range contractions. Therefore, we
believe the species are showing limited, localized recovery, and,
rangewide, the rate of decline appears to have stabilized and is
comparatively slow as evidenced by the persistence at reduced
abundances for the past two decades.
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.
Comment 2: One commenter asked us to provide a threshold that the
corals must attain to qualify as endangered.
Response: In the proposed listing rule, we described the
application of the ESA definitions of endangered and threatened to the
status of and threats to the Acroporid corals (70 FR 24360). The
threshold for a species to qualify for endangered status is that it is
in danger of extinction throughout all or a significant portion of its
range. We determined the two species are not currently in danger of
extinction, as discussed in the response above.
Comment 3: Several commenters stated that we did not conduct a
proper ``significant portion of the range'' analysis. One commenter
stated that our conclusion that ``there is no evidence indicating that
any elkhorn or staghorn population within the geographic range of the
species is more or less important than the others'' is evidence of
arbitrary and capricious reasoning. The commenter stated that, in our
analysis of whether any portion of the range was significant, we should
have at least considered areas where the corals have shown limited
recovery as more important to the survival and recovery of the species
than other areas.
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
[[Page 26854]]
it does not effectively conflate 'entire range' with 'SPOIR,' nor base
a listing decision solely on whether a species is threatened or
endangered within a fixed percentage of its range.
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.
Response: Because we did not determine any portion of the species'
ranges to be significant, and their ranges are intact, there was no
basis for further evaluating the extinction risk of or threats to the
species in any particular geographic areas, or for determining whether
the coral species were endangered or threatened throughout a
significant portion of their ranges. We proceeded instead to evaluate
whether the species were endangered or threatened throughout their
respective ranges. We did not conflate ``entire range'' and ``SPOIR,''
nor did we require any fixed percentage of the species' ranges to
constitute a significant portion.
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 A. palmata, and we found that it does not
indicate source or sink areas, distinguishable or separable populations
within each region, or any more or less significant areas or
populations (i.e., in terms of differential biological value to the
species). While there are a few locations (e.g., Buck Island Reef
National Monument) where limited recovery appears to be progressing,
the origin of recruits, presumably from a single sexual reproduction
event, is unknown and their contribution to the corals' rangewide
recovery remains undetermined. Therefore, there is insufficient
evidence indicating that any particular geographic area or population
is more significant to the species than others.
Comment 4: One commenter requested we specifically list the coral
populations off Broward County, FL as endangered.
Response: As stated in the proposed listing rule, the ESA does not
provide for listing distinct population segments of invertebrate
species, and corals are invertebrates. Listing determinations for
invertebrate species must be made at the species or subspecies level.
Therefore, whether the populations of A. cervicornis on the Broward
reefs are in danger of extinction, the ESA does not provide for listing
a population of this species.
Comment 5: A few commenters were critical that the 30-year period,
defined as the foreseeable future for purposes of our analysis for a
threatened status, is not sufficiently protective, asserting that
current threats could cause large amounts of coral to be lost in 30
years.
Response: The definition of foreseeable future applies only to the
threshold for a 'threatened' determination (i.e., whether a species is
likely to become endangered within the foreseeable future throughout
all of a significant portion of its range). As discussed in our
responses to Comments 1 and 2, we determined that neither elkhorn nor
staghorn coral is currently in danger of extinction (the threshold for
making an 'endangered' determination). In evaluating 'foreseeable
future' for our threatened determinations for elkhorn and staghorn
coral, our 30-year timeframe was selected as the most appropriate,
given the species' biology and threats they face (see Species and Risk
of Extinction section), as well as the purpose of the ESA, which is to
provide for the conservation and recovery of the species and the
ecosystems upon which they depend. The 30-year period identified for
the two coral species is consistent with the logistic function
indicated by the data portraying population decline (circa 1975-2005),
the preceding 30-year period of relative stability in abundance, and
the hypothesized cycle of hurricane frequency and intensity.
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.
Comment 6: Comments were received challenging our determination
that A. prolifera is a hybrid and, therefore, not considered a species
for listing. Commenters stated that the hybrid should be listed because
of its ecological function and separate taxonomic diagnosis. Commenters
stated that the hybrid may not be as well-studied as other Acroporids,
and interbreeding is not a requirement to classify a species. Lastly,
one commenter stated we did not use the best available science,
referring us to recent court cases on taxonomic uncertainty in ESA
listings.
Response: The ESA does not allow us to consider a taxon for listing
based solely on its ecological function; it must as an initial matter
meet the ESA definition of species. To determine A. prolifera's status
as a species, we followed our regulations at 50 CFR section 424.11(a),
which direct us to rely on the standard taxonomic distinctions and the
appropriate biological expertise within the agency and the scientific
community in order to determine whether a particular taxon or
population is a species for purposes of the ESA. We used published
literature and unpublished scientific research to describe A.
prolifera's taxonomy based on morphology, genetics, and potential to
reproduce. We concluded that A. prolifera is a hybrid because: (1) it
exhibits a wide range of intermediate morphologies; (2) all individuals
sampled are first generation hybrids of A. palmata and A. cervicornis;
and (3) in laboratory attempts, it does not produce successful
offspring via sexual reproduction. Other Acropora spp. reproduce by
both sexual and asexual modes, while A. prolifera is not able to
reproduce by both modes. All known individuals are hybrids, and cannot
interbreed when mature, and, therefore, A. prolifera does not meet the
biological definition of species. We also followed the court's ruling
in Center for Biological Diversity v. Lohn, 296 F. Supp.2d 1223 (W.D.
Wash. 2003), by basing our decision on the best available science
instead of outdated taxonomic distinctions. Although A. prolifera has a
separate taxonomic history, the best available science shows it is a
first generation hybrid and not a species.
Comment 7: A commenter stated the BRT appeared to rely on a draft
policy on listing hybrids (61 FR 4710; February 7, 1996) in considering
the status of A. prolifera.
Response: While the status review report briefly describes the
draft hybrid policy as ESA background, the report indicates that the
policy is non-binding because it has never been finalized. The policy
was never discussed or applied by the BRT in the remainder of the
report. Similarly, we were aware of the draft policy, but did not rely
on the draft policy when making our determination that A. prolifera
should not be considered a species for ESA listing. Our determination
was based on the scientific information summarized in the response
above.
Comment 8: Many comments were received recommending potential
listing
[[Page 26855]]
of A. prolifera under the ``similarity of appearance'' provision
pursuant to section 4(e) of the ESA.
Response: Because we have not prohibited take of A. palmata and A.
cervicornis in this final listing rule, prohibiting take of A.
prolifera by listing it under 4(e) of the ESA is not appropriate as
part of this final rule. We will consider whether a ``similarity of
appearance'' regulation for A. prolifera is appropriate if we issue an
ESA section 4(d) rule to conserve the listed species.
Comment 9: Numerous comments provided information on the threats we
identified in the proposed rule. Several comments and journal articles
addressing climate change and coral bleaching were received.
Additionally, several commenters stated land-based sources of pollution
(i.e., nutrients, sedimentation) are contributing to the decline of
these species. We also received comments on the contribution of
disease, hurricanes, poor boating, diving and fishing practices, and
habitat loss to the status of elkhorn and staghorn corals. Many of the
comments made suggestions regarding the relative importance of the
threats and their contribution to the species' status.
Response: We evaluated all the information received on the threats
affecting these species. No new threats were identified by any
commenter. The suggested relative importance of the threats to the
species' status was consistent with the status review report and the
proposed rule. The information received was also consistent with the
data used to make our threatened determination.
Comment 10: One commenter suggested we include a statement
regarding the adequacy of the existing regulatory mechanisms pursuant
to the Clean Water Act (CWA).
Response: We acknowledge the importance of the CWA as a tool to
protect marine life. Although the CWA sets water quality standards for
salt water and delegates authority to set and enforce water quality
standards to the states, we concur with the BRT's conclusion that,
despite existing regulations, degraded water quality resulting from
nutrients and contaminants is contributing to the status of the two
species.
Comment 11: We received several comments pertaining to future
regulatory actions under the ESA. These included suggestions to develop
regulations to manage specific threats (e.g., emissions, water
quality). Additionally, other commenters questioned how the proposed
listing would affect their actions (e.g., fishing, boating, diving).
Commenters inquired about the timing of subsequent regulatory actions.
Response: Because we are listing elkhorn and staghorn corals as
threatened, the prohibitions under section 9 of the ESA are not
automatically applied to these species. Section 4(d) of the ESA allows
us to develop regulations necessary and advisable for the conservation
of listed threatened species, including regulations that extend the
section 9 prohibitions to such species. We are beginning to work with
interested parties to evaluate the necessity and advisability of a 4(d)
rule for elkhorn and staghorn corals.
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.
Comment 12: One commenter asked where take was occurring within the
Caribbean Basin, because collection and sale of these corals is already
prohibited.
Response: Collection is not the only activity that constitutes take
under the ESA. The ESA defines take as ``to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect,'' which is a broader
definition than the meaning suggested by the commenter. Although
collection is prohibited in the United States and in many other
Caribbean nations, there are many other activities currently occurring
that may constitute take (see ``Consideration of Causal Factors
Relevant to Listing'' section below).
Comment 13: Many commenters stated it is essential to protect coral
habitat, given the importance of coral reefs to the economy.
Additionally, the commenters stated many cities and communities depend
on coral reefs and associated commerce.
Response: While the ESA and our listing regulations do not allow us
to consider economics during listing, we are directed to consider the
economic impacts, including relevant beneficial effects such as those
raised by these commenters, when we designate critical habitat.
Comment 14: Numerous commenters supported the proposed listing.
Response: Comments noted. We look forward to partnering with these
commenters and all stakeholders in the conservation of the two species.
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.
Assessment of Species Status
In the proposed rule to add elkhorn and staghorn corals to the list
of
[[Page 26856]]
threatened species under the ESA, we outlined our rationale for our
determination, including our finding that the BRT's report constituted
the best scientific and commercial data available. Below we have
reiterated those portions of our evaluation pertinent to the public
comments above and our final determination. Please refer to the
proposed rule for additional information.
Species and Risk of Extinction
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
Acropora genus. In contrast, A. prolifera is a hybrid and does not meet
the definition of species under the ESA (see Response to Comment 6).
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.
Acropora spp. are widely distributed throughout the wider Caribbean
and are found in waters off Florida, and Puerto Rico, U.S. Virgin
Islands, Navassa, and the wider Caribbean (Belize, Colombia, Costa
Rica, Guatemala, Honduras, Mexico, Nicaragua, Panama, Venezuela, and
all the islands of the West Indies). Both elkhorn and staghorn corals
were historically (pre-1980s) the most abundant and most important
species on Caribbean coral reefs in terms of accretion of reef
structure.
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 A. palmata by sampling and genotyping colonies
from 11 locations throughout its geographic range using microsatellite
markers. Results indicate populations in the eastern Caribbean (St.
Vincent and the Grenadines, U.S.V.I., Curacao, and Bonaire) have
experienced little or no genetic exchange with populations in the
western Caribbean (Bahamas, Florida, Mexico, Panama, Navassa, and Mona
Island). Puerto Rico is an area of mixing where populations show
genetic contribution from both regions, though it is more closely
connected with the western Caribbean. Within these regions, some
locations are entirely self-recruiting and some receive immigrants from
other locations within the region; however, the overall, rangewide
average of the relative contribution of sexually versus asexually
derived populations is approximately equal. No similar information
exists for A. cervicornis. These data indicate that, on small and large
scales, there are areas of mixing and areas that do not appear to have
exchange; this indicates that there are no source or sink areas. In
addition, although there are a few locations (e.g., Buck Island Reef
National Monument) where limited recovery appears to be progressing,
the origin of recruits, presumably from a single sexual reproduction
event, is unknown, and their contribution to the corals' rangewide
recovery remains undetermined. Based on this, we cannot determine that
there are any specific geographic areas or populations within the wider
Caribbean that should be considered more or less significant (i.e., in
terms of differential biological value to the species). Because we did
not determine any portion of the species' ranges to be significant, and
their ranges are intact, there was no basis for further evaluating the
extinction risk of or threats to the species in any particular
geographic areas, or for determining whether the coral species were
endangered or threatened throughout a significant portion of their
ranges. We proceeded instead to evaluate whether the species were
endangered or threatened throughout their respective ranges.
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
[[Page 26857]]
surface temperature), aspects of the species' life histories, and the
fact that the current decline as summarized by the BRT occurred during
the last 20 to 30 years, we determined the foreseeable future for these
species to be 30 years.
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.
Consideration of Causal Factors Relevant to Listing
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 A. palmata and A. cervicornis as
sources, stressors, or responses. Sources were considered as natural or
anthropogenic processes that create stressful conditions for organisms
(e.g., climate variability and change, coastal development). A stressor
is the specific condition that causes stress to the organisms (e.g.,
elevated sea surface temperature or sediment runoff). The response of
the organisms to that stressor is often in the form of altered
physiological processes (e.g., bleaching, reduced fecundity or growth)
or mortality. The BRT tabulated and then classified each stressor into
one, or more, of the ESA section 4(a)(1) factors. We determined that
the major stressors affecting the status of the two species are
disease, elevated sea surface temperature, and hurricanes. Other
stressors identified as contributing to the status of the species,
given their extremely reduced population sizes, are sedimentation,
anthropogenic abrasion and breakage, competition, excessive nutrients,
predation, contaminants, loss of genetic diversity, African dust,
elevated carbon dioxide levels, and sponge boring. These stressors were
categorized under several of the causal factors identified in section
4(a)(1) of the ESA:
1. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
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 A. palmata and A.
cervicornis habitat. These activities include marine transportation,
boating, anchoring, fishing, recreational SCUBA diving and snorkeling,
and an increasing variety of maritime construction and development
activities. The shallow habitat requirements of these two species make
them especially susceptible to impacts, such as abrasion and breakage,
from these anthropogenic activities, which have been documented as
causing effects similar to severe storms, though usually on a smaller
scale.
Acropora spp. also appear to be particularly sensitive to shading
effects resulting from increased sediments in the water column. Because
these corals are almost entirely dependent upon sunlight for
nourishment, they are much more susceptible to increases in water
turbidity and sedimentation than other coral species. 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. Sedimentation has also been documented to impede larval
settlement.
Optimal water temperatures for elkhorn and staghorn coral range
from 25 to 29[deg] 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, A. palmata and A. cervicornis are known to
be competitive dominants within coral communities, in terms of their
ability to overgrow other stony and soft corals. However, other types
of reef benthic organisms (e.g., algae) have higher growth rates and,
under certain conditions are expected to outcompete Acropora spp. Under
current oceanographic conditions in shallow, coastal areas (i.e.,
elevated nutrients), algae are typically out-competing both Acropora
spp. for space on the reef. The consequence of this
[[Page 26858]]
competition is that less habitat is available for the two species to
colonize.
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.
2. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
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.
3. Disease or Predation
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 Acropora spp. and the
causal factors involved are uncertain, several generalizations are
evident. The total number, prevalence, and geographic range of impact
of described Acroporid-specific diseases have increased over the past
decade, and this trend is expected to continue. Additionally, diseases
continue to have major impacts on population abundance and colony
condition of both elkhorn and staghorn coral. Diseases constitute an
ongoing, major threat about which specific mechanistic and predictive
understanding is largely lacking, thereby currently preventing
effective control or management strategies. Diseases affecting these
species may prevent or delay their recovery in the wider Caribbean.
Acropora spp. are also subject to invertebrate (e.g., polychaete,
mollusk, echinoderm) and vertebrate (fish) predation, but ``plagues''
of coral predators such as the Indo-Pacific crown-of-thorns starfish
outbreaks (Acanthaster planci) have not been described in the Atlantic.
Predation may directly cause mortality or injuries leading to invasion
of other biota (e.g., algae, boring sponges). Thus, predation, while
apparently much less than that of disease, is also contributing to the
threatened status of these species.
4. Inadequacy of Existing Regulatory Mechanisms
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.
5. Other Natural or Manmade Factors Affecting Its Continued Existence
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 Acropora spp. Documented increases in
global air and sea temperatures make shallow reef habitats especially
vulnerable. When exposed to elevated sea surface temperatures, elkhorn
and staghorn corals expel the symbiotic algae on which they depend for
a photosynthetic contribution to their energy budget, enhancement of
calcification, and color. This process is called bleaching.
Temperature-induced bleaching affects growth, maintenance,
reproduction, and survival of these two species. As summarized in the
status review report, bleaching has been documented as the source of
extensive elkhorn and staghorn mortality in numerous locations
throughout their ranges. The extent and impact of bleaching is a
function of the magnitude and duration of the increase in temperature.
Mortality to Acropora spp. from a bleaching event can occur in a matter
of days to weeks, though there is the potential for the coral to re-
acquire the symbiotic algae and not suffer permanent damage. We
conclude that temperature-induced bleaching is contributing to the
status of elkhorn and staghorn corals.
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
[[Page 26859]]
levels; therefore, increased carbon dioxide levels in seawater may be
contributing to the status of the two species.
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 Acropora spp. corals are
facing myriad stressors that act simultaneously on the species. Some of
these stressors, such as contaminants or novel pathogens, might be new
and outside of the species' evolutionary experience. It is also clear
that the corals are experiencing many of these stressors in new and
severe combinations. It is logical to conclude that the synergistic
effects of these combined stressors will continue.
Efforts Being Made to Protect Elkhorn and Staghorn Corals
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. Acropora cervicornis was considered a critically
endangered species in Colombia, and A. palmata was included as
endangered. Although certain governments offer specific protection to
these two species, the measures are not sufficient to offset the
impacts currently affecting elkhorn and staghorn corals.
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 Acropora species on the
federal list of endangered and threatened species would be consistent
with state and international actions regarding these species.
Final Conclusions Regarding ESA Listing Status
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.
Prohibitions and Protective Regulations
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.
Identification of Those Activities that Would Constitute a Violation of
Section 9 of the ESA
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
[[Page 26860]]
awareness of the effect of listings on proposed and ongoing activities
within the species' range. However, because elkhorn and staghorn corals
are being listed as threatened, section 9 ``take'' prohibitions are not
applicable.
Peer Review Policies
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
``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.
Information Solicited
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
DATES and ADDRESSES).
Classification
National Environmental Policy Act
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
Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir.1981), we
have concluded that ESA listing actions are not subject to the
environmental impact assessment requirements of the National
Environmental Policy Act.
Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
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.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
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
[[Page 26861]]
funding'' and the state, local, or tribal governments ``lack
authority'' to adjust accordingly. (At the time of enactment, these
entitlement programs were: Medicaid; Aid to Families with Dependent
Children work programs; Child Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent Living; Family Support Welfare
Services; and Child Support Enforcement.) ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector, except (i) a condition of Federal assistance;
or (ii) a duty arising from participation in a voluntary Federal
program.'' The listing of a species does not impose a legally binding
duty on non-Federal government entities or private parties. Under the
ESA, the only regulatory effect of this final rule is that Federal
agencies must ensure that their actions do not jeopardize the continued
existence of any endangered or threatened species 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 listing of the
species, the legally binding duty to avoid jeopardizing the continued
existence of the species 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; nor would listing the species shift the costs of the large
entitlement programs listed above to state governments.
(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 - Federalism
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.
References
Acropora Biological Review Team. 2005. Atlantic Acropora Status
Review Document. Report to National Marine Fisheries Service, Southeast
Regional Office. March 3, 2005. 152 p + App.
List of Subjects in 50 CFR Parts 223
Endangered and threatened species, Exports, Imports,
Transportation.
Dated: May 4, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For reasons set out in the preamble, 50 CFR part 223 is amended as
follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 is revised as follows:
Authority: 16 U.S.C. 1531 1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. Revise Sec. 223.102 to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
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 Federal Register citations for the
listings and critical habitat designations.
BILLING CODE 3510-22-S
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[GRAPHIC] [TIFF OMITTED] TR09MY06.012
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[FR Doc. 06-4321 Filed 5-8-06; 8:45 am]
BILLING CODE 3510-22-C