[Federal Register Volume 73, Number 210 (Wednesday, October 29, 2008)]
[Rules and Regulations]
[Pages 64264-64279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25820]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 070801431-81370-02]
RIN 0648-AU92


Endangered and Threatened Species; Conservation of Threatened 
Elkhorn and Staghorn Corals

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), publish this 
final rule to apply all the prohibitions enumerated in section 9(a)(1) 
of the Endangered Species Act (ESA) to elkhorn (Acropora palmata) and 
staghorn (A. cervicornis) corals, with limited exceptions for two 
specified classes of activities that contribute to the conservation of 
the listed corals. We have determined that extending these prohibitions 
with two exceptions is necessary and advisable to provide for the 
conservation of the species.

DATES: The effective date of this rule is November 28, 2008.

ADDRESSES: NMFS, Southeast Regional Office, Protected Resources 
Division, 263 13th Ave. South, St. Petersburg, FL 33701-5505.

FOR FURTHER INFORMATION CONTACT: Jennifer Moore or Sarah Heberling, 
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 and supporting documents regarding this rule are 
available upon request or on the Internet at http://sero.nmfs.noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    On May 9, 2006, we published a final rule listing elkhorn (Acropora 
palmata) and staghorn (A. cervicornis) corals as threatened under the 
ESA (71 FR 26852). The final listing rule describes the background of 
the listing actions for elkhorn and staghorn corals and provides a 
summary of our conclusions regarding the status of the listed corals. 
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 and final listing rule 
(available at http://sero.nmfs.noaa.gov/pr/esa/acropora.htm).
    Section 4(d) of the ESA provides that, whenever a species is listed 
as threatened, the Secretary of Commerce (Secretary) shall issue such 
regulations as the Secretary deems necessary and advisable to provide 
for the conservation of the species. Such regulations may include any 
or all of the prohibitions in ESA section 9(a)(1) that apply 
automatically to species listed as endangered. Those section 9(a)(1) 
prohibitions make it unlawful, with limited specified exceptions, for 
any person subject to the jurisdiction of the United States to: ``(A) 
import any such species into, or export any such species from the 
United States; (B) take any such species within the United States or 
the territorial sea of the United States; (C) take any such species 
upon the high seas; (D) possess, sell, deliver, carry, transport, or 
ship, by any means whatsoever, any such species taken in violation of 
subparagraphs (B) and (C); (E) deliver, receive, carry, transport, or 
ship in interstate or foreign commerce, by any means whatsoever and in 
the course of a commercial activity, any such species; (F) sell or 
offer for sale in interstate or foreign commerce any such species; or 
(G) violate any regulation pertaining to such species or to any 
threatened species of fish or wildlife listed pursuant to section 1533 
of this title and promulgated by the Secretary pursuant to authority 
provided by this chapter.'' Section 11 of the ESA provides for civil 
and criminal penalties for violation of section 9 or regulations issued 
under the ESA.
    On December 16, 2007, we proposed protective regulations under 
section 4(d) of the ESA to apply all the prohibitions enumerated in 
section 9(a)(1)(A)-(F) of the ESA to these two coral species, with 
limited exceptions for two specified classes of activities that 
contribute to the conservation of the listed corals. In Response:to our 
request for public comments, we received written comments from 30 
commenters.

Summary of Comments Received

    Below we address the comments received pertaining to the proposed 
4(d) rule for the Acroporid corals.
    Comment 1: One commenter requested an extension of the comment 
period and public hearings to educate reef users about the 4(d) rule.
    Response: We do not believe that extension of the comment period or 
additional hearings are necessary in order to finalize this rule. We 
provided a 60-day comment period on the proposed rule. In connection 
with the proposed listing of the species, we conducted public hearings 
during the comment period, during which we received comments on 
activities likely to result in take of the species. Further, after the 
final listing rule was published, we conducted public workshops to 
discuss issues that might be associated with a 4(d) rule or a critical 
habitat designation.
    Comment 2: One commenter asked if the proposed prohibitions apply 
to only ``live'' coral or dead coral skeleton also.
    Response: The ESA section 9(a)(1) prohibitions apply to any listed 
species of fish or wildlife. Section 3 of the ESA defines the term 
``fish or wildlife'' to mean ``any member of the animal kingdom, 
including without limitation any mammal, fish, bird , amphibian, 
reptile, mollusk, crustacean, arthropod or other invertebrate, and 
includes any part, product, egg, or offspring thereof, or the dead body 
or parts thereof.'' Therefore, the ESA section 9(a)(1) prohibitions 
extended through this rule apply to live coral and dead coral skeleton.
    Comment 3: One commenter requested clarification on the use of the 
terms ``habitat'' and ``critical habitat'', including examples.
    Response: In this rule, the term habitat is used broadly to 
describe the physical and biological environment in which the species 
occur. ``Habitat'' is used to further explain what may constitute 
``harm'' under the definition of take. Activities that constitute harm 
may include significant habitat modification or degradation that 
actually kills or injures fish or wildlife by significantly impairing 
essential behavioral patterns including breeding, spawning, rearing, 
migrating, feeding or sheltering (50 CFR 222.102). In this rule, the 
use of the term habitat is not the same as the narrower term ``critical 
habitat.'' Critical habitat is defined in section 3 of the ESA as: 
``(i) the specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the provisions of 
section 1533 of this title, 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 in accordance with the 
provisions of section 1533 of this title, upon a determination by the 
Secretary that such areas are essential for the conservation of the 
species.'' We proposed a critical habitat designation for elkhorn and 
staghorn corals on February 6, 2008 (73 FR 6895).

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    Comment 4: One commenter requested that we apply the prohibitions 
of this rule to fused-staghorn coral (A. prolifera), which is a hybrid 
of elkhorn and staghorn coral, given that it is listed in local guides 
and literature as a species or sub-species.
    Response: In our final rule listing elkhorn and staghorn corals 
under the ESA (71 FR 26852), we determined that fused-staghorn coral 
did not warrant ESA-listing because it is a first-generation hybrid of 
elkhorn and staghorn corals. Thus, it is not possible to extend the 
section 9 prohibitions to fused-staghorn corals. In addition, while 
section 4(d) of the ESA gives us the authority to issue regulations 
necessary and advisable to provide for the conservation of threatened 
species, we did not identify any threats affecting elkhorn or staghorn 
corals to be associated with fused-staghorn coral or conservation needs 
of these species that are dependent upon regulating take of fused-
staghorn coral. Therefore, we do not believe that specific 4(d) 
regulations applicable to fused-staghorn coral are warranted.
    Comment 5: In the preamble to the proposed rule, we stated that the 
ESA section 9(a)(1) prohibitions are necessary and advisable for the 
conservation of the two species, specifically to address the lesser 
stressors included in the proposed rule that are amenable to 
management. One commenter suggested that we add to the list of lesser 
stressors: ``habitat degradation due to uncontrolled coastal 
development and ecosystem shifts due to overfishing.''
    Response: In the Atlantic Acropora Status Review Document (BRT, 
2005) and the Final Listing Determinations for Elkhorn Coral and 
Staghorn Coral (71 FR 26852; May 9, 2006), we categorized threats to 
elkhorn and staghorn corals as sources, stressors, or Response:. 
Sources were considered 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. We determined that the 
following lesser stressors are contributing to the threatened status of 
the species: sedimentation, anthropogenic abrasion and breakage, 
competition, excessive nutrients, predation, contaminants, loss of 
genetic diversity, African dust, elevated carbon dioxide levels, and 
sponge boring. While coastal development and ecosystem shift due to 
overfishing are not listed as stressors in this rule, they are known to 
be sources of identified stressors. Sedimentation, anthropogenic 
abrasion and breakage, excessive nutrients, contaminants, and elevated 
carbon dioxide levels are all stressors whose source can be coastal 
construction and development. The stressor identified as competition is 
caused by macroalgae outcompeting the corals for space on the reef, the 
result of which is the ecosystem shift from coral-dominated reefs to 
macroalgae-dominated reefs. Macroalgae proliferation is caused by two 
factors: elevated nutrients and reduction of herbivores.
    Comment 6: Two Federal agencies commented on the examples of 
activities that could result in a violation of the ESA under section 9, 
listed in the proposed rule at 71 FR 71,108 (December 16, 2007). One 
agency requested inclusion of language limiting the range of actionable 
offenses to those that are reasonably foreseeable. The second agency 
and a separate commenter listed examples of specific activities 
occurring or causing impacts in their managed areas and in Florida, 
respectively, that they believe meet several of the enumerated examples 
of violations.
    Response: The list of activities that may violate the prohibitions 
for listed corals, which is not exhaustive, is intended to increase the 
public's awareness of the potential effects of this rule on proposed 
and ongoing activities within a species' range. The entity proposing or 
conducting an activity would have the information to determine if their 
specific activity may result in a violation. For Federal agencies, the 
interagency coordination requirements of section 7 of the ESA already 
apply without the implementation of this rule and provide additional 
procedural mechanisms to evaluate the effects of a particular action on 
listed species. Federal agencies must consult with NMFS if their 
actions 'may affect' listed corals. Further, upon the effective date of 
this rule, incidental take of the threatened corals that may result 
from a Federal action would be identified and may be authorized in a 
biological opinion through the section 7 consultation process, if the 
action is not likely to jeopardize a listed species' continued 
existence. Inclusion of a reasonably foreseeable standard for actions 
that constitute violations of the 4(d) prohibitions would be 
inappropriate as section 11 of the ESA establishes the applicable 
standards. In the context of section 7, our consultation regulations 
require us to evaluate all the direct and indirect effects of a 
proposed Federal action on listed species, and indirect effects are 
those that are reasonably certain to occur. 50 CFR Sec.  402.02.
    With regard to the comments identifying specific examples of 
activities that may constitute violations of the prohibitions, we 
reiterate that the fact that activities fall within one of the 
categories does not mean that a specific activity is a per se 
violation. Activities that do not result in take do not constitute 
violations.
    Comment 7: One Federal agency expressed concern about monitoring 
and data collection requirements that may be imposed on them as a 
result of the rule, and the costs that could add to their activities.
    Response: All Federal agencies are required to consult with NMFS 
under ESA section 7 if they approve, fund, or implement actions that 
may affect a listed species. This consultation requirement is not a 
result of the proposed 4(d) rule. As part of their consultation 
responsibilities, Federal agencies must make determinations about the 
effects of their actions on listed species based on the best scientific 
and commercial data available at the time the activity is being 
proposed. This information standard generally does not include a 
requirement for collection of new information. In addition, if a 
Federal agency's action will have adverse effects on listed species 
including these coral species, and a biological opinion is issued for 
the action, existing consultation regulations require the Federal 
agency to conduct monitoring to validate the assumptions and 
predictions in the opinion, and to ensure that the incidental take 
limit is not exceeded. Although take of these threatened corals was not 
prohibited by the listing, the monitoring requirement to ensure the 
continuing validity of a ``no jeopardy'' opinion became applicable as 
soon as the corals were listed.
    Comment 8: One Federal agency asked whether and when ESA section 7 
consultation would be required in connection with the categories of 
activities that have been excepted from the prohibitions through this 
rule.
    Response: Though take of coral as a result of the activities 
excepted from the prohibitions through this rule will not constitute 
violations of section 9 of the ESA, the activities may nonetheless 
cause adverse effects to the corals that will require Federal agencies 
to consult with us under section 7 to ensure that

[[Page 64266]]

the effects will not rise to the level of jeopardizing the continued 
existence of the species. For example, collection of and research on 
elkhorn or staghorn corals under the auspices of one of the excepted 
research permitting programs will still constitute take of the species, 
though the take is not prohibited. If Federal agencies are permitting 
or conducting the research, they must continue to consult with NMFS to 
ensure their action is not jeopardizing the continued existence of the 
listed corals.
    Comment 9: One commenter requested that NMFS ensure its 4(d) rule 
avoids unnecessarily duplicating existing laws and regulations, and 
discussed a number of state, Federal, and international laws providing 
protection to the corals from anthropogenic impacts.
    Response: ESA section 4(d) instructs us to issue regulations that 
are necessary and advisable to provide for the conservation of the 
threatened corals. While we realize there are numerous existing 
regulations that protect corals in general, few protect elkhorn and 
staghorn corals specifically, and none protect these species for the 
specific purpose of achieving their recovery. Further, as part of the 
listing process, we conducted a thorough review of existing regulatory 
mechanisms and determined they were inadequate to protect elkhorn and 
staghorn corals, contributing to their threatened status. In this 
rulemaking, we determined, due to the species' population status and 
the threats affecting them, it is necessary and advisable to extend the 
ESA section 9 prohibitions to listed corals.
    Comment 10: Several commenters identified specific federally-
regulated activities occurring in Florida that they believe require 
profound changes in order to promote recovery of the threatened corals, 
such as open ocean outfalls and beach renourishment projects.
    Response: We are currently reviewing Federal projects that may 
affect the listed corals through interagency consultation pursuant to 
ESA section 7. A Federal agency's responsibility to consult with us is 
triggered by the listing of a species and proposal of an action that 
may affect such species; therefore, we have been consulting on projects 
since the species were listed in May 2006. This rule allows us to issue 
an incidental take statement, with reasonable and prudent measures 
(RPMs) to reduce the impact of take, for projects that result in 
incidental take of the species. For projects that do not have a Federal 
nexus, an ESA section 10(a)(1)(B) permit may be obtained to receive 
authorization for incidental take. In that case, we would work with the 
applicant to develop a conservation plan to minimize the impacts to the 
species.
    Comment 11: One commenter requested more discussion regarding the 
costs and benefits of our proposed project modifications for beach 
renourishment projects and more consideration of the coastal 
engineering literature. The commenter stated that many of the project 
modifications are similar to the conditions that would be imposed under 
State of Florida rules, but some (unidentified by the commenter) 
examples in the draft Regulatory Impact Review (RIR)/Initial Regulatory 
Flexibility Analysis (IRFA) indicated we had a different understanding 
of physical coastal processes. The commenter also expressed concern 
about additional delays in permitting beach nourishment projects that 
may result from the rule.
    Response: In the draft RIR/IRFA, we identified the following 
project modifications that may be applicable to beach renourishment 
projects to address adverse impacts to the threatened corals: Project 
relocation, coral relocation and monitoring, conditions monitoring, 
diver assisted anchoring or mooring buoy use, pipe collars or cable 
anchoring, sand bypassing, shoreline protection measures to reduce 
frequency of beach nourishment events, upland or artificial sources of 
sand, and sediment and turbidity control measures. In the draft report, 
we discuss how each project modification may reduce impacts to the 
species. The commenter did not indicate which particular project 
modifications indicated we had a different understanding of physical 
coastal processes, thus precluding a more specific Response:
    The project modifications were identified as those already being 
implemented for beach renourishment projects as well as those described 
in the Report from the Southeast Florida Coral Reef Initiative Maritime 
Industry and Coastal Construction Impacts Workshop (TetraTech, 2007). 
The project modifications were also identified as the activities that 
may be necessary or appropriate to minimize the impact of incidental 
take on the two listed species of corals. It was not our intention that 
all project modifications identified for a particular category of 
activity be implemented for all individual projects. Rather, whether a 
particular project modification is imposed will depend on the specifics 
of the individual project. Further, project modifications, here likely 
imposed as RPMs through section 7 consultation, must be commensurate 
with the project for which they are imposed and cannot alter the basic 
design, location, scope, duration, and timing of the action and may 
only involve minor changes (50 CFR 402.14(i)(2)). Therefore, whether we 
impose a particular project modification will depend on whether that 
modification is necessary and appropriate in that instance and will 
take into consideration the physical coastal processes within the 
proposed action area. Lastly, as discussed in the RIR, consultation is 
already required if beach nourishment projects may affect the listed 
corals, and we do not expect that identification of RPMs will 
measurably increase the time required to complete consultation and 
delay project permitting.
    Comment 12: One commenter expressed confusion on how maintenance 
dredging or deep water ports will be evaluated through ESA section 7 
consultation. The commenter stated the economic impact data in the 
draft RIR/IRFA does not discuss many aspects of these ports' importance 
to the local economy and does not discuss the Port of Palm Beach at 
all. The commenter requested more information on the costs and benefits 
of NMFS' intentions.
    Response: In the draft RIR/IRFA, we identified, and described in 
detail, several project modifications that may be applicable to 
maintenance dredging and disposal projects: Project relocation, 
conditions monitoring, GPS and DPV protocol, diver assisted anchoring 
or mooring buoy use, pipe collars or cable anchoring, and sediment and 
turbidity control measures. As we described in the draft RIR/IRFA, it 
is likely that neither species of coral would be present within the 
footprint of dredging projects in ports and navigation channels. It is 
possible that the species may be present within the dredge material 
disposal area or within the areas adjacent to the dredging area. In 
these instances it is possible that the species may be impacted by 
sediments or turbidity, vessel operations, or construction equipment. 
The identified project modifications would reduce the impact of take 
that may result from the project. Further, the identified project 
modifications are in most cases the same as those currently required by 
existing authorities.
    We did not discuss the benefits to local economies of existing 
ports because we do not believe that there will be a change in the 
benefits the ports provide as a result of this rule. The imposition of 
project modifications must be reasonable and prudent for the particular 
project being proposed.

[[Page 64267]]

Therefore, it is not likely that the identified project modifications 
for maintenance dredging of an existing port would impact the operation 
of the port to the extent that it would reduce the benefits the port 
provides to local economies.
    Comment 13: One state agency questioned the assertion that 
Florida's reefs provide protective value as storm surge barriers, and 
noted the absence of discussion about the considerable economic benefit 
of Florida's beaches and associated tourist recreation to the state's 
economy.
    Response: Coastal nations and states, including the State of 
Florida, recognize the protection from storm surge and waves that 
offshore reefs provide to coastal communities and resources, including 
protection of beaches from erosion. The storm protection value may vary 
depending on the reefs and location, as the commenter indicates. We did 
not discuss the economic value of Florida's sand beaches because we do 
not believe that those values will be diminished by the proposed rule; 
specifically, we do not expect the proposed rule to interfere with 
beach renourishment projects to the extent that the values beaches 
provide will be impacted. As discussed above, if a beach renourishment 
project is expected to result in take of the listed corals, but will 
not jeopardize the corals' continued existence, modifications that may 
be required to minimize the impact of that take must be commensurate 
with the project and cannot alter the basic design, location, scope, 
duration, and timing of the project and may only involve minor changes.
    Comment 14: One state agency commented that it regulates upland 
construction seaward of the Coastal Construction Control Line (CCL), 
which does not require any Federal agency permitting. The commenter 
asked if we were proposing a requirement for an Incidental Take Permit 
(ITP) for at least some of the activities. The commenter stated an ITP 
would add considerable time delay, especially in post-hurricane 
situations, and add to the agency's workload, but that we did not 
consider administrative cost to the agency or cost to any public or 
private entities.
    Response: The commenter is correct that non-federal projects are 
not subject to section 7 consultation under the ESA, but may need an 
ESA Section 10(a)(1)(B) ITP if the activity results in the incidental 
take of listed species. When the state engages in an activity that does 
not require Federal funding or authorization, and that activity results 
in the incidental take of listed species, the state may apply for an 
ITP to request authorization for the take. However, if an activity 
occurs shoreward of the CCL and landward of the mean high water line 
(MHW) line, and has effects in the waters of the United States, such as 
discharges of sediments or other pollutants, a Federal permit may be 
required for that activity, potentially under the Clean Water Act or 
other statutes, depending on the location. Such permits would 
constitute a Federal agency action requiring a section 7 consultation 
on affected species listed under the ESA; incidental take of listed 
corals could be authorized through a biological opinion resulting from 
the consultation.
    Comment 15: One state commenter discussed the range of actions 
being taken under state, local, and Federal laws to address wastewater 
and stormwater discharge impacts, particularly in the Florida Keys, and 
asked if or how the rule will affect implementation of their programs, 
if there is no conclusive evidence that such discharges are impacting 
offshore reefs.
    Response: Programs that permit discharges to marine waters that 
result in incidental take of the listed corals will be impacted by the 
rule. Modifications to the program that minimize the impact of any 
incidental take of the listed corals may be appropriate, either through 
a section 10(a)(1)(B) ITP, or a section 7 consultation if the program 
is implementing the Federal Clean Water Act.
    Comment 16: Two commenters expressed concern that reef users' fears 
about the rule's take prohibitions would effectively restrict access to 
and enjoyment of coral reefs through boating and recreational 
activities, and through commercial fishing.
    Response: As stated previously, this rule does not prohibit any 
specific activity, only take of the species. Many existing regulations 
already prohibit injury or damage to coral reefs during the conduct of 
lawful activities such as boating and fishing. Therefore, by 
prohibiting take of elkhorn and staghorn corals, the rule does not 
present an undue burden on coral reef user groups.
    Comment 17: One commenter stated that the rule should include 
exceptions to the prohibitions for unintentional take that cannot be 
prevented, specifically for take caused by vessels loosed from moorings 
or grounded during hurricanes. The commenter also stated that 
rebuilding coastal communities after hurricanes should not be 
unreasonably delayed due to the need for consultation and potential 
permits.
    Response: Section 11 of the ESA provides for assessing different 
types and severity of penalties for violating the ESA or its 
implementing regulations. Knowing violations of the statute or 
regulations may lead to higher penalties, and the specific facts of an 
individual violation, for example a take, would determine whether the 
violation is ``knowing''. We have conducted section 7 consultations for 
community and major infrastructure repair and rebuilding activities in 
the wake of previous hurricanes, and we expect that any similar future 
consultations required due to potential impacts on the listed corals 
can be accomplished without unduly delaying projects.
    Comment 18: One commenter requested an exemption for a buffer area 
around the entrance channel and harbor to allow for shipping activities 
and facility maintenance at the Port of Key West.
    Response: This rule does not prohibit any activity generally, and 
specifically does not prohibit shipping activities and facility 
maintenance of the Port of Key West. This rule does prohibit the take 
of elkhorn and staghorn corals. Therefore, any activity that may result 
in take of either species would need to be modified to avoid taking the 
species. If the activity cannot be modified to avoid take, incidental 
take that will not jeopardize the species' continued existence can be 
authorized through the ESA section 7 consultation process or section 
10(a)(1)(B) permitting. Further, any maintenance of the port may 
require a permit from the U.S. Army Corps of Engineers, who would 
consult with us under ESA section 7 if the project may affect listed 
corals.
    Comment 19: One Federal natural resource management agency asked 
whether they need to obtain an ESA section 10 permit for incidental 
take that may result from visitor use of their managed areas.
    Response: No. ESA section 10(a)(1)(B) permits are required for 
incidental take that results from an otherwise legal activity conducted 
by anyone other than a Federal agency. Federal agencies must consult 
with NMFS on activities that they conduct, fund, or authorize to ensure 
their activities do not result in jeopardy pursuant to ESA section 
7(a)(2). Once section 9 take prohibitions are extended to threatened 
species, section 7 consultation will provide authorization for 
incidental take that results from said activity. Therefore, the 
commenting agency does not need a section 10 permit, but should enter 
into ESA section 7 consultation on activities under their management 
plan that may

[[Page 64268]]

affect the listed corals to obtain authorization for incidental take.
    Comment 20: Several comments were received regarding the exception 
for scientific research and enhancement activities conducted under six 
existing Federal, state, or territorial research permitting programs. 
Specifically, there was confusion and concern about the Puerto Rico 
Department of Natural and Environmental Resources' (DNER) permit 
program. The confusion regarded a perception that we were delegating 
our ESA section 10(a)(1)(A) permitting authority to DNER. Concerns were 
raised as to the efficiency and adequacy of DNER's permit program.
    Response: The exception for scientific research and enhancement 
activities does not delegate ESA section 10(a)(1)(A) permitting 
authority to the six specific programs identified in this rule. Rather, 
the exception removes the requirement for an individual to obtain an 
ESA section 10(a)(1)(A) permit if they have a valid permit from one of 
the identified programs.
    We evaluated the DNER's research permitting program criteria and 
found the program to provide for the conservation of the species and to 
have requirements commensurate with the ESA section 10(a)(1)(A) permit. 
The comments received did not provide specific information to warrant 
reconsidering our determination. Further, eliminating redundant 
permitting requirements where state and Federal permitting programs 
already exist and provide for the conservation of the species will 
improve administrative efficiency, reduce regulatory burdens on 
research and enhancement activities, and thereby facilitate collection 
of scientific information and advance the recovery of these species.
    Comment 21: One commenter suggested that enforcement of the 
scientific research and enhancement exception for import and export may 
be difficult due to the number of agencies issuing import and export 
permits. The commenter suggested that one agency be designated to issue 
the import and export permits.
    Response: Although six agencies were identified as having the 
authority to issue permits for which the scientific research and 
enhancement exception would apply, only one, the U.S. Fish and Wildlife 
Service (FWS), has the authority to issue export permits for elkhorn 
and staghorn corals, which are required under the Convention on 
International Trade of Endangered Species (CITES), because these 
species are included in Appendix II of the Convention. We acknowledge 
that our exception may have been confusing and we have clarified our 
intent in this final rule.
    We also proposed that import of elkhorn and staghorn coral 
necessary to conduct scientific research and enhancement activities 
would be excepted from the section 9(a)(1)(A) import prohibition. 
However, section 9(c) of the ESA specifically addresses the importation 
of species listed under Appendix II of CITES. This section provides 
that species listed as threatened under the ESA that are also included 
in Appendix II of the Convention, may be imported into the United 
States provided that all applicable requirements of CITES have been 
satisfied and the importation is not made in the course of a commercial 
activity. Because elkhorn and staghorn corals are listed under Appendix 
II of CITES, compliance with section 9(c) is required for the import of 
elkhorn and staghorn corals into the United States. Thus, we are not 
providing an exception to the section 9(a)(1)(A) import prohibition 
through this rulemaking, and we have removed the word ``import'' from 
the exception for scientific research and enhancement. We have also 
added an explicit reference to the statutory exception to the import 
prohibition provided by section 9(c) of the ESA.
    The exception to the ESA section 9(a)(1)(A) prohibition on export 
provided in this rule allows for the export of elkhorn or staghorn 
corals from the United States if the applicable CITES permit has been 
obtained from FWS, as long as the purpose of the export is for 
scientific research or enhancement. Proof of the purpose of the export 
will be a copy of the valid collection permit from the applicable 
agency. The application of the exception from the export prohibition 
for scientific research and enhancement is consistent with the 
commenter's intent, because only one agency, FWS, has the authority to 
issue the required CITES export permit.
    Comment 22: One of the six natural resource management agencies 
identified in the exception for scientific research and enhancement 
questioned whether scientific research conducted by agency staff under 
the authority of the management plan alone would qualify as excepted 
research, or whether the agency would need to issue itself a scientific 
research permit.
    Response: We evaluated the research permitting programs of each of 
the six identified agencies and found that they provide for the 
conservation of the listed corals. Therefore, if the natural resource 
management agency is conducting research within their jurisdiction, 
they would have to issue themselves a permit to ensure compliance with 
the criteria we evaluated, and to qualify for the research and 
enhancement exception in this rule.
    Comment 23: One commenter expressed concern that the qualifier 
``immediate'' in the definition of excepted restoration activities 
excludes certain activities that are regularly part of Acropora 
restoration, and suggested that we omit the term.
    Response: We agree that the word ``immediate'' inappropriately 
narrows the intended scope of the exception for restoration activities. 
Our intent is to extend an exception for the range of activities that 
have the objective of rescuing injured elkhorn and staghorn specimens 
and restoring them in their reef habitats. To the extent that existing 
restoration authorities allow for activities to be conducted at some 
time after the discovery of the injury, the restoration exception will 
apply. Therefore, we are removing the word immediate from the 
definition of restoration activity in this rule.
    Comment 24: One commenter questioned whether the restoration 
exception only applied to corals injured by vessel groundings.
    Response: The rule does not limit the types of impacts resulting in 
injury to corals for which the restoration exception applies. The 
exception for restoration activities is available to specified Federal, 
state, or local natural resource agencies conducting the activities 
under their authorizing laws. Therefore, the limits on activities 
covered by the exception are the limits imposed by the existing laws 
identified in the rule.
    Comment 25: One commenter suggested that non-governmental 
organizations should be allowed to engage in a broad spectrum of 
restoration activities. Further, the same commenter stated that the 
definition of activities that qualify for the restoration exception 
does not include coral nurseries.
    Response: Non-governmental organizations can play an important role 
in coral conservation, including through restoration activities. These 
organizations may apply for and receive permits for scientific or 
enhancement purposes from NMFS, under the provisions of paragraph 
223.208(c)(3) of this rule, and from the agencies identified in Sec.  
223.208(c)(1) of this rule. We did not propose providing a regulatory 
authorization for non-governmental entities to conduct restoration 
activities, since restoration activities require intergovernmental

[[Page 64269]]

coordination and highly qualified personnel. We do not believe it 
advisable to extend authorization to take listed species broadly to 
unidentified entities with unevaluated qualifications, although 
identified entities may become authorized through these permits.
    In our proposed rule, and as amended in this rule, we defined 
restoration activity as ``the methods and processes used to provide aid 
to injured individuals.'' The establishment or maintenance of coral 
nurseries does not fit within this limited definition. We believe in 
many cases a coral nursery may qualify for the research and enhancement 
exceptions at 223.208(c)(1) or (c)(3). In addition, please see our 
Response:to the previous comment. Continued non-commercial holding and 
use of elkhorn or staghorn corals that were in captivity or a 
controlled environment on or before May 9, 2006, when the two species 
were listed as threatened under the ESA, would not be prohibited by 
this rule.
    Comment 26: Two commenters suggested that we not limit the Puerto 
Rico statutes pertaining to marine managed areas in Table 1 to Tres 
Palmas de Rincon Marine Preserve. Another commenter requested that we 
add Florida Statute Sec.  20.331 to the same table.
    Response: Table 1 has been updated to include all of the Puerto 
Rico statutory provisions that authorize restoration activities in 
marine managed areas and to include the Florida statute that authorizes 
the Florida Fish and Wildlife Conservation Commission to conduct 
restoration activities.
    Comment 27: Two commenters requested a permit or a ``grandfather 
clause'' with respect to aquarists who possess, trade, and sell the 
listed corals.
    Response: Section 9(b) of the ESA, Species Held in Captivity or 
Controlled Environment, speaks specifically to this comment. As that 
section applies to these listed corals, we cannot prohibit, through 
this 4(d) rule, the holding or use of elkhorn or staghorn corals that 
were held in captivity or a controlled environment on May 9, 2006, 
``[p]rovided that such holding and any subsequent holding or use of 
[the listed coral] was not in the course of a commercial activity.'' 
This section provides further that ``there shall be a rebuttable 
presumption that the fish or wildlife involved in such act is not 
entitled to the exemption contained in this subsection.'' In other 
words, the burden of proof would fall on the aquarist to demonstrate 
that any specimens were in captivity or a controlled environment on May 
9, 2006, and that they are not being held or used in the course of a 
commercial activity. Because Congress clearly intended with this 
language that commercial activities involving listed species held in 
captivity at the time of listing not be allowed, we will not provide a 
``grandfather clause'' for the commercial trade or sale of listed 
corals by aquarists. The continued non-commercial possession and 
transportation of these specimens would be allowed under this rule, 
consistent with ESA sections 9(a) and (b).
    Comment 28: One commenter questioned whether the rule would require 
permitting to transfer possession of corals that were held in captivity 
at the time of listing to approved research institutions. The commenter 
also questioned what effect the rule's prohibition on the sale of 
listed corals would have on the recovery of expenses, if corals held in 
captivity at the time of listing are provided for research and 
restoration projects.
    Response: Regarding the necessity to obtain a permit for the 
transfer of possession of the corals, please see the Response:to 
comment 19. The extension of the ESA section 9(a)(1)(E) prohibition 
will make it illegal to deliver, receive, carry, transport, or ship 
either species in interstate or foreign commerce and in the course of a 
commercial activity. Similarly, the extension of the ESA section 
9(a)(1)(F) prohibition will make it illegal to sell, or offer for sale, 
either species in interstate or foreign commerce. The ESA defines 
``commercial activity'' as ``all activities of industry and trade, 
including, but not limited to, the buying or selling of commodities and 
activities conducted for the purpose of facilitating such buying and 
selling `` The FWS has defined the clause ``industry or trade'' in the 
definition of commercial activity to mean ``the actual or intended 
transfer of wildlife or plants from one person to another person in the 
pursuit of gain or profit.'' 50 CFR 17.3(c). In Humane Society of the 
United States v. Lujan, 1992 U.S. Dist. LEXIS 16140 (D.D.C., Oct. 19, 
1992), the court found FWS' interpretation to be a ``reasonable 
construction'' of the ambiguous definition of commercial activity in 
the statute. Though NMFS has not issued parallel regulatory 
definitions, we believe that FWS' interpretation provides for a 
reasonable application of the statutory prohibitions to elkhorn and 
staghorn corals. Thus, so long as the activity described in the comment 
is not conducted in the pursuit of gain or profit, and is otherwise 
consistent with all other applicable regulations, it is not prohibited.
    Comment 29: One commenter expressed the opinion that Alternative 3 
described in the Draft Environmental Assessment (EA), which included 
exceptions to the incidental take prohibition for activities conducted 
in accordance with approved resource management plans (RMP), is 
superior to the preferred alternative included in the proposed rule. 
The commenter suggested that the approval of such plans would reduce 
the time-lag and paperwork burden on the public and non-federal 
agencies that occur through ESA section 7 consultation or the 
application for an ESA section 10 permit.
    Response: As described in the EA, the loss of our ability to 
monitor and minimize incidental take that would be inherent in 
Alternative 3 was judged to be a significant shortcoming of this 
alternative. In addition, the greater amounts of undocumented take we 
believed would have resulted under Alternative 3 would reduce the 
quality and quantity of goods and services that derive from these 
corals, and the income generated from direct and indirect use of the 
corals. Further, the time-lag and paperwork burden would not likely be 
reduced by adoption of the RMP alternative; we would be required to 
conduct an ESA section 7 consultation on our action of approving each 
RMP. Additionally, existing RMPs that we reviewed would all likely 
require modification in order to provide for conservation of the 
threatened corals.
    Comment 30: Several commenters suggested that education and 
outreach will be key to the success of this rule. Further, they 
suggested that partnerships with stakeholders will enhance the 
effectiveness of the education and outreach effort in abating the 
threats to the species.
    Response: We appreciate the suggestion to use education and 
outreach to enhance the effectiveness of this rule and welcome the 
opportunity to continue to work with stakeholders. We intend to 
implement this suggestion through our ongoing recovery planning and 
implementation efforts.
    Comment 31: We received many helpful comments of an editorial 
nature. These comments noted inadvertent errors in the proposed rule 
and offered non-substantive but nonetheless clarifying changes to 
wording.
    Response: We have incorporated these editorial-type comments in the 
final rule. As these comments do not result in substantive changes to 
this final rule, we have not detailed the changes made.
    In addition to the specific comments detailed above relating to the 
proposed 4(d) rule, the following were also

[[Page 64270]]

received: (1) general support for the proposed rule; (2) peer-reviewed 
journal articles regarding water quality impacts on Florida reefs; and 
(3) a request that we establish blanket regulations that automatically 
extend the ESA section 9 prohibitions to all threatened species. After 
careful consideration, we conclude the additional information received, 
as summarized in this paragraph, was considered previously or did not 
pertain to the determination to issue protective regulations necessary 
and advisable for the conservation of elkhorn and staghorn corals.

Summary of Changes From the Proposed Protective Regulations

    Based on the comments received, we have made three substantive 
changes to the proposed rule. As discussed in the Response:to comment 
18 (above), we are removing the word ``immediate'' from the definition 
of restoration activity excepted from the prohibitions by this final 
rule. We have also corrected the list of statutes authorizing the 
Puerto Rico DNER and the Florida Fish and Wildlife Commission to 
conduct restoration of injured elkhorn or staghorn corals. 
Additionally, we have omitted the exception to the section 9(a)(1)(A) 
import prohibition provided in the proposed rule for scientific 
research and enhancement activities, because section 9(c) controls 
imports of species listed in CITES Appendix II, which includes elkhorn 
and staghorn corals. We do not detail minor changes of an editorial 
nature (see Response: to Comment 23, above).

Evaluation of Regulations Necessary and Advisable for the Conservation 
of Elkhorn and Staghorn Corals

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

Application of Section 9 Prohibitions to Listed Corals

    As discussed above, the two coral species have declined to less 
than three percent of their former abundances and are currently 
impacted by myriad stressors that act simultaneously on the species 
throughout their ranges. We determined the major stressors (i.e., 
disease, elevated sea surface temperature, and hurricanes) to these 
species' persistence are severe, unpredictable, likely to increase in 
the foreseeable future, and, at current levels of knowledge, 
unmanageable. While the lesser stressors, enumerated above, have not 
been the primary causes of the species' decline, managing them will 
contribute to the conservation of the two species by slowing the rate 
of decline and reducing the synergistic effects of multiple stressors 
on the species. Therefore, we believe that the ESA section 9(a)(1) 
prohibitions are necessary and advisable for the conservation of 
threatened elkhorn and staghorn corals, specifically to address the 
lesser stressors that are amenable to management. We believe that the 
prohibitions are not necessary and advisable in specific circumstances, 
and we implement specific exceptions for exportation and take, which 
are more fully described in the next section. Below is our discussion 
of the section 9 prohibitions that we extend to the two listed corals.
    Section 9(a)(1)(A) prohibits the importation and exportation of 
endangered species to or from the United States. We believe that it is 
necessary and advisable to extend this prohibition to elkhorn and 
staghorn corals. Existing laws prohibit and restrict extraction and 
trade of live elkhorn and staghorn corals. International agreement 
restricts international trade of both elkhorn and staghorn corals 
(CITES). Federal regulations prohibit harvest or possession of elkhorn 
or staghorn coral in Federal waters (e.g., regulations implementing the 
Caribbean and Gulf of Mexico and South Atlantic Coral Fisheries 
Management Plans at 50 CFR part 622), and the Lacey Act prohibits trade 
of illegally obtained specimens. Sale of coral extracted from any 
waters is illegal in the U.S.V.I, Puerto Rico, and Florida, except that 
the sale of live elkhorn and staghorn corals extracted from Florida 
waters (F.A.C. 68B-42.009(2)) or the Exclusive Economic Zone (EEZ) (50 
CFR 622.41) is legal when these corals are products of aquaculture 
(e.g., the corals have settled and grown on live rock products). Thus, 
this rule prohibits an activity that is currently allowed under Florida 
law and the Federal Magnuson-Stevens Fishery Conservation and 
Management Act. Neither threatened coral species, however, is a product 
of commercial aquaculture anywhere within the United States, nor is 
there a directed market for either elkhorn or staghorn corals. More 
information on the specific Federal, state, and local laws and 
regulations concerning the import and export of corals is available in 
the Atlantic Acropora Status Review Document (BRT, 2005) and the RIR 
for this rule.
    As discussed in the status review document, prior to listing the 
two species as threatened under the ESA, we determined that there was 
no evidence of extraction of live specimens from Federal or state 
waters, nor evidence of trade of live specimens taken from foreign 
waters and imported into the United States for aquaria or other uses. 
Lack of extraction and trade of live specimens prior to the listing of 
these corals can be attributed mostly to existing laws and regulations. 
However, it is possible that the ESA listing might encourage a black 
market for the trade of these species, as evidenced by the trade of 
other threatened and endangered species (e.g., sturgeon eggs, elephant 
ivory). The increased public exposure to these rare corals due to the 
ESA listing may make the two species more desirable for aquaria or 
other uses. Therefore, to prevent this activity and to support existing 
regulations concerning the import and export of these corals, we find 
it necessary and advisable to extend the ESA section 9(a)(1)(A)

[[Page 64271]]

prohibition to elkhorn and staghorn corals in order to provide for the 
conservation of the two species.
    Section 9(a)(1)(B) of the ESA prohibits the take of endangered 
species within the United States or the territorial sea of the United 
States, and section 9(a)(1)(C) of the ESA prohibits the take of 
endangered species upon the high seas for any person subject to the 
jurisdiction of the United States. Take means to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to 
engage in any such conduct. Activities that constitute harm may include 
significant habitat modification or degradation that actually kills or 
injures fish or wildlife by significantly impairing essential 
behavioral patterns including breeding, spawning, rearing, migrating, 
feeding, or sheltering (50 CFR 222.102). At the time of the drafting of 
the ESA, the high seas were defined as those waters not under any 
country's legal jurisdiction, and no country had yet designated an EEZ 
(i.e., 200 nautical miles (370.4 km)). Thus, ``take on the high seas'' 
is interpreted as take beyond any country's territorial seas. Based on 
available information, the territorial seas of countries within the 
range of the two threatened coral species end no more than 12 nautical 
miles NM (22.2 km) offshore (See, ``Table of claims to maritime 
jurisdiction'' as of December 29, 2006, at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf).
    A range of private and public activities have the potential to 
result in take of the listed corals, including recreational and 
commercial activities. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Protecting 
listed corals from all direct forms of take, such as physical injury or 
killing, will help preserve the species' remaining populations and slow 
their rate of decline. Protecting listed corals from indirect forms of 
take, such as harm that results from habitat degradation, will likewise 
help preserve the species' populations and also decrease synergistic, 
negative effects from other stressors. We therefore propose to extend 
the ESA section 9(a)(1)(B) prohibition to elkhorn and staghorn corals 
to manage for these threats. There are likely few locations where 
elkhorn and staghorn corals occur farther than 12 NM (22.2 km) from 
land, because corals cannot typically survive in these depths. However, 
due to the dramatic decline in abundance and the myriad threats facing 
them, it is necessary and advisable for these species' conservation to 
protect the species from take everywhere they occur, including on the 
high seas, and thus we propose extending the ESA section 9(a)(1)(C) 
prohibition to the listed corals. Ensuring that take is prohibited 
everywhere the corals may be found will also avoid difficulty in 
enforcing these regulations based on claims about the origin of coral 
specimens.
    Sections 9(a)(1)(D), (E), and (F) of the ESA prohibit, among other 
things, the possession, sale, and transport of endangered species that 
are taken illegally or that are entered into interstate or foreign 
commerce. For the same reasons discussed above regarding the 
prohibition pursuant to ESA section 9(a)(1)(A), it is necessary and 
advisable to extend these prohibitions to the two corals. The ESA 
listing of these two species may make them a desirable commodity and 
encourage a black market. Therefore, the extension of these 
prohibitions will discourage the development of a black market and 
reinforce existing regulations on commercial activities involving 
corals.
    Lastly, we extend the section 9(a)(1)(G) prohibition against 
violating this and any other regulations we promulgate pertaining to 
these two corals.

Summary of Exceptions to Section 9 Prohibitions

    The ESA allows for specific exceptions to the section 9 
prohibitions through interagency consultation as prescribed by ESA 
section 7, a permit issued pursuant to section 10, or compliance with 
the requirements for imports of CITES-listed species pursuant to 
section 9(c). With the finalization of this rule, these exceptions 
apply.
    Section 7 of the ESA requires all Federal agencies to consult with 
us if actions they fund, authorize, or carry out may affect threatened 
corals or any other species listed under the ESA. We consult on a broad 
range of activities conducted, funded, or authorized by Federal 
agencies. These activities include, but are not limited to, national 
water quality standards and discharge permits, coastal and nearshore 
construction, the dredge or discharge of fill material, navigation 
regulation, fishery regulation, and live-rock aquaculture. Incidental 
take of these two threatened corals that results from federally funded, 
authorized, or implemented activities for which section 7 consultations 
are completed, will not constitute violations of section 9 prohibitions 
against take, provided the activities are conducted in accord with all 
RPMs and terms and conditions contained in any biological opinion and 
incidental take statement.
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide us with the 
authority to grant exceptions to the ESA's prohibitions. Section 
10(a)(1)(A) scientific research and enhancement permits may authorize 
exceptions to any of the section 9 prohibitions and may be issued to 
Federal and non-Federal entities conducting research or conservation 
activities that involve a directed take of listed species. A directed 
take refers to the intentional take of listed species. Section 
10(a)(1)(B) incidental take permits may be issued to non-Federal 
entities performing activities that may incidentally take listed 
species in the course of an otherwise lawful activity; these permits 
provide an exception to the section 9(a)(1)(B) prohibitions.
    Section 9(c) of the ESA allows for the importation of species 
listed as threatened under the ESA that are also listed in Appendix II 
of CITES, provided that all the requirements of CITES have been 
satisfied and the import is not in the course of a commercial activity.
    We determined that in certain circumstances described below, 
extending the ESA section 9(a)(1)(A), (B), and (C) prohibitions to 
elkhorn and staghorn corals is not necessary and advisable. We except 
these prohibitions for two classes of activities that provide for the 
conservation of listed corals. Under specified conditions, (1) 
scientific research and enhancement activities conducted under six 
specific existing Federal, state, or territorial research permitting 
programs are excepted from the section 9(a)(1)(A) export, and 
subsections (B) and (C) take prohibitions; and (2) restoration 
activities carried out by an authorized (under current laws) Federal, 
state, territorial, or local natural resource agency are excepted from 
the section 9(a)(1)(B) and (C) take prohibitions. These exceptions are 
described in more detail in the following sections. These classes of 
activities are not excepted from the Section 9(a)(1)(D) through (F) 
prohibitions because allowing commercial activities does not provide 
for the conservation of the two species. The 9(a)(1)(G) prohibition 
applies to these activities so that it is unlawful to violate this rule 
or subsequent rules that we may promulgate under the ESA and pertaining 
to the corals.

Exception to Prohibitions for Scientific Research and Enhancement 
Activities

    This exception applies to both threatened corals covered by this 
rule. In carrying out their resource

[[Page 64272]]

management responsibilities, several Federal, state, and territorial 
natural resource management agencies permit scientific research and 
enhancement activities, including monitoring and other studies that are 
directed at, and occur within the geographic areas occupied by, the 
listed corals. Research or enhancement activities may involve 
collection of specimens from one location for study in another 
location, thus requiring an exception to the export, as well as the 
take, prohibitions. However, since elkhorn and staghorn corals are 
listed in Appendix II to CITES, a CITES export permit must be obtained 
from the FWS if such export is necessary to conduct the research or 
enhancement activities excepted from the prohibitions by this rule. 
Similarly, if excepted research or enhancement activities require 
importing elkhorn or staghorn corals into the United States from 
another country, a scientist must contact FWS to ensure that the 
importation can be conducted in accordance with section 9(c) of the 
ESA.
    The following six agencies have permit programs that include 
corals, and we have evaluated these programs and found that they 
provide for the conservation of the listed corals: National Ocean 
Service (National Marine Sanctuary Program), National Park Service, 
FWS, Florida Fish and Wildlife Conservation Commission, Puerto Rico 
DNER, and the U.S.V.I. Department of Planning and Natural Resources 
(DPNR). We compared each of these programs' substantive and procedural 
requirements to ESA section 10(a)(1)(A) scientific research and 
enhancement permit regulations. Review of the permitting process used 
by each of the six specific programs identified above revealed that 
each of these permit programs allow research activities that yield 
sufficient data to support the research objectives while limiting, to 
the maximum extent practicable, the amount of resources collected or 
impacted. We determined that the programs are restrictive enough to 
provide important conservation benefits to the listed corals without 
the additional requirements of section 10(a)(1)(A) scientific research 
permits. Additionally, we reviewed examples of the types of acroporid 
research that have been permitted in the past by these agencies (e.g., 
gene flow, disease etiology) and concluded that the continuation and 
future permitting of these types of research will provide for the 
conservation of these species by improving our understanding of the 
status and risks facing these threatened corals and by providing 
critical information for assessing the effectiveness of current and 
future management practices. Each of these permit programs has 
application requirements similar to those of the ESA section 10 
permitting program. Each requires detailed background information, 
justifications, and descriptions of expected impacts prior to approval 
for all proposed scientific research. Additionally, each of these 
permitting programs has data reporting requirements and the ability to 
apply stringent terms and conditions on issued permits. If research 
directed at elkhorn and staghorn coral is in compliance with one of the 
permit programs listed above, any exportation or take that occurs under 
such a permit would not constitute a violation of the prohibitions, and 
an ESA section 10(a)(1)(A) permit would not be required. A copy of the 
issued permit must be carried and available for inspection during the 
research or enhancement activity. Further, if export is necessary to 
conduct the research or enhancement activities excepted from the 
prohibitions by this rule, a CITES permit must be obtained and a copy 
of the applicable collection permit will provide proof of the purpose 
of the collection.

Exception to Prohibitions for Certain Restoration Activities

    This exception applies to both threatened corals and would except 
certain Federal, state, and territorial agency personnel, or their 
designees as applicable, from the prohibitions on taking when they are 
performing specific restoration activities directed at the listed 
corals under an existing legal authority that provides for such 
restoration. For purposes of this exception, a ``restoration activity'' 
is the methods and processes used to provide aid to injured individual 
elkhorn or staghorn corals. For example, reattachment of colonies or 
fragments dislodged or broken by vessel groundings onto suitable hard 
substrates would be excepted from the prohibition when it is 
implemented under an existing legal authority. Thus, Florida Keys 
National Marine Sanctuary staff actions under the National Marine 
Sanctuaries Act's authority to undertake all necessary actions to 
prevent or minimize the destruction or loss of, or injury to, sanctuary 
resources (16 U.S.C. 1441 et seq.), would be excepted from the 
prohibitions when the restoration activity described in this 
prohibition is implemented for either of the two acroporid corals. 
Through this exception, we do not authorize any activities that are not 
currently authorized under an existing statute, rather we except these 
activities from the section 9(a)(1)(B) and (C) take prohibitions for 
the two listed corals. The activity that caused the injury is not 
excepted by this rule. Any person claiming this exception shall, upon 
request by a law enforcement agent, provide proof they are acting under 
the authority of the listed laws.
    Several Federal, state, and territorial government agencies have 
authorization to engage in the specific type of restoration activities 
covered by this exception. We have included response removal, or 
remedial authority under several Federal statutes in this exception, 
because one or more of these authorities have been interpreted to 
include the type of natural resource restoration activity described 
above; for example, actions required to respond to a substantial threat 
of a discharge may dislodge or break coral fragments, and reattaching 
those fragments are legitimate response activities. The following table 
lists the authorizing statute, the specific provision, and specific 
agencies or offices authorized under existing statutes to implement the 
coral restoration activities defined in this exception.

----------------------------------------------------------------------------------------------------------------
                FEDERAL:
----------------------------------------------------------------------------------------------------------------
              Agency/Person                Statute and Specific Provision(s)       Description of Authority
----------------------------------------------------------------------------------------------------------------
NOAA, National Ocean Service (NOS)        National Marine Sanctuaries Act 16  Authorized to conduct, among other
                                           U.S.C. 1433                         things, all necessary actions to
                                                                               prevent or minimize actual or
                                                                               imminent risk of destruction or
                                                                               loss of, or injury to, Sanctuary
                                                                               resources.
----------------------------------------------------------------------------------------------------------------
NOAA NOS                                  Coral Reef Conservation Act, 16     Authorized to conduct activities
                                           U.S.C. 6406                         to conserve coral reefs,
                                                                               including restoration.
----------------------------------------------------------------------------------------------------------------

[[Page 64273]]

 
Commandant, U.S. Coast Guard (USCG),      ''Oil Pollution Act''               Authorized to conduct the removal
 Authorized representatives of States or  33 U.S.C. 2702                       of discharges of oil, including
 Indian Tribes.                                                                the prevention, minimization or
                                                                               mitigation of substantial threats
                                                                               of discharges.
----------------------------------------------------------------------------------------------------------------
Designated Federal, State or Indian       33 U.S.C. 2706                      Authorized to restore or
 tribal natural resources trustees,                                            rehabilitate trust natural
 including NOAA, Department of Interior                                        resources injured, destroyed or
 (DOI), Florida Department of                                                  lost as a result of discharges of
 Environmental Protection (FDEP), Puerto                                       oil, or substantial discharges of
 Rico DNER, and U.S. Virgin Islands                                            oil.
 DPNR.
----------------------------------------------------------------------------------------------------------------
Administrator, Environmental Protection   ''Clean Water Act''                 Authorized to conduct removal of
 Agency (EPA) or Commandant, USCG;        33 U.S.C. 1321                       and mitigation or prevention of
 Authorized representatives of States.                                         substantial threats of discharges
                                                                               of oil or hazardous substances to
                                                                               certain waters; protection,
                                                                               rescue, and rehabilitation of,
                                                                               and minimization of risk of
                                                                               damage to, fish and wildlife
                                                                               resources harmed by, or that may
                                                                               be jeopardized by, discharges;
                                          ..................................  ..................................
Designated Federal, State or Indian       ..................................  Authorized to conduct restoration
 tribal natural resources trustees,                                            or rehabilitation of public trust
 including NOAA, DOI, FDEP, DNER, and                                          natural resources damaged or
 DPNR.                                                                         destroyed as a result of
                                                                               discharges.
----------------------------------------------------------------------------------------------------------------
Administrator of the EPA; States or       ''Superfund Act'' (CERCLA)          Authorized to conduct removal and
 Indian Tribes in cooperative agreements  42 U.S.C. 9604                       other remedial action for
 with EPA; Heads of other federal                                              releases or substantial threats
 agencies where release is from vessel                                         of releases of hazardous
 or facility solely under their control.                                       substances into the environment.
                                          ..................................  ..................................
Administrator of the EPA                  42 U.S.C. 9606                      Authorized to conduct abatement
                                                                               actions in response to imminent
                                                                               and substantial endangerment to
                                                                               the public health or welfare or
                                                                               the environment from actual or
                                                                               threatened releases of hazardous
                                                                               substances.
                                          ..................................  ..................................
Designated Federal, State or Indian       42 U.S.C. 9607                      Authorized to conduct restoration
 tribal natural resources trustees,                                            and rehabilitation of natural
 including NOAA, DOI, FDEP, DNER, and                                          resources injured, destroyed or
 DPNR                                                                          lost as a result of actual or
                                                                               threatened releases of hazardous
                                                                               substances.
----------------------------------------------------------------------------------------------------------------
DOI, National Park Service (NPS)          Park System Resource Protection     Authorized to conduct all
                                           Act,                                necessary actions to prevent or
                                          16 U.S.C. 19jj                       minimize actual or imminent risk
                                          16 U.S.C. 668dd-668ee (National      of destruction, loss of, or
                                           Wildlife Refuge System)             injury to Park System resources,
                                                                               and to restore such resources.
----------------------------------------------------------------------------------------------------------------
DOI                                       National Wildlife Refuge System     Authorized to administer refuges
                                           Administration Act,                 for the conservation of fish and
                                          16 U.S.C. 668                        wildlife within refuges.
----------------------------------------------------------------------------------------------------------------
FLORIDA:
-----------------------------------------
The Board of Trustees of the Internal     State Lands; Board of Trustees to   Authorized, among other things, to
 Improvement Trust Fund                    Administer                          administer, manage, conserve, and
                                          FL Statute Sec.   253.03             protect all lands owned by the
                                                                               State or any of its agencies,
                                                                               departments, boards or
                                                                               commissions.
                                          ..................................  ..................................
                                          Duty of Board to Protect, etc.      Authorized to protect, conserve,
                                          FL Statute. Sec.   253.04            and prevent damage to state-owned
                                          FDEP                                 lands; FDEP authorized to assess
                                                                               civil penalties for damage to
                                                                               coral reefs in state waters.
----------------------------------------------------------------------------------------------------------------
Governor and Cabinet; FDEP                Land Acquisition for Conservation   Authorized to use monies in the
                                           or Recreation; Conservation and     Fund to, among other things,
                                           Recreation Lands Trust Fund         promote restoration activities,
                                          FL Statute Sec.   259.032            and manage lands acquired under
                                                                               this section to protect or
                                                                               restore their natural resource
                                                                               values.
----------------------------------------------------------------------------------------------------------------

[[Page 64274]]

 
FDEP                                      Pollutant Discharge Prevention and  Authorized to recover the costs of
                                           Removal; Liability for Damage to    restoration of state natural
                                           Natural Resources                   resources damages by pollution
                                          FL Statute Sec.   376.121            discharges, and to use funds
                                                                               recovered for, among other
                                                                               purposes, restoration of the
                                                                               damaged resources.
----------------------------------------------------------------------------------------------------------------
FDEP                                      Land and Water Management; Coral    Authorized to use monies in the
                                           Reef Restoration                    Ecosystem Management and
                                          FL Statute Sec.   390.0558           Restoration Trust Fund to restore
                                                                               or rehabilitate injured or
                                                                               destroyed coral reefs.
----------------------------------------------------------------------------------------------------------------
Florida Fish and Wildlife Conservation    Fish and Wildlife Conservation      Assigned, among other things, the
 Commission                                Commission                          powers, duties, responsibilities,
                                          FL Statute Sec.   20.331             and functions to develop
                                                                               restoration and management
                                                                               techniques for habitat and
                                                                               enhancement of plant and animal
                                                                               populations; and respond to and
                                                                               provide critical technical
                                                                               support for catastrophes
                                                                               including oil spills, ship
                                                                               groundings, major species die-
                                                                               offs, hazardous spills, and
                                                                               natural disasters.
----------------------------------------------------------------------------------------------------------------
U.S. VIRGIN ISLANDS:
-----------------------------------------
DPNR                                      DPNR; Powers and Duties of          Authorized to undertake programs
                                           Department                          and projects for, among other
                                          3 V.I.C. Sec.   401                  things, the conservation of
                                                                               natural resources of the
                                                                               U.S.V.I., for the restoration and
                                                                               preservation of the scenic beauty
                                                                               of the U.S.V.I., and for the
                                                                               conservation, maintenance and
                                                                               management of U.S.V.I. wildlife,
                                                                               the resources thereof, and its
                                                                               habitat.
----------------------------------------------------------------------------------------------------------------
DPNR                                      Conservation; Croix East End        Authorized to protect
                                           Marine Park Established;            territorially significant marine
                                          12 V.I.C. Sec.   98                  resources, including coral reefs,
                                                                               in the St. Croix East End Marine
                                                                               Park.
----------------------------------------------------------------------------------------------------------------
PUERTO RICO:
-----------------------------------------
DNER                                      Conservation; Protection,           Authorized to, among other things,
                                           Conservation and Management of      take all measures needed for the
                                           Coral Reefs                         protection, conservation and
                                          12 L.P.R.A. Sec.  Sec.   241-241g    management of coral reefs and
                                           et seq.                             coral communities throughout the
                                                                               territorial waters of the
                                                                               Commonwealth of Puerto Rico.
----------------------------------------------------------------------------------------------------------------
DNER                                      Conservation; Natural Patrimony     Authorized to acquire, restore and
                                           Program                             manage lands, natural communities
                                          12 L.P.R.A. Sec.   1227              and habitats identified as, among
                                                                               other things, deserving
                                                                               preservation for their natural
                                                                               resource values.
----------------------------------------------------------------------------------------------------------------
DNER                                      Conservation; Tres Palmas de        Authorized to administer,
                                           Rincon Marine Reserve               rehabilitate and conserve the
                                          12 L.P.R.A. Sec.   5063              reserve.
----------------------------------------------------------------------------------------------------------------

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that 
requires 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. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within a species' range. We must 
identify to the extent known, specific activities not considered likely 
to result in violations of section 9, as well as activities that will 
be considered likely to result in violations. We believe that, based on 
the available information, the following actions will not result in a 
violation of section 9:
    1. Collection, handling, and possession of listed corals that are 
acquired lawfully through an ESA section 10(a)(1)(A) permit or through 
one of the exceptions in this rule; or
    2. Activities that result in incidental take authorized by an 
incidental take statement issued through a biological opinion pursuant 
to section 7 or permitted through section 10(a)(1)(B) of the ESA.
    Based on available information, we believe the following categories 
of activities are those most likely to result in a violation of the ESA 
section 9 prohibitions. We emphasize that whether a violation results 
from a particular activity is entirely dependent upon the facts and 
circumstances of each incident. The mere fact that an activity may fall 
within one of these categories does not mean that the specific activity 
will cause a violation; due to such factors as location and scope, 
specific actions may not result in direct or indirect adverse effects 
on the species. Further, an activity not listed may in fact result in a 
violation. However, the following types of activities are those that 
may be most

[[Page 64275]]

likely to violate the prohibitions in section 9, which are being 
extended to the listed corals through this rule:
    1. Removing, damaging, poisoning, or contaminating elkhorn or 
staghorn corals.
    2. Removing, poisoning, or contaminating plants, wildlife, or other 
biota required by listed corals for feeding, sheltering, or other 
essential behavioral patterns.
    3. Harm to the species' habitat resulting in injury or death of the 
species, such as removing or altering substrate, vegetation, or other 
physical structures.
    4. Altering water flow or currents to an extent that impairs 
spawning, feeding, or other essential behavioral patterns of listed 
corals.
    5. Discharging pollutants, such as oil, toxic chemicals, 
radioactivity, carcinogens, mutagens, teratogens, or organic nutrient-
laden water, including sewage water, into listed corals' habitat to an 
extent that harms or kills listed corals.
    6. Releasing non-indigenous or artificially propagated species into 
listed corals' habitat or locations from where they may access the 
habitat of listed corals.
    7. Activities conducted in shallow water coral reef areas, 
including boating, anchoring, fishing, recreational SCUBA diving, and 
snorkeling, that result in abrasion of or breakage to the listed 
corals.
    8. Interstate and foreign commerce dealing in listed corals, and 
importing or exporting listed corals other than for permitted 
scientific research or enhancement.
    9. Shoreline and riparian disturbances (whether in the riverine, 
estuarine, marine, or floodplain environment) that may harm or kill 
listed corals, for instance by disrupting or preventing the 
reproduction, settlement, reattachment, development, or normal 
physiology of listed corals. Such disturbances could include land 
development, run-off, dredging, and disposal activities that result in 
direct deposition of sediment on corals, shading, or covering of 
substrate for fragment reattachment or larval settlement.
    10. Activities that modify water chemistry in coral habitat to an 
extent that disrupts or prevents the reproduction, development, or 
normal physiology of listed corals.
    11. Local activities that result in elevated water temperatures in 
coral habitat that cause bleaching or other degradation of 
physiological function of listed corals. For example, in our economic 
analysis of this rule, we identified discharges of cooling water 
effluent from power plants as an activity that may result in elevated 
sea surface temperature.
    This list provides examples of the types of activities that could 
have a high risk of causing a violation, but it is by no means 
exhaustive. It is intended to help people avoid violating the ESA and 
to encourage efforts to recover the threatened corals addressed in this 
rule.
    Persons or entities concluding that their activity is likely to 
violate the ESA are encouraged to immediately adjust that activity to 
avoid violations and to seek authorization under: (a) an ESA section 
10(a)(1)(B) incidental take permit; (b) an ESA section 10(a)(1)(A) 
research and enhancement permit; or (c) an ESA section 7 consultation. 
The public is encouraged to contact us (see FOR FURTHER INFORMATION 
CONTACT) for assistance in determining whether circumstances at a 
particular location, involving these activities or any others, might 
constitute a violation of this rule.
    In making a determination that it is not necessary and advisable to 
impose ESA section 9 take prohibitions on certain activities, we 
recognize that new information may require a reevaluation of that 
conclusion. For any of the exceptions from the prohibitions described 
in this rule, we will evaluate periodically the activity's effect on 
the conservation of listed corals. If we determine that it becomes 
necessary and advisable for the conservation of the species, we will 
impose take prohibitions, through appropriate rulemaking, on the 
activities previously excepted.

Final Determination

    Based on the status of the species and the threats affecting them, 
we believe that the ESA section 9(a)(1) prohibitions are necessary and 
advisable for the conservation of threatened elkhorn and staghorn 
corals. We believe that the prohibitions are not necessary and 
advisable in specific circumstances, and we are providing two 
exceptions for scientific research and enhancement and restoration 
activities, when conducted by specified entities under specified legal 
authorities.

Classification

    We determined that this action is consistent to the maximum extent 
practicable with the enforceable policies of the approved coastal 
management programs of Florida, Puerto Rico, and U.S.V.I. This 
determination was submitted for review by the responsible state 
agencies under section 307 of the Coastal Zone Management Act. We did 
not receive Response: from Puerto Rico or the U.S.V.I; Florida found 
the regulation consistent with its approved coastal management 
programs.
    This rule has been determined not to be significant under Executive 
Order (E.O.) 12866.
    We prepared a final regulatory flexibility analysis (FRFA), 
pursuant to section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), that describes the economic impact this rule would have on 
small entities. A description of the need for, and objectives of, the 
action is included in the preamble of this rule. Small entities may be 
affected if a project they seek to implement requires ESA section 7 
consultation and may adversely affect the listed coral species, 
requiring RPMs, which are minor changes to the project to lessen 
impacts on the corals. We did not identify any private activity that 
would involve incidental take that would require an ESA section 
10(a)(1)(B) incidental take permit because the activities and take 
would be covered by a section 7 consultation and incidental take 
statement. Reporting requirements of the rule would be associated with 
implementation of the required section 7 RPMs. No record keeping 
requirements are implemented specifically by this rulemaking. No 
existing Federal rules or laws duplicate or conflict with this rule. 
Existing Federal rules and laws overlap the rule only to the extent 
that they provide for the protection of natural resources or corals in 
general. Public comments concerning the economic impacts of the rule 
are addressed earlier in the preamble and did not result in any changes 
to the regulatory flexibility analysis. A summary of the impacts 
analysis follows.
    In the FRFA, we found that, given existing Federal, state, or local 
laws that in some form or another prohibit take, possession, or sale 
of, and/or damage to, corals, few private activities that are now legal 
would have to be altered or abandoned. Puerto Rico and U.S.V.I. law 
prohibit the take and sale of elkhorn and staghorn corals. Florida law 
(F.A.C. 68B-42.009(2)) and Federal regulations (50 CFR 622.41) prohibit 
take of these corals, with an exception provided for corals that attach 
to rock placed by aquaculture operations (i.e., live rock) that have 
appropriate permits. There is no historical evidence of any live rock 
operations selling live rock with these species attached in the past 10 
years of observations reported by live rock producers. Existing 
regulations allow sales of dead elkhorn or staghorn coral skeletons 
with proof that the specimens were not taken illegally. There is 
anecdotal evidence that Florida shell shops have sold dead specimens of

[[Page 64276]]

these species. There is also no historical evidence of international 
trade of either of these species.
    It is anticipated that, on average, approximately 44 non-Federal 
grantees or permittees, or their contractors, could be affected 
annually with the implementation of this rule. Historically, the 
projects undertaken by these entities have involved pipeline 
installation and maintenance, mooring construction and maintenance, 
dock/pier construction and repair, marina construction, bridge repair 
and construction, new dredging, maintenance dredging, National 
Pollutant Discharge Elimination System (NPDES)/water quality standards, 
cable installation, beach renourishment, shoreline stabilization, reef 
ball construction and installation, and port construction. Our database 
does not track whether applicants have been small entities or any 
particulars that would allow us to make such a determination, so it is 
impossible to determine the number of future grantees, permittees, or 
contractors that may be small entities. There is no indication that 
affected project applicants or their contractors would be limited to, 
nor disproportionately comprised of, small entities.
    The rule will not result in an increase in the number of ESA 
section 7 consultations; rather, any additional costs would result from 
the identification and implementation of RPMs to minimize the effects 
of the action on the listed species. Based on our experience with 
section 7 consultations for other species, incremental administrative 
costs of identifying RPMs will be negligible, compared to the 
analytical requirements and associated costs already required by the 
duty to consult to ensure the action does not jeopardize listed 
species. Hence, we have assumed there will be no administrative costs 
of consultation associated with this rule. Though we have characterized 
the costs in the RIR/FRFA associated with individual types of RPMs for 
the projected future activities, no total cost of this rule can be 
identified because the lack of specific information on the design and 
location of projected future projects limits our ability to forecast 
the exact type and amount of modifications required. However, the 
majority of the RPMs that NMFS would likely specify for these actions 
are currently required by other regulatory agencies. In addition, 
current ESA regulations require that RPMs cannot alter the basic 
design, location, scope, duration, and timing of an action and may only 
involve minor changes.
    We considered four alternatives for extending section 9(a)(1) 
prohibitions to threatened corals. These included a preferred 
alternative (i.e., this rule), a no action alternative, and two 
additional alternatives. The no action alternative was not selected 
because it did not meet the conservation objectives of the section 4(d) 
of the ESA. The remaining two alternatives (Alternatives B and C) were 
not selected because they (1) were judged to have less conservation 
value for the corals, and (2) could result in smaller annual incomes 
generated by small businesses that rely on resident and visitor use of 
coral reefs. Alternative B, in addition to the exceptions from the ESA 
section 9 prohibitions for conservation research and restoration 
included in the preferred alternative, would except incidental take 
from the take prohibitions where such take results from activities 
managed under a NMFS-approved management plan. Persons engaged in 
activities covered by an approved management plan would not be required 
to obtain an ESA section 10 incidental take permit. This alternative 
would be expected to have the same costs of implementing section 7 RPMs 
as the preferred alternative. However, this alternative was predicted 
to result in increased take of these species, and thus smaller annual 
incomes generated from small businesses, such as those in the tourism 
sector, that rely on resident and visitor use of coral reefs. 
Alternative C would eliminate the exception for research and 
restoration activities and require Federal, State, territorial, and 
local governments or their designees to acquire an ESA section 10 
permit for restoration activities directed at listed corals, even when 
emergency actions are warranted to save either listed coral as a result 
of a natural or technological disaster or other event that has injured 
these corals. This alternative is also expected to have the same costs 
of implementing section 7 RPMs as the preferred alternative. Similar to 
Alternative B, the resulting increase in mortality of these corals 
could reduce revenues received from small businesses that benefit from 
resident and tourist use of coral reefs.
    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.
    This rule is consistent with E.O. 13089, which is intended to 
preserve and protect the biodiversity, health, heritage, and social and 
economic value of U.S. coral reef ecosystems and the marine 
environment.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: October 22, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the 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 continues to read 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. In subpart B of part 223, add Sec.  223.208 to read as follows:


Sec.  223.208  Corals.

    (a) Prohibitions. (1) The prohibitions of section 9(a)(1) of the 
ESA (16 U.S.C. 1538(a)(1)) relating to endangered species apply to 
elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals listed 
as threatened in Sec.  223.102(d), except as provided in Sec.  
223.208(c).
    (2) It is unlawful for any person subject to the jurisdiction of 
the United States to do any of the following:
    (i) Fail to comply immediately, in the manner specified at Sec.  
600.730 (b) through (d) of this title, with instructions and signals 
specified therein issued by an authorized officer, including 
instructions and signals to haul back a net for inspection;
    (ii) Refuse to allow an authorized officer to board a vessel, or to 
enter an area where fish or wildlife may be found, for the purpose of 
conducting a boarding, search, inspection, seizure, investigation, or 
arrest in connection with enforcement of this section;
    (iii) Destroy, stave, damage, or dispose of in any manner, fish or 
wildlife, gear, cargo, or any other matter after a communication or 
signal from an authorized officer, or upon the approach of such an 
officer or of an enforcement vessel or aircraft, before the officer has 
an opportunity to inspect same, or in contravention of directions from 
the officer;
    (iv) Assault, resist, oppose, impede, intimidate, threaten, 
obstruct, delay, prevent, or interfere with an authorized officer in 
the conduct of any boarding, search, inspection, seizure, 
investigation, or arrest in connection with enforcement of this 
section;
    (v) Interfere with, delay, or prevent by any means, the 
apprehension of another

[[Page 64277]]

person, knowing that such person committed an act prohibited by this 
section;
    (vi) Resist a lawful arrest for an act prohibited by this section;
    (vii) Make a false statement, oral or written, to an authorized 
officer or to the agency concerning applicability of the exceptions 
enumerated in paragraph (c) of this section relating to elkhorn and 
staghorn corals;
    (viii) Make a false statement, oral or written, to an authorized 
officer or to the agency concerning the fishing for, catching, taking, 
harvesting, landing, purchasing, selling, or transferring fish or 
wildlife, or concerning any other matter subject to investigation under 
this section by such officer, or required to be submitted under this 
part 223; or
    (ix) Attempt to do, solicit another to do, or cause to be done, any 
of the foregoing.
    (b) Affirmative defense. In connection with any action alleging a 
violation of this section, any person claiming the benefit of any 
exception, exemption, or permit under this section has the burden of 
proving that the exception, exemption, or permit is applicable, was 
granted, and was valid and in force at the time of the alleged 
violation, and that the person fully complied with the exception, 
exemption, or permit.
    (c) Exceptions. Exceptions to the prohibitions of section 9(a)(1) 
of the ESA (16 U.S.C. 1538(a)(1)) applied in paragraph (a) of this 
section relating to elkhorn and staghorn corals are described in the 
following paragraphs (1) through (6):
    (1) Permitted scientific research and enhancement. Any export or 
take of elkhorn or staghorn corals resulting from conducting scientific 
research or enhancement directed at elkhorn and staghorn corals is 
excepted from the prohibitions in ESA sections 9(a)(1)(A), (B) and (C) 
provided a valid research or enhancement permit has been obtained from 
one of the following Federal or state agencies: NOAA National Ocean 
Service National Marine Sanctuary Program, National Park Service, U.S. 
Fish and Wildlife Service, Florida Fish and Wildlife Conservation 
Commission, Puerto Rico Department of Natural and Environmental 
Resources, or the U.S. Virgin Islands Department of Planning and 
Natural Resources. The exportation or take must be in compliance with 
the applicable terms and conditions of the applicable research or 
enhancement permit, and the permit must be in the possession of the 
permittee while conducting the activity. Export of elkhorn or staghorn 
corals from the United States to conduct excepted research or 
enhancement activities requires a CITES export permit from the U.S. 
Fish and Wildlife Service in addition to the research permit for 
collection. Import of elkhorn or staghorn corals into the United States 
to conduct excepted research or enhancement activities must be in 
compliance with the provisions of section 9(c) of the ESA.
    (2) Restoration activities. Any agent or employee of governmental 
agencies listed in Table 1 may take listed elkhorn or staghorn corals 
without a permit, when acting in the course of conducting a restoration 
activity directed at elkhorn or staghorn coral which is authorized by 
an existing authority (see Table 1 to this section). Take of elkhorn or 
staghorn corals during such restoration activity is excepted from the 
prohibitions in ESA sections 9(a)(1)(B) and (C). An excepted 
restoration activity is defined as the methods and processes used to 
provide aid to injured individual elkhorn or staghorn coral.
    (3) Section 10 scientific and enhancement permits. The Assistant 
Administrator may issue permits authorizing activities that would 
otherwise be prohibited under Sec.  223.208(a) for scientific purposes 
or to enhance the propagation or survival of elkhorn or staghorn 
corals, in accordance with and subject to the conditions of part 222, 
subpart C-General Permit Procedures.
    (4) Section 10 incidental take permits. The Assistant Administrator 
may issue permits authorizing activities that would otherwise be 
prohibited under Sec.  223.208(a) in accordance with section 
10(a)(1)(B) of the ESA (16 U.S.C. 1539(a)(1)(B)), and in accordance 
with, and subject to the conditions of part 222 of this chapter. Such 
permits may be issued for the incidental taking of elkhorn and staghorn 
corals.
    (5) Section 7 Interagency consultation. Any incidental taking that 
is in compliance with the terms and conditions specified in a written 
statement provided under section 7(b)(4)(C) of the ESA (16 U.S.C. 
1536(b)(4)(C)) shall not be considered a prohibited taking of elkhorn 
and staghorn corals pursuant to paragraph (o)(2) of section 7 of the 
ESA (16 U.S.C. 1536(o)(2)).
    (6) Importation under the Convention on International Trade of 
Endangered Species. Any importation of elkhorn or staghorn corals in 
compliance with the provisions of section 9(c) of the ESA (16 U.S.C. 
1538(c)) shall not be considered a violation of any provision of the 
ESA or any regulation issued pursuant to the ESA.

[[Page 64278]]



 Table 1 to Sec.  223.208. Agencies and Authorizing Statutes Whose Coral
    Restoration Activities Are Excepted From Certain Prohibitions in
                     Paragraph (a) of This Section.
------------------------------------------------------------------------
                                FEDERAL:
-------------------------------------------------------------------------
            Agency/Person              Statute and Specific Provision(s)
------------------------------------------------------------------------
NOAA, National Ocean Service (NOS)     National Marine Sanctuaries Act
                                       16 U.S.C. 1431 et seq.
------------------------------------------------------------------------
NOAA, NOS                              Coral Reef Conservation Act
                                       16 U.S.C. 6406
------------------------------------------------------------------------
Commandant, U.S. Coast Guard (USCG),   ''Oil Pollution Act''
 Authorized representatives of States  33 U.S.C. 2702
 or Indian Tribes.
------------------------------------------------------------------------
Designated Federal, State or Indian    33 U.S.C. 2706
 tribal natural resources trustees,
 including NOAA, Department of
 Interior (DOI), Florida Department
 of Environmental Protection (FDEP),
 Puerto Rico Department of Natural
 and Environmental Resources (DNER),
 and U.S. Virgin Islands Department
 of Planning and Natural Resources
 (DPNR)
------------------------------------------------------------------------
Administrator, Environmental           ''Clean Water Act''
 Protection Agency (EPA) or            33 U.S.C. 1321
 Commandant, USCG; Authorized
 representatives of States.
------------------------------------------------------------------------
Designated Federal, State or Indian    .................................
 tribal natural resources trustees,
 including NOAA, DOI, FDEP, DNER, and
 DPNR.
------------------------------------------------------------------------
Administrator of the EPA; States or    ''Superfund Act'' (CERCLA)
 Indian Tribes in cooperative          42 U.S.C. 9604
 agreements with EPA; Heads of other
 Federal agencies where release is
 from vessel or facility solely under
 their control.
------------------------------------------------------------------------
Administrator of the EPA               42 U.S.C. 9606
------------------------------------------------------------------------
Designated Federal, State or Indian    42 U.S.C. 9607
 tribal natural resources trustees,
 including NOAA, DOI, FDEP, DNER, and
 DPNR
------------------------------------------------------------------------
DOI, National Park Service (NPS)       Park System Resource Protection
                                        Act,
                                       16 U.S.C. 19jj
                                       16 U.S.C. 668dd-668ee (National
                                        Wildlife Refuge System)
------------------------------------------------------------------------
DOI                                    National Wildlife Refuge System
                                        Administration Act,
                                       16 U.S.C. 668
------------------------------------------------------------------------
FLORIDA:
------------------------------------------------------------------------
The Board of Trustees of the Internal  State Lands; Board of Trustees to
 Improvement Trust Fund                 Administer
                                       FL Statute Sec.   253.03
 
                                       Duty of Board to Protect, etc.
                                       FL Statute. Sec.   253.04
                                       FDEP
------------------------------------------------------------------------
Governor and Cabinet; FDEP             Land Acquisition for Conservation
                                        or Recreation; Conservation and
                                        Recreation Lands Trust Fund
                                       FL Statute Sec.   259.032
------------------------------------------------------------------------
FDEP                                   Pollutant Discharge Prevention
                                        and Removal; Liability for
                                        Damage to Natural Resources
                                       FL Statute Sec.   376.121
------------------------------------------------------------------------
FDEP                                   Land and Water Management; Coral
                                        Reef Restoration
                                       FL Statute Sec.   390.0558
------------------------------------------------------------------------
Florida Fish and Wildlife              Fish and Wildlife Conservation
 Conservation Commission                Commission
                                       FL Statute Sec.   20.331
------------------------------------------------------------------------

[[Page 64279]]

 
U.S. VIRGIN ISLANDS:
--------------------------------------
DPNR                                   DPNR; Powers and Duties of
                                        Department
                                       3 V.I.C. Sec.   401
------------------------------------------------------------------------
DPNR                                   Conservation; Croix East End
                                        Marine Park Established;
                                       12 V.I.C. Sec.   98
------------------------------------------------------------------------
PUERTO RICO:
------------------------------------------------------------------------
DNER                                   Conservation; Protection,
                                        Conservation and Management of
                                        Coral Reefs
                                       12 L.P.R.A. Sec.  Sec.   241-241g
                                        et seq.
--------------------------------------
DNER                                   Conservation; Natural Patrimony
                                        Program
                                       12 L.P.R.A. Sec.   1225 et seq.
------------------------------------------------------------------------
DNER                                   Conservation; Natural Resources;
                                        Declarations of Marine Reserves
                                        (and other protected areas)
                                        containing elkhorn and staghorn
                                        corals
                                       12 L.P.R.A.; Subtitle 6A; Chapter
                                        252; Sec.  Sec.   5011 et seq.
------------------------------------------------------------------------

[FR Doc. E8-25820 Filed 10-28-08; 8:45 am]
BILLING CODE 3510-22-S