[Federal Register Volume 88, Number 152 (Wednesday, August 9, 2023)]
[Rules and Regulations]
[Pages 54026-54083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16556]



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Vol. 88

Wednesday,

No. 152

August 9, 2023

Part III





National Oceanic and Atmospheric Administration





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50 CFR Parts 223 and 226





Endangered and Threatened Species; Critical Habitat for the Threatened 
Caribbean Corals; Final Rule

  Federal Register / Vol. 88, No. 152 / Wednesday, August 9, 2023 / 
Rules and Regulations  

[[Page 54026]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226

[Docket No. 230726-0177]
RIN 0648-BG26


Endangered and Threatened Species; Critical Habitat for the 
Threatened Caribbean Corals

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: We, NMFS, designate critical habitat for five threatened 
Caribbean coral species, Orbicella annularis, O. faveolata, O. franksi, 
Dendrogyra cylindrus, and Mycetophyllia ferox, pursuant to section 4 of 
the Endangered Species Act (ESA). Twenty-eight mostly overlapping 
specific occupied areas containing physical features essential to the 
conservation of these coral species are designated as critical habitat. 
These areas contain approximately 16,830 square kilometers (km\2\; 
6,500 square miles (mi\2\)) of marine habitat. We have considered 
economic, national security, and other relevant impacts of designating 
these areas as critical habitat, and we exclude one area from the 
designations due to anticipated impacts on national security.

DATES: This rule becomes effective September 8, 2023.

ADDRESSES: The final rule, maps, and Final Information Report can be 
found on the NMFS website at https://www.fisheries.noaa.gov/action/final-rule-designate-critical-habitat-threatened-caribbean-corals.

FOR FURTHER INFORMATION CONTACT: Jennifer Moore, NMFS, SERO, 727-824-
5312, [email protected]; Celeste Stout, NMFS, Office of Protected 
Resources, 301-427-8436, [email protected].

SUPPLEMENTARY INFORMATION: In accordance with section 4(b)(2) of the 
ESA and our implementing regulations (50 CFR 424.12), this final rule 
is based on the best scientific data available concerning the range, 
biology, habitat, threats to the habitat, and conservation objectives 
for the threatened Caribbean boulder star coral (Orbicella franksi), 
lobed star coral (O. annularis), mountainous star coral (O. faveolata), 
pillar coral (Dendrogyra cylindrus), and rough cactus coral 
(Mycetophyllia ferox). We have reviewed the available data and public 
comments received on the proposed rule. We used the best data available 
to identify: (1) a composite physical feature essential to the 
conservation of each coral species; (2) the specific areas within the 
occupied geographical areas that contain the physical essential feature 
that may require special management considerations or protection; (3) 
the Federal activities that may impact the critical habitat; and (4) 
the potential impacts of designating critical habitat for the corals. 
This final rule is based on the biological information and the 
economic, national security, and other relevant impacts described in 
the document titled, Final Information Basis and Impact Considerations 
of Critical Habitat Designations for Threatened Caribbean Corals (Final 
Information Report). This supporting document is available at https://www.regulations.gov or upon request (see ADDRESSES).

Background

    We listed 20 coral species as threatened under the ESA effective 
October 10, 2014 (79 FR 53851, September 10, 2014). Five of the corals 
occur in the Caribbean: Orbicella annularis, O. faveolata, O. franksi, 
Dendrogyra cylindrus, and Mycetophyllia ferox. The final listing 
determinations were based on the best scientific and commercial data 
available on a suite of demographic, spatial, and susceptibility 
factors that influence the species' vulnerability to extinction in the 
face of continuing threats over the foreseeable future. All of the 
species had undergone population declines and are susceptible to 
multiple threats, including ocean warming, diseases, ocean 
acidification, ecological effects of fishing, and land-based sources of 
pollution. However, aspects of the species' demography and distribution 
buffered the effects of the threats. We determined that all the 
Caribbean coral species were likely to become endangered throughout all 
of their ranges within a foreseeable future of the next several decades 
as a result of a combination of threats, of which the most severe are 
related to climate change, and we listed them as threatened.
    On November 27, 2020, NMFS proposed to designate critical habitat 
for the five listed Caribbean coral species within U.S. waters, and 
opened a 60-day public comment period (85 FR 76302). The proposed coral 
critical habitat consisted of a substrate and water column feature 
essential for the reproduction, recruitment, growth, and maturation of 
the listed corals. A total of 28 mostly-overlapping areas within the 
species' ranges in Florida, Puerto Rico, the U.S. Virgin Islands 
(USVI), Navassa Island, and the Flower Gardens Banks were identified to 
contain the essential feature. The area covered by the Naval Air 
Station Key West (NASKW) Integrated Natural Resource Management Plan 
(INRMP) was ineligible for designation pursuant to section 
4(a)(3)(B)(i) of the ESA due to the conservation benefits it affords 
the threatened corals. Pursuant to section 4(b)(2) of the ESA, only one 
area was proposed for exclusion from the designation on the basis of 
national security impacts, and no areas were proposed for exclusion on 
the basis of economic or other relevant impacts.
    The proposed designation was developed in accordance with the ESA 
section 4 implementing regulations applicable at that time (in 50 CFR 
424), which included changes made in 2019 to the definition of physical 
or biological feature and the designation of unoccupied critical 
habitat (84 FR 45020, August 27, 2019). On July 5, 2022, the U.S. 
District Court for the Northern District of California issued an order 
vacating the ESA section 4 implementing regulations that were revised 
or added to 50 CFR part 424 in 2019 (``2019 regulations''; 84 FR 45020, 
August 27, 2019) without making a finding on the merits. On September 
21, 2022, the U.S. Court of Appeals for the Ninth Circuit granted a 
temporary stay of the district court's July 5 order. On November 14, 
2022, the Northern District of California issued an order granting the 
government's request for voluntary remand without vacating the 2019 
regulations. The District Court issued a slightly amended order 2 days 
later on November 16, 2022. As a result, the 2019 regulations remain in 
effect, and we are applying the 2019 regulations here. For purposes of 
this designation and in an abundance of caution, we considered whether 
the analysis or conclusions would be any different under the pre-2019 
regulations. We have determined that our analysis and conclusions 
related to the physical or biological features essential to 
conservation of the species would not be any different under the 2019 
or pre-2019 regulations. Our analysis of unoccupied critical habitat 
would be different under the pre-2019 regulations but, as explained 
below, this does not change our prior conclusion that it is not 
appropriate to designate any unoccupied critical habitat.

Statutory and Regulatory Background for Critical Habitat Designations

    The ESA defines critical habitat under section 3(5)(A) as the (1) 
specific areas

[[Page 54027]]

within the geographical area occupied by the species at the time it is 
listed, on which are found those physical or biological features 
essential to the conservation of the species (hereafter also referred 
to as ``PBFs'' or ``essential features'') and which may require special 
management considerations or protection; and (2) specific areas outside 
the geographical area occupied by the species at the time it is listed, 
upon a determination by the Secretary of Commerce (Secretary) that such 
areas are essential for the conservation of the species (16 U.S.C. 
1532(5)(A)). Conservation is defined in section 3(3) of the ESA as to 
use, and the use of, all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to this Act are no longer 
necessary (16 U.S.C. 1532(3)). Section 3(5)(C) of the ESA provides 
that, except in those circumstances determined by the Secretary, 
critical habitat shall not include the entire geographical area which 
can be occupied by the threatened or endangered species. Our 
regulations provide that critical habitat shall not be designated 
within foreign countries or in other areas outside U.S. jurisdiction 
(50 CFR 424.12(g)).
    Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical 
habitat any lands or other geographical areas owned or controlled by 
the Department of Defense (DOD) or designated for its use, that are 
subject to an INRMP prepared under section 101 of the Sikes Act (16 
U.S.C. 670a), if the Secretary determines in writing that such plan 
provides a benefit to the species for which critical habitat is 
designated. Section 4(b)(2) of the ESA requires us to designate 
critical habitat for threatened and endangered species on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical habitat. 
Pursuant to this section, the Secretary may exclude any area from 
critical habitat upon determining that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat. However, the Secretary may not exclude areas if this will 
result in the extinction of the species.
    Once critical habitat is designated, section 7(a)(2) of the ESA 
requires Federal agencies to ensure that actions they fund, authorize, 
or carry out are not likely to destroy or adversely modify that habitat 
(16 U.S.C. 1536(a)(2)). This requirement is in addition to the section 
7(a)(2) requirement that Federal agencies ensure their actions are not 
likely to jeopardize the continued existence of ESA-listed species. 
Specifying the geographic location of critical habitat also facilitates 
implementation of section 7(a)(1) of the ESA by identifying areas where 
Federal agencies can focus their conservation programs and use their 
authorities to further the purposes of the ESA. Critical habitat 
requirements do not apply to citizens engaged in actions on private 
land that do not involve a Federal agency. However, designating 
critical habitat can help focus the efforts of other conservation 
partners (e.g., state and local governments, individuals, and non-
governmental organizations).

Summary of Changes From the Proposed Rule

    We evaluated the comments and information received from the public 
during the public comment period. Based on our consideration of these 
comments and information (as noted below in the Summary of Comments and 
Responses section), we made four substantive changes to the boundaries 
of critical habitat: (1) the reduction of the maximum depth of the 
Florida units from 90 m (295 ft) to 40 m (131 ft); (2) the addition of 
an area north of the Florida Keys within the Florida Keys National 
Marine Sanctuary (FKNMS) for the three Orbicella species; (3) the 
addition of Bright, McGrail, and Geyer Banks within the Flower Garden 
Banks National Marine Sanctuary (FGBNMS) for the three Orbicella 
species; and (4) the reduction of the shallow depth limit from 17 m (56 
ft) to 16 m (53 ft) in the FGBNMS units. Together, these changes 
resulted in adding 1,622 sq km (626 sq mi) to the total area of 
designated critical habitat in FKNMS and 48 sq km (19 sq mi) to the 
total area of designated critical habitat in FGBNMS.

Reduction of the Maximum Depth of the Florida Units

    In the proposed rule, we assumed O. faveolata, O. franksi, and M. 
ferox were present to 90 m (295 ft) in Florida, based on information on 
the depth limits of the species in other areas in the Caribbean. We 
received a public comment that the maximum depth limit of these species 
in Florida was 40 m (131 ft) based on personal observations. 
Furthermore, a new report on coral species distribution on the 
mesophotic reefs of Florida confirms that the deepest distribution of 
O. faveolata, O. franksi, and M. ferox is limited to 40 m (131 ft), 
with a few extremely rare occurrences slightly deeper (1 colony at 43 m 
(141 ft)) and the majority of the observations less than 37 m (121 ft) 
(Reed 2021). Based on this information, we changed the portions of the 
boundaries of the three Florida critical habitat units that were 
formerly based on the 90-m depth contour to the 40-m contour for O. 
faveolata, O. franksi, and M. ferox.

Addition of the Area North of the Florida Keys

    We received a public comment that the three Orbicella species occur 
in the areas north of the Florida Keys in the FKNMS. Following receipt 
of this comment, we conducted a further inspection of the data we have 
collected on the locations of all ESA-listed corals. We also received 
additional location data specifically on the occurrence of these three 
species in the area north of the Florida Keys from the FKNMS. Based on 
this information, we are including this area in the Florida critical 
habitat units for O. annularis, O. faveolata, and O franksi.

Addition of Bright, McGrail, and Geyer Banks Within the FGBNMS

    We received a public comment that the three Orbicella species occur 
at three additional banks within the FGBNMS. The FGBNMS provided data 
to support the presence of these species within Bright, McGrail, and 
Geyer Banks, which were recently added to the FGBNMS. Based on this 
information, we are adding these three banks to the FGBNMS critical 
habitat units for O. annularis, O. faveolata, and O franksi.

Changing the Shallow Depth Limit in the FGBNMS Units

    We also received a public comment that the shallow depth limit of 
the three Orbicella species is 16 m (53 ft), not 17 m (56 ft) as we had 
proposed. Based on the information provided by the FGBNMS, we are 
changing the shallow depth limit to 16 m in the Flower Garden Banks 
(FGB) critical habitat units for O. annularis, O. faveolata, and O 
franksi.

Other Changes

    In addition to these four substantive changes in the final rule, we 
also made some minor, clarifying changes to the final rule, and to the 
Final Information Report and its appendices, in response to public 
comments and new information. Specifically, we made two minor edits to 
the regulatory language for clarity. The first edit revises the first 
two sentences of the description of the essential feature to more 
clearly articulate that this feature is comprised of the sites that 
support the normal function of all life stages. The second

[[Page 54028]]

minor edit is to change ``does not'' to ``cannot'' in paragraph (d)(2). 
This second minor edit is intended to clarify, and thus improve the 
understanding of, this sentence. All sections of the Final Information 
Report were updated with information based on the additional reports 
and studies. The final economic impact analysis took into account the 
latest economic data and ESA section 7 consultation history, and the 
Final Regulatory Flexibility Analysis took into account the latest 
economic information and data. Note, however, that, as in the proposed 
rule, this final rule does not include any economic exclusions.

Summary of Comments and Responses

    We solicited comments on the proposed rule and its supporting 
documents in a 60-day public comment period (85 FR 76302; November 27, 
2020). To facilitate public participation, the proposed rule was made 
available on our website and comments were accepted via both standard 
mail and through the Federal eRulemaking portal, www.regulations.gov.
    We received 552 comments through www.regulations.gov, which 
included a combination of comments in support of the action, comments 
providing additional information, and comments requesting changes to 
the rule. In addition, we received one comment submission containing a 
list of 20,566 signatories to a campaign by the Center for Biological 
Diversity in support of the proposed rule. Comments were received from 
a range of sources including global and local environmental non-profit 
groups, local, state, and federal government agencies, trade 
associations, and concerned citizens. Of the 552 comments submitted, 
most expressed general support for the proposed rule but did not 
include substantive content. We considered all public comments and 
below we provide responses to all substantive issues raised by 
commenters that are relevant to the proposed coral critical habitat. We 
do not respond to comments or concerns that we received outside the 
scope of this rulemaking. As described above in the Summary of Changes 
from the Proposed Rule section, we incorporated information provided by 
commenters into the Final Information Report and this final rule.

Comments on the Essential Feature

    Comment 1: One commenter requested that we add a quantitative 
threshold to the temperature component of the water quality attribute 
of the essential feature and suggested it could be reworded to ``Marine 
water with temperatures (not to exceed 1.0 [deg]C of location-specific 
total warming), aragonite saturation, nutrients, and water clarity that 
have been observed to support any demographic function.'' The commenter 
provided two references to support the 1 [deg]C threshold, Donner et 
al., 2005 and Donner et al., 2009.
    Response: In the Draft Information Report and the proposed rule, we 
described the conditions that may lead to thermal stress, citing 
several studies that identify the various intensities and durations 
that lead to stress and mortality. We reviewed the references provided 
by the commenter, and they have been added to the Final Information 
Report and this final rule. The majority of this information further 
supported the information already included in the proposed rule and 
Draft Information Report. However, we also explained that temperature 
thresholds are variable in both time (e.g., season) and geographic 
location (i.e., latitude and longitude) and may be nonlinear. 
Therefore, we determined that it is not appropriate to identify a 
standard threshold that applies to all locations and temporal scales as 
described in the Physical or Biological Feature Essential to 
Conservation section below.
    Comment 2: One commenter stated that the designation ``. . . does 
not take into consideration the protection for any habitats critical to 
those species that are involved in crucial interactions with the coral 
species.''
    Response: We understand this comment to mean that we did not 
consider habitats that support other species, such as parrotfish, that 
provide specific beneficial functions for healthy coral reefs. The ESA 
requires us to designate critical habitat for listed species, not 
associated species such as parrotfish. The proposed rule contemplated 
the physical and biological features essential to the conservation of 
the threatened corals and identified one composite feature that 
supports successful reproduction, recruitment, survival, and growth of 
all life stages of the five coral species. We did not identify any 
other features that are essential to the conservation of these species. 
Coral reef ecosystems are a complex mosaic of habitat and species 
interactions. The composite essential feature does include many of 
those interactions within the attributes that determine the quality of 
the area that contains the essential feature and influences the value 
of the associated feature. For example, one attribute of the substrate 
component of the essential feature is low occupancy by fleshy and turf 
macroalgae, which is mediated by herbivores. Therefore, species 
interactions that influence the essential feature have already been 
contemplated in the critical habitat designations.

Comments on the Boundaries of Critical Habitat Areas

    Comment 3: One commenter requested that we add the area on the 
north side of the Florida Keys (also known as ``the backcountry'') 
within the FKNMS to the critical habitat designations for the three 
Orbicella species due to their presence in that area. The commenter 
also requested we look at monitoring data to determine the presence of 
Mycetophyllia ferox in the same area and include that species within 
the designation if the species is present.
    Response: Based on the information provided by the commenter and 
our review of various monitoring reports, we agree that the area north 
of the Florida Keys within the boundaries of the FKNMS are occupied by 
the 3 Orbicella spp. and these areas are now included in the final 
designation. We did not find any evidence of Mycetophyllia ferox being 
present within the area; therefore, we are not including the area 
within the designation for that species.
    Comment 4: One commenter requested that we add several areas in the 
FGBNMS. They requested that we add the occupied areas within McGrail, 
Bright, and Geyer Banks. They also requested that we add the unoccupied 
areas of Stetson and Sonnier Banks. Last, they requested that the 
shallow depth limit be 16 m (53 ft), rather thant 17 m (56 ft) as 
identified in the proposed rule.
    Response: As discussed above in the Summary of Changes from the 
Proposed Rule section, we have included the occupied areas within 
McGrail, Bright, and Geyer Banks in the final designation. However, as 
described in the Unoccupied Critical Habitat Areas section below, 
neither the proposed rule nor this final rule include any unoccupied 
areas within the final designation; therefore, we are not including 
Stetson and Sonnier Banks. In addition, we have changed the shallow 
depth limit to 16 m for all occupied areas within the final 
designation, based on the information that the FGBNMS provided on the 
depth distribution of these species on these banks.
    Comment 5: One commenter requested that we not include the Dry 
Tortugas National Park within the critical habitat designation citing 
the remoteness of the area and existing protections afforded by being a 
national park.
    Response: The ESA defines critical habitat as: (i) the specific 
areas within

[[Page 54029]]

the geographical area occupied by the species, at the time it is listed 
in accordance with the provisions of section 4 of the ESA, on which are 
found those physical or biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protections; 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 4 of the ESA, upon 
a determination by the Secretary that such areas are essential for the 
conservation. If an area is occupied by the species, contains the 
essential feature, and may require special management, it meets the 
definition of critical habitat unless there is a specific basis to 
exclude the area (i.e., national security or economic, with the 
benefits of exclusion outweigh the benefits of designating the area). 
The areas within the boundaries of the Dry Tortugas National Park meet 
the ESA definition of critical habitat. Furthermore, we did not 
identify any basis for exclusion (national security, economic, or other 
relevant) of this area. Although the area in the Dry Tortugas National 
Park is remote and has existing protections, the area is essential to 
the conservation of the threatened corals, and it is included in the 
final designation.
    Comment 6: One commenter requested that we extend the offshore 
depth boundary for Orbicella annularis in the U.S. Virgin Islands to 80 
m (263 ft).
    Response: The commenter did not provide any evidence of the 
presence of O. annularis deeper than 20 m in the U.S. Virgin Islands. 
We do not have any record of the species occurring deeper than 20 m. 
Therefore, we did not change the boundary for O. annularis in the U.S. 
Virgin Islands.

Comments on the Threats to Critical Habitat

    Comment 7: One commenter stated that the current levels of 
dissolved inorganic nitrogen concentrations in Florida are detrimental 
to corals.
    Response: In the proposed rule and Draft Information Report, we 
identify that excess nutrients, which include inorganic nitrogen, are a 
threat to corals and their habitat. Excess nutrients are included in 
the critical habitat designation as part of the attribute, ``nutrient 
levels that have been observed to support any demographic function'' of 
the essential feature.
    Comment 8: One commenter requested that we include the impact on 
oil and gas exploration and development in areas that may be affected 
by oil- and gas-related activity in our analysis of the impact of 
critical habitat, specifically in the Gulf of Mexico, given the 
location of the Flower Gardens Banks.
    Response: We have included an analysis of potential future 
consultations on oil and gas exploration in the Final Information 
Report. We concur that oil and gas exploration and development may 
affect the essential feature and would be subject to ESA section 7 
consultation. Any future Federal activities that may affect the 
essential feature within the designated critical habitat would require 
consultation.
    Comment 9: One commenter expressed concern that the decision not to 
include ``managed areas,'' such as dredged channels and harbors, in the 
designation of critical habitat could be detrimental to the survival of 
corals in the surrounding areas.
    Response: We agree that sedimentation caused by channel dredging is 
a threat to the five coral species and their habitat. All Federal 
actions involving potential effects of sedimentation on the threatened 
corals or their designated critical habitat will be subject to ESA 
section 7 consultation. However, those areas that are consistently 
disturbed and that will continue to be disturbed as part of planned 
management activities by local, state, or Federal government entities 
(as of the time this rule becomes effective) do not support the 
essential feature, and, therefore, designation of those areas would not 
provide for the conservation of the species.
    Comment 10: One commenter discussed our identification of sunscreen 
ingredients as a threat to corals. They stated that the European 
Chemicals Agency and the U.S. Environmental Protection Agency (EPA) 
have data reliability assessment guidelines to determine whether a 
peer-reviewed study can be used for an environmental risk assessment 
(ERA). They also stated that Benzophenone-2 is not an approved 
ultraviolet (UV) filter in the United States and should not be 
referenced in the rule.
    Response: In the Final Information Report and this final rule (as 
in the proposed rule), we include the best available information on the 
threats to corals and their habitat, which includes literature on the 
impacts of chemicals included in sunscreens and personal care products 
on corals. Our standard is to use the best available information in 
designating critical habitat. Thus, we included the best available 
information on the contaminants that have been found to cause adverse 
effects in corals, including Benzophenone-2. Furthermore, the reference 
to the EPA data reliability assessment guidelines for ERAs is not 
relevant to a critical habitat designation under the ESA. ERAs are a 
separate Federal process for a separate purpose.

Natural History

    This section summarizes life history and biological characteristics 
of the five corals to provide context for the identification of the 
physical and biological features essential for the conservation of 
these species. In this section, we cover several topic areas, including 
an introduction to reef-building corals, reproduction, settlement and 
growth, coral habitat types, and coral reef ecosystems. The amount of 
information available on life history, reproductive biology, and 
ecology varies for each of the five corals that occur in U.S. waters of 
the Caribbean. We provide specific information for each species where 
possible. In addition, we provide information on the biology and 
ecology of Caribbean corals in general, highlighting traits that these 
five corals share. The information below is largely summarized from the 
final listing rule (79 FR 53852, September 10, 2014), and updated with 
the best scientific information available to date.
    Reef-building corals, in the phylum Cnidaria, are marine 
invertebrates that occur as polyps. The Cnidaria include true stony 
corals (class Anthozoa, order Scleractinia), the blue coral (class 
Anthozoa, order Helioporacea), and fire corals (class Hydrozoa, order 
Milleporina). These species secrete massive calcium carbonate skeletons 
that form the physical structure of coral reefs. Reef-building coral 
species collectively produce coral reefs over time when growth outpaces 
erosion. Corals may also occur on hard substrate that is interspersed 
among other benthic features (e.g., seagrass beds in the back reef 
lagoon) in the coral reef ecosystem, but not on the physical structure 
of coral reefs. Corals also contain symbiotic algae within their cells. 
As described below, corals produce clones of themselves by several 
different means, and most corals occur as colonies of polyps.
    Reef-building corals are able to grow and thrive in the 
characteristically nutrient-poor environments of tropical and 
subtropical regions due to their ability to form mutually beneficial 
symbioses with unicellular photosynthetic algae (zooxanthellae) 
belonging to the dinoflagellate genus Symbiodinium living within the 
host coral's tissues. Zooxanthellae provide a

[[Page 54030]]

food source for their host by translocating fixed organic carbon and 
other nutrients. In return, the algae receive shelter and nutrients in 
the form of inorganic waste metabolites from host respiration. This 
exchange of energy, nutrients, and inorganic metabolites allows the 
symbiosis to flourish and helps the coral secrete the calcium carbonate 
that forms the skeletal structure of the coral colony, which in turn 
contributes to the formation of the reef. Thus, reef-building corals 
are also known as zooxanthellate corals. Some corals, which do not 
contain zooxanthellae, form skeletons much more slowly, and therefore 
are not considered reef-building. The five corals discussed in this 
rule are zooxanthellate species, and thus are reef-building species 
that can grow large skeletons that contribute to the physical structure 
of coral reefs.
    Only about 10 percent of the world's approximately 800 reef-
building coral species occur in the Caribbean. The acroporids were once 
the most abundant and most important species on Caribbean coral reefs 
in terms of accretion of reef structure, characterizing the ``palmata'' 
and ``cervicornis'' zones in the classical descriptions of Caribbean 
reefs (Goreau, 1959). The three species (O. annularis, O. faveolata, 
and O. franski) in the Orbicella star coral species complex have also 
been dominant components on Caribbean coral reefs, characterizing the 
``buttress zone'' and ``annularis zone.'' After the die-off of Acropora 
spp., the star coral species complex became the major reef-builder in 
the greater Caribbean due to their large size.
    Most reef-building coral species are colonial, producing colonies 
made up of polyps that are connected through tissue and skeleton. In a 
colonial species, a single larva will develop into a discrete unit (the 
primary polyp) that then produces modular units of itself (i.e., 
genetically-identical copies, or clones, of the primary polyp). Each 
polyp consists of a column with mouth and tentacles on the upper side 
growing on top of a calcium carbonate skeleton that the polyps produced 
through the process of calcification. Colony growth is achieved mainly 
through the addition of more cloned polyps. The colony can continue to 
exist even if numerous polyps die or if the colony is broken apart or 
otherwise damaged. The five corals are all colonial species, although 
polyp size, colony size, and colony morphology vary considerably by 
species, and can also vary based on environmental variables in 
different habitats. Colonies can produce clones, most commonly through 
fragmentation or budding (described in more detail below). The five 
corals are all clonal species with the ability to produce colonies of 
cloned polyps as well as clones of entire colonies. The way they 
produce colony-level clones varies by species. For example, branching 
species are much more likely than encrusting species to produce clones 
via fragmentation.
    Corals use a number of reproductive strategies that have been 
researched extensively; however, many individual species' reproductive 
modes remain poorly described. Most coral species use both sexual and 
asexual propagation. Sexual reproduction in corals is primarily through 
gametogenesis (i.e., the development of eggs and sperm within the 
polyps near the base). Some coral species have separate sexes 
(gonochoric), while others are hermaphroditic (individuals 
simultaneously containing both sexes), and others are a combination of 
both (Richmond, 1997). Strategies for fertilization are either by 
brooding (internal fertilization) or broadcast spawning (external 
fertilization). Asexual reproduction in coral species usually occurs by 
fragmentation, when colony pieces or fragments are dislodged from 
larger colonies to establish new colonies, or by the budding of new 
polyps within a colony.
    Depending on the mode of fertilization, coral larvae (called 
planulae) undergo development either mostly within the mother colony 
(brooders) or outside of the mother colony, adrift in the ocean 
(broadcast spawners). In either mode of larval development, larvae 
presumably experience considerable mortality (up to 90 percent or more) 
from predation or other factors prior to settlement and metamorphosis 
(Goreau et al., 1981). Such mortality cannot be directly observed, but 
is inferred from the large number of eggs and sperm spawned versus the 
much smaller number of recruits observed later. Coral larvae are 
relatively poor swimmers; therefore, their dispersal distances largely 
depend on the duration of the pelagic phase and the speed and direction 
of water currents transporting the larvae.
    All three species of the Orbicella star coral species complex are 
hermaphroditic broadcast spawners, spawning over a 3-night period, 6 to 
8 nights following the full moon in late August, September, or early 
October (Levitan et al., 2004). Fertilization success measured in the 
field was generally below 15 percent for all three species and 
correlated to the number of colonies concurrently spawning (Levitan et 
al., 2004). The minimum colony size at first reproduction for the 
Orbicella species complex is 83 cm\2\ (Szmant-Froelich, 1985). 
Successful recruitment by the Orbicella species has seemingly always 
been rare with many studies throughout the Caribbean reporting 
negligible to no recruitment (Bak and Engel, 1979; Hughes and Tanner, 
2000; Rogers et al., 1984; Smith and Aronson, 2006).
    Dendrogyra cylindrus is a gonochoric (having separate sexes) 
broadcast spawning species with relatively low annual egg production 
for its size. The combination of gonochoric spawning with persistently 
low population densities is expected to yield low rates of successful 
fertilization and low larval supply. Spawning has been observed several 
nights after the full moon of August in the Florida Keys (Neely et al., 
2013; Waddell and Clarke, 2008). In Cura[ccedil]ao, D. cylindrus was 
observed to spawn over a 3-night period, 2-5 nights after the full 
moons in August and September (Marhaver et al., 2015). Lab-reared 
embryos developed into swimming planulae larvae within 16 hours after 
spawning and were competent to settle relatively soon afterward 
(Marhaver et al., 2015). Despite the short duration from spawn to 
settlement competency in the lab, sexual recruitment of this species is 
low, and there are no reported juvenile colonies in the Caribbean (Bak 
and Engel, 1979; Chiappone, 2010; Rogers et al., 1984). Dendrogyra 
cylindrus can propagate by fragmentation following storms or other 
physical disturbance (Hudson and Goodwin, 1997). Recent investigations 
determined that there is no genetic differentiation along the Florida 
Reef Tract, meaning that all colonies belong to a single mixed 
population (Baums et al., 2016). The same study found that all sampled 
colonies from Cura[ccedil]ao belonged to a single population that was 
distinct from the Florida population. Similar studies have not been 
conducted elsewhere in the species' range.
    Mycetophyllia ferox is a hermaphroditic brooding species producing 
larvae during the winter months (Szmant, 1986). Brooded larvae are 
typically larger than broadcast spawned larvae and are expected to have 
higher rates of survival once settled. However, recruitment of M. ferox 
appears to be very low, even in studies from the 1970s (Dustan, 1977; 
Rogers and Garrison, 2001).
    Spatial and temporal patterns of coral recruitment are affected by 
substrate availability and community structure, grazing pressure, 
fecundity, mode and timing of reproduction, behavior of larvae, 
hurricane disturbance, physical

[[Page 54031]]

oceanography, the structure of established coral assemblages, and 
chemical cues. Additionally, several other factors may influence 
reproductive success and reproductive isolation, including external 
cues, genetic precision, and conspecific signaling.
    Like most corals, the threatened Caribbean corals require hard, 
consolidated substrate, including attached, dead coral skeleton, for 
their larvae to settle. The settlement location on the substrate must 
be free of macroalgae, turf algae, or sediment for larvae to attach and 
begin growing a colony. Further, the substrate must provide a habitat 
where burial by sediment or overgrowth by competing organisms (i.e., 
algae) will not occur. In general, on proper stimulation, coral larvae 
settle and metamorphose on appropriate hard substrates. Some evidence 
indicates that chemical cues from crustose coralline algae (CCA), 
microbial films, and other reef organisms or acoustic cues from reef 
environments stimulate planulae's settlement behaviors. Calcification 
of the newly-settled larva begins with the forming of the basal plate. 
Buds formed on the initial corallite develop into daughter corallites. 
Once larvae have metamorphosed onto appropriate hard substrate, 
metabolic energy is diverted to colony growth and maintenance. Because 
newly settled corals barely protrude above the substrate, juveniles 
need to reach a certain size to limit damage or mortality from threats 
such as grazing, sediment burial, and algal overgrowth. In some 
species, it appears there is virtually no limit to colony size beyond 
the structural integrity of the colony skeleton, as polyps apparently 
can bud indefinitely.
    Polyps are the building blocks of colonies, and colony growth 
occurs both by increasing the number of polyps, as well as extending 
the supporting skeleton under each polyp. Reef-building corals combine 
calcium and carbonate ions derived from seawater into crystals that 
form their skeletons. Skeletal expansion rates vary greatly by taxa, 
morphology, location, habitat and other factors. For example, in 
general, branching species (e.g., most Acropora species) have much 
higher skeletal extension rates than massive species (e.g., Orbicella 
species). The energy required to produce new polyps and build calcium 
carbonate skeleton is provided by the symbiotic relationship corals 
have with photosynthetic zooxanthellae. Therefore, corals need light 
for their zooxanthellae to photosynthesize and provide the coral with 
food, and thus also require low turbidity for energy, growth, and 
survival. Lower water clarity sharply reduces photosynthesis in 
zooxanthellae and results in reductions in adult colony calcification 
and survival (79 FR 53852, September 10, 2014). Some additional 
information on the biological requirements for reproduction, 
settlement, and growth is provided below in the Physical or Biological 
Features Essential to Conservation section.
    Coral reefs are fragile ecosystems that exist in a narrow band of 
environmental conditions that allow the skeletons of reef-building 
coral species to grow quickly enough for reef accretion to outpace reef 
erosion. High-growth conditions for reef-building corals include clear, 
warm waters with abundant light, and low levels of nutrients, 
sediments, and freshwater.
    There are several categories of coral reefs: fringing reefs, 
barrier reefs, patch reefs, platform reefs, and atolls. Despite the 
differences between the reef categories, most fringing reefs, barrier 
reefs, atolls, and platform reefs consist of a reef slope, a reef 
crest, and a back-reef, which in turn are typically characterized by 
distinctive habitats. The characteristics of these habitat types vary 
greatly by reef categories, locations, latitudes, frequency of 
disturbance, etc., and there is also much habitat variability within 
each habitat type. Temporal variability in coral habitat conditions is 
also very high, both cyclically (e.g., from tidal, seasonal, annual, 
and decadal cycles) and episodically (e.g., storms, temperature 
anomalies, etc.). Together, all these factors contribute to the habitat 
heterogeneity of coral reefs.
    The five corals vary in their recorded depth ranges and habitat 
types. Additionally, each species has different depth ranges depending 
on the geographic location. All five corals generally have overlapping 
ranges and occur throughout the wider-Caribbean. The major variance in 
their distributions occurs at the northern-most extent of their ranges 
in FGBNMS in the northwest Gulf of Mexico. As described below, critical 
habitat can be designated only in areas under U.S. jurisdiction, thus 
we provide the species' distribution in U.S. waters.

Critical Habitat Identification and Designations

    The purpose of designating critical habitat is to identify the 
areas that are essential to the species' recovery. Once critical 
habitat is designated, it can contribute to the conservation of listed 
species in several ways, including by identifying areas where Federal 
agencies can focus their section 7(a)(1) conservation programs, and 
helping focus the efforts of other conservation partners, such as 
States and local governments, nongovernmental organizations, and 
individuals (81 FR 7414, February 11, 2016). Designating critical 
habitat also provides significant regulatory protection by ensuring 
that Federal agencies consider the effects of their actions in 
accordance with section 7(a)(2) of the ESA and avoid or modify those 
actions that are likely to destroy or adversely modify critical 
habitat. This requirement is in addition to the section 7 requirement 
that Federal agencies ensure that their actions are not likely to 
jeopardize the continued existence of ESA-listed species. Critical 
habitat requirements do not apply to citizens engaged in activities 
that do not involve a Federal agency. However, section 3(5)(C) of the 
ESA clarifies that, except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire geographical 
area which can be occupied by the threatened or endangered species.
    Our step-wise approach for identifying potential critical habitat 
areas for the threatened corals was to determine: (1) the geographical 
area occupied by each coral at the time of listing; (2) the physical or 
biological features essential to the conservation of the corals; (3) 
whether those features may require special management considerations or 
protection; (4) the specific areas of the occupied geographical area 
where these features occur; and, (5) whether any unoccupied areas are 
essential to the conservation of any of the corals.

Geographical Area Occupied by the Species

    ``Geographical area occupied'' in the definition of critical 
habitat is defined as an area that may generally be delineated around 
species' occurrences, as determined by the Secretary (i.e., range). 
Such areas may include those areas used throughout all or part of the 
species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals) (50 CFR 424.02). The ranges of 
the five threatened corals span the wider-Caribbean, and specifically 
include marine waters around Florida, Puerto Rico, USVI and Navassa in 
the United States (79 FR 53851, September 10, 2014). We did not 
consider geographical areas outside of the United States, because we 
cannot designate critical habitat areas outside of U.S. jurisdiction 
(50 CFR 424.12(g)).

[[Page 54032]]

Physical or Biological Features Essential to Conservation

    Within the geographical area occupied, critical habitat consists of 
specific areas on which are found those PBFs essential to the 
conservation of the species and that may require special management 
considerations or protection. PBFs essential to the conservation of the 
species are defined as the features that support the life-history needs 
of the species, including but not limited to, water characteristics, 
soil type, geological features, sites, prey, vegetation, symbiotic 
species, or other features. A feature may be a single habitat 
characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity (50 CFR 
424.02).
    One of the first steps in recovery planning we completed after 
listing these coral species was to develop a Recovery Outline that 
contains a Recovery Vision, which describes what the state of full 
recovery looks like for the species. We identified the following 
Recovery Vision for the five corals listed in 2014: populations of the 
five threatened Caribbean corals should be present across their 
historical ranges, with populations large enough and genetically 
diverse enough to support successful reproduction and recovery from 
mortality events and dense enough to maintain ecosystem function 
(https://www.fisheries.noaa.gov/resource/document/5-caribbean-coral-species-recovery-outline). Recovery of these species will require 
conservation of the coral reef ecosystem through threats abatement to 
ensure a high probability of survival into the future (NMFS, 2015). The 
key conservation objective that facilitates this Recovery Vision, and 
that can be assisted through these critical habitat designations, is 
supporting successful reproduction and recruitment, and survival and 
growth of all life stages, by abating threats to the corals' habitats. 
In the final listing rule, we identified the major threats contributing 
to the five corals' extinction risk: ocean warming, disease, ocean 
acidification, trophic effects of reef fishing, nutrient enrichment, 
and sedimentation. Five of the six major threats (i.e., all but 
disease) impact corals in part by changing the corals' habitat, making 
it unsuitable for them to carry out the essential functions at all life 
stages. Although they were not considered to be posing a major threat 
at the time of listing, we also identified contaminants as a potential 
threat to each of these corals (79 FR 53852, September 10, 2014). Thus, 
we identify ocean warming, ocean acidification, trophic effects of reef 
fishing, nutrient enrichment, sedimentation, and contaminants as the 
threats to the five corals' habitat that are impeding their recovery. 
Protecting essential features of the corals' habitat from these threats 
will facilitate the recovery of these threatened species.
    There are many physical and biological features that are important 
in supporting the corals' habitat; therefore, we focused on a composite 
habitat feature that supports their conservation through its relevance 
to the major threats and threats impeding recovery. The essential 
feature we ultimately identified is sites with a complex combination of 
substrate and water column characteristics that support normal 
functions of all life stages of the corals. Because corals are sessile 
for almost their entire life cycle, they carry out most of their 
demographic functions in one location. Thus, we have identified sites 
with a combination of certain substrate and water column 
characteristics as the essential feature. Specifically, these sites 
have attributes that determine the quality of the appropriate 
attachment substrate, in association with warm, aragonite-
supersaturated, oligotrophic, clear marine water, which are essential 
to reproduction and recruitment, survival, and growth of all life 
stages of all five species of coral. These sites can be impacted by 
ocean acidification and ocean warming, trophic effects of reef fishing, 
nutrient enrichment, sedimentation, and contamination.
    Based on the best scientific information available we identified 
the following essential physical feature for the five corals:
    Sites that support the normal function of all life stages of the 
corals, including reproduction, recruitment, and maturation. These 
sites are natural, consolidated hard substrate or dead coral skeleton 
free of algae and sediment at the appropriate scale at the point of 
larval settlement or fragment reattachment, and the associated water 
column. Several attributes of these sites determine the quality of the 
area and influence the value of the associated feature to the 
conservation of the species:
    (1) Substrate with presence of crevices and holes that provide 
cryptic habitat, the presence of microbial biofilms, or presence of 
crustose coralline algae;
    (2) Reefscape (all the visible features of an area of reef) with no 
more than a thin veneer of sediment and low occupancy by fleshy and 
turf macroalgae;
    (3) Marine water with levels of temperature, aragonite saturation, 
nutrients, and water clarity that have been observed to support any 
demographic function; and
    (4) Marine water with levels of anthropogenically-introduced (from 
humans) chemical contaminants that do not preclude or inhibit any 
demographic function.
    Some new information relevant to the essential feature has been 
added to the Final Information Report and this final rule. The new 
information did not result in any changes to the definition of the 
essential feature from the proposed rule, although this final rule 
includes minor clarifying edits in the definition, as described in the 
Summary of Changes from Proposed Rule section.
    As described in detail in the Final Information Report, all corals 
require exposed natural consolidated hard substrate for the settlement 
and recruitment of larvae or asexual fragments. Recruitment substrate 
provides the physical surface and space necessary for settlement of 
coral larvae, and a stable environment for metamorphosis of the larvae 
into the primary polyp, growth of juvenile and adult colonies, and re-
attachment of fragments. The substrate must be available at appropriate 
physical and temporal scales for attachment to occur. In other words, 
the attachment location must be available at the physical scale of the 
larva or fragment, and at the temporal scale of when the larva or 
fragment is ``seeking'' recruitment. Larvae can also settle and attach 
to consolidated dead coral skeleton (Grober-Dunsmore et al., 2006; 
Jord[aacute]n-Dahlgren, 1992).
    A number of features have been shown to influence coral larval 
settlement. Positive cues include the presence of particular species of 
crustose coralline algae (Morse and Morse, 1996; Ritson-Williams et 
al., 2010), microbial biofilms (Sneed et al., 2014; Webster et al., 
2004), and cryptic habitat such as crevices and holes (Edmunds et al., 
2004; Edwards et al., 2014; Nozawa, 2012). Features that negatively 
affect settlement include presence of sediment, turf algae, sediment 
bound in turf algae, and macroalgae (Birrell et al., 2005; Kuffner et 
al., 2006; Richmond et al., 2018; Speare et al., 2019; Vermeij et al., 
2009). While sediment, turf algae, and macroalgae are all natural 
features of the coral reef ecosystem, it is the relative

[[Page 54033]]

proportion of free space versus occupied space that influences 
recruitment; recruitment rate is positively correlated with free space 
(Connell et al., 1997). The recruitment substrate feature is adversely 
affected by four of the major threats to the five corals: ocean 
acidification, trophic effects of reef fishing, nutrient enrichment, 
and sedimentation.
    The dominance of fleshy macroalgae as major space-occupiers on many 
Caribbean coral reefs impedes the recruitment of new corals. A shift in 
benthic community structure over recent decades from the dominance of 
stony corals to fleshy algae on Caribbean coral reefs is generally 
attributed to the greater persistence of fleshy macroalgae under 
reduced grazing regimes due to human overexploitation of herbivorous 
fishes (Edwards et al., 2014; Hughes, 1994; Jackson et al., 2014) and 
the regional mass mortality of the herbivorous long-spined sea urchin 
in 1983-84 (Hughes et al., 1987). As overall coral cover has declined, 
the absolute area occupied by macroalgae has increased and herbivore 
grazing capacity is spread more thinly across a larger relative amount 
of space (Williams et al., 2001). A recent study found that when 
herbivorous fish biomass was relatively high, macroalgae declined and 
juvenile coral density increased (Steneck 2019). Further, impacts to 
water quality (principally nutrient input) coupled with low herbivore 
grazing are also believed to enhance fleshy macroalgal productivity. 
Fleshy macroalgae are able to colonize dead coral skeleton and other 
available substrate, preempting space available for coral recruitment 
(McCook et al., 2001; Pastorok and Bilyard, 1985). The increasing 
frequency of coral mortality events, such as the 2014-2016 global 
bleaching event, continues to increase the amount of dead skeleton 
available to be colonized by algae in the absence of coral recruitment.
    The persistence of fleshy macroalgae under reduced grazing regimes 
also negatively impacts CCA growth, potentially reducing settlement 
cues, which may reduce settlement of coral larvae (Sharp et al., 2010). 
Most CCA are susceptible to fouling by fleshy algae, particularly when 
herbivores are absent (Steneck, 1986). Patterns observed in St. Croix 
and USVI, also indicate a strong positive correlation between CCA 
abundance and herbivory (Steneck and Testa, 1997). Both turf and 
macroalgal cover increases and CCA cover decreases with reductions in 
herbivory, which may last for a period of time even when herbivores are 
reintroduced (de Ruyter van Steveninck and Bak, 1986; Liddell and 
Ohlhorst, 1986; Miller et al., 1999). The ability of fleshy macroalgae 
to affect growth and survival of CCA has indirect, yet important, 
impacts on the ability of coral larvae to successfully settle and 
recruit.
    In addition to the direct impacts of ocean acidification on the 
corals from reduced aragonite saturation state (discussed later in this 
section), significant impacts to recruitment habitat are also expected. 
Kuffner et al. (2007) and Jokiel et al. (2008) showed dramatic declines 
in the growth rate of CCA and other reef organisms, and an increase in 
the growth of fleshy algae at atmospheric CO2 levels 
expected later this century. The decrease in CCA growth, coupled with 
rapid growth of fleshy algae, will result in less available habitat and 
more competition for settlement and recruitment of new coral colonies.
    Several studies show that coral recruitment tends to be greater 
when macroalgal biomass is low (Birrell et al., 2008a; Birrell et al., 
2005; Birrell et al., 2008b; Connell et al., 1997; Edmunds et al., 
2004; Hughes, 1985; Kuffner et al., 2006; Rogers et al., 1984; Vermeij, 
2006). In addition to preempting space for coral larvae settlement, 
many fleshy macroalgae produce secondary metabolites with generalized 
toxicity that also may inhibit larval settlement, recruitment, and 
survival (Kuffner and Paul, 2004; Kuffner et al., 2006; Paul et al., 
2011). Furthermore, algal turfs can trap sediments (Kendrick, 1991; 
Nugues and Roberts, 2003a; Purcell and Bellwood, 2001; Purcell, 2000; 
Steneck and Testa, 1997; Wilson and Harrison, 2003), which can act in 
combination to hinder coral settlement (Birrell et al., 2005; Nugues 
and Roberts, 2003a). These turf algae-sediment mats also can suppress 
coral growth under high sediment conditions (Nugues and Roberts, 2003b) 
and may gradually kill the marginal tissues of stony corals with which 
they come into contact (Dustan, 1977). There is also evidence that 
benthic cyanobacterial mats are becoming more prevalent and can also 
inhibit coral recruitment (Benjarano 2018).
    Coral recruitment habitat is also adversely impacted by sediment 
cover, itself. Sediments enter the reef environment through many 
processes that are natural or anthropogenic in origin, including 
coastal erosion, coastal development, resuspension of bottom sediments, 
terrestrial erosion and run-off, in-water construction, dredging for 
coastal construction projects and navigation purposes, and in-water and 
beach placement of dredge spoils. The rate of sedimentation affects 
reef distribution, community structure, growth rates, and coral 
recruitment (Dutra et al., 2006). Accumulation of sediment can smother 
living corals, cover dead coral skeleton, and exposed hard substrate 
(Erftemeijer et al., 2012; Fabricius, 2005). Sediment accumulation on 
dead coral skeletons and exposed hard substrate reduces the amount of 
available substrate for coral larvae settlement and fragment 
reattachment (Rogers, 1990). The location of larval settlement must be 
free of sediment for attachment to occur (Harrington et al., 2004; 
Mundy and Babcock, 1998).
    The depth of sediments over hard substrate affects the duration 
that the substrate may be unavailable for settlement. The deeper the 
sediment, the longer it may take for natural waves and currents to 
remove the sediment from the settlement substrate. Lirman et al. (2003) 
found sediment depth next to live coral colonies was approximately 1 cm 
deep and significantly lower than the mean sediment depth collected 
haphazardly on the reef. Sediment deposition threshold criteria have 
recently been proposed for classifying sediment impacts to reef 
habitats based on threshold values in peer-reviewed studies and new 
modeling approaches (Nelson et al., 2016). Nelson et al. (2016) suggest 
that sediment depth greater than 1 cm represents a significant impact 
to corals, while sediment between 0.5 and 1 cm depth represents a 
moderate impact, with the ability to recover. Nelson et al. (2016) 
identify sediment depth less than 0.5 cm as posing minimal stress to 
corals and settlement habitat.
    Sediment grain size also affects the severity of impacts to corals 
and recruitment substrate. Fine grain sediments have greater negative 
effects to live coral tissue and to recruitment substrate (Erftemeijer 
et al., 2012). Accumulation of sediments is also a major cause of 
mortality in coral recruits (Fabricius et al., 2003). In some 
instances, if mortality of coral recruits does not occur under heavy 
sediment conditions, then settled coral planulae may undergo reverse 
metamorphosis and die in the water column (Te, 1992). Sedimentation, 
therefore, impacts the health and survivorship of all life stages 
(i.e., adults, fragments, larvae, and recruits) of corals, in addition 
to adversely affecting recruitment habitat.
    The literature provides several recommendations on maximum 
sedimentation rates for coral reefs (i.e., levels that managers should 
strive to stay under). De'ath and Fabricius (2008) and The Great 
Barrier Reef Marine Park Authority (GBRMPA) (2010)

[[Page 54034]]

recommend that sedimentation on the Great Barrier Reef (GBR) be less 
than a mean annual rate of 3 mg/cm\2\/day, and less than a daily 
maximum of 15 mg/cm\2\/day. Rogers (1990) recommends that sedimentation 
rates on coral reefs globally be less than a mean maximum of 10 mg/
cm\2\/day to maintain healthy corals, and also notes that moderate to 
severe effects on corals are generally expected at mean maximum 
sedimentation rates of 10 to 50 mg/cm\2\/day, and severe to 
catastrophic effects at >50 mg/cm\2\/day. Similarly, Erftemeijer et al. 
(2012) suggest that moderate to severe effects to corals are expected 
at mean maximum sedimentation rates of >10 mg/cm\2\/day, and 
catastrophic effects at >50 mg/cm\2\/day. Nelson et al. (2016) suggest 
that sediment depths of >0.5 cm result in substantial stress to most 
coral species, and that sediment depths of >1.0 cm are lethal to most 
coral species. The above generalizations are for coral reef communities 
and ecosystems, rather than individual species.
    Sublethal effects of sediment to corals potentially occur at much 
lower levels than mortality. Sublethal effects include reduced growth, 
lower calcification rates and reduced productivity, bleaching, 
increased susceptibility to diseases, physical damage to coral tissue 
and reef structures (breaking, abrasion), and reduced regeneration from 
tissue damage (see reviews by Fabricius et al., 2005; Erftemeijer et 
al., 2012; Browne et al., 2015; and Rogers, 1990). Erftemeijer et al. 
(2012) states that sublethal effects for coral species that are 
sensitive, intermediate, or tolerant to sediment (i.e., most reef-
building coral species) occur at mean maximum sedimentation rates of 
between <10 and 200 mg/cm\2\/day, depending on species, exposure 
duration, and other factors.
    Artificial substrates and frequently disturbed ``managed areas'' 
are not essential to coral conservation. Only natural substrates 
provide the quality and quantity of recruitment habitat necessary for 
the conservation of threatened corals. Artificial substrates are 
generally less functional than natural substrates in terms of 
supporting healthy and diverse coral reef ecosystems (Edwards and 
Gomez, 2007; USFWS, 2004). Artificial substrates are manmade or 
introduced substrates that are not naturally occurring to the area. 
Examples include, but are not necessarily limited to, fixed and 
floating structures, such as aids-to-navigation (AToNs), jetties, 
groins, breakwaters, seawalls, wharves, boat ramps, fishpond walls, 
pipes, wrecks, mooring balls, docks, aquaculture cages, and other 
artificial structures. The essential feature does not include any 
artificial substrate. In addition, there are some natural substrates 
that, because of their consistently disturbed nature, also do not 
provide the quality of substrate necessary for the conservation of 
threatened corals. While these areas may provide hard substrate for 
coral settlement and growth over short periods, the periodic nature of 
direct human disturbance renders them poor environments for coral 
growth and survival over time (e.g., they can become covered with 
sediment). Therefore, they are not essential to the conservation of the 
species. Specific areas that may contain these disturbed natural 
substrates are described in the Specific Areas Containing the Essential 
Features section of this rule.
    The substrate characterized previously must be associated with 
water that also supports all life functions of corals that are carried 
out at the site. Water quality conditions fluctuate greatly over 
various spatial and temporal scales in natural reef environments 
(Kleypas et al., 1999). However, certain levels of particular 
parameters (e.g., water clarity, water temperature, aragonite 
saturation) must occur on average to provide the conditions conducive 
to coral growth, reproduction, and recruitment. Corals may tolerate and 
survive in conditions outside these levels, depending on the local 
conditions to which they have acclimatized and the intensity and 
duration of any deviations from conditions conducive to a particular 
coral's growth, reproduction, and recruitment. Deviations from 
tolerance levels of certain parameters result in direct negative 
effects on all life stages.
    As described in the Final Information Report, corals thrive in 
warm, clear, nutrient-poor marine waters with calcium carbonate 
concentrations that allow for symbiont photosynthesis, coral 
physiological processes, and skeleton formation. The water must also 
have low to no levels of contaminants (e.g., heavy metals, chemicals) 
that would interfere with normal functions of all life stages. Water 
quality that supports normal functions of corals is adversely affected 
by ocean warming, ocean acidification, nutrient enrichment, 
sedimentation, and contamination.
    Seawater temperature is a particularly important limiting factor of 
coral habitat. Corals occur in a fairly-wide temperature range across 
geographic locations (15.7 [deg]C-35.5 [deg]C weekly average and 21.7-
29.6 [deg]C annual average; Guan et al., 2015), but only thrive in 
areas with mean temperatures in a fairly-narrow range (typically 25 
[deg]C-29 [deg]C) as indicated by the formation of coral reefs 
(Brainard et al., 2011; Kleypas et al., 1999; Stoddart, 1969; Vaughan, 
1919). Short-term exposure (days) to temperature increases of a few 
degrees (i.e., 3 [deg]C-4 [deg]C increase above climatological mean 
maximum summer temperature) or long-term exposure (several weeks) to 
minor temperature increases (i.e., 1 [deg]C-2 [deg]C above mean maximum 
summer temperature) can cause significant thermal stress and mortality 
to most coral species (Berkelmans and Willis, 1999; Jokiel and Coles, 
1990; Donner, 2005; Donner 2009).
    Ocean warming is one of the most significant threats to the five 
ESA-listed Caribbean corals considered in this rule (Brainard et al., 
2011). Mean seawater temperatures in reef-building coral habitat in 
both the Caribbean and Indo-Pacific have increased during the past few 
decades, and are predicted to continue to rise between now and 2100 
(IPCC, 2013). The primary observable coral response to ocean warming is 
bleaching of adult coral colonies, wherein corals expel their symbiotic 
zooxanthellae in response to stress (Brown, 1997). For many corals, an 
episodic increase of only 1 [deg]C-2 [deg]C above the normal local 
seasonal maximum ocean temperature can induce bleaching (Hoegh-Guldberg 
et al., 2007; Jones, 2008; Whelan et al., 2007). Corals can withstand 
mild to moderate bleaching; however, severe, repeated, or prolonged 
bleaching can lead to colony death (Brown, 1997; Whelan et al., 2007). 
Increased sea surface temperatures are occurring more frequently and 
leading to multiple mass bleaching events (Hughes et al., 2017), which 
are reoccurring too rapidly for coral populations to rebound in between 
(Hughes et al., 2018).
    Coles and Brown (2003) defined a general bleaching threshold for 
reef-building corals as increases in seawater temperatures of 1-3 
[deg]C above maximum annual mean temperatures at a given location. 
Great Barrier Reef Marine Park Authority (2010) defined a general 
``trigger value'' for bleaching in reef-building corals as increases in 
seawater temperatures of no more than 1 [deg]C above maximum annual 
mean temperatures at a given location. Because duration of exposure to 
elevated temperatures determines the extent of bleaching, several 
methods have been developed to integrate duration into bleaching 
thresholds, including the number of days, weeks, or months of the 
elevated temperatures (Berkelmans, 2002; Eakin et al., 2009; Goreau and 
Hayes, 1994; Podesta and Glynn, 1997). NOAA's Coral Reef Watch Program 
utilizes the

[[Page 54035]]

Degree Heating Week method (Glynn & D'Croz, 1990; Eakin et al. 2009), 
which defines a general bleaching threshold for reef-building corals as 
seawater temperatures of 1[deg]C above the maximum monthly mean at a 
given location for 4 consecutive weeks (https://coralreefwatch.noaa.gov/).
    These general thresholds were developed for coral reef communities 
and ecosystems, rather than individual species. Many of these studies 
are community or ecosystem-focused and do not account for species-
specific responses to changes in seawater temperatures, and instead are 
focused on long-term climatic changes and large-scale impacts (e.g., 
coral reef distribution, persistence).
    In addition to coral bleaching, other effects of ocean warming 
detrimentally affect virtually every life-history stage of reef-
building corals. Impaired fertilization and developmental abnormalities 
(Negri and Heyward, 2000), mortality, and impaired settlement success 
(Nozawa and Harrison, 2007; Putnam et al., 2008; Randall and Szmant, 
2009) have all been documented. Increased seawater temperature also may 
act synergistically with coral diseases to reduce coral health and 
survivorship (Bruno and Selig, 2007). Coral disease outbreaks often 
have either accompanied or immediately followed bleaching events 
(Brandt and McManus, 2009; Jones et al., 2004a; Lafferty et al., 2004; 
Miller et al., 2009; Muller et al., 2008). Outbreaks also follow 
seasonal patterns of high seawater temperatures (Sato et al., 2009; 
Willis et al., 2004).
    In summary, temperature deviations from local averages prevent or 
impede successful completion of all life history stages of the listed 
coral species. Identifying temperatures at which the conservation value 
of habitat for listed corals may be affected is inherently complex and 
influenced by taxa, exposure duration, and other factors.
    Carbonate ions (CO32-) are used by 
many marine organisms, including corals, to build calcium carbonate 
skeletons. The mineral form of calcium carbonate used by corals to form 
their skeletons is aragonite. The more carbonate ions dissolved in 
seawater, the easier it is for corals to build their aragonite 
skeletons. The metric used to express the relative availability of 
calcium and carbonate ions is the aragonite saturation state 
([Omega]arg). Thus, the lower the [Omega]arg of 
seawater, the lower the abundance of carbonate ions, and the more 
energy corals have to expend for skeletal calcification, and vice versa 
(Cohen and Holcomb, 2009). At saturation states between 1 and 20, 
marine organisms can create calcium carbonate shells or skeletons using 
a physiological calcifying mechanism and the expenditure of energy. The 
aragonite saturation state varies greatly within and across coral reefs 
and through daily cycles with temperature, salinity, pressure, and 
localized biological processes such as photosynthesis, respiration, and 
calcification by marine organisms (Gray et al., 2012; McMahon et al., 
2013; Shaw et al., 2012b)).
    Coral reefs form in an annually-averaged saturation state of 4.0 or 
greater for optimal calcification, and an annually-averaged saturation 
state below 3.3 will result in reduced calcification at rates 
insufficient to maintain net positive reef accretion, resulting in loss 
of reef structure (Guinotte et al., 2003; Hoegh-Guldberg et al., 2007). 
Guinotte et al. (2003) classified the range of aragonite saturation 
states between 3.5-4.0 as ``adequate'' and < 3 as ``extremely 
marginal.'' Thus, an aragonite saturation state between 3 and 4 is 
likely necessary for coral calcification. But, generally, seawater 
[Omega]arg should be 3.5 or greater to enable maximum 
calcification of reef-building corals, and average 
[Omega]arg in most coral reef areas is currently in that 
range (Guinotte et al., 2003). Further, Kleypas et al. (1999) concluded 
that a general threshold for [Omega]arg occurs near 3.4, 
because only a few reefs occur where saturation is below this level. 
Guan et al. (2015) found that the minimum aragonite saturation observed 
where coral reefs currently occur is 2.82; however, it is not known if 
those locations hosted live, accreting corals.
    Ocean acidification is a term referring to changes in ocean 
carbonate chemistry, including a drop in the pH of ocean waters, that 
is occurring in response to the rise in the quantity of atmospheric 
CO2 and the partial pressure of CO2 
(pCO2) absorbed in oceanic waters (Caldeira and Wickett, 
2003). As pCO2 rises, oceanic pH declines through the 
formation of carbonic acid and subsequent reaction with water resulting 
in an increase of free hydrogen ions. The free hydrogen ions react with 
carbonate ions to produce bicarbonate, reducing the amount of carbonate 
ions available, and thus reducing the aragonite saturation state.
    A variety of laboratory studies conducted on corals and coral reef 
organisms (Langdon and Atkinson, 2005) consistently show declines in 
the rate of coral calcification and growth with rising pCO2, 
declining pH, and declining carbonate saturation state. Laboratory 
experiments have also shown that skeletal deposition and initiation of 
calcification in newly settled corals is reduced by declining aragonite 
saturation state (Albright et al., 2008; Cohen et al., 2009). Field 
studies from a variety of coral locations in the Caribbean, Indo-
Pacific, and Red Sea have shown a decline in linear extension rates of 
coral skeleton under decreasing aragonite saturation state (Bak et al., 
2009; De'ath et al., 2009; Schneider and Erez, 2006; Tanzil et al., 
2009). In addition to effects on growth and calcification, recent 
laboratory experiments have shown that increased pCO2 also 
substantially impairs fertilization and settlement success in Acropora 
palmata (Albright et al., 2010). Reduced calcification and slower 
growth will mean slower recovery from breakage, whether natural 
(hurricanes and storms) or human (breakage from vessel groundings, 
anchors, fishing gear, etc.), or mortality from a variety of 
disturbances. Slower growth also implies even higher rates of mortality 
for newly settled corals due to the longer time it will take to reach a 
colony size that is no longer vulnerable to overgrowth competition, 
sediment smothering, and incidental predation. Reduced calcification 
and slower growth means more time to reach reproductive size and 
reduces sexual and asexual reproductive potential. Increased 
pCO2 coupled with increased sea surface temperature can lead 
to even lower rates of calcification, as found in the meta-analysis by 
Kornder et al. (2018).
    In summary, aragonite saturation reductions prevent or impede 
successful completion of all life history stages of the listed coral 
species. Identifying the declining aragonite saturation state at which 
the conservation value of habitat for listed corals may be affected is 
inherently complex and influenced by taxa, exposure duration, and other 
environmental and physiological factors.
    Nitrogen and phosphorous are two of the main nutrients that affect 
the suitability of the water column in coral reef habitats (Fabricius 
et al., 2005; Fabricius, 2005). These two nutrients occur as different 
compounds in coral reef habitats and are necessary in low levels for 
normal reef function. Dissolved inorganic nitrogen and dissolved 
inorganic phosphorus in the forms of nitrate 
(NO3-) and phosphate 
(PO43-) are particularly important for 
photosynthesis, with dissolved organic nitrogen also providing an 
important source of nitrogen, and are the dominant forms of nitrogen 
and phosphorous in coral reef waters.
    Excessive nutrients affect corals through two main mechanisms: 
direct

[[Page 54036]]

effects on coral physiology, such as reduced fertilization and growth 
(Harrison and Ward, 2001; Ferrier-Pages et al., 2000), and indirect 
effects through nutrient-stimulation of other community components 
(e.g., macroalgae seaweeds, turfs/filamentous algae, cyanobacteria, and 
filter feeders) that compete with corals for space on the reef (79 FR 
53851, September 10, 2014). As discussed previously, the latter also 
affects the quality of recruitment substrate. The physiological 
response a coral exhibits to an increase in nutrients mainly depends on 
concentration and duration. A short duration of a high increase in a 
nutrient may result in a severe adverse response, just as a chronic, 
lower concentration might. Increased nutrients can result in adverse 
responses in all life stages and affect most physiological processes, 
resulting in reduced number and size of gametes (Ward and Harrison, 
2000), reduced fertilization (Harrison and Ward, 2001), reduced growth, 
mortality (Ferrier-Pages et al., 2000; Koop et al., 2001), increased 
disease progression (Vega Thurber et al., 2013; Voss and Richardson, 
2006), tissue loss (Bruno et al., 2003), and bleaching (Kuntz et al., 
2005; Wiedenmann et al., 2012).
    Most coral reefs occur where annual mean nutrient levels are low. 
Kleypas et al. (1999) analyzed dissolved nutrient data from nearly 
1,000 coral reef sites, finding mean values of 0.25 micromoles per 
liter ([mu]mol/l) for NO3-, and 0.13 [mu]mol/l for 
PO4. Over 90 percent of the sites had mean NO3 
values of <0.6 [mu]mol/l, and mean PO4 values of <0.2 
[mu]mol/l (Kleypas et al., 1999). Several authors, including Bell and 
Elmetri (1995) and Lapointe (1997) have proposed threshold values of 
1.0 [mu]mol/l for NO3, and 0.1-0.2 [mu]mol/l for 
PO4, beyond which reefs are assumed to be eutrophic. 
However, concentrations of dissolved nutrients are poor indicators of 
coral reef status, and the concept of a simple threshold concentration 
that indicates eutrophication has little validity (McCook, 1999). One 
reason for that is because corals are exposed to nutrients in a variety 
of forms, including dissolved nitrogen (e.g., NO3), 
dissolved phosphorus (e.g., PO43), particulate nitrogen 
(PN), and particulate phosphate (PP). Since the dissolved forms are 
assimilated rapidly by phytoplankton, and the majority of nitrogen and 
phosphorus discharged in terrestrial runoff is in the particulate 
forms, PN and PP are the most common bio-available forms of nutrients 
for corals on coastal zone reefs (Cooper et al., 2008). De'ath and 
Fabricius (2008) and GBRMPA (2010) provide general recommendations on 
maximum annual mean values for PN and PP of 1.5 [mu]mol/l PN and 0.09 
[mu]mol/l PP for coastal zone reefs. These generalizations are for 
coral reef communities and ecosystems, rather than individual species.
    As noted above, identifying nutrient concentrations at which the 
conservation value of habitat for listed corals may be affected is 
inherently complex and influenced by taxa, exposure duration, 
acclimatization to localized nutrient regimes, and other factors.
    Water clarity or transparency is a key factor for marine ecosystems 
and it is the best explanatory variable for a range of bioindicators of 
reef health (Fabricius et al., 2012). Water clarity affects the light 
availability for photosynthetic organisms and food availability for 
filter feeders. Corals depend upon their symbiotic algae for nutrition 
and thus depend on light availability for algal photosynthesis. Reduced 
water clarity is determined by the presence of particles of sediment, 
organic matter, and/or plankton in the water, and so is often 
associated with elevated sedimentation and/or nutrients. Water clarity 
can be measured in multiple ways, including percent of solar irradiance 
at depth, Secchi depth (the depth in the water column at which a black 
and white disk is no longer visible), total suspended solids (TSS), and 
Nephelometric Turbidity Unit (NTU) (measure of light scatter based on 
particles in the water column). Reef-building corals naturally occur 
across a broad range of water clarity levels from very turbid waters on 
enclosed reefs near river mouths (Browne et al., 2012) to very clear 
waters on offshore barrier reefs, and many intermediate habitats such 
as open coastal and mid-shelf reefs (GBRMPA, 2010). Coral reefs appear 
to thrive in extremely clear areas where Secchi depth is >= 15 m or 
light scatter is < 1 NTU (De'ath and Fabricius, 2010). Typical levels 
of TSS in reef environments are less than 10 mg/L (Rogers, 1990). The 
minimum light level for reef development is about 6-8 percent of 
surface irradiance (Fabricius et al., 2014).
    For a particular coral colony, tolerated water clarity levels 
likely depend on several factors, including species, life history 
stage, spatial variability, and temporal variability. For example, 
colonies of a species occurring on fringing reefs around high volcanic 
islands with extensive groundwater inputs are likely to be better 
acclimatized or adapted to higher turbidity than colonies of the same 
species occurring on offshore barrier reefs or around atolls with very 
little or no groundwater inputs. In some cases, corals occupy naturally 
turbid habitats (Anthony and Larcombe, 2000; McClanahan and Obura, 
1997; Te, 2001) where they may benefit from the reduced amount of UV 
radiation to which they are exposed (Zepp et al., 2008).
    Reductions in water clarity affect light availability for corals. 
As turbidity and nutrients increase, thus decreasing water clarity, 
reef community composition shifts from coral-dominated to macroalgae-
dominated, and ultimately to heterotrophic animals (Fabricius et al., 
2012). Light penetration is diminished by suspended abiotic and biotic 
particulate matter (esp. clay and silt-sized particles) and some 
dissolved substances (Fabricius et al., 2014). The availability of 
light decreases directly as a function of particle concentration and 
water depth, but also depends on the nature of the suspended particles. 
Fine clays and organic particles are easily suspended from the sea 
floor, reducing light for prolonged periods, while undergoing cycles of 
deposition and resuspension. Suspended fine particles also carry 
nutrients and other contaminants (Fabricius et al., 2013). Increased 
nutrient runoff into semi-enclosed seas accelerates phytoplankton 
production to the point that it also increases turbidity and reduces 
light penetration, and can also settle on colony surfaces (Fabricius, 
2005). In areas of nutrient enrichment, light for benthic organisms can 
be additionally severely reduced by dense stands of large fleshy 
macroalgae shading adjacent corals (Fabricius, 2005).
    The literature provides several recommendations on maximum 
turbidity levels for coral reefs (i.e., levels that managers should 
strive to stay under). GBRMPA (2010) recommends minimum mean annual 
water clarity, or ``trigger values'', in Secchi distances for the GBR 
depending on habitat type: for enclosed coastal reefs, 1.0-1.5 m; for 
open coastal reefs and mid-shelf reefs, 10 m; and for offshore reefs, 
17 m. De'ath and Fabricius (2008) recommend a minimum mean annual water 
clarity trigger value in Secchi distance averaged across all GBR 
habitats of 10 m. Bell and Elmetri (1995) recommend a maximum value of 
3.3 mg/L TSS across all GBR habitats. Thomas et al. (2003) recommend a 
maximum value of 10 mg/L averaged across all Papua New Guinea coral 
reef habitats. Larcombe et al. (2001) recommend a maximum value of 40 
mg/L TSS for GBR ``marginal reefs'', i.e., reefs close to shore with 
high natural turbidity levels. Guan et al.

[[Page 54037]]

(2015) recommend a minimum light intensity ([mu]mol photons second/
m\2\) of 450 [mu]mol photons second/m\2\ globally for coral reefs. The 
above generalizations are for coral reef communities and ecosystems, 
rather than individual species.
    A coral's response to a reduction in water clarity is dependent on 
the intensity and duration of the particular conditions. For example, 
corals exhibited partial mortality when exposed to 476 mg/L TSS 
(Bengtsson et al., 1996) for 96 hours, but had total mortality when 
exposed to 1000 mg/L TSS for 65 hours (Thompson and Bright, 1980). 
Depending on the duration of exposure, most coral species exhibited 
sublethal effects when exposed to turbidity levels between 7 and 40 NTU 
(Erftemeijer et al., 2012). The most tolerant coral species exhibited 
decreased growth rates when exposed to 165 mg/L TSS for 10 days (Rice 
and Hunter, 1992). By reducing water clarity, turbidity also reduces 
the maximum depth at which corals can live, making deeper habitat 
unsuitable (Fabricius, 2005). Existing data suggest that coral 
reproduction and settlement are more highly sensitive to changes in 
water clarity than adult survival, and these functions are dependent on 
clear water. Suspended particulate matter reduces fertilization and 
sperm function (Ricardo et al., 2015), and strongly inhibits larvae 
survival, settlement, recruitment, and juvenile survival (Fabricius, 
2005).
    In summary, water clarity deviations from local averages prevent or 
impede successful completion of all life history stages of the listed 
coral species. Identifying turbidity levels at which the conservation 
value of habitat for listed corals may be affected is inherently 
complex and influenced by taxa, exposure duration, acclimatization to 
localized nutrient regimes, and other factors.
    The water column may include levels of anthropogenically-introduced 
chemical contaminants that prevent or impede successful completion of 
all life history stages of the listed coral species. For the purposes 
of this rule, ``contaminants'' is a collective term to describe a suite 
of anthropogenically-introduced chemical substances in water or 
sediments that may adversely affect corals. The study of the effects of 
contaminants on corals is a relatively new field and information on 
sources and ecotoxicology is incomplete. The major groups of 
contaminants that have been studied for effects to corals include heavy 
metals (also called trace metals), pesticides, and hydrocarbons. Other 
organic contaminants, such as chemicals in personal care products, 
polychlorinated biphenyl, and surfactants, have also been studied. 
Contaminants may be delivered to coral reefs via point or non-point 
sources. Specifically, contaminants enter the marine environment 
through wastewater discharge, shipping, industrial activities, and 
agricultural and urban runoff. These contaminants can cause negative 
effects to coral reproduction, development, growth, photosynthesis, and 
survival.
    Heavy metals (e.g., copper, cadmium, manganese, nickel, cobalt, 
lead, zinc, and iron) can be toxic at concentrations above naturally-
occurring levels. Heavy metals are persistent in the environment and 
can bioaccumulate. Metals are adsorbed to sediment particles, which can 
result in their long distance transport away from sources of pollution. 
Corals incorporate metals in their skeleton and accumulate them in 
their soft tissue (Al-Rousan et al., 2012; Barakat et al., 2015). 
Although heavy metals can occur in the marine environment from natural 
processes, in nearshore waters they are mostly a result of 
anthropogenic sources (e.g., wastewater, antifouling and anticorrosive 
paints from marine vessels and structures, land filling and dredging 
for coastal expansion, maritime activities, inorganic and organic 
pollutants, crude oil pollution, shipping processes, industrial 
discharge, agricultural activities), and are found near cities, ports, 
and industrial developments.
    The effects of copper on corals include physiological impairment, 
impaired photosynthesis, bleaching, reduced growth, and DNA damage 
(Bielmyer et al., 2010; Schwarz et al., 2013). Adverse effects to 
fertilization, larval development, larval swimming behavior, 
metamorphosis, and larval survival have also been documented (Kwok and 
Ang, 2013; Negri and Hoogenboom, 2011; Puisay et al., 2015; Reichelt-
Brushett and Hudspith, 2016; Rumbold and Snedaker, 1997). Copper 
toxicity was found to be higher when temperatures are elevated (Negri 
and Hoogenboom, 2011). Nickel and cobalt can also have negative effects 
on corals, such as reduced growth and photosynthetic rates (Biscere et 
al., 2015), and reduced fertilization success (Reichelt-Brushett and 
Hudspith, 2016). Chronic exposure of corals to higher levels of iron 
may significantly reduce growth rates (Ferrier-Pages et al., 2001). 
Further, iron chloride has been found to cause oxidative DNA damage to 
coral larvae (Vijayavel et al., 2012).
    Polycyclic aromatic hydrocarbons (PAHs) are found in fossil fuels, 
such as oil and coal, and can be produced by the incomplete combustion 
of organic matter. PAHs disperse through non-point sources such as road 
run-off, sewage, and deposition of particulate air pollution. PAHs can 
also disperse from point sources such as oil spills and industrial 
sites. Studies have found adverse effects of oil pollution on corals 
that include growth impairments, mucus production, and decreased 
reproduction, especially at increased temperatures (Kegler et al., 
2015). Hydrocarbons have also been found to affect early life stages of 
corals. Oil-contaminated seawater reduced settlement of O. faveolata 
and Agaricia humilis and was more severe than any direct or latent 
effects on survival (Hartmann et al., 2015). Natural gas (water 
accommodated fraction) exposure resulted in abortion of larvae during 
early embryogenesis and early release of larvae during late 
embryogenesis, with higher concentrations of natural gas yielding 
higher adverse effects (Villanueva et al., 2011). Exposure to oil, 
dispersants, and a combination of oil and dispersant significantly 
decreased settlement and survival of Porites astreoides and Orbicella 
faveolata larvae (Goodbody-Gringley et al., 2013).
    Anthracene (a PAH that is used in dyes, wood preservatives, 
insecticides, and coating materials) exposure to apparently healthy 
fragments and diseased fragments (Caribbean yellow band disease) of O. 
faveolata reduced activity of enzymes important for protection against 
environmental stressors in the diseased colonies (Montilla et al., 
2016). The results indicated that diseased tissues might be more 
vulnerable to exposure to PAHs such as anthracene compared to healthy 
corals. PAH concentrations similar to those present after an oil spill 
inhibited metamorphosis of Acropora tenuis larvae, and sensitivity 
increased when larvae were co-exposed to PAHs and ``shallow reef'' 
ultraviolet (UV) light levels (Negri et al., 2016).
    Pesticides include herbicides, insecticides, and antifoulants used 
on vessels and other marine structures. Pesticides can affect non-
target marine organisms like corals and their zooxanthellae. Diuron, an 
herbicide, decreased photosynthesis in zooxanthellae that had been 
isolated from the coral host and grown in culture (Shaw et al., 2012a). 
Irgarol, an additive in copper-based antifouling paints, significantly 
reduced settlement in Porites hawaiiensis (Knutson et al., 2012). 
Porites astreoides larvae exposed to two major mosquito pesticide 
ingredients, naled and permethrin, for

[[Page 54038]]

18-24 hours showed differential responses. Concentrations of 2.96 
[micro]g/L or greater of naled significantly reduced larval 
survivorship, while exposure of up to 6.0 [micro]g/L of permethrin did 
not result in reduced larval survivorship. Larval settlement, post-
settlement survival, and zooxanthellae density were not impacted by any 
treatment (Ross et al., 2015).
    Benzophenone-2 (BP-2) is a chemical additive to personal care 
products (e.g., sunscreen, shampoo, body lotions, soap, detergents), 
product coatings (oil-based paints, polyurethanes), acrylic adhesives, 
and plastics that protects against damage from UV light. It is released 
into the ocean through municipal and boat/ship wastewater discharges, 
landfill leachates, residential septic fields, and unmanaged cesspits 
(Downs et al., 2014). BP-2 is a known endocrine disruptor and a DNA 
mutagen, and its effects are worse in the light. It caused deformation 
of scleractinian coral Stylophora pistillata larvae, changing them from 
a motile planktonic state to a deformed sessile condition at low 
concentrations (Downs et al., 2014). It also caused increasing larval 
bleaching with increasing concentration (Downs et al., 2014).
    Benzophenone-3 (BP-3; oxybenzone) is an ingredient in sunscreen and 
personal care products (e.g., hair cleaning and styling products, 
cosmetics, insect repellent, soaps) that protects against damage from 
UV light. It enters the marine environment through swimmers and 
municipal, residential, and boat/ship wastewater discharges and can 
cause DNA mutations. Oxybenzone is a skeletal endocrine disruptor, and 
it caused larvae of S. pistillata to encase themselves in their own 
skeleton (Downs et al., 2016). Exposure to oxybenzone transformed S. 
pistillata larvae from a motile state to a deformed, sessile condition 
(Downs et al., 2016). Larvae exhibited an increasing rate of coral 
bleaching in response to increasing concentrations of oxybenzone (Downs 
et al., 2016).
    Polychlorinated biphenyls (PCBs) are environmentally stable, 
persistent organic contaminants that have been used as heat exchange 
fluids in electrical transformers and capacitors and as additives in 
paint, carbonless copy paper, and plastics. They can be transported 
globally through the atmosphere, water, and food chains. A study of the 
effects of the PCB, Aroclor 1254, on the Stylophora pistillata found no 
effects on coral survival, photosynthesis, or growth; however, the 
exposure concentration and duration may alter the expression of certain 
genes involved in various important cellular functions (Chen et al., 
2012).
    Surfactants are used as detergents and soaps, wetting agents, 
emulsifiers, foaming agents, and dispersants. Linear alkylbenzene 
sulfonate (LAS) is one of the most common surfactants in use. 
Biodegradation of surfactants can occur within a few hours up to 
several days, but significant proportions of surfactants attach to 
suspended solids and remain in the environment. This sorption of 
surfactants onto suspended solids depends on environmental factors such 
as temperature, salinity, or pH. Exposure of Pocillopora verrucosa to 
LAS resulted in tissue loss on fragments (Kegler et al., 2015). The 
combined effects of LAS exposure with increased temperature (+3 [deg]C, 
from 28 to 31 [deg]C) resulted in greater tissue loss than LAS exposure 
alone (Kegler et al., 2015).
    In summary, there are multiple chemical contaminants that prevent 
or impede successful completion of all life history stages of the 
listed coral species. Identifying contaminant levels at which the 
conservation value of habitat for listed corals may be affected is 
inherently complex and influenced by taxa, exposure duration, and other 
factors.
    As described above, the best-available information shows coral 
reefs form on solid substrate, but only within a narrow range of water 
column conditions that on average allow the deposition rates of corals 
to exceed the rates of physical, chemical, and biological erosion 
(i.e., conducive conditions, Brainard et al., 2005). However, as with 
all ecosystems, water column conditions are dynamic and vary over space 
and time. Therefore, we also describe environmental conditions in which 
coral reefs currently exist globally, thus indicating the conditions 
that may be tolerated by corals and allow at least for survival. To the 
extent tolerance conditions deviate in duration and intensity from 
conducive conditions, they may not support coral reproduction and 
recruitment, and reef growth, and thus would impair the recovery of the 
species. Further, annually and spatially averaged-tolerance ranges 
provide the limits of the environmental conditions in which coral reefs 
exist globally (Guan et al., 2015), but these conditions do not 
necessarily represent the conditions that may be tolerated by 
individual coral species. Individual species may or may not be able to 
withstand conditions within or exceeding the globally-averaged 
tolerance ranges for coral reefs, depending on the individual species' 
biology, local average conditions to which the species are 
acclimatized, and intensity and duration of exposure to adverse 
conditions. In other words, changes in the water column parameters 
discussed above that exceed the tolerance ranges may induce adverse 
effects in a particular species. Thus, the concept of individual 
species' tolerance limits is a different aspect of water quality 
conditions compared to conditions that are conducive for formation and 
growth of reef structures.
    These values presented in the summaries above constitute the best 
available information at the time of this rulemaking. It is possible 
that future scientific research will identify more species-specific 
values for some of these parameters that become more applicable to the 
five listed coral species, though it is also possible that future 
species-specific research will document that conducive or tolerance 
ranges for the five Caribbean corals fall within these ranges. Because 
the ESA requires us to use the best scientific information available in 
conducting consultations under section 7, we will incorporate any such 
new scientific information into consultations when evaluating potential 
impacts to the critical habitat.

Special Management Considerations or Protection

    Specific areas within the geographical area occupied by a species 
may be designated as critical habitat only if they contain essential 
features that may require special management considerations or 
protection (16 U.S.C. 1532(5)(A)(i)(II). Special management 
considerations or protection are any methods or procedures useful in 
protecting physical or biological features for the conservation of 
listed species (50 CFR 424.02). In determining whether the essential 
physical or biological features ``may require'' special management 
considerations or protection, it is necessary only to find that there 
is a possibility that the features may require special management 
considerations or protection in the future; it is not necessary to find 
that such management is presently or immediately required. Home 
Builders Ass'n of N. California v. U.S. Fish and Wildlife Serv., 268 F. 
Supp. 2d 1197, 1218 (E.D. Cal. 2003).
    The essential feature we have identified is particularly 
susceptible to impacts from human activity because of the relatively 
shallow water depth range (less than 295 ft (90 m)) the corals inhabit. 
The proximity of this habitat to coastal areas subjects this feature to 
impacts from multiple activities, including, but not limited to, 
coastal and in-water construction, dredging and disposal activities, 
beach nourishment,

[[Page 54039]]

stormwater run-off, wastewater and sewage outflow discharges, point and 
non-point source discharges of contaminants, and fishery management. 
Further, the global oceans are being impacted by climate change from 
greenhouse gas emissions, particularly the tropical oceans in which the 
Caribbean corals occur (van Hooidonk et al., 2014). The impacts from 
these activities, combined with those from natural factors (e.g., major 
storm events), significantly affect habitat for all life stages for 
these threatened corals. We conclude that the essential feature is 
currently and will likely continue to be negatively impacted by some or 
all of these factors.
    Greenhouse gas emissions (e.g., fossil fuel combustion) lead to 
global climate change and ocean acidification. These activities 
adversely affect the essential feature by increasing sea surface 
temperature and decreasing the aragonite saturation state. Coastal and 
in-water construction, channel dredging, and beach nourishment 
activities can directly remove the essential feature by dredging it or 
by depositing sediments on it, making it unavailable for settlement and 
recruitment of coral larvae or fragments. These same activities can 
impact the essential feature by creating turbidity during operations. 
Stormwater run-off, wastewater and sewage outflow discharges, and point 
and non-point source contaminant discharges can adversely impact the 
essential feature by allowing nutrients and sediments, as well as 
contaminants, from point and non-point sources, including sewage, 
stormwater and agricultural runoff, river discharge, and groundwater, 
to alter the natural levels in the water column. The same activities 
can also adversely affect the essential feature by increasing the 
growth rates of macroalgae, which preempts available recruitment 
habitat. Fishery management can adversely affect the essential feature 
if it allows for the reduction in the number of herbivorous fishes 
available to control the growth of macroalgae on the substrate.
    Given these ongoing threats throughout the corals' habitat, we find 
that the essential feature may require special management 
considerations.

Specific Areas Containing the Essential Feature

    The definition of critical habitat requires us to identify specific 
areas on which are found the physical or biological features essential 
to the species' conservation that may require special management 
considerations or protection. Our regulations state that critical 
habitat will be shown on a map, with more-detailed information 
discussed in the preamble of the rulemaking documents in the Federal 
Register, which will reference each area by the State, county, or other 
local governmental unit in which it is located (50 CFR 424.12(c)). Our 
regulations also state that when several habitats, each satisfying 
requirements for designation as critical habitat, are located in 
proximity to one another, an inclusive area may be designated as 
critical habitat (50 CFR 424.12(d)).
    For each of the five coral species, boundaries of specific areas 
were determined by each species' commonly occupied minimum and maximum 
depth ranges within each coral's range at the time of listing. Across 
all 5 coral species, a total of 28 specific areas were identified as 
being under consideration for critical habitat designation. There are 
five or six specific areas per species, depending on whether the 
species occurs in FGBNMS; one area each in Florida, Puerto Rico, St. 
Thomas and St. John, USVI, St. Croix, USVI, FGB, and Navassa Island. 
Within each of the geographic areas, the individual species' specific 
areas are largely-overlapping. For example, in Puerto Rico, there are 
five largely-overlapping specific areas, one for each species, that 
surround each of the islands. The difference between each of the areas 
is the particular depth contours that were used to create the 
boundaries. For example, Dendrogyra cylindrus' specific area in Puerto 
Rico extends from the 1-m contour to the 25-m contour, which mostly 
overlaps the Orbicella annularis specific area that extends from the 
0.5-m contour to the 20-m contour. Overlaying all of the specific areas 
for each species results in the maximum geographic extent of these 
critical habitat designations, which cover 1.6 to 295 ft (0.5-90 m) 
water depth around all the islands of Puerto Rico, USVI, and Navassa, 
53 ft to 295 ft (16-90 m) in FGB, and 1.6 to 131 ft (0.5-40 m) from St. 
Lucie Inlet, Martin County to Dry Tortugas, Florida. The minimum depth 
in FGBNMS was updated from 17 m to 16 m for Orbicella annularis, O. 
faveolata, and O. franksi based on public comment (see the response to 
Comment 4 above). The maximum depth was updated from 90 m to 40 m in 
Florida for O. faveolata, O. franksi, and Mycetophyllia ferox based on 
public comment and new information (Reed, 2021).
    To map these specific areas we reviewed available data on species 
occurrence, bathymetry, substrate, and water quality. We used the 
highest resolution bathymetric data available from multiple sources 
depending on the geographic location. In Florida and the FGB, we used 
contours created from National Ocean Service Hydrographic Survey Data 
and NOAA ENCDirect bathymetric point data (NPS) and contours created 
from NOAA's Coastal Relief Model. We also used bathymetry collected 
with multi-beam sonar in the FGB (USGS, 2002). In Puerto Rico, contours 
were derived from the National Geophysical Data Center's (NGDC) 2005 
U.S. Coastal Relief Model. In USVI, we used contours derived from 
NOAA's 2004-2015 Bathymetric Compilation. In Navassa, contours were 
derived from NOAA's NGDC 2006 bathymetric data. These bathymetric data 
(i.e., depth contours) are used, with other geographic or management 
boundaries, to draw the boundaries of each specific area on the maps in 
this final critical habitat designation.
    Within the areas bounded by depth and species occurrence, we 
evaluated available data on the essential feature. For substrate, we 
used information from the NCCOS Benthic Habitat Mapping program, which 
provides data and maps at http://products.coastalscience.noaa.gov/collections/benthic/default.aspx, summarized in the Coral Reef Data 
Explorer at http://maps.coastalscience.noaa.gov/coralreef/#, and the 
Unified Florida Reef Tract Map found at http://geodata.myfwc.com/datasets/6090f952e3ee4945b53979f18d5ac3a5_9. Using Geographic 
Information System (GIS) software, we extracted all habitat 
classifications that could be considered potential recruitment habitat, 
including hardbottom and coral reef. The benthic habitat information 
assisted in identifying any major gaps in the distribution of the 
substrate essential feature. The data show that hard substrate is 
unevenly distributed throughout the ranges of the species. However, 
there are large areas where benthic habitat characterization data are 
still lacking, particularly deeper than 99 ft (30 m). Because the 
species occurs in these areas, we made the reasonable assumption that 
the substrate feature does exist in those areas, though in unknown 
quantities. The available data also represent a snapshot in time, while 
the exact location of the habitat feature may change over time (e.g., 
natural sediment movement covering or exposing hard substrate).
    There are areas within the geographical and depth ranges of the 
species that contain natural hard substrates that, due to their 
consistently disturbed nature, do not provide the quality of substrate 
essential for the conservation of threatened corals. These disturbances 
may be naturally occurring

[[Page 54040]]

or caused by human activities, as described below. While these areas 
may provide hard substrate for coral settlement and growth over short 
periods, the periodic nature of direct human disturbance renders them 
poor habitat for coral growth and survival over time. These ``managed 
areas,'' for the purposes of this final rule, are specific areas where 
the substrate has been persistently disturbed by planned management 
activities authorized by local, state, or Federal governmental entities 
at the time of critical habitat designation, and expectations are that 
the areas will continue to be periodically disturbed by such management 
activities. Examples include, but are not necessarily limited to, 
dredged navigation channels, vessel berths, and active anchorages. 
These managed areas were not proposed for designation as critical 
habitat, and they are not included in the final designations. GIS data 
of the locations of some managed areas were available and extracted 
from the maps of the specific areas being considered for critical 
habitat designation. These data were not available for every managed 
area; however, regardless of whether the managed area is extracted from 
the maps depicting the specific areas being designated as critical 
habitat, no ``managed areas'' are part of the specific areas that 
contain the essential feature.
    NMFS is aware that dredging may result in sedimentation impacts 
beyond the actual dredge channel. Where these impacts are persistent, 
expected to recur whenever the channel is dredged, and are of such a 
level that the areas in question have already been made unsuitable for 
coral, these persistently impacted areas are considered part of the 
managed areas and are thus not part of the specific areas that contain 
the essential feature.
    The nearshore surf zones of Martin, Palm Beach, Broward, and Miami-
Dade Counties are also consistently disturbed by naturally-high 
sediment movement, suspension, and deposition levels. Hard substrate 
areas found within these nearshore surf zones are ephemeral in nature 
and are frequently covered by sand, and the threatened coral species 
have never been observed there. Thus, this area (water in depths from 0 
ft to 6.5 ft (0 m to 2 m) offshore St. Lucie Inlet to Government Cut) 
does not contain the essential feature and is not considered part of 
the specific areas under consideration for critical habitat. The 
shallow depth limit (i.e., inshore boundary) was identified based on 
the lack of these or any reef building corals occurring in this zone, 
indicating conditions are not suitable for their settlement and 
recruitment into the population. These conditions do not exist in the 
area south of Government Cut, nor in the nearshore zones around the 
islands of Puerto Rico and the U.S. Virgin Islands. In these areas, the 
hydrodynamics allow for the growth of some (e.g., Orbicella spp.) of 
the threatened coral in the shallow depths.
    Due to the ephemeral nature of conditions within the water column 
and the various scales at which water quality data are collected, this 
aspect of the essential feature is difficult to map at fine spatial or 
temporal scales. However, annually-averaged plots of temperature, 
aragonite saturation, nitrate, phosphate, and light, at relatively 
large spatial scale (e.g., 1[deg] x 1[deg] grid) are available from 
Guan et al. (2015), using 2009 data for some parameters, and updated 
with newer data from the World Ocean Atlas (2013) for temperature and 
nutrients. Those maps indicate that conditions that support coral reef 
growth, and thus coral demographic functions, occur throughout the 
specific areas under consideration.
    Based on the available data, we identified 28 mostly-overlapping 
specific areas that contain the essential feature. The specific areas, 
or units, can generally be grouped as the: (1) Florida units, (2) 
Puerto Rico units, (3) St. Thomas/St. John units (STT/STJ), (4) St. 
Croix units, (5) Navassa units, and (6) FGB units. Within each group of 
units, each species has its own unique unit that is specific to its 
geographic and depth distributions. Therefore, within a group there are 
five mostly-overlapping units--one for each species. The exception is 
that there are only three completely-overlapping units in the FGB 
group, because only the three species of Orbicella occur there. The 
essential feature is unevenly distributed throughout these 28 units. 
Within these units there exists a mosaic of habitats at relatively 
small spatial scales, some of which naturally contain the essential 
features (e.g., coral reefs) and some of which do not (e.g., seagrass 
beds). Further, within these units, managed areas and naturally 
disturbed areas, as described above, also exist. Due to the spatial 
scale at which the essential feature exists interspersed with these 
other habitats and disturbed areas, we are not able to more discretely 
delineate the specific areas of critical habitat.

Unoccupied Critical Habitat Areas

    ESA section 3(5)(A)(ii) defines critical habitat to include 
specific areas outside the geographical area occupied by the species at 
the time of listing if the areas are determined by the Secretary to be 
essential for the conservation of the species.
    In considering whether any unoccupied areas are essential to the 
threatened coral species, we considered the nature of the threats to 
the species and their geographic distributions. The threats to these 
five corals are generally the same threats affecting coral reefs 
throughout the world (e.g., climate change, fishing, and land-based 
sources of pollution) and are fully described in the final listing rule 
(79 FR 53852, September 10, 2014). Specifically, ocean warming, 
disease, and ocean acidification are the three most significant threats 
that will impact the potential for recovery of all the listed coral 
species. Because the primary threats are global in nature, adapting to 
changing conditions will be critical to the species' conservation and 
recovery.
    We issued guidance in June 2016 on the treatment of climate change 
uncertainty in ESA decisions, which addresses critical habitat 
specifically (https://www.fisheries.noaa.gov/national/endangered-species-conservation/endangered-species-act-guidance-policies-and-regulations). The guidance states that, when designating critical 
habitat, NMFS will consider proactive designation of unoccupied habitat 
as critical habitat when there are adequate data to support a 
reasonable inference that the habitat is essential for the conservation 
of the species because of the function(s) it is likely to serve as 
climate changes. As noted above, we applied the 2019 regulations to 
evaluate the appropriateness of designating unoccupied critical habitat 
in the proposed rule. Those regulations state that we will only 
consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied would be inadequate 
to ensure the conservation of the species (50 CFR 424.12(b)(2)). 
However, as noted previously, on July 5, 2022, the United States 
District Court for the Northern District of California issued an order 
vacating the regulations finalized in 2019 (84 FR 44976, August 27, 
2019), and this order was subsequently temporarily stayed on September 
21, 2022, by the U.S Court of Appeals for the Ninth Circuit. Thus, 
while the 2019 regulations are currently in effect and were applied in 
this rulemaking, we also considered the pre-2019 regulations and the 
climate change guidance to determine whether our conclusions would 
differ. As explained below, we conclude that our determination with 
respect to unoccupied areas would not have been any different. However, 
because of the ongoing litigation related to the 2019

[[Page 54041]]

regulations, we also explain why application of the pre-2019 
regulations results in the same conclusion.
    All five corals occur in the Caribbean, an area predicted to have 
more rapid and severe impacts from climate change as compared to other 
tropical locations (van Hooidonk et al., 2014). Shifting into 
previously unoccupied habitats that become more suitable as other parts 
of their range become less suitable may be a strategy these corals 
employ in the future to adapt to changing conditions. However, due to 
the nature of the Caribbean basin, there is little opportunity for 
range expansion. The only area of potential expansion is north up the 
Florida coast. Several of the five coral species have different 
northern limits to their current range, with Orbicella faveolata's 
limit at St. Lucie Inlet, Martin County, Florida, being the farthest 
north and at the limit of coral reef formation in Florida for these 
species. A northern range expansion along Florida's coast beyond this 
limit is unlikely due to lack of evidence of historical reef growth in 
these areas under warmer climates. Further, northern expansion is 
inhibited by hydrographic conditions (Walker and Gilliam, 2013). The 
other corals could theoretically expand into the area between their 
current northern extents to the limit of reef formation. However, 
temperature is not likely the factor limiting occupation of those 
areas, given the presence of other reef-building corals. Thus, there 
are likely other non-climate-related factors limiting the northern 
extent of the corals' ranges.
    Because the occupied critical habitat we have identified includes 
specific areas that extend throughout the historical and current range 
of the listed species, we find that the designations are adequate to 
provide for the conservation of the five corals. Further, there is no 
basis to conclude that any specific unoccupied areas are essential to 
the conservation of the five corals, as described above. Therefore, 
applying either the 2019 regulations or pre-2019 regulations, we have 
determined that it is not appropriate to designate any unoccupied areas 
as critical habitat for the five corals.

Application of ESA Section 4(a)(3)(B)(i) (Military Lands)

    Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical 
habitat any lands or other geographical areas owned or controlled by 
the DoD, or designated for its use, that are subject to an INRMP 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a conservation 
benefit to the species for which critical habitat is designated. 
Pursuant to our regulations at 50 CFR 424.12(h) we consider the 
following when determining whether such a benefit is provided:
    (1) The extent of the area and features present;
    (2) The type and frequency of use of the area by the species;
    (3) The relevant elements of the INRMP in terms of management 
objectives, activities covered, and best management practices, and the 
certainty that the relevant elements will be implemented; and
    (4) The degree to which the relevant elements of the INRMP will 
protect the habitat from the types of effects that would be addressed 
through a destruction-or-adverse-modification analysis.
    NASKW is the only installation controlled by the DoD, specifically 
the Department of the Navy (Navy), that coincides with any of the areas 
meeting the definition of critical habitat for four of the listed coral 
species. On September 21, 2015, the Navy requested in writing that the 
areas covered by the 2014 INRMP for NASKW not be designated as critical 
habitat, pursuant to ESA section 4(a)(3)(B)(i), and provided the INRMP 
for our review.
    The NASKW INRMP covers the lands and waters--generally out to 50 
yards (45.7 m)--adjacent to NASKW, including several designated 
restricted areas (see INRMP figures C-1 through C-14). The total area 
of the waters covered by the INRMP that overlaps with areas identified 
as critical habitat is approximately 800 acres (324 hectares). Within 
this area, four of the threatened corals (D. cylindrus, O. annularis, 
O. faveolata, and O. franksi) and the essential feature are present in 
densities and proportions similar to those throughout the rest of the 
nearshore habitat in the Florida Keys. The species use this area in the 
same way that they do all areas identified as critical habitat--to 
carry out all life functions. As detailed in Chapter 4 and Appendix C 
of the INRMP, the plan provides benefits to the threatened corals and 
existing Acropora critical habitat through the following NASKW broad 
programs and activities: (1) erosion control--which will prevent 
sediments from entering into the water; (2) Boca Chica Clean Marina 
Designation--which eliminates or significantly reduces the release of 
nutrients and contaminants; (3) stormwater quality improvements--which 
prevent or reduce the amount of nutrients, sediments, and contaminants; 
and (4) wastewater treatment--which reduces the release of nutrients 
and contaminants consistent with Florida Surface Water Quality 
Standards. Within these categories, there are 15 specific management 
activities and projects that provide benefit to the corals and their 
habitat (Table 4-2 of the INRMP). These types of best management 
practices have been ongoing at NASKW since 1983 and are likely to 
continue into the future. Further, the plan specifically provides 
assurances that all NASKW staff have the authority and funding (subject 
to appropriations) to implement the plan. The plan also provides 
assurances that the conservation efforts will be effective through 
annual reviews conducted by state and Federal natural resource 
agencies. These activities provide a benefit to the species and the 
identified essential feature in the critical habitat by reducing 
sediment and nutrient discharges into nearshore waters, which addresses 
some of the particular conservation and protection needs that critical 
habitat would afford. These activities are similar to those that we 
describe below as project modifications for avoiding or reducing 
adverse effects to critical habitat. Therefore, were we to consult on 
the activities in the INRMP that may affect critical habitat, we would 
likely not require any project modifications based on best management 
practices in the INRMP. Further, the INRMP includes provisions for 
monitoring and evaluating conservation effectiveness, which will ensure 
continued benefits to the species. Annual reviews of the INRMP for 
2011-2015 found that the INRMP executions, including actions that 
minimize or eliminate land-based sources of pollution, ``satisfied'' or 
``more than satisfied'' conservation objectives. Based on these 
considerations, we conclude the NASKW INRMP provides a conservation 
benefit to the threatened corals. Therefore, pursuant to section 
4(a)(3)(B)(i) of the ESA, we determined that the INRMP provides a 
benefit to those threatened corals, and we are not designating critical 
habitat within the boundaries covered by the INRMP.

Application of ESA Section 4(b)(2)

    Section 4(b)(2) of the ESA requires that we consider the economic 
impact, impact on national security, and any other relevant impact, of 
designating any particular area as critical habitat. Additionally, the 
Secretary has the discretion to consider excluding any particular area 
from critical habitat if she determines, based upon the best scientific 
and commercial data available, the benefits of exclusion (that is, 
avoiding some or all of the impacts

[[Page 54042]]

that would result from designation) outweigh the benefits of 
designation. The Secretary may not exclude an area from designation if 
exclusion will result in the extinction of the species. Because the 
authority to exclude is discretionary, exclusion is not required for 
any particular area under any circumstances.
    The ESA provides the Services with broad discretion in how to 
consider impacts. (See, H.R. Rep. No. 95-1625, at 17, reprinted in 1978 
U.S.C.C.A.N. 9453, 9467 (19780). Economics and any other relevant 
impact shall be considered by the Secretary in setting the limits of 
critical habitat for such a species. The Secretary is not required to 
give economics or any other relevant impact predominant consideration 
in his specification of critical habitat. The consideration and weight 
given to any particular impact is completely within the Secretary's 
discretion. Courts have noted the ESA does not contain requirements for 
any particular methods or approaches. (See, e.g., Bldg. Indus. Ass'n of 
the Bay Area et al. v. U.S. Dept. of Commerce et al., No. 13-15132 (9th 
Cir., July 7, 2015), upholding district court's ruling that the ESA 
does not require the agency to follow a specific methodology when 
designating critical habitat under section 4(b)(2)). However, we 
recognize that our determination about whether to exclude any 
particular area from critical habitat is reviewable under the 
Administrative Procedure Act. (See Weyerhaeuser Co. v. U.S. Fish & 
Wildlife Service, 139 S. Ct. 361 (2018)). For this rule, we followed 
the same basic approach to describing and evaluating impacts as we have 
for several recent critical habitat rulemakings, as informed by our 
Policy Regarding Implementation of Section 4(b)(2) of the ESA (81 FR 
7226, February 11, 2016).
    The following discussion of impacts is summarized from our Final 
Information Report, which identifies the economic, national security, 
and other relevant impacts that we projected would result from 
including each of the specific areas in the critical habitat 
designations. We considered these impacts when deciding whether to 
exercise our discretion to propose excluding particular areas from the 
designations. Both positive and negative impacts were identified and 
considered (these terms are used interchangeably with benefits and 
costs, respectively). Impacts were evaluated in quantitative terms 
where feasible, but qualitative appraisals were used where that is more 
appropriate to particular impacts or available information.
    The primary impacts of a critical habitat designation result from 
the ESA section 7(a)(2) requirement that Federal agencies ensure their 
actions are not likely to result in the destruction or adverse 
modification of critical habitat, and that they consult with NMFS in 
fulfilling this requirement. Determining these impacts is complicated 
by the fact that section 7(a)(2) also requires that Federal agencies 
ensure their actions are not likely to jeopardize the species' 
continued existence. One incremental impact of designation is the 
extent to which Federal agencies modify their proposed actions to 
ensure they are not likely to destroy or adversely modify the critical 
habitat beyond any modifications they would make because of listing and 
the requirement to avoid jeopardy to listed corals. When the same 
modification would be required due to impacts to both the species and 
critical habitat, there would be no additional or incremental impact 
attributable to the critical habitat designation beyond the 
administrative impact associated with conducting the critical habitat 
analysis. Relevant, existing regulatory protections are referred to as 
the ``baseline'' for the analysis and are discussed in the Final 
Information Report. In this case, notable baseline protections include 
the ESA listings of the threatened corals, and the existing critical 
habitat for elkhorn and staghorn corals (73 FR 72210, November 26, 
2008).
    The Final Information Report describes the projected future Federal 
activities that would trigger section 7 consultation requirements if 
they are implemented in the future, because they may affect the 
essential feature and consequently may result in economic costs or 
negative impacts. The report also identifies the potential national 
security and other relevant impacts that may arise due to the critical 
habitat designations, such as positive impacts that may arise from 
conservation of the species and its habitat, state and local 
protections that may be triggered as a result of designation, and 
education of the public to the importance of an area for species 
conservation.

Economic Impacts

    Economic impacts of the critical habitat designations result 
through implementation of section 7 of the ESA in consultations with 
Federal agencies to ensure their proposed actions are not likely to 
destroy or adversely modify critical habitat. The economic impacts of 
consultation may include both administrative and project modification 
costs; economic impacts that may be associated with the conservation 
benefits resulting from consultation are described later. We conducted 
an analysis of the economic impacts of designating particular areas to 
the relevant economic or geopolitical areas (e.g., Florida county, 
Puerto Rico-Metro, USVI island) to assist in projecting the extent to 
which discrete areas may be impacted.
    We updated the economic impact analysis after publication of the 
proposed rule to include the most current information available; 
however, this did not alter the critical habitat designations being 
finalized in this rule. The framework of the updated economic impact 
analysis remains the same as in the Draft Information Report. To 
identify the types and geographic distribution of activities that may 
trigger section 7 consultation for the five corals' critical habitat, 
we first reviewed section 7 consultation history from 2010 to 2020 for 
activities consulted on in the areas being designated as critical 
habitat for the five corals. Of these, the consultation history 
included 4 programmatic, 41 formal, and 341 informal consultations that 
fall within the boundaries of and may affect the final critical habitat 
for the 5 corals. In particular, we reviewed the historical formal 
consultations that may affect the final critical habitat area for the 
five corals in detail to assist in understanding the impacts the 
activities may have on the final critical habitat, and potential 
project modifications. In addition to reviewing the consultation 
history, we conducted targeted outreach to key stakeholders and Federal 
agencies, including the U.S. Army Corps of Engineers (USACE), and state 
and local permitting agencies to identify activities potentially 
subject to consultation. Outreach included interviews with the Florida 
Department of Environmental Protection (FLDEP), Puerto Rico Department 
of Natural and Environmental Resources (DNER), and USVI Department of 
Planning and Natural Resources (DPNR), Office of National Marine 
Sanctuaries, as well as county planning agencies.
    Based on this information, the types of activities that have the 
potential to affect the essential features for the five corals and 
involve a Federal nexus include the following (in order of the most 
frequently occurring within critical habitat units):
     Coastal and In-water Construction (e.g., docks, seawalls, 
piers, marinas, port expansions, anchorages, pipelines/cables, bridge 
repairs, aids to navigation, etc.).
     Channel Dredging (maintenance dredging of existing 
channels, new channel dredging, and offshore disposal of dredged 
material).

[[Page 54043]]

     Beach Nourishment/Shoreline Protection (placement of sand 
onto eroding beaches from onshore or offshore borrow sites).
     Water Quality Management (revision of national and state 
water quality standards, issuance of National Pollutant Discharge 
Elimination System (NPDES) permits and Total Maximum daily load (TMDL) 
standards, registrations of pesticides).
     Protected Area Management (development of management plans 
for national parks, marine sanctuaries, wildlife refuges, etc.).
     Fishery Management (development of fishery management 
plans).
     Aquaculture (development of aquaculture facilities).
     Military Activities (all activities undertaken by the 
Department of Defense, such as training exercises).
     Oil & Gas and Renewable Energy Development (development of 
oil, gas, or renewable energy, such as wind power, in the marine 
environment). Specifically, the Bureau of Ocean Energy Management 
recently gained authority to conduct wind leasing activities in waters 
offshore U.S. Territories, but where such developments may occur 
remains uncertain.
    The vast majority (approximately 88 percent) of historical 
consultations occurring within the critical habitat areas were 
informal. The limited subset of formal and programmatic consultations 
(45 actions) was primarily associated with construction activities, 
beach nourishment/shoreline stabilization, and fishery management 
activities. Activities for which formal and programmatic consultations 
were conducted were all located in areas less than 30 meters deep 
(i.e., within already designated Acropora critical habitat), except for 
fishery management plans, which were relevant to all depths. Activities 
were distributed across most of the designated critical habitat units.
    As discussed in more detail in our Final Information Report, all 
categories of activities identified as having the potential to affect 
the essential feature also have the potential to affect the threatened 
Caribbean corals. To estimate the economic impacts of critical habitat 
designation, our analysis compares the state of the world with and 
without the designation of critical habitat for the five corals. The 
``without critical habitat'' scenario represents the baseline for the 
analysis, considering protections already afforded the critical habitat 
as a result of the listing of the five corals as threatened species and 
as a result of other Federal, state, and local regulations or 
protections, notably the previous designation of critical habitat for 
the two Caribbean acroporids. The ``with critical habitat'' scenario 
describes the state of the world with the critical habitat 
designations. The incremental impacts that will be associated 
specifically with these critical habitat designations are the 
difference between the two scenarios. Baseline protections exist in 
large areas proposed for designation; however, there is uncertainty as 
to the degree of protection that these protections provide. In 
particular:
     The five corals are present in each of the critical 
habitat areas, and are already expected to receive significant 
protections related to the listing of the species under the ESA that 
may also protect the critical habitat. However, there is uncertainty 
regarding whether a particular species may be present within a 
particular project site, due to their patchy distribution throughout 
their habitat.
     The 2008 Acropora critical habitat designation overlaps 
significantly with the specific areas under consideration, and the 
overlap includes the areas where the vast majority of projects and 
activities potentially affected are projected to occur. The existing 
Acropora critical habitat designation shares the substrate aspect of 
the essential feature with this designation for the five corals, but 
not the water quality components. The activities that may affect the 
critical habitat water column feature are the same as those that would 
affect the Acropora critical habitat substrate feature, with the 
exception of activities that would increase water temperature.
    Incremental impacts result from changes in the management of 
projects and activities, above and beyond those changes resulting from 
existing required or voluntary conservation efforts undertaken due to 
other Federal, state, and local regulations or guidelines (baseline 
requirements). The added administrative costs of considering critical 
habitat in section 7 consultation and the additional impacts of 
implementing conservation efforts (i.e., reasonable and prudent 
alternatives in the case of an adverse modification finding) resulting 
from the designation of critical habitat are the direct, incremental 
compliance costs of designating critical habitat.
    Designation of critical habitat for the five coral species is 
unlikely to result in any new section 7 consultations. Given the 
protections afforded through the listing of the five corals, and the 
fact that the critical habitat identified for these species overlaps, 
in part, with Acropora critical habitat, section 7 consultations are 
already likely to occur for activities with a Federal nexus throughout 
the critical habitat areas. However, there may be incremental costs 
associated with those consultations as a result of administrative and 
project modification costs.
    Significant uncertainty exists with respect to the levels and 
locations of future projects and activities that may require section 7 
consultation considering critical habitat for the five corals. Absent 
better information, our analysis bases forecasts of future section 7 
consultations on historical information. This may overstate impacts to 
the extent NMFS handles more consultations on a programmatic basis in 
the future, or it may understate impacts if more formal consultations 
are required as a result of critical habitat designation. However, this 
analysis provides a measure of costs likely to occur in a given area, 
based on the best information available.
    While the historical consultation rate (see Table 1) is likely to 
be an imperfect predictor of the number of future actions, the 
designation of critical habitat for the five corals is not expected to 
result in any new section 7 consultations that would not have already 
been expected to occur absent designation (i.e., triggered solely by 
the designation of critical habitat). This is because, given the 
listing of the five corals, and the fact that the final critical 
habitat overlaps with other listed species (e.g., green, hawksbill, 
leatherback, and loggerhead sea turtles) and critical habitats where 
most activities are occurring, section 7 consultations are already 
likely to occur for activities with a Federal nexus throughout the 
final critical habitat. However, the need to evaluate impacts to the 
final critical habitat in future consultations will add an incremental 
administrative burden in consultations in areas outside of designated 
Acropora critical habitat and consultations that affect water 
temperature.

[[Page 54044]]



               Table 1--Forecast Incremental Section 7 Consultations by Unit and Consultation Type
                                                   [2022-2031]
----------------------------------------------------------------------------------------------------------------
                                                   Programmatic       Formal         Informal
                      Unit                         consultations   consultations   consultations       Total
----------------------------------------------------------------------------------------------------------------
Florida.........................................             1.0             0.5            13.0            14.5
Puerto Rico.....................................             0.0             1.0            15.0            16.0
STT/STJ.........................................             0.0             0.0             2.0             2.0
St. Croix.......................................             0.0             0.0             1.0             1.0
Navassa.........................................             0.0             0.0             0.0             0.0
FGB.............................................             1.0             0.5             0.0             1.5
                                                 ---------------------------------------------------------------
    Total.......................................             2.0             2.0            31.0            35.0
                                                 ---------------------------------------------------------------
% of Total......................................              6%              6%             88%            100%
----------------------------------------------------------------------------------------------------------------

    The administrative effort required to address adverse effects to 
the critical habitat is assumed to be the same, on average, across 
activities regardless of the type of activity (e.g., beach nourishment 
versus channel dredging). Informal consultations are expected to 
require comparatively low levels of administrative effort, while formal 
and programmatic consultations are expected to require comparatively 
higher levels of administrative effort. For all formal and informal 
consultations, we anticipate that incremental administrative costs will 
be incurred by NMFS, a Federal action agency, and potentially a third 
party (e.g., applicant, permittee). For programmatic consultations, we 
anticipate that costs will be incurred by NMFS and a Federal action 
agency. Incremental administrative costs per consultation effort are 
expected on average to be $9,800 for programmatic, $5,300 for formal 
consultations, and $2,600 for informal consultations. We estimate the 
incremental administrative costs of section 7 consultation by applying 
these per consultation costs to the forecast number of consultations. 
We anticipate that there will be 2 programmatic consultations, 2 formal 
consultations, and 31 informal consultations over a 10-year period, 
which will require incremental administrative effort. Incremental 
administrative costs are expected to total approximately $76,000 over 
the next 10 years, an annualized cost of $11,000 (discounted at 7 
percent). The incremental administrative costs are driven by future 
consultations that will require new analysis for the five corals 
critical habitat in areas outside Acropora critical habitat (i.e., 
deeper than 30 m and in some discrete geographies).
    To evaluate incremental project modification costs, information is 
required regarding the extent to which the forecast activities that may 
require project modifications are expected to occur outside of those 
areas subject to sufficient baseline protection (i.e., outside of 
Acropora critical habitat, and where the five corals are not present). 
The project modification recommendations that would result from the 
listing of the species (i.e., to avoid jeopardy to the species) are 
likely to be similar to project modifications that would be undertaken 
to avoid adverse modification of critical habitat. Thus, incremental 
project modifications would only be expected to occur where the species 
are not present. However, information is not available to determine 
where the five corals may be identified as part of a project or 
activity survey within the boundaries of the final critical habitat. 
Treatment of this uncertainty is discussed below. As discussed earlier, 
Acropora critical habitat likely provides sufficient protection for the 
five corals critical habitat, with the exception of projects with 
temperature effects. As such, our analysis of incremental project 
modification costs focuses on the areas of critical habitat for the 
five corals that do not overlap Acropora corals critical habitat and 
those future consultations on federal actions that may result in 
increased water temperature. Overall, 28 consultations with potential 
project modifications and associated costs are projected to occur in 
areas outside of or not affect Acropora critical habitat (e.g., 
consultations with temperature effects) over the next 10 years.
    We recognize that uncertainty exists regarding whether, where, and 
how frequently surveys will identify the presence of the five coral 
species. Should one of the listed corals be present within the area of 
a future project that may also affect critical habitat, the costs of 
project modifications would not be attributable to the critical 
habitat. To reflect the uncertainty with respect to the likelihood that 
these consultations will require additional project modifications due 
to impacts to new critical habitat, we estimated a range of costs. The 
low-end estimate assumes that no incremental project modifications will 
occur because any project modifications would be required to address 
impacts to one of the five corals or to existing Acropora critical 
habitat in a project area. The high-end estimate reflects the 
conservative assumption that all the project modifications would be 
incremental because none of the five corals are present and the action 
would not affect existing Acropora critical habitat. Taking into 
consideration the types and cost estimates of the project modifications 
that may be required for predicted consultations identified, we 
estimate the high-end incremental costs of $690,000 over 10 years for 
an annualized cost of $87,000 (discounted at 7 percent). Similar to the 
projected administrative costs, the majority of the project 
modification costs are associated with coastal and in-water 
construction.
    Total incremental costs resulting from the five corals' critical 
habitat are estimated to range from $76,000 to $690,000 over 10 years, 
or an annualized cost of $11,000 to $198,000 (discounted at 7 percent). 
The low-end costs are a result of the increased administrative effort 
to analyze impacts to the final critical habitat in future 
consultations that would not have affected Acropora critical habitat 
(i.e., in areas outside the boundaries). The high-end costs are a 
result of the increased administrative effort (i.e., low-end costs) 
plus the incremental project modification costs. Incremental project 
modification costs are a result of future consultations that would not 
have had effects on Acropora critical habitat. The high-end costs also 
assume that the project modifications would be solely due to the final 
critical habitat. However, this is likely an overestimate because an 
undetermined number of future consultations will have the same

[[Page 54045]]

project modification as a result of avoiding adverse effects to one or 
more of the five corals. Nearly 90 percent of total high-end 
incremental costs result from project modifications, primarily for 
coastal and in-water construction and beach nourishment activities.
    Table 2 and Table 3 present total low and high-end incremental 
costs by activity type, respectively. Coastal and in-water construction 
accounts for the highest costs, ranging from $42,000 to $530,000 over 
ten years (discounted at 7 percent). The high-end projection represents 
approximately 78 percent of total costs.

[[Page 54046]]



                                                        Table 2--Low-End Total Incremental Costs (Administrative) by Activity, 2022-2031
                                                                                [$2021, 7 percent discount rate]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Coastal &                            Water                                   Coastal &                            Water
                                           in-water     Beach      Channel    quality   Energy   Military               in-water     Beach      Channel    quality   Energy   Military
                  Unit                      const.   nourishment   dredging    mgmt.     dev.     (NAVY)      Total      const.   nourishment   dredging    mgmt.     dev.     (NAVY)     Total
                                           (USACE)     (USACE)     (USACE)     (EPA)    (BOEM)                          (USACE)     (USACE)     (USACE)     (EPA)    (BOEM)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FL......................................    $13,400      $6,600          $0    $6,300    $1,700    $3,300    $31,700      $1,900        $950          $0      $890      $240      $470    $4,400
PR......................................     23,000       1,700       5,000     1,700         0         0     32,000       3,300         240         720       240         0         0     4,500
STT/STJ.................................      3,300           0           0         0         0         0      3,300         470           0           0         0         0         0       470
STX.....................................      1,700           0           0         0         0         0      1,700         240           0           0         0         0         0       240
Nav.....................................          0           0           0         0         0         0          0           0           0           0         0         0         0         0
FGB.....................................          0           0           0         0     7,900         0      7,900           0           0           0         0     1,100         0     1,100
                                         -------------------------------------------------------------------------------------------------------------------------------------------------------
    Total...............................     42,000       8,300       5,000     7,900     9,600     3,300     76,000       5,900       1,200         720     1,100     1,400       470    11,000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The estimates may not sum to the totals reported due to rounding.


                                           Table 3--High-End Total Incremental Costs (Administrative and Project Modification) by Activity, 2022-2031
                                                                                [$2021, 7 percent discount rate]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Coastal &                            Water                                   Coastal &                            Water
                                           in-water     Beach      Channel    quality   Energy   Military               in-water     Beach      Channel    quality   Energy   Military
                  Unit                      const.   nourishment   dredging    mgmt.     dev.     (NAVY)      Total      Const.   nourishment   dredging    mgmt.     dev.     (NAVY)     Total
                                           (USACE)     (USACE)     (USACE)     (EPA)    (BOEM)                          (USACE)     (USACE)     (USACE)     (EPA)    (BOEM)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FL......................................   $170,000     $85,000          $0    $6,300    $1,700    $3,300   $270,000     $24,000     $12,000          $0      $890      $240      $470   $38,000
PR......................................    300,000      21,000      25,000     1,700         0         0    350,000      43,000       3,000       3,500       240         0         0    49,000
STT/STJ.................................     43,000           0           0         0         0         0     43,000       6,100           0           0         0         0         0     6,100
STX.....................................     21,000           0           0         0         0         0     21,000       3,000           0           0         0         0         0     3,000
Nav.....................................          0           0           0         0         0         0          0           0           0           0         0         0         0         0
FGB.....................................          0           0           0         0     7,900         0      7,900           0           0           0         0     1,100         0     1,100
                                         -------------------------------------------------------------------------------------------------------------------------------------------------------
    Total...............................    530,000     110,000      25,000     7,900     9,600     3,300    690,000      76,000      15,000       3,500     1,100     1,400       470    98,000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The estimates may not sum to the totals reported due to rounding.


[[Page 54047]]

National Security Impacts

    Our critical habitat impacts analyses recognize that impacts to 
national security result only if a designation would trigger future ESA 
section 7 consultations because a proposed military activity ``may 
affect'' the critical habitat. Anticipated interference with mission-
essential training or testing or unit readiness, through the additional 
commitment of resources to an adverse modification analysis and 
expected requirements to modify the action to prevent adverse 
modification of critical habitat, has been identified as an impact of 
critical habitat designations. Our impacts analyses also recognize that 
whether national security impacts result from the designation depends 
on whether future consultations would be required under the jeopardy 
standard, due to the coral being present, regardless of the critical 
habitat designation, and whether the designation would add new burdens 
beyond those related to the consultation on effects to the corals.
    As described previously, we identified DoD military operations as a 
category of activity that has the potential to affect the essential 
feature of the critical habitat identified for the five corals. 
However, most of the actions we have consulted on in the past would not 
result in incremental impacts in the future, because the consultations 
would be required to address impacts to either the five corals or the 
substrate feature of Acropora critical habitat. Based on our review of 
historical consultations, only those activities that would be conducted 
in the South Florida Ocean Measuring Facility operated by the Navy near 
Dania, Florida would involve incremental impacts due to the critical 
habitat designations, and thus only consultations on naval activities 
in this particular area could result in national security impacts.
    In 2015, we requested the DoD provide us with information on 
military activities that may affect the proposed critical habitat and 
whether the proposed critical habitat would have a national security 
impact due to the requirement to consult on those activities. The Navy 
responded that activities associated with the designated restricted 
area managed by the South Florida Ocean Measuring Facility (SFOMF-RA), 
defined in 33 CFR 334.580, and located offshore of Dania, Florida, may 
affect the critical habitat. This assertion is supported by two 
previous consultations on cable-laying activities in the SFOMF-RA over 
the past 10 years.
    The SFOMF-RA contains underwater cables and benthic sensor systems 
that enable real-time data acquisition from Navy sensor systems used in 
Navy exercises. The previous consultations, in 2011 and 2013, were for 
the installation of new cables. These consultations did not affect any 
coral species, because the cables were routed to avoid the corals. 
These consultations did not consider effects to Acropora critical 
habitat because the area was excluded from the 2008 Acropora critical 
habitat designation based on national security impacts. However, 
installation of the cables would have affected the substrate feature. 
Because the installation of new cables in the future may affect the 
critical habitat substrate feature, and the area was excluded from 
Acropora critical habitat, an incremental impact to the Navy due to 
critical habitat designation for the five coral species is probable. 
The impact would result from the added administrative effort to 
consider impacts to the coral critical habitat and project 
modifications to avoid adverse effects to the substrate aspect of the 
essential feature.
    The Navy has conducted extensive benthic surveys in the SFOMF-RA 
and has mapped the locations of all listed corals. Thus, they would be 
able to avoid impacts to the listed corals from the installation of new 
cables. However, if the cables were laid over the critical habitat's 
substrate feature, the cable would make the substrate unavailable for 
settlement and recruitment. Thus, we would require consultation to 
evaluate impacts of this adverse effect to the essential feature. The 
administrative costs and project modification costs would be 
incremental impacts of the critical habitat. The Navy concluded that 
critical habitat designations at the SFOMF-RA would likely impact 
national security by diminishing military readiness through the 
requirement to consult on their activities within critical habitat 
beyond the requirement to consult on the threatened corals and through 
any additional project modifications.
    In 2019, the Navy requested the exclusion of the Federal Danger 
Zones and Restricted Areas off NAS Key West designated in 33 CFR 
334.610 and 33 CFR 334.620 in Navy's Key West Operations Area. However, 
at the time of the proposed rule, we were unable to make a 
determination and continued discussion with the Navy to identify the 
potential national security impacts in these areas.
    In March 2021, the Navy provided a final report titled: Atlantic 
Fleet Training and Testing Activities, Caribbean Coral Critical Habitat 
Conference Package to assist in evaluating the impact of their 
activities that may affect the proposed critical habitat. With the 
exception of those activities, which occur on SFOMF-RA, based on the 
Navy's description and locations of the activities, standard operating 
procedures, and mitigation measures, we do not expect that the Navy 
would have to change their activities through project modifications in 
section 7 consultation based on the designation of critical habitat for 
the five corals.

Other Relevant Impacts

    We identified two broad categories of other relevant impacts of 
this critical habitat designation: conservation benefits, both to the 
species and to society, and impacts on governmental or private entities 
that are implementing existing management plans that provide benefits 
to the listed species. Our Final Impacts Analysis discusses 
conservation benefits of designating the 28 specific areas, and the 
benefits of conserving the 5 corals to society, in both ecological and 
economic metrics.

Conservation Benefits

    The primary benefit of critical habitat designation is the 
contribution to the conservation and recovery of the five corals. That 
is, in protecting the features essential to the conservation of the 
species, critical habitat directly contributes to the conservation and 
recovery of the species. Our analysis contemplated three broad 
categories of benefits of the critical habitat designation:
    (1) Increased probability of conservation and recovery of the five 
corals: The most direct benefits of the critical habitat designation 
stem from the enhanced probability of conservation and recovery of the 
five corals. From an economics perspective, the appropriate measure of 
the value of this benefit is people's ``willingness-to-pay'' for the 
incremental change. While the existing economics literature is 
insufficient to provide a quantitative estimate of the extent to which 
people value incremental changes in recovery potential, the literature 
does provide evidence that people have a positive preference for listed 
species conservation, even beyond any direct (e.g., recreation such as 
viewing the species while snorkeling or diving) or indirect (reef 
fishing that is supported by the presence of healthy reef ecosystems) 
use for the species.
    (2) Ecosystem service benefits of coral reef conservation, in 
general: Overall, coral reef ecosystems, including those

[[Page 54048]]

comprising populations of the five corals, provide important ecosystem 
services of value to individuals, communities, and economies. These 
include recreational opportunities (and associated tourism spending in 
the regional economy), habitat and nursery functions for recreationally 
and commercially valuable fish species, shoreline protection in the 
form of wave attenuation and reduced beach erosion, and climate 
stabilization via carbon sequestration. Efforts to conserve the five 
corals also benefit the broader reef ecosystems, thereby preserving or 
improving these ecosystem services.
    Critical habitat most directly influences the recovery potential of 
the species and protects coral reef ecosystem services by the 
protections afforded under section 7 of the ESA. That is, these 
benefits stem from implementation of project modifications undertaken 
to avoid destruction and adverse modification of critical habitat. 
Accordingly, critical habitat designation is most likely to generate 
benefits discussed in those areas expected to be subject to additional 
recommendations for project modifications (above and beyond any 
conservation measures that may be implemented in the baseline due to 
the listing status of the species or for other reasons).
    (3) Education and Awareness Benefits: There is the potential for 
education and awareness benefits arising from the critical habitat 
designations. This potential stems from two sources: (1) entities that 
engage in section 7 consultation and (2) members of the general public 
interested in coral conservation. The former potential exists from 
parties who alter their activities to benefit the species or essential 
feature because they were made aware of the critical habitat 
designations through the section 7 consultation process. The latter may 
engage in similar efforts because they learned of the critical habitat 
designations through outreach materials. For example, we have been 
contacted by diver groups in the Florida Keys who are specifically 
seeking the two Caribbean acroporid corals on dives and reporting those 
locations to NMFS, thus assisting us in planning and implementing coral 
conservation and management activities. In our experience, designation 
raises the public's awareness that there are special considerations to 
be taken within the area.
    Similarly, state and local governments may be prompted to enact 
laws or rules to complement the critical habitat designations and 
benefit the listed corals. Those laws would likely result in additional 
impacts of the designations. However, it is impossible to quantify the 
beneficial effects of the awareness gained through, or the secondary 
impacts from state and local regulations resulting from, the critical 
habitat designations.

Impacts to Governmental and Private Entities With Existing Management 
Plans Benefitting the Essential Features

    Among other relevant impacts of the critical habitat designations 
we considered under section 4(b)(2) of the ESA are impacts on 
relationships with, or the efforts of, private and public entities 
involved in management or conservation efforts benefiting listed 
species. In some cases, the additional regulatory layer of a 
designation could negatively impact the conservation benefits provided 
to the listed species by existing or proposed management or 
conservation plans.
    Existing management plans and associated regulations protect 
existing coral reef resources, but they do not specifically protect the 
substrate and water quality features for purposes of increasing listed 
coral abundance and eventual recovery. Thus, the five corals critical 
habitat designation would provide unique benefits for the corals, 
beyond the benefits provided by existing management plans. However, the 
identified areas contain not only the essential features, but also one 
or more of the five corals, and overlap with Acropora critical habitat. 
In addition, consultations related to protected area management over 
the next 10 years are not expected to result in incremental project 
modifications as these protected areas generally provide specific 
regulations to protect coral reefs. Hence, any section 7 impacts will 
likely be limited to administrative costs. Because we identified that 
resource management was a category of activities that may affect both 
the five corals and the critical habitat, these impacts would not be 
incremental. In addition, we found no evidence that relationships would 
be negatively affected or that negative impacts to other agencies' 
ability to provide for the conservation of the listed coral species 
would result from designation.

Discretionary Exclusions Under Section 4(b)(2)

    We are not exercising our discretion to exclude areas based on 
economic impacts. Our conservative identification of the highest 
potential incremental economic impacts indicates that any such impacts 
will be relatively small--$11,000 to $98,000 annually. The incremental 
costs are split between the incremental administrative effort and 
incremental project modification costs for the relatively few (about 
35) consultations over the next 10 years. Further, the analysis 
indicates that there is no particular area within the units that meet 
the definition of critical habitat where economic impacts would be 
particularly high or concentrated as compared to the human population 
and level of activities in each unit.
    We are excluding one particular area on the basis of national 
security impacts. National security impacts would occur in the 
designated restricted area managed by the SFOMF-RA offshore Dania 
Beach, Florida, which coincides with all five threatened corals' 
proposed critical habitats. The area does support the essential feature 
and contains the five threatened Caribbean corals. The Navy concluded 
that critical habitat designations at the SFOMF-RA would likely impact 
national security by diminishing military readiness through the 
requirement to consult on their activities within critical habitat 
beyond the requirement to consult on the threatened corals and 
potentially result in additional project modifications. This is likely 
because the Navy, which has comprehensive maps of all threatened coral 
locations within the SFOMF-RA, would need to avoid impacts to the 
substrate aspect of the essential feature in addition to avoiding 
impacts to the listed corals themselves, should any new cables or 
sensors be installed. The Navy stated that impediments to SFOMF 
operations would adversely impact the Navy's ability to maintain an 
underwater stealth advantage of future classes of ships and submarines 
and impede our Nation's ability to address emergent foreign threats. 
The Navy stated that the critical habitat designations would hinder its 
ability to continue carrying out the unique submarine training provided 
by this facility, as no other U.S. facility has the capability to make 
the cable-to-shore measurements enabled at the SFOMF that satisfy its 
requirement to assure the newest submarines are not vulnerable to 
electromagnetic detection. The Navy advised the loss of this capability 
would directly impact new construction of submarines and submarines 
already in the fleet that are being readied for deployment. Therefore, 
SFOMF's activities are necessary to maintain proficiency in mission-
essential tactics for winning wars, deterring aggression, and 
maintaining freedom of the seas. The excluded area comprises a very 
small portion of the areas that meet the definition of critical 
habitat. Navy regulations prohibit anchoring, trawling,

[[Page 54049]]

dredging, or attaching any object within the area; thus, the corals and 
their habitat will be protected from these threats. Further, the corals 
and their habitat will still be protected through ESA section 7 
consultations that prohibit jeopardizing the species' continued 
existence and require modifications to minimize the impacts of 
incidental take. Further, we do not foresee other Federal activities 
that might adversely impact critical habitat that would be exempted 
from future consultation requirements due to this exclusion, since this 
area is under exclusive military control. Therefore, in our judgment, 
the benefit of designating the particular area of the SFOMF-RA as 
critical habitat is outweighed by the benefit of avoiding the impacts 
to national security the Navy would experience if it were required to 
consult based on critical habitat. Given the small area (5.5 mi\2\ 
(14.2 km\2\)) that meets the definition of critical habitat encompassed 
by this area, we conclude that exclusion of this area will not result 
in extinction of any of the five threatened Caribbean corals.
    We are not excluding any other areas based on national security 
impacts. While the Navy requested the Federal Danger Zones and 
Restricted Areas off NAS Key West be excluded, we conclude it is 
unlikely that changes to the activities conducted in these areas would 
be required through project modifications because of section 7 
consultation.
    We are not excluding any particular area based on other relevant 
impacts. Other relevant impacts include conservation benefits of the 
designations, both to the species and to society. Because the feature 
that forms the basis of the critical habitat designations is essential 
to the conservation of the five threatened Caribbean corals, the 
protection of critical habitat from destruction or adverse modification 
may at minimum prevent loss of the benefits currently provided by the 
species and their habitat and may contribute to an increase in the 
benefits of these species to society in the future. While we cannot 
quantify or monetize the benefits, we conclude they are not negligible 
and would be an incremental benefit of these designations.

Critical Habitat Designations

    Our critical habitat regulations state that we will show critical 
habitat on a map instead of using lengthy textual descriptions to 
describe critical habitat boundaries, with additional information 
discussed in the preamble of the rulemaking and in agency records (50 
CFR 424.12(c)). When several habitats, each satisfying the requirements 
for designation as critical habitat, are located in proximity to one 
another, an inclusive area may be designated as critical habitat (50 
CFR 424.12(d)).
    The habitat containing the essential feature and that may require 
special management considerations or protection is marine habitat of 
particular depths for each species in the Atlantic Ocean, Gulf of 
Mexico, and Caribbean Sea. The boundaries of each specific area for 
each coral species are determined by the species' commonly occupied 
minimum and maximum depth ranges (i.e., depth contour) within their 
specific geographic distributions, as described in the literature and 
observed in monitoring data. All depths are relative to mean low water 
(MLW). Because the quality of the available GIS data varies based on 
collection method, resolution, and processing, the critical habitat 
boundaries are defined by the maps in combination with the textual 
information included in the final regulation. This textual information 
clarifies and refines the location and boundaries of each area. In 
particular, the textual information clarifies the boundaries of the 
critical habitat for each coral species based on a specific water-depth 
range. The textual information also lists certain particular areas that 
are not included in the critical habitat.

Critical Habitat Unit Descriptions

    Table 4 describes each unit of critical habitat for each species. 
It contains the geographic extent and water depths of all occupied 
areas, which generally form the boundaries of each unit.

                                        Table 4--Description and Extent of Each Critical Habitat Unit by Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Critical habitat unit                                                                               Area  (approx.
             Species                         name                   Location              Geographic extent      Water depth range         rounded)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Orbicella annularis..............  OANN-1.................  Florida.................  Lake Worth Inlet, Palm    2-20m (6.5-65.6 ft)  7,000 km\2\
                                                            Florida.................   Beach County to          0.5-20m (1.6-65.6     (2,700mi\2\)
                                                                                       Government Cut, Miami-    ft).
                                                                                       Dade County.
                                                                                      Government Cut, Miami-
                                                                                       Dade County to Dry
                                                                                       Tortugas.
                                   OANN-2.................  Puerto Rico.............  All islands.............  0.5-20m (1.6-65.6    2,100 km\2\
                                                                                                                 ft).                 (830mi\2\)
                                   OANN-3.................  USVI....................  All islands of St.        0.5-20m (1.6-65.6    100 km\2\ (40mi\2\)
                                                                                       Thomas and St. John.      ft).
                                   OANN-4.................  USVI....................  All islands of St. Croix  0.5-20m (1.6-65.6    230 km\2\ (89
                                                                                                                 ft).                 mi\2\)
                                   OANN-5.................  Navassa.................  Navassa Island..........  0.5-20m (1.6-65.6    0.13 km\2\ (0.05
                                                                                                                 ft).                 mi\2\)
                                   OANN-6.................  FGB.....................  East Flower Garden Bank   16-90m (53-295 ft).  88 km\2\ (34 mi\2\)
                                                                                       and West Flower Garden
                                                                                       Bank.
Orbicella faveolata..............  OFAV-1.................  Florida.................  St. Lucie Inlet, Martin   2-40m (6.5-131 ft).  9,600 km\2\
                                                            Florida.................   County to Government     0.5-40m (1.6-131      (3,700mi\2\)
                                                                                       Cut, Miami-Dade County.   ft).
                                                                                      Government Cut, Miami-
                                                                                       Dade County to Dry
                                                                                       Tortugas.
                                   OFAV-2.................  Puerto Rico.............  All islands of Puerto     0.5-90m (1.6-295     5,500 km\2\
                                                                                       Rico.                     ft).                 (2,100mi\2\)
                                   OANN-3.................  USVI....................  All islands of St.        0.5-90m (1.6-295     1,400 km\2\
                                                                                       Thomas and St. John.      ft).                 (520mi\2\)
                                   OFAV-4.................  USVI....................  All islands of St. Croix  0.5-90m (1.6-295     360 km\2\
                                                                                                                 ft).                 (140mi\2\)
                                   OFAV-5.................  Navassa.................  Navassa Island..........  0.5-90m (1.6-295     11 km\2\ (4 mi\2\)
                                                                                                                 ft).
                                   OFAV-6.................  FGB.....................  East Flower Garden Bank   16-90m (53-295 ft).  88 km\2\ (34 mi\2\)
                                                                                       and West Flower Garden
                                                                                       Bank.
Orbicella franksi................  OFRA-1.................  Florida.................  St. Lucie Inlet, Martin   2-40m (6.5-131 ft).  9,200 km\2\
                                                            Florida.................   County to Government     0.5-40m (1.6-131      (3,600mi\2\)
                                                                                       Cut, Miami-Dade County.   ft).
                                                                                      Government Cut, Miami-
                                                                                       Dade County to Dry
                                                                                       Tortugas.
                                   OFRA-2.................  Puerto Rico.............  All islands of Puerto     0.5-90m (1.6-295     5,500 km\2\
                                                                                       Rico.                     ft).                 (2,100mi\2\)
                                   OFRA-3.................  USVI....................  All islands of St.        0.5-90m (1.6-295     1,400 km\2\
                                                                                       Thomas and St. John.      ft).                 (520mi\2\)
                                   OFRA-4.................  USVI....................  All islands of St. Croix  0.5-90m (1.6-295     360 km\2\
                                                                                                                 ft).                 (140mi\2\)
                                   OFRA-5.................  Navassa.................  Navassa Island..........  0.5-90m (1.6-295     11 km\2\ (4 mi\2\)
                                                                                                                 ft).
                                   OFRA-6.................  FGB.....................  East Flower Garden Bank   16-90m (53-295 ft).  88 km\2\ (34 mi\2\)
                                                                                       and West Flower Garden
                                                                                       Bank.

[[Page 54050]]

 
Dendrogyra cylindrus.............  DCYL-1.................  Florida.................  Lake Worth Inlet, Palm    2-25m (6.5-82 ft)..  4,300 km\2\
                                                            Florida.................   Beach County to          1-25m (3.3-82 ft)..   (1,700mi\2\)
                                                                                       Government Cut, Miami-
                                                                                       Dade County.
                                                                                      Government Cut, Miami-
                                                                                       Dade County to Dry
                                                                                       Tortugas.
                                   DCYL-2.................  Puerto Rico.............  All islands.............  1-25m (3.3-82 ft)..  2,800 km\2\
                                                                                                                                      (1,100mi\2\)
                                   DCYL-3.................  USVI....................  All islands of St.        1-25m (3.3-82 ft)).  170 km\2\ (65mi\2\)
                                                                                       Thomas and St. John.
                                   DCYL-4.................  USVI....................  All islands of St. Croix  1-25m (3.3-82 ft)..  300 km\2\
                                                                                                                                      (120mi\2\)
                                   DCYL-5.................  Navassa.................  Navassa Island..........  1-25m (3.3-82 ft)).  0.5 km\2\
                                                                                                                                      (0.2mi\2\)
Mycetophyllia ferox..............  MFER-1.................  Florida.................  Broward County to Dry     5-40m (16.4-131 ft)  4,400 km\2\
                                                                                       Tortugas.                                      (1.700mi\2\)
                                   MFER-2.................  Puerto Rico.............  All islands of Puerto     5-90m (16.4-295 ft)  5,000 km\2\
                                                                                       Rico.                                          (1,900mi\2\)
                                   MFER-3.................  USVI....................  All islands of St.        5-90m (16.4-295 ft)  1,300 km\2\
                                                                                       Thomas and St. John.                           (510mi\2\)
                                   MFER-4.................  USVI....................  All islands of St. Croix  5-90m (16.4-295 ft)  310 km\2\
                                                                                                                                      (120mi\2\)
                                   MFER-5.................  Navassa.................  Navassa Island..........  5-90m (16.4-295 ft)  11 km\2\ (4mi\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------

Effects of Critical Habitat Designations

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

Activities That May Be Affected

    Section 4(b)(8) of the ESA requires that we describe briefly, and 
evaluate in any proposed or final regulation to designate critical 
habitat, those activities that may adversely modify such habitat or 
that may be affected by such designation. As described in our Final 
Information Report, a wide variety of Federal activities may require 
ESA section 7 consultation because they may affect the essential 
feature of critical habitat. Specific future activities will need to be 
evaluated with respect to their potential to destroy or adversely 
modify critical habitat, in addition to their potential to affect and 
jeopardize the continued existence of listed species. For example, 
activities may adversely modify the substrate portion of the essential 
feature by removing or altering the substrate or adversely modify the 
water column portion of the essential feature by reducing water clarity 
through turbidity. These activities would require ESA section 7 
consultation when they are authorized, funded, or carried out by a 
Federal agency. A private entity may also be affected by these proposed 
critical habitat designations if it is a proponent of a project that 
requires a Federal permit or receives Federal funding.
    Categories of activities that may be affected by the designations 
include but are not limited to coastal and in-water construction, 
channel dredging, beach nourishment, shoreline protection, water 
quality management, energy development, and military activities. 
Questions regarding whether specific activities may constitute 
destruction or adverse modification of critical habitat should be 
directed to us (see FOR FURTHER INFORMATION CONTACT). Identifying 
concentrations of water quality features at which the habitat for 
listed corals may be affected is inherently complex and influenced by 
taxa, exposure duration, and acclimatization to localized seawater 
regimes. Consequently, the actual responses of the critical habitat 
(and listed corals) to changes in the essential feature resulting from 
future Federal actions will be case and site-specific, and predicting 
such responses will require case and site-specific data and analyses.

[[Page 54051]]

Information Quality Act and Peer Review

    The data and analyses supporting this action have undergone a pre-
dissemination review and have been determined to be in compliance with 
applicable information quality guidelines implementing the Information 
Quality Act (Section 515 of Pub. L. 106-554). On December 16, 2004, OMB 
issued its Final Information Quality Bulletin for Peer Review 
(Bulletin). The Bulletin was published in the Federal Register on 
January 14, 2005 (70 FR 2664), and went into effect on June 16, 2005. 
The primary purpose of the Bulletin is to improve the quality and 
credibility of scientific information disseminated by the Federal 
government by requiring peer review of ``influential scientific 
information'' and ``highly influential scientific information'' prior 
to public dissemination. ``Influential scientific information'' is 
defined as information the agency reasonably can determine will have or 
does have a clear and substantial impact on important public policies 
or private sector decisions. The Bulletin provides agencies broad 
discretion in determining the appropriate process and level of peer 
review. Stricter standards were established for the peer review of 
highly influential scientific assessments, defined as information whose 
dissemination could have a potential impact of more than $500 million 
in any one year on either the public or private sector or that the 
dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.
    The information in the Draft Information Report supporting this 
critical habitat rule was considered influential scientific information 
and subject to peer review. To satisfy our requirements under the OMB 
Bulletin, we obtained independent peer review of the information used 
to draft this document, and incorporated the peer review comments into 
the Draft Information Report prior to dissemination of the Final 
Information Report and completion of this rule. Comments received from 
peer reviewers are available on our website at http://www.cio.noaa.gov/services_programs/prplans/ID346.html.

References Cited

    A complete list of all references cited in this rulemaking is 
available at https://www.fisheries.noaa.gov/action/final-rule-designate-critical-habitat-threatened-caribbean-corals, or upon request 
(see FOR FURTHER INFORMATION CONTACT).

Classification

Takings (Executive Order 12630)

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions on constitutionally protected private property rights and 
avoid unnecessary takings of private property. A taking of property 
includes actions that result in physical invasion or occupancy of 
private property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with E.O. 12630, 
this final rule would not have significant takings implications. A 
takings implication assessment is not required. These designations 
would affect only Federal agency actions (i.e., those actions 
authorized, funded, or carried out by Federal agencies). Therefore, the 
critical habitat designations does not affect landowner actions that do 
not require Federal funding or permits.

Regulatory Planning and Review (E.O.s 12866, 14094, 13563)

    This rule has been determined to be significant for purposes of 
E.O. 12866 as amended by Executive Order 14094. Executive Order 14094, 
which amends E.O. 12866 and reaffirms the principles of E.O. 12866 and 
E.O 13563, states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and be consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements.
    A final impact analysis report, which has been prepared as part of 
the Final Information Report, considers the economic costs and benefits 
of this critical habitat designation and alternatives to this 
rulemaking as required under E.O. 12866. To review this report, see the 
ADDRESSES section above. Based on the economic impacts evaluation in 
the Final Information Report, total incremental costs resulting from 
the five corals' critical habitat are estimated to range from $76,000 
to $690,000 over 10 years, an annualized cost of $11,000 to $98,000 
(discounted at 7 percent). These same total incremental costs are 
$92,000 to $830,000 over 10 years discounted at 3 percent. The low-end 
costs are a result of the increased administrative effort to analyze 
impacts to the critical habitat in future consultations on activities 
that are not projected to affect Acropora critical habitat (i.e., in 
areas outside the boundaries, projects with impacts to water 
temperature). The high-end costs are a result of the increased 
administrative effort (i.e., low-end costs) plus the incremental 
project modification costs that stem solely from the critical habitat. 
Incremental project modification costs are a result of future 
consultations that are not projected to have effects on Acropora 
critical habitat. The high-end costs also assume that the project 
modifications will be solely a result of the critical habitat, and not 
the presence of the species. However, the high-end estimate is very 
likely an overestimate on incremental costs because an undetermined 
number of future consultations will have project modifications that 
address adverse effects to one or more of the five corals, as well as 
adverse effects to the new critical habitat. The final rule also 
provides unquantifiable conservation benefits in the following 
categories: (1) increased probability of conservation and recovery of 
the corals, (2) general ecosystem service benefits of coral reef 
conservation, and (3) education and awareness.

Federalism (Executive Order 13132)

    Pursuant to the Executive Order on Federalism, E.O. 13132, we 
determined that this rule does not have significant federalism effects 
and that a federalism assessment is not required. The designation of 
critical habitat directly affects only the responsibilities of Federal 
agencies. As a result, this rule does not have substantial direct 
effects on the States or territories, on the relationship between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in E.O. 13132. State or local governments may be indirectly affected by 
this critical habitat designation if they require Federal funds or 
formal approval or authorization from a Federal agency as a 
prerequisite to conducting an action. In these cases, the State or 
local government agency may participate in the ESA section 7 
consultation as a third party. One of the key conclusions of the 
economic impact analysis is that the incremental impacts of the 
critical habitat designation will likely be limited to additional 
administrative costs to NMFS and Federal agencies stemming from the

[[Page 54052]]

need to consider impacts to critical habitat as part of the forecasted 
section 7 consultations. The designation of critical habitat is not 
expected to have substantial indirect impacts on State or local 
governments.

Energy Supply, Distribution, and Use (Executive Order 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking an action expected to lead to the 
promulgation of a final rule or regulation that is a significant 
regulatory action under E.O. 12866 and is likely to have a significant 
adverse effect on the supply, distribution, or use of energy. OMB 
Guidance on Implementing E.O. 13211 (July 13, 2001) states that 
significant adverse effects could include any of the following outcomes 
compared to a world without the regulatory action under consideration: 
(1) reductions in crude oil supply in excess of 10,000 barrels per day; 
(2) reductions in fuel production in excess of 4,000 barrels per day; 
(3) reductions in coal production in excess of 5 million tons per year; 
(4) reductions in natural gas production in excess of 25 million cubic 
feet per year; (5) reductions in electricity production in excess of 1 
billion kilowatt-hours per year or in excess of 500 megawatts of 
installed capacity; (6) increases in energy use required by the 
regulatory action that exceed any of the thresholds above; (7) 
increases in the cost of energy production in excess of 1 percent; (8) 
increases in the cost of energy distribution in excess of 1 percent; or 
(9) other similarly adverse outcomes. A regulatory action could also 
have significant adverse effects if it: (1) adversely affects in a 
material way the productivity, competition, or prices in the energy 
sector; (2) adversely affects in a material way productivity, 
competition or prices within a region; (3) creates a serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency regarding energy; or (4) raises novel legal or policy 
issues adversely affecting the supply, distribution or use of energy 
arising out of legal mandates, the President's priorities, or the 
principles set forth in E.O. 12866 and 13211.
    This rule will not have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, we have not prepared a 
Statement of Energy Effects.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    We prepared a final regulatory flexibility analysis (FRFA) pursuant 
to section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601, 
et seq.). The FRFA analyzes the impacts to small entities that may be 
affected by the critical habitat designations, and it is included as 
Appendix B of the Final Information Report and is available upon 
request (see ADDRESSES section). The FRFA is summarized below, as 
required by section 603 of the RFA.
    Our FRFA uses the best available information to identify the 
potential impacts of critical habitat on small entities. However, there 
are uncertainties that complicate quantification of these impacts, 
particularly with respect to the extent to which the quantified impacts 
may be borne by small entities. As a result, this FRFA employs a 
conservative approach (i.e., more likely to overestimate than 
underestimate impacts to small entities) in assuming that the 
quantified costs that are not borne by the Federal Government are 
generally borne by small entities. This analysis focuses on small 
entities located in Broward, Martin, Miami-Dade, Monroe, and Palm Beach 
Counties in Florida; Puerto Rico; St. Thomas and St. John; and St. 
Croix.
    The total maximum annualized impacts to small entities are 
estimated to be $88,000, which represents approximately 90 percent of 
the total quantified incremental impacts forecasted to result from the 
critical habitat designations. This impact assumes that all of the 
incremental project modification costs will be incurred by small 
entities. These impacts are anticipated to be borne by the small 
entities that obtain funds or permits from Federal agencies that 
consult with NMFS regarding the five coral species critical habitat in 
the next 10 years. Given the uncertainty regarding which small entities 
in a given industry will obtain funds or permits from Federal agencies 
that will need to consult with NMFS, this analysis estimates impacts to 
small entities under two different scenarios. These scenarios are 
intended to reflect the range of uncertainty regarding the number of 
small entities that may be affected by the designations and the 
potential impacts of critical habitat designations on their annual 
revenues within that range.
    Under Scenario 1, this analysis assumes that all third parties 
participating in future consultations are small, and that incremental 
impacts are distributed evenly across all of these entities. Scenario 1 
accordingly reflects a high estimate of the number of potentially 
affected small entities and a low estimate of the potential effect in 
terms of percent of revenue. This scenario, therefore, overstates the 
number of small entities likely to be affected by the rule and 
potentially understates the revenue effect. This analysis anticipates 
that 28 small entities engaged in coastal and in-water construction and 
dredging activities will collectively incur approximately $88,000 in 
annualized costs under Scenario 1. However, because these costs are 
shared among 28 entities, annualized impacts of the rule are estimated 
to make up less than 1 percent of annual revenues for each affected 
small entity.
    Under Scenario 2, this analysis assumes costs associated with each 
consultation action are borne to a single small entity within an 
industry. This method understates the number of small entities affected 
but overstates the likely impacts on an entity. As such, this method 
arrives at a low estimate of potentially affected entities and a high 
estimate of potential effects on revenue, assuming that quantified 
costs represent a complete accounting of the costs likely to be borne 
by private entities. For the coastal and in-water construction and 
dredging industry, this scenario forecasts $88,000 in annualized 
impacts would be borne by a single small entity. Though this estimate 
is almost certainly an overstatement of the costs borne by a single 
small entity, the impact is nonetheless expected to result in impacts 
that are less than 5 percent of the average annual revenues for a small 
entity in this industry.
    While these scenarios present a broad range of potentially affected 
entities and the associated revenue effects, we expect the actual 
number of small entities affected and revenue effects will be somewhere 
in the middle. In other words, some subset greater than 1 and less than 
28 of the small entities will participate in section 7 consultations on 
the five corals and bear associated impacts annually. Regardless, our 
analysis demonstrates that, even if we assume a low-end estimate of 
affected small entities, the greatest potential revenue effect is still 
less than 5 percent.
    Even though we cannot definitively determine the numbers of small 
and large entities that may be affected by this rule, there is no 
indication that affected project applicants would be only small 
entities or mostly small entities. It is unclear whether small entities 
would be placed at a competitive disadvantage compared to large 
entities. However, as described in the Final Information Report, 
consultations and project modifications will be required based on the 
type of permitted action and its associated

[[Page 54053]]

impacts on the essential critical habitat feature. Because the costs of 
many potential project modifications that may be required to avoid 
adverse modification of critical habitat are unit costs (e.g., per mile 
of shoreline, per cubic yard of sand moved), such that total project 
modification costs would be proportional to the size of the project, it 
is not unreasonable to assume that larger entities would be involved in 
implementing the larger projects with proportionally larger project 
modification costs.
    No Federal laws or regulations duplicate or conflict with this 
rule. However, other aspects of the ESA may overlap with the critical 
habitat designations. For instance, listing of the threatened corals 
under the ESA requires Federal agencies to consult with NMFS to avoid 
jeopardy to the species, and large portions of the designations overlap 
with existing Acropora critical habitat. However, this analysis 
examines only the incremental impacts to small entities from this final 
rule's critical habitat designations.
    The alternatives to the designations considered consisted of a no-
action alternative and an alternative based on identical geographic 
designations for each of the five corals. The no-action, or no 
designation, alternative would result in no additional ESA section 7 
consultations relative to the status quo of the species' listing. 
Critical habitat must be designated if prudent and determinable. NMFS 
determined that the critical habitat is prudent and determinable, and 
the ESA requires critical habitat designation in that circumstance. 
Further, we have determined that the physical feature forming the basis 
for our critical habitat designations is essential to the corals' 
conservation, and conservation of these species will not succeed 
without this feature being available. Thus, the lack of protection of 
the critical habitat feature from adverse modification could result in 
continued declines in abundance and lack of recovery of the five 
corals. We rejected this no action alternative because it does not 
provide the level of conservation necessary for the five Caribbean 
corals. In addition, declines in abundance of the five corals would 
result in loss of associated economic and other values these corals 
provide to society, such as recreational and commercial fishing and 
diving services and shoreline protection services. Thus, small entities 
engaged in some coral reef-dependent industries would be adversely 
affected by the continued declines in the five corals. As a result, the 
no action alternative is not necessarily a ``no cost'' alternative for 
small entities.
    The identical geographic designation alternative would designate 
exactly the same geography for each of the five corals (i.e., 0.5 to 90 
m throughout the maximum geographic extent of all the corals' ranges 
collectively). This alternative would likely result in the same number 
and complexity of consultations as the proposed rule, because 
collectively all of the units in the proposed rule cover the same 
geography as the identical geographic designation alternative. However, 
this alternative does not provide the appropriate conservation benefits 
for each species, as it would designate areas in which one particular 
species may not exist (e.g., Dendrogyra cylindrus only occupies 1 to 25 
m). Therefore, we rejected the identical geographic designation 
alternative because it does not provide the level of conservation 
necessary for the five Caribbean corals, and because it does not 
accurately reflect the habitats that are critical for each species. 
Furthermore, it would be overly burdensome to Federal action agencies 
to consider impacts to habitat in areas where the species do not occur.

Coastal Zone Management Act

    We have determined that this action will have no reasonably 
foreseeable effects on the enforceable policies of approved Florida, 
Puerto Rico, and USVI coastal zone management plans.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new or revised collection of 
information requirements. This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    This rule will not produce a Federal mandate. The designation of 
critical habitat does not impose a legally-binding duty on non-Federal 
government entities or private parties. The only regulatory effect is 
that Federal agencies must ensure that their actions are not likely to 
destroy or adversely modify critical habitat under section 7 of the 
ESA. Non-Federal entities that receive Federal funding, assistance, 
permits or otherwise require approval or authorization from a Federal 
agency for an action may be indirectly impacted by the designation of 
critical habitat, but the Federal agency has the legally binding duty 
to avoid destruction or adverse modification of critical habitat.
    We do not anticipate that this rule will significantly or uniquely 
affect small governments. Therefore, a Small Government Action Plan is 
not required.

Consultation and Coordination With Indian Tribal Governments (Executive 
Order 13175)

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government.
    This relationship has given rise to a special Federal trust 
responsibility involving the legal responsibilities and obligations of 
the United States toward Indian Tribes and with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. 
Pursuant to these authorities, lands have been retained by Indian 
Tribes or have been set aside for tribal use. These lands are managed 
by Indian Tribes in accordance with tribal goals and objectives within 
the framework of applicable treaties and laws. Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, outlines 
the responsibilities of the Federal Government in matters affecting 
tribal interests.
    In developing this rule, we reviewed maps and did not identify any 
areas under consideration for critical habitat that overlap with Indian 
lands. Based on this, we found the critical habitat designations for 
threatened Caribbean corals do not have tribal implications.

Environmental Justice and Racial Equity (E.O.s 12898, 14096, 14019, 
13985)

    The designation of critical habitat is not expected to have a 
disproportionately high effect on minority populations or low-income 
populations. The purpose of this rule is to protect and conserve ESA-
listed species through the designation of critical habitat and is 
expected to help promote a healthy environment; thus, we do not 
anticipate minority populations or low-income populations to experience 
disproportionate and adverse human health or environmental burdens. The 
designation of critical habitat is not expected to disproportionately 
affect minority populations, low-income populations, or populations 
otherwise adversely affected by persistent poverty or inequality. 
Further, it is not expected to create any barriers to opportunity for 
underserved communities. The proposed rule was widely distributed, 
including to the affected states and

[[Page 54054]]

territorial governments. We did not receive any public comments 
suggesting the designation would result in adverse effects on these 
communities.

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 226

    Endangered and threatened species.

    Dated: July 31, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR parts 
223 and 226 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 
issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for Sec.  
223.206(d)(9).


0
2. In Sec.  223.102 amend the table in paragraph (e), under the heading 
``Corals'' by revising the entries ``Coral, boulder star''; ``Coral, 
lobed star''; ``Coral, mountainous star''; ``Coral, pillar''; and 
``Coral, rough cactus'' to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Species \1\
---------------------------------------------------------------------------------------  Citation(s) for listing
                                                                Description of  listed      determination(s)         Critical habitat        ESA rules
             Common name                  Scientific name               entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Corals
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Coral, boulder star.................  Orbicella franksi......  Entire species.........  79 FR 53852, Sept. 10,    [Insert 226.230]......              NA
                                                                                         2014.
 
                                                                      * * * * * * *
Coral, lobed star...................  Orbicella annularis....  Entire species.........  79 FR 53852, Sept. 10,    [Insert 226.230]......              NA
                                                                                         2014.
Coral, mountainous star.............  Orbicella faveolata....  Entire species.........  79 FR 53852, Sept. 10,    [Insert 226.230]......              NA
                                                                                         2014.
Coral, pillar.......................  Dendrogyra cylindrus...  Entire species.........  79 FR 53852, Sept. 10,    [Insert 226.230]......              NA
                                                                                         2014.
Coral, rough cactus.................  Mycetophyllia ferox....  Entire species.........  79 FR 53852, Sept. 10,    [Insert 226.230]......              NA
                                                                                         2014.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * *

PART 226--DESIGNATED CRITICAL HABITAT

0
3. The authority citation for part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

0
4. Add Sec.  226.230 to read as follows:


Sec.  226.230  Critical habitat for the Caribbean Boulder Star Coral 
(Orbicella franksi), Lobed Star Coral (O. annularis), Mountainous Star 
Coral (O. faveolata), Pillar Coral (Dendrogyra cylindrus), and Rough 
Cactus Coral (Mycetophyllia ferox).

    Critical habitat is designated in the following states and counties 
for the following species as depicted in the maps below and described 
in paragraphs (a) through (h) of this section. The maps can be viewed 
or obtained with greater resolution https://www.fisheries.noaa.gov/action/final-rule-designate-critical-habitat-threatened-caribbean-corals to enable a more precise inspection of critical habitat for 
Orbicella franksi, O. annularis, O. faveolata, Dendrogyra cylindrus, 
and Mycetophyllia ferox.
    (a) Critical habitat locations. Critical habitat is designated for 
the following five Caribbean corals in the following states, counties, 
and offshore locations:

                        Table 1 to Paragraph (a)
------------------------------------------------------------------------
                Species                          State--Counties
------------------------------------------------------------------------
Orbicella annularis....................  FL--Palm Beach, Broward, Miami-
                                          Dade, and Monroe; PR--All;
                                          USVI--All; Flower Garden
                                          Banks; Navassa Island.
O. faveolata...........................  FL--Martin, Palm Beach,
                                          Broward, Miami-Dade, and
                                          Monroe; PR--All; USVI--All;
                                          Flower Garden Banks; Navassa
                                          Island.
O. franksi.............................  FL--Palm Beach, Broward, Miami-
                                          Dade, and Monroe; PR--All;
                                          USVI--All; Flower Garden
                                          Banks; Navassa Island.
Dendrogyra cylindrus...................  FL--Palm Beach, Broward, Miami-
                                          Dade, and Monroe; PR--All;
                                          USVI--All; Navassa Island.
Mycetophyllia ferox....................  FL--Broward, Miami-Dade, and
                                          Monroe; PR--All; USVI--All;
                                          Navassa Island.
------------------------------------------------------------------------

    (b) Critical habitat boundaries. Except as noted in paragraphs (d) 
and (e) of this section, critical habitat for the five Caribbean corals 
is defined as all marine waters in the particular depth ranges relative 
to mean low water as depicted in the maps below and described in the 
Table of the locations of the critical habitat units for Orbicella 
franksi, O. annularis, O. faveolata, Dendrogyra cylindrus, and 
Mycetophyllia ferox. Depth contours or other identified boundaries on 
the maps form the boundaries of the critical habitat units. 
Specifically, the COLREGS Demarcation Lines (33 CFR 80), the boundary 
between the South Atlantic Fishery Management Council (SAFMC) and the

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Gulf of Mexico Fishery Management Council (GMFMC; 50 CFR 600.105), the 
Florida Keys National Marine Sanctuary (15 CFR part 922 subpart P, 
appendix I), and the Caribbean Island Management Area (50 CFR part 622, 
appendix E), create portions of the boundaries in several units.

 Table 2 to Paragraph (b)--Table of the Locations of the Critical Habitat Units for Orbicella franksi, O. annularis, O. faveolata, Dendrogyra cylindrus,
                                                                 and Mycetophyllia ferox
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Critical habitat unit
              Species                           name                      Location                     Geographic extent             Water depth range
--------------------------------------------------------------------------------------------------------------------------------------------------------
Orbicella annularis................  OANN-1...................  Florida....................  Lake Worth Inlet, Palm Beach County   2-20 m(6.5-65.6 ft).
                                                                Florida....................   to Government Cut, Miami-Dade        0.5-20 m (1.6-65.6
                                                                                              County.                               ft).
                                                                                             Government Cut, Miami-Dade County to
                                                                                              Dry Tortugas.
                                     OANN-2...................  Puerto Rico................  All islands.........................  0.5-20 m (1.6-65.6
                                                                                                                                    ft).
                                     OANN-3...................  USVI.......................  All islands of St. Thomas and St.     0.5-20 m (1.6-65.6
                                                                                              John.                                 ft).
                                     OANN-4...................  USVI.......................  All islands of St. Croix............  0.5-20 m (1.6-65.6
                                                                                                                                    ft).
                                     OANN-5...................  Navassa....................  Navassa Island......................  0.5-20 m (1.6-65.6
                                                                                                                                    ft).
                                     OANN-6...................  FGB........................  East and West Flower Garden, Rankin,  16-90 m (53-295 ft).
                                                                                              Geyer, and McGrail Banks.
Orbicella faveolata................  OFAV-1...................  Florida....................  St. Lucie Inlet, Martin County to     2-40 m (6.5-131 ft).
                                                                Florida....................   Government Cut, Miami-Dade County.   0.5-40 m (1.6-131
                                                                                             Government Cut, Miami-Dade County to   ft).
                                                                                              Dry Tortugas.
                                     OFAV-2...................  Puerto Rico................  All islands of Puerto Rico..........  0.5-90 m (1.6-295
                                                                                                                                    ft).
                                     OANN-3...................  USVI.......................  All islands of St. Thomas and St.     0.5-90 m (1.6-295
                                                                                              John.                                 ft).
                                     OFAV-4...................  USVI.......................  All islands of St. Croix............  0.5-90 m (1.6-295
                                                                                                                                    ft).
                                     OFAV-5...................  Navassa....................  Navassa Island......................  0.5-90 m (1.6-295
                                                                                                                                    ft).
                                     OFAV-6...................  FGB........................  East and West Flower Garden, Rankin,  16-90 m (53-295 ft).
                                                                                              Geyer, and McGrail Banks.
Orbicella franksi..................  OFRA-1...................  Florida....................  St. Lucie Inlet, Martin County to     2-40 m (6.5-131 ft).
                                                                Florida....................   Government Cut, Miami-Dade County.   0.5-40 m (1.6-131
                                                                                             Government Cut, Miami-Dade County to   ft).
                                                                                              Dry Tortugas.
                                     OFRA-2...................  Puerto Rico................  All islands of Puerto Rico..........  0.5-90 m (1.6-295
                                                                                                                                    ft).
                                     OFRA-3...................  USVI.......................  All islands of St. Thomas and St.     0.5-90 m (1.6-295
                                                                                              John.                                 ft).
                                     OFRA-4...................  USVI.......................  All islands of St. Croix............  0.5-90 m (1.6-295
                                                                                                                                    ft).
                                     OFRA-5...................  Navassa....................  Navassa Island......................  0.5-90 m (1.6-295
                                                                                                                                    ft).
                                     OFRA-6...................  FGB........................  East and West Flower Garden, Rankin,  16-90 m (53-295 ft).
                                                                                              Geyer, and McGrail Banks.
Dendrogyra cylindrus...............  DCYL-1...................  Florida....................  Lake Worth Inlet, Palm Beach County   2-25 m (6.5-82 ft).
                                                                Florida....................   to Government Cut, Miami-Dade        1-25 m (3.3-82 ft).
                                                                                              County.
                                                                                             Government Cut, Miami-Dade County to
                                                                                              Dry Tortugas.
                                     DCYL-2...................  Puerto Rico................  All islands.........................  1-25 m (3.3-82 ft).
                                     DCYL-3...................  USVI.......................  All islands of St. Thomas and St.     1-25 m (3.3-82 ft).
                                                                                              John.
                                     DCYL-4...................  USVI.......................  All islands of St. Croix............  1-25 m (3.3-82 ft).
                                     DCYL-5...................  Navassa....................  Navassa Island......................  1-25 m (3.3-82 ft).
Mycetophyllia ferox................  MFER-1...................  Florida....................  Broward County to Dry Tortugas......  5-40 m (16.4-131 ft).
                                     MFER-2...................  Puerto Rico................  All islands of Puerto Rico..........  5-90 m (16.4-295 ft).
                                     MFER-3...................  USVI.......................  All islands of St. Thomas and St.     5-90 m (16.4-295 ft).
                                                                                              John.
                                     MFER-4...................  USVI.......................  All islands of St. Croix............  2-40 m (6.5-131 ft).
                                     MFER-5...................  Navassa....................  Navassa Island......................  0.5-40 m (1.6-131
                                                                                                                                    ft).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (c) Essential feature. The feature essential to the conservation of 
Orbicella franksi, O. annularis, O. faveolata, Dendrogyra cylindrus, 
and Mycetophyllia ferox is: Sites that support the normal function of 
all life stages of the corals, including reproduction, recruitment, and 
maturation. These sites are natural, consolidated hard substrate or 
dead coral skeleton, which is free of algae and sediment at the 
appropriate scale at the point of larval settlement or fragment 
reattachment, and the associated water column. Several attributes of 
these sites determine the quality of the area and influence the value 
of the associated feature to the conservation of the species:
    (1) Substrate with the presence of crevices and holes that provide 
cryptic habitat, the presence of microbial biofilms, or presence of 
crustose coralline algae;
    (2) Reefscape with no more than a thin veneer of sediment and low 
occupancy by fleshy and turf macroalgae;
    (3) Marine water with levels of temperature, aragonite saturation, 
nutrients, and water clarity that have been observed to support any 
demographic function; and
    (4) Marine water with levels of anthropogenically-introduced (from 
humans) chemical contaminants that do not preclude or inhibit any 
demographic function.
    (d) Areas not included in critical habitat. Critical habitat does 
not include the following particular areas where they overlap with the 
areas described in paragraphs (a) through (c) of this section:
    (1) Pursuant to ESA section 4(a)(3)(B)(i), all areas subject to the 
2014 Naval Air Station Key West Integrated Natural Resources Management 
Plan.
    (2) Pursuant to ESA section 3(5)(A)(i)(I), areas where the 
essential feature cannot occur;
    (3) Pursuant to ESA section 3(5)(A)(i)(I), all managed areas that 
may contain natural hard substrate but do not provide the quality of 
substrate essential for the conservation of threatened corals. Managed 
areas that do not provide the quality of substrate essential for the 
conservation of the five Caribbean corals are defined as particular 
areas whose consistently disturbed nature renders them poor habitat for 
coral growth and survival over time. These managed areas include 
specific areas where the substrate has been disturbed by planned 
management authorized by local, state, or Federal governmental entities 
at the time of critical habitat designation, and will continue to be 
periodically disturbed by such management. Examples include, but are 
not necessarily limited to, dredged navigation channels, shipping 
basins, vessel berths, and active anchorages. Specific federally-
authorized channels and harbors considered as managed areas not 
included in the designations are:
    (i) St. Lucie Inlet.
    (ii) Palm Beach Harbor.
    (iii) Hillsboro Inlet.
    (iv) Port Everglades.
    (v) Baker's Haulover Inlet.
    (vi) Miami Harbor.
    (vii) Key West Harbor.
    (viii) Arecibo Harbor.
    (ix) San Juan Harbor.
    (x) Fajardo Harbor.
    (xi) Ponce Harbor.
    (xii) Mayaguez Harbor.

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    (xiii) St. Thomas Harbor.
    (xiv) Christiansted Harbor.
    (4) Pursuant to ESA section 3(5)(A)(i), artificial substrates 
including but not limited to: fixed and floating structures, such as 
aids-to-navigation (AToNs), seawalls, wharves, boat ramps, fishpond 
walls, pipes, submarine cables, wrecks, mooring balls, docks, and 
aquaculture cages.
    (e) Areas excluded from critical habitat. Pursuant to ESA section 
4(b)(2), the following area is excluded from critical habitat where it 
overlaps with the areas described in paragraphs (a) through (c) of this 
section: the designated restricted area managed by the South Florida 
Ocean Measuring Facility, defined in 33 CFR 334.580.
    (f) Maps. Critical habitat maps for the Caribbean Boulder Star 
Coral, Lobed Star Coral, Mountainous Star Coral, Pillar Coral, and 
Rough Cactus Coral.

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[FR Doc. 2023-16556 Filed 8-8-23; 8:45 am]
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