[Federal Register Volume 88, Number 156 (Tuesday, August 15, 2023)]
[Proposed Rules]
[Pages 55431-55436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17492]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 230802-0182]
RIN 0648-BL87


Endangered and Threatened Wildlife and Plants; Proposed 
Protective Regulations for the Threatened Banggai Cardinalfish 
(Pterapogon kauderni)

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

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

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SUMMARY: Under section 4(d) of the Endangered Species Act (ESA), the 
Secretary of Commerce (Secretary) shall issue protective regulations 
the Secretary deems necessary and advisable for the conservation of 
species listed as threatened. The Secretary may apply any of the 
prohibitions in section 9 of the ESA. This proposed rule would 
promulgate protective regulations to apply a subset of the ESA section 
9 prohibitions to the Banggai cardinalfish (Pterapogon kauderni). We 
also announce the availability of a draft environmental assessment (EA) 
that analyzes the environmental impacts of this action, and solicit 
comments regarding this action and the draft EA.

DATES: Comments regarding the proposed rule and supporting documents 
may be sent to the appropriate address (see ADDRESSES), no later than 5 
p.m. Eastern Standard Time on October 16, 2023. A public hearing may be 
requested by September 29, 2023. Notice of the location and time of any 
such hearing will be published in the Federal Register not less than 15 
days before the hearing is held.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2023-0099, 
by Electronic Submissions: Submit all electronic public comments via 
the Federal eRulemaking Portal https://www.regulations.gov and enter 
NOAA-NMFS-2023-0099 in the Search box. Click on the ``Comment'' icon, 
complete the required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
https://www.regulations.gov without change. All Personal Identifying 
Information (e.g., name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    We will accept anonymous comments (enter N/A in the required fields 
if you wish to remain anonymous). Attachments to electronic comments 
will be accepted in Microsoft Word, Excel, or Adobe PDF file formats 
only.

FOR FURTHER INFORMATION CONTACT: Celeste Stout, NMFS, Office of 
Protected Resources, [email protected], (301) 427-8436; Erin 
Markin, NMFS, Office of Protected Resources, [email protected], 
(301) 427-8416.

SUPPLEMENTARY INFORMATION:

Background

    On January 20, 2016, we published a final rule listing the Banggai 
cardinalfish (Pterapogon kauderni) as a threatened species under the 
ESA (81 FR 3023). At that time, we summarized the process for 
considering the application of ESA section 9 prohibitions (16 U.S.C. 
1538) to the threatened Banggai cardinalfish and stated that we would 
consider potential protective regulations pursuant to ESA section 4(d) 
(16 U.S.C. 1533(d)) for the Banggai cardinalfish in a future 
rulemaking.
    The prohibitions listed under section 9(a)(1) of the ESA 
automatically apply when a species is listed as endangered but not when 
listed as threatened. In the case of a threatened species, section 4(d) 
of the ESA requires the Secretary to issue such regulations the 
Secretary deems necessary and advisable to provide for the conservation 
of the species. The Secretary may by regulation prohibit with respect 
to any threatened species any act prohibited under ESA section 9(a)(1). 
Thus, NMFS has flexibility under ESA section 4(d) to tailor protective 
regulations, taking into account the effectiveness of available 
conservation measures. The status review of the Banggai cardinalfish 
(Conant, 2015), and the Banggai Cardinalfish 5-Year Review (2021) 
provided extensive information on the status of the Banggai 
cardinalfish. The information and conclusions from these documents are 
briefly summarized below.
    On April 22, 2021, NMFS received a petition from the Center for 
Biological Diversity, the Animal Welfare Institute, and the Defenders 
of Wildlife requesting NMFS promulgate a rule under section 4(d) of the 
ESA to provide for the conservation of the Banggai cardinalfish. On 
August 4, 2021, NMFS published in the Federal Register a notice of 
receipt of that petition (86 FR 41935) and requested information and 
comments for evaluating the request during a 60-day comment period. In 
addition to comments and information pertaining to any aspect of the 
petition, we specifically requested information regarding: (1) the 
adequacy of existing measures regulating the collection and trade of 
the Banggai cardinalfish throughout its range; (2) the availability and 
efficacy of captive-bred fish for aquaria trade, both domestic and 
international; (3) information on the collection/harvest (including, 
but not limited to, number, location, mortality rate), and trade 
(import/export data, value, transit mortality rates) of wild fish for 
aquaria trade; and (4) implementation and efficacy of Indonesia's 
National Plan of Action (NPOA) (2017-2021) for Banggai cardinalfish and 
adequacy of enforcement of Banggai cardinalfish

[[Page 55432]]

regulations. We received 18,395 comments on that notice, of which 
18,391 were from concerned citizens, scientists, and the Center for 
Biological Diversity, Animal Welfare Institute, and Defenders of 
Wildlife, in support of promulgating protective regulations. The 
comments focused on the importance of conserving the species, 
specifically by prohibiting the importation of Banggai cardinalfish 
into the United States. The other four comments did not support 
promulgating protective regulations. Those comments expressed concern 
regarding the effect applying the prohibitions in section 9 of the ESA 
to this species would have on the aquaculture production of Banggai 
cardinalfish and on conservation efforts for this species in Indonesia.
    In the case of threatened species, pursuant to ESA section 4(d), 
the Secretary may by regulation prohibit any act prohibited under ESA 
section 9(a)(1). Such regulations may include any or all of the 
prohibitions in section 9(a)(1) that apply to endangered species. Those 
section 9(a)(1) prohibitions make it unlawful, with limited specified 
exceptions, for any person subject to the jurisdiction of the United 
States to: (A) import any such species into, or export any such species 
from the United States; (B) take any such species within the United 
States or the territorial sea of the United States; (C) take any such 
species upon the high seas; (D) possess, sell, deliver, carry, 
transport, or ship, by any means whatsoever, any such species taken in 
violation of subparagraphs (B) and (C); (E) deliver, receive, carry, 
transport, or ship in interstate or foreign commerce, by any means 
whatsoever and in the course of a commercial activity, any such 
species; (F) sell or offer for sale in interstate or foreign commerce 
any such species; or (G) violate any regulation pertaining to such 
species or to any threatened species of fish or wildlife listed 
pursuant to section 4 of the ESA and promulgated by the Secretary 
pursuant to authority provided by the ESA. Section 11 of the ESA 
provides for civil and criminal penalties for violation of section 9 or 
regulations issued under the ESA.
    The Banggai cardinalfish is a foreign species and occurs only in 
areas beyond the U.S. exclusive economic zone and territorial waters. 
The Banggai cardinalfish is a relatively small marine fish. Adults 
generally do not exceed 55 to 57 millimeters (mm) standard length 
(Vagelli, 2011). The species is distinguished by its tasseled first 
dorsal fin, elongated anal and second dorsal fin rays, and deeply 
forked caudal fin (Allen, 2000). It is brilliantly colored, with 
contrasting black and light bars with whitish spots over a silvery 
body. The Banggai cardinalfish has an exceptionally restricted natural 
range limited to 20-34 kilometers\2\ of shallow-water habitat around 34 
islands within the Banggai Archipelago, Indonesia. It inhabits a 
variety of shallow (from about 0.5 to 6 meters) habitats including 
coral reefs, seagrass beds, and less commonly, open areas of low 
branching coral and rubble. To avoid predators, it associates with 
microhabitats, such as sea urchins and anemones (Vagelli, 2011). 
Banggai cardinalfish are found in waters ranging from 26 to 31 degrees 
Celsius ([deg]C), but averaging 28 [deg]C (Ndobe et al., 2013).
    The Banggai cardinalfish exhibits reversed sex roles, where males 
provide parental care and brood eggs in their mouths. It lacks a 
planktonic larval stage and extends the brooding of larvae for about 7 
days after hatching, which results in the release of fully formed 
juveniles. Spawning occurs year-round but peaks around September 
through October, which is a period of fewer storms in the region (Ndobe 
et al., 2013). Its lifespan in the wild has been estimated at 
approximately 2.5-3 years (Vagelli, 2011), with a maximum lifespan up 
to 3-5 years (Ndobe et al., 2013). Banggai cardinalfish mature at <1 
year of age, which corresponds to approximately 40 mm standard length. 
The number of eggs in an egg mass ranges from 20 to 102 (mean = 59), 
while the number of eggs brooded ranges from 45 to 99 (mean = 59). High 
mortality occurs during the first days after release from the brood 
pouch due to predation, including parental and non-parental cannibalism 
(Vagelli, 1999).
    As a part of the listing process, we concluded that Banggai 
cardinalfish had experienced a decline in abundance, as evidenced by a 
decrease in mean density at survey sites between 2004 and 2012. 
Moreover, some researchers believe that the population may have 
experienced a dramatic decline from historical abundance due to 
overharvest based on comparisons between populations in a private bay 
and other populations (Conant, 2015). Several threats to the Banggai 
cardinalfish were identified as contributing to this decline, including 
the degradation of habitat, international trade as a live marine 
ornamental reef fish, disease linked to high mortality of wild-caught 
fish imported for the ornamental trade, and inadequate protections in 
its endemic range. The threat of overharvest was and continues to be a 
considerable threat to the Banggai cardinalfish for use in the 
international aquarium trade. According to the best available data, 
approximately 120,000 Banggai cardinalfish are imported to the United 
States each year, primarily for use in the aquarium and pet trade. This 
number is anticipated to remain fairly stable over the foreseeable 
future. The U.S. Fish and Wildlife Service tracks the importation of 
wildlife--including Banggai cardinalfish--and their derived products 
into the U.S. through the Law Enforcement Management Information System 
(LEMIS) database. While LEMIS data include select records of imports of 
Banggai cardinalfish declared under the Banggai cardinalfish species 
code, most imports of the fish are coded under the generic marine 
ornamental fish species code. As a result, our estimate of average 
annual imports of Banggai cardinalfish to the U.S. also reflects input 
from pet industry trade group representatives and academic experts.
    On March 29, 2021, NMFS completed a review of the species ESA 
classification pursuant to section 4(c)(2), also known as a 5-year 
review, which again concluded that the threatened Banggai cardinalfish 
is at risk of extinction primarily because its populations have been 
reduced by anthropogenic stressors that include, but are not limited 
to: (1) degradation of habitat; (2) international trade as a live 
marine ornamental reef fish; (3) disease linked to high mortality of 
wild-caught fish imported for the ornamental trade; and (4) inadequate 
protections in its endemic range.
    The review further concluded that the Banggai cardinalfish is 
likely to become an endangered species within the foreseeable future 
and should continue to be classified as a threatened species.

Proposed 4(d) Protective Regulations for the Banggai Cardinalfish

    The ESA does not specify particular prohibitions for threatened 
species. Instead, under section 4(d) of the ESA, the Secretary has 
discretion to issue such protective regulations as the Secretary deems 
necessary and advisable to provide for the conservation of the species. 
The Secretary also has the discretion to, by regulation, prohibit with 
respect to any threatened species of fish or wildlife, any act 
prohibited under ESA section 9(a)(1). Permits may be issued to allow 
persons to engage in otherwise prohibited acts for certain purposes.
    Under section 4(d) of the ESA, the Secretary may develop specific 
prohibitions and exceptions tailored to the particular conservation 
needs of a threatened species. In such cases, the Secretary may issue a 
4(d) rule that includes some or all of the prohibitions set out in the 
ESA. We are exercising

[[Page 55433]]

our discretion to propose a 4(d) rule for the Banggai cardinalfish.
    Our conservation objective is to prevent further reduction of 
existing wild populations of Banggai cardinalfish. Therefore, we are 
proposing to apply to the Banggai cardinalfish the prohibitions in ESA 
section 9(a)(1)(A). The ESA section 9(a)(1)(A) prohibitions would make 
it unlawful for any person subject to the jurisdiction of the United 
States to import the species into or export the species from the United 
States.

Import and Export

    This proposed rule would apply to all commercial and noncommercial 
international shipments of live and dead Banggai cardinalfish and parts 
and products, including the import and export of personal pets and 
research samples. The import and export of wild-caught and captive-bred 
Banggai cardinalfish into and from the United States and its 
territories would be prohibited.
    We assessed the conservation needs of the Banggai cardinalfish in 
light of the lack of protections or other regulations of the 
international trade in this species. The best available commercial data 
indicate that the legal and illegal trade of Banggai cardinalfish for 
use in the international aquarium trade is currently a threat to the 
persistence of the species. The Banggai cardinalfish is a popular 
marine ornamental fish that has been heavily traded in the aquarium 
trade since the mid-1990s. The current trade estimates are between 
500,000 and 900,000 individuals annually worldwide (Ndobe et al., 
2018a; Akmal et al., 2020). Tracking the trade of Banggai cardinalfish 
is very difficult, as it is not listed under the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES), which provides a legal framework to regulate the international 
trade of species listed under CITES, and as such Parties are not 
required to include trade in this species in their annual report to 
CITES. However, Banggai cardinalfish was ranked the 10th, 11th, and 8th 
most imported aquarium fish into the United States in 2008, 2009, and 
2011, respectively (Rhyne et al., 2017a), and the current trade 
estimates remain comparable to the annual numbers noted in the 2015 
status review (Conant, 2015). As mentioned previously, LEMIS data only 
includes select records of imports of Banggai cardinalfish declared 
under the Banggai cardinalfish species code, and most imports of the 
fish are coded under the generic marine ornamental fish species code. 
As a result, our estimate of average annual imports of Banggai 
cardinalfish to the U.S. also reflects input from pet industry trade 
group representatives and academic experts. According to data gathered 
for the initial regulatory flexibility analysis (IRFA) (described below 
in the Classification section), there are five or fewer businesses that 
account for all imports of Banggai cardinalfish into the United States. 
These businesses import approximately 120,000 Banggai cardinalfish per 
year.

Interstate Commerce

    This rule proposes to prohibit the import into and export from the 
United States and its territories. No other prohibitions under section 
9 of the ESA would be applied. A person would continue to be able to 
deliver, receive, carry, transport, ship, sell, offer to sell, 
purchase, or offer to purchase Banggai cardinalfish in interstate 
commerce. Although we do not have current data, we believe there are a 
number of Banggai cardinalfish in the United States. However, we have 
no information to suggest that interstate commerce activities within 
the United States are associated with threats to Banggai cardinalfish 
or would negatively affect any efforts aimed at the recovery of wild 
populations of the species, and therefore we are not proposing to 
prohibit those activities.

Effects of This Rule

    The Banggai cardinalfish is a foreign species and occurs only in 
areas beyond the U.S. exclusive economic zone and territorial waters. 
The ESA primarily protects foreign species by restricting trade; under 
the ESA, certain activities, including import, export, take, commercial 
activity, interstate commerce, and foreign commerce may be prohibited. 
This rule proposes to prohibit the import and export of Banggai 
cardinalfish into and from the United States and its territories. 
Research and enhancement activities that require import or export 
authorization will be examined on a case-by-case basis as prescribed by 
ESA section 10. The effects of such authorizations would be limited, 
because the general import into and export from the United States and 
its territories would be prohibited, thereby eliminating international 
trade of the species into and from the United States and its 
territories.

Public Comments Solicited

    We invite comments and suggestions from all interested parties 
regarding this proposed rule to issue protective regulations under ESA 
section 4(d) for the threatened Banggai cardinalfish (see ADDRESSES). 
Data, information, and comments that are accompanied by supporting 
documentation such as maps, logbooks, bibliographic references, 
personal notes, and/or reprints of pertinent publications are helpful 
and appreciated.

Public Hearing

    NMFS will consider holding a public hearing on this proposal, if 
requested. Requests must be filed by the date specified in the DATES 
section above.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review (Peer Review 
Bulletin), establishing minimum peer review standards, a transparent 
process for public disclosure, and opportunities for public input. The 
Peer Review Bulletin, implemented under the Information Quality Act 
(Pub. L. 106-554), is intended to provide public oversight on the 
quality of agency information, analyses, and regulatory activities. The 
text of the Peer Review Bulletin was published in the Federal Register 
on January 14, 2005 (70 FR 2664). The Peer Review Bulletin requires 
Federal agencies to subject ``influential'' scientific information to 
peer review 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,'' and the Peer 
Review Bulletin provides agencies broad discretion in determining the 
appropriate process and level of peer review. The Peer Review Bulletin 
establishes stricter standards 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 1 year on either the public or private sector or that the 
dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.'' We do not consider the scientific 
information underlying this proposed rule to issue ESA section 4(d) 
protective regulations to constitute influential scientific information 
as defined in the Peer Review Bulletin. Therefore, the agency expects 
the information to be non-controversial and have minimal impacts on 
important public policies or private sector decisions.

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References

    A complete list of the references used in this proposed rule is 
available upon request (see ADDRESSES).

Classification

Executive Order (E.O.) 12866--Regulatory Planning and Review

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866 review. An IRFA has been prepared that considers 
the economic costs and benefits of this proposed rule to issue ESA 
section 4(d) protective regulations and alternatives to this rulemaking 
as required under E.O. 12866. To review this report, see the ADDRESSES 
section above.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) was 
designed to ensure that the government considers the potential for its 
regulations to unduly inhibit the ability of small entities to compete. 
The goals of the RFA include increasing the government's awareness of 
the impact of regulations on small entities and encouraging agencies to 
exercise flexibility to provide regulatory relief to small entities. 
When a proposed rule is published for public comment in the Federal 
Register, the RFA requires the agency to prepare and make available for 
public comment an analysis that describes the effect of the rule on 
small entities (i.e., small businesses, small organizations, and small 
governmental jurisdictions). For this proposed rulemaking, this 
analysis takes the form of an IRFA, which we prepared in accordance 
with section 603 of the RFA. We welcome comment on this IRFA, which is 
summarized below and is available as a supplementary document to this 
proposed rule.
    The proposed rule would prohibit the import and export of Banggai 
cardinalfish and would, therefore, directly regulate entities that 
import and sell the fish, as well as any entities that export the fish. 
The large majority of direct impacts of the proposed rule would be 
borne by businesses that import and sell the Banggai cardinalfish 
wholesale. Entities that import and sell Banggai cardinalfish wholesale 
are classified under the Other Miscellaneous Nondurable Goods Merchant 
Wholesalers industry of the North American Industry Classification 
System (NAICS). Direct impacts to these entities would comprise the 
loss of revenues from the sale of Banggai cardinalfish that would be 
generated absent the proposed rule.
    According to data gathered for the IRFA, five or fewer businesses 
account for all imports of Banggai cardinalfish. These businesses 
import approximately 120,000 Banggai cardinalfish per year, and there 
is no anticipated increase or decrease in the level of imports over the 
foreseeable future. With an estimated wholesale price of $11 per 
Banggai cardinalfish, this proposed rule would result in annualized 
impacts to all wholesalers of approximately $1.32 million (in 2022 
dollars) in lost revenues, relative to the baseline. According to data 
provided by industry trade group representatives, between 80 and 90 
percent of these impacts are anticipated to be borne by a single 
entity, whose primary NAICS industry is Other Miscellaneous Nondurable 
Goods Merchant Wholesalers industry (NAICS Code 424990). For NAICS Code 
424990, the Small Business Administration's (SBA's) Table of Small 
Business Size Standards designates a small business as one which 
employs 100 or fewer employees. Based on employment estimates for this 
entity gathered from the Dun and Bradstreet Hoovers database, this 
entity qualifies as a small business under SBA's small business size 
standards. The IRFA estimates that revenue generated from sale of the 
Banggai cardinalfish accounts for just under 6 percent of this 
company's average annual revenues. It is unknown how many additional 
importers would be impacted through the loss of the remaining 10-20 
percent of annual U.S. wholesale sales of the Banggai cardinalfish and 
whether any of these businesses are small entities.
    While not directly regulated by the proposed action, pet stores and 
other aquarium industry retailers of the Banggai cardinalfish would 
also be affected through the loss of revenues generated under the 
baseline. Entities that sell the fish retail are classified under the 
Pet and Pet Supplies Retailers NAICS industry. Based on an estimated 
retail price of approximately $33 per fish and total annual retail 
sales of approximately 120,000 fish, the IRFA estimates annualized 
impacts to these retailers of just under $4 million (in 2022 dollars). 
According to data provided by industry trade group representatives, 
between 80 and 90 percent of these impacts are anticipated to be borne 
by a single large business in the NAICS Pet and Pet Supplies Retailers 
industry (NAICS Code 459910). This business has annual sales greater 
than $1 billion, which is well above the SBA's small business size 
standard of $32 million in annual sales for companies in this industry. 
Impacts to this business are estimated to account for less than 0.1 
percent of its average annual revenues. It is unknown how many 
additional retailers would be impacted through the loss of the 
remaining 10-20 percent of annual U.S. retail sales of the Banggai 
cardinalfish and whether any of these businesses are small entities.
    According to interviews with industry trade group representatives, 
wholesale and retail sales of the Banggai cardinalfish account for 
nearly all U.S. trade of the fish. In comparison, import by aquaria and 
export for commercial or other purposes account for a small fraction of 
the trade of the species. Data were not available to quantify impacts 
to entities conducting these activities. The proposed rule would impact 
entities conducting scientific research on Banggai cardinalfish or 
other activities that enhance the propagation or survival of the 
species to the extent that obtaining required ESA section 10 permits 
would incrementally incur costs to the regulated entities and NMFS, 
relative to the baseline. However, ESA section 10 permits would only be 
required for entities conducting research on imported Banggai 
cardinalfish, and the extent to which current research relies on 
obtaining imported Banggai cardinalfish, and the resulting extent of 
potential impacts to the entities conducting such research, is 
uncertain and cannot be quantified due to the lack of available data.
    Under the proposed rule, it is possible that directly regulated 
importers and indirectly impacted retailers could benefit from 
increased demand for imported aquarium fish species that represent 
substitutes for the Banggai cardinalfish. Retailers could also benefit 
from increased demand for domestically bred Banggai cardinalfish. 
However, these potential benefits would be indirect and are too 
uncertain to quantify.
    The proposed rule would not duplicate or conflict with any other 
laws or regulations. Currently, there are no Federal restrictions on 
importing the Banggai cardinalfish into or exporting the fish from the 
United States, and Banggai cardinalfish are not listed in any 
appendices of the CITES.
    The RFA requires consideration of any significant alternatives to 
the proposed rule that would accomplish the stated objectives of the 
applicable statutes and would minimize significant economic impacts to 
small entities. We considered the following alternatives when 
developing this proposed rule.
    Alternative 1. No Action Alternative. Under the No Action 
Alternative, NMFS would not establish ESA section 4(d)

[[Page 55435]]

protective regulations (i.e., no change from current management 
policies). The No Action Alternative represents the regulatory status 
quo. Without the ESA section 4(d) protective regulations established in 
this proposed rule, Banggai cardinalfish would remain vulnerable to a 
range of threats. No incremental impacts would be borne by small (or 
other) entities, but the Banggai cardinalfish would continue to be at 
risk of further declines in abundance and increased risk of extinction. 
Declining abundance of the species in the wild could lead to reduced 
imports of Banggai cardinalfish into the U.S. and/or higher costs per 
fish to importers as supply dwindles, which could ultimately negatively 
affect revenues of small entities that sell the fish wholesale or 
retail. Moreover, the No Action Alternative would not accomplish the 
stated objectives of the ESA, because it would not aid in the 
conservation of the threatened Banggai cardinalfish. Thus, the No 
Action Alternative is not necessarily a ``no cost'' alternative for 
small entities.
    Alternative 2. Application of All ESA section 9(a)(1) Prohibitions. 
Prohibitions under this alternative would include, but not be limited 
to, the import, export, possession, and sale of Banggai cardinalfish, 
and the delivery, receiving, carrying, transporting, or shipping of 
Banggai cardinalfish in interstate or foreign commerce in the course of 
a commercial activity. Incremental impacts to small entities under 
Alternative 2 could be substantially greater than those that would 
occur under Alternative 3, the Proposed Action, in part because of the 
interstate commerce prohibition, which would significantly constrain 
the development of wholesale and retail markets for domestically bred 
Banggai cardinalfish. The IRFA does not seek to quantify impacts under 
Alternative 2 incremental to those under Alternative 3, the Proposed 
Alternative for this action (see below), due to significant uncertainty 
regarding the extent to which a domestic market would develop for 
domestically bred Banggai cardinalfish under each alternative. Under 
Alternative 2, entities could apply for ESA section 10 permits for 
activities that involve the take of the Banggai cardinalfish for 
scientific purposes or to enhance the propagation or survival of the 
species. Unlike under Alternative 3, however, an ESA section 10 permit 
would be required for such activities not only if the Banggai 
cardinalfish are obtained through foreign commerce, but also if the 
Banggai cardinalfish are obtained domestically.
    Alternative 3. Application of ESA section 9(a)(1)(A) Prohibitions 
(Proposed Alternative for this Action). Section 9(a)(1)(A) of the ESA 
would be applied to Banggai cardinalfish, thus prohibiting the species' 
import into or export from the United States. This alternative would 
allow for delivery, receipt, carry, transport, or shipment, and sale or 
offer for sale of Banggai cardinalfish in interstate commerce. As with 
Alternative 2, under Alternative 3, import and export of Banggai 
cardinalfish into and from the United States would be limited solely to 
research or other activities that enhance the survival of the species 
pursuant to the requirements of section 10 of the ESA. Unlike under 
Alternative 2, under Alternative 3, an ESA section 10 permit would not 
be required for such activities if the Banggai cardinalfish are 
obtained domestically. Alternative 3 was selected as the Proposed 
Alternative for this Action because it would promote the survival and 
recovery of the Banggai cardinalfish, and because this alternative 
would reduce the economic impacts on entities as compared to the 
economic impacts of Alternative 2.

E.O. 12988--Civil Justice Reform

    We have determined that this proposed rule does not unduly burden 
the judicial system and meets the requirements of sections 3(a) and 
3(b)(2) of E.O. 12988. We are proposing protective regulations pursuant 
to the provisions of ESA section 4(d) and other ESA provisions.

E.O. 13175--Consultation and Coordination With Indian Tribal 
Governments

    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. E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, outlines 
the responsibilities of the Federal Government in matters affecting 
tribal interests.
    E.O. 13175 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian Tribal 
Governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments, or the Federal 
Government must provide the funds necessary to pay the direct 
compliance costs incurred by the Tribal Governments. In developing this 
proposed rule, we found that it would not impose substantial direct 
compliance costs on the communities of Indian Tribal Governments and 
thus does not have tribal implications.

E.O. 13132--Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on State and 
local governments (unless required by statute). Neither of those 
circumstances is applicable to this proposed rule.

Paperwork Reduction Act

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

National Environmental Policy Act (NEPA)

    In the case of a species listed as threatened, section 4(d) of the 
ESA directs that the Secretary of Commerce shall issue such regulations 
as the Secretary deems necessary and advisable to provide for the 
conservation of the species. The Secretary may, by regulation, prohibit 
with respect to any threatened species of fish or wildlife any or all 
acts prohibited under section 9(a)(1). Accordingly, the promulgation of 
ESA section 4(d) protective regulations is subject to the requirements 
of NEPA, and we have prepared a draft EA analyzing the proposed 4(d) 
regulations and alternatives. We are seeking comment on the draft EA, 
which is available on the Federal eRulemaking Portal website (https://www.regulations.gov) or upon request (see DATES and ADDRESSES, above).

[[Page 55436]]

E.O. 13211--Energy Supply, Distribution, or Use

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. According to E.O. 13211, 
``significant energy action'' means any action by an agency that is 
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. NMFS has determined that the energy effects are unlikely to 
exceed the energy impact thresholds identified in E.O. 13211 because 
this proposed rule is not significant under E.O. 12866. Therefore, no 
Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: August 9, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 223 as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority:  16 U.S.C. 1531 1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

0
2. In subpart B, add Sec.  223.215 to read as follows:


Sec.  223.215  Banggai cardinalfish.

    (a) Prohibitions. The prohibitions of section 9(a)(1)(A) of the ESA 
(16 U.S.C. 1538(a)(1)(A)) relating to endangered species apply to the 
threatened Banggai cardinalfish listed in Sec.  223.102(e).
    (b) [Reserved]

[FR Doc. 2023-17492 Filed 8-14-23; 8:45 am]
BILLING CODE 3510-22-P