Endangered and Threatened Wildlife and Plants; Final Rule To List the Dusky Sea Snake and Three Foreign Corals Under the Endangered Species Act, 60560-60565 [2015-25484]

Download as PDF 60560 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations Manufacturer Subject lines VOLVO ......................................................................................... Passat. Tiguan. S60. 1 Granted an exemption from the parts marking requirements beginning with MY 2016. X1 carline was replaced by the X1 MPV line beginning in MY 2016. According to BMW, production of its X1 carline ceased in MY 2015. 3 Granted an exemption from the parts marking requirements beginning with MY 2015. 4 According to Mercedes-Benz, the CL-Class was renamed the S-Coupe Class beginning with MY 2015. 2 The Under authority delegated in 49 CFR part 1.95. Raymond R. Posten, Associate Administrator for Rulemaking. FOR FURTHER INFORMATION CONTACT: [FR Doc. 2015–25369 Filed 10–6–15; 8:45 am] Background On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species as threatened or endangered under the Endangered Species Act (ESA). We found that the petitioned actions may be warranted for 27 of the 81 species and announced the initiation of status reviews for each of the 27 species (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On December 16, 2014, we published a proposed rule to list the dusky sea snake (Aipysurus fuscus) and three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) as endangered species, and we proposed to list the Banggai cardinalfish (Pterapogon kauderni) and Harrisson’s dogfish (Centrophorus harrissoni) as threatened species (79 FR 74953). We requested public comment on information in the status reviews and proposed rule, and the comment period was open through February 17, 2015. This final rule provides a discussion of the information we received during the public comment period and our final determination on the petition to list the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) and the dusky sea snake (Aipysurus fuscus) under the ESA. Our final determinations for the other species proposed for listing in the December 16, 2014, proposed rule (79 FR 74953; Banggai cardinalfish (Pterapogon kauderni) and Harrisson’s dogfish (Centrophorus harrissoni)) will be made in a subsequent rule. The status of the findings and relevant Federal Register notices for those and the other 21 species can be found on our Web site at https://www.nmfs.noaa.gov/pr/ species/petition81.htm. We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we consider first BILLING CODE 4910–59–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 140707555–5880–02] RIN 0648–XD370 Endangered and Threatened Wildlife and Plants; Final Rule To List the Dusky Sea Snake and Three Foreign Corals Under the Endangered Species Act National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: We, NMFS, issue a final rule to list three foreign corals and the dusky sea snake under the Endangered Species Act (ESA). We considered comments submitted on the proposed listing rule and have determined that the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) and the dusky sea snake (Aipysurus fuscus) should be listed as endangered species. We will not designate critical habitat for any of the species because the geographical areas occupied by these species are entirely outside U.S. jurisdiction, and we have not identified any unoccupied areas within U.S. jurisdiction that are currently essential to the conservation of any of these species. DATES: This final rule is effective November 6, 2015. ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910, USA. asabaliauskas on DSK5VPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 Dwayne Meadows, Ph.D., NMFS, Office of Protected Resources, (301) 427–8403. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 whether a group of organisms constitutes a ‘‘species’’ under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a ‘‘species’’ to include ‘‘any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.’’ Section 3 of the ESA defines an endangered species as ‘‘any species which is in danger of extinction throughout all or a significant portion of its range’’ and a threatened species as one ‘‘which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ We interpret an ‘‘endangered species’’ to be one that is presently in danger of extinction. A ‘‘threatened species,’’ on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened). Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species’ status and after taking into account efforts being made by any state or foreign nation to protect the species. In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a ‘‘species.’’ Next, using the best available information gathered during the status E:\FR\FM\07OCR1.SGM 07OCR1 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations asabaliauskas on DSK5VPTVN1PROD with RULES review for the species, we complete a status and extinction risk assessment. In assessing extinction risk for these four species, we considered the demographic viability factors developed by McElhany et al. (2000) and the risk matrix approach developed by Wainwright and Kope (1999) to organize and summarize extinction risk considerations. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews, including for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, scalloped hammerhead sharks, and black abalone (see https:// www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four demographic viability factors: Abundance, growth rate/productivity, spatial structure/ connectivity, and diversity. These viability factors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk. We then assess efforts being made to protect the species, to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species. Summary of Comments In response to our request for comments on the proposed rule, we received three comments on the three foreign corals, and the Australian Government Department of the Environment submitted a letter neither supporting nor opposing our proposed listing of the dusky sea snake. The letter stated that the dusky sea snake is listed under Australia’s Environment Protection and Biodiversity Conservation Act, and thus it is currently illegal to kill, injure, take or trade dusky sea snakes. Because this information was acknowledged and considered in our status review, this information did not affect the proposal to list the species as endangered under the ESA. Three parties commented on the three corals. Comment 1: One commenter suggested active outside involvement in the recovery of the species, including partnerships with reef aquarists. Response: We agree with the commenter that partnerships enhance VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 recovery of listed species and that reef aquarists are a potential partner. We will look for opportunities to partner with parties interested in the recovery of these species. Comment 2: One commenter focused on the threat of carbon dioxide emissions and climate change. They claimed we, and the Departments of Commerce and Interior, should develop a National Climate Recovery Plan to protect a wide variety of resources and that we should define adverse modification under section 7 of the ESA for these proposed species. This commenter also requested we designate critical habitat for these species and suggested we alter our conclusion to say with certainty that each of the three coral species is definitively threatened by climate change, ocean warming, and sea level rise, and alter our discussion of regulatory mechanisms and the effects of listing as a result. Response: We note that action to develop a National Climate Recovery Plan is not part of the determination for listing that is the subject of this action and thus cannot be considered further here. As we noted in the proposed rule, we cannot designate critical habitat for these species, as their range is entirely outside U.S. jurisdiction and we have no evidence that unoccupied areas within our jurisdiction are necessary for the conservation of any of the species. Because we cannot designate critical habitat for these species, we have no reason to define adverse modification of critical habitat under Section 7 of the ESA for these corals. The commenter provided no species-specific information on climate change-related threats, so we cannot change our conclusion that habitat modification resulting from climate change is a potential threat to all three species of coral. Similarly, based on the same lack of new species-specific information, we cannot change our discussion of the adequacy of regulatory mechanisms to address these threats or the likely effects of listing. Comment 3: A researcher provided information on studies of the symbiotic Symbodinium algae residing in five specimens of Siderastrea glynni. This researcher claims to have identified two symbiont species in S. glynni, Symbodinium goreauii and Symbodinium trenchii. The researcher believes there is evidence that the Symbodinium trenchii occurring in S. glynni is of Caribbean origin and suggests this provides evidence that S. glynni is from an introduction of Siderastrea siderea to the eastern Pacific and is not some kind of separate rare endemic species. PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 60561 Response: We understand that Symbodinium trenchii and Symbodinium goreauii also occur in other regions of the Pacific as symbionts with other coral species. We are also aware that the strain of Symbodinium trenchii occurring in S. glynni also occurs in Caribbean corals, including species of Siderastrea (Pettay et al., 2015). According to Guzman (personal communication (the person who described S. glynni)), the research for the original description of S. glynni found that the species was more closely related to a fossil species from Baja California, Mexico than to the Caribbean S. siderea. If S. glynni has a long history in the eastern Pacific as some of the data suggest (Forsman et al., 2005), it could have been the source of, or another host for, the strain of Symbodinium trenchii that recently entered the Caribbean Sea. Alternatively, a Caribbean Siderastrea siderea could have recently invaded the eastern Pacific through the Panama Canal after the evolution of the Caribbean strain of Symbodinium trenchii. Under this scenario then, S. glynni would not be a unique species (Forsman et al., 2005). The direction and timing of movement of the strain of Symbodinium trenchii that occurs in S. glynni across the Isthmus of Panama between the Caribbean Sea and the eastern Pacific Ocean is thus uncertain, and the data on these symbionts may not be adequate to definitely distinguish among the competing hypotheses for the origin and taxonomy of S. glynni. Guzman (personal communication) is skeptical that the symbiont data provided by the commenter provides definitive evidence regarding the taxonomic status of the species. We agree, and thus decline to alter the existing published taxonomy of the species. Status Reviews Status reviews for the petitioned species addressed in this finding were conducted by NMFS staff. Separate draft status reviews were completed for dusky sea snake (Manning, 2014), and the three foreign corals (Meadows, 2014). In order to complete the status reviews, we compiled information on the species’ biology, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. We also considered information submitted by the public and peer reviewers. Prior to publication of the proposed rule, all status reviews were subjected to peer review. Peer reviewer comments are available at https:// E:\FR\FM\07OCR1.SGM 07OCR1 60562 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations www.cio.noaa.gov/services_programs/ prplans/PRsummaries.html. The status review reports provide a thorough discussion of life history, demographic risks, and threats to the particular species. We considered all identified threats, both individually and cumulatively, to determine whether the species responds in a way that causes actual impacts at the species level. The collective condition of individual populations was also considered at the species level, according to the four demographic viability factors discussed above. The proposed rule (79 FR 74953, December 16, 2014) summarizes general background information on the species’ natural history, range, reproduction, population structure, distribution and abundance; none of which has changed since the proposed rule. All of that information is incorporated herein by reference. Species Determinations Based on the best available scientific and commercial information described above and in the status review reports, we have determined that the dusky sea snake (Aipysurus fuscus) and the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) are taxonomically-distinct species and therefore meet the definition of ‘‘species’’ pursuant to section 3 of the ESA and are eligible for listing under the ESA. Summary of Threat Factors Affecting the Four Species Next we consider whether any one or a combination of the five threat factors specified in section 4(a)(1) of the ESA contribute to the extinction risk of these species. None of the information we received from public comment on the proposed rule affected any of our discussion or conclusions regarding any of the section 4(a)(1) factors or their interactions for these species, so we incorporate the discussion of these factors from the proposed rule (79 FR 74953, December 16, 2014) by reference herein. asabaliauskas on DSK5VPTVN1PROD with RULES Extinction Risk None of the information we received from public comment on the proposed rule affected our extinction risk evaluations of these four species. As such, our evaluations for these species remain the same as in the status review reports and the discussion in the proposed rule (79 FR 74953, December 16, 2014), and that discussion is incorporated herein by reference. VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 Conservation Efforts Effects of Listing Finally, we considered conservation efforts to protect each species and evaluated whether these conservation efforts are adequate to mitigate the existing threats to the point where extinction risk is significantly lowered and the species’ status is improved. None of the information we received from public comment on the proposed rule affected any of our discussion or conclusions regarding conservation efforts to protect the dusky sea snake or the three foreign coral species, so we incorporate the discussion of these efforts from the proposed rule (79 FR 74953, December 16, 2014) by reference herein. Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); designation of critical habitat if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking (16 U.S.C. 1538). In addition, recognition of the species’ plight through listing promotes conservation actions by Federal and state agencies, foreign entities, private groups, and individuals. Because the ranges of these four species are entirely outside U.S. jurisdiction, the main effects of these endangered listings are prohibitions on export and import. Final Determination We have reviewed the best available scientific and commercial information, including the petition, the information in the status review reports, public comment, and the comments of peer reviewers. Based on the best available information, we find that the dusky sea snake (Aipysurus fuscus) and the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) are in danger of extinction throughout all of their ranges. We assessed the ESA section 4(a)(1) factors and demographic risk factors and conclude that the dusky sea snake is at very low and declining abundance, has a very restricted range and a presumed low rate of dispersal, and is experiencing high rates of hybridization throughout its range. We also conclude that Cantharellus noumeae has a small, restricted range, likely low growth rate and genetic diversity, and may be threatened by development, water pollution, sedimentation, heavy metals, and potential illegal activities. Siderastrea glynni is affected by the lack of known populations in the wild, a small captive population in a single location, likely low growth rates and genetic diversity, and potential ˜ increased threats from El Nino, climate change, disease, habitat degradation and other development (should the species be reintroduced to Panama). Tubastraea floreana is affected by a small, restricted range, documented declines, likely low levels of genetic diversity, and threats ˜ from El Nino, climate change, development, and illegal activities. After considering efforts being made to protect each of these species, we could not conclude that the existing or proposed conservation efforts would alter the extinction risk for any of these species. Therefore, we are listing each of these species as endangered. PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 Identifying Section 7 Consultation Requirements Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. It is unlikely that the listing of these species under the ESA will increase the number of section 7 consultations, because these species occur entirely outside of the United States and are unlikely to be affected by Federal actions. Critical Habitat Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(h)). E:\FR\FM\07OCR1.SGM 07OCR1 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations The best available scientific and commercial data as discussed above identify the geographical areas occupied by Aipysurus fuscus, Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana as being entirely outside U.S. jurisdiction, so we cannot designate occupied critical habitat for these species. We can designate critical habitat in areas in the United States currently unoccupied by the species, if the area(s) are determined by the Secretary to be essential for the conservation of the species. Based on the best available information, we have not identified unoccupied area(s) in U.S. water that are currently essential to the conservation of any of these four species. Therefore, based on the available information, we do not designate critical habitat for Aipysurus fuscus, Cantharellus noumeae, Siderastrea glynni, or Tubastraea floreana. asabaliauskas on DSK5VPTVN1PROD with RULES Identification of Those Activities That Would Likely Constitute a Violation of Section 9 of the ESA On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not likely constitute a violation of section 9 of the ESA. Because we are listing the dusky sea snake and the three foreign corals as endangered, all of the prohibitions of section 9(a)(1) of the ESA will apply to these species. These include prohibitions against the import, export, use in foreign commerce, or ‘‘take’’ of the species. These prohibitions apply to all persons subject to the jurisdiction of the United States, including in the United States, its territorial sea, or on the high seas. Take is defined as ‘‘to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.’’ The intent of this policy is to increase public awareness of the effects of this listing on proposed and ongoing activities within the species’ ranges. Activities that we believe could (subject to the exemptions set forth in 16 U.S.C. 1539) result in a violation of section 9 prohibitions for these species include, but are not limited to, the following: (1) Possessing, delivering, transporting, or shipping any individual or part (dead or alive) taken in violation of section 9(a)(1); (2) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any individual or part, in the course of a commercial activity; VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 60563 (3) Selling or offering for sale in interstate or foreign commerce any individual or part; (4) Importing or exporting any individual or part; (5) Releasing captive animals into the wild without a permit issued under section 10(a)(1)(A). Although animals held non-commercially in captivity at the time of listing are exempt from the prohibitions of import and export, the individual animals are considered listed and afforded most of the protections of the ESA, including most importantly, the prohibition against injuring or killing. Release of a captive animal has the potential to injure or kill the animal. Of an even greater conservation concern, the release of a captive animal has the potential to affect wild populations through introduction of diseases or inappropriate genetic mixing; and (6) Harming captive animals by, among other things, injuring or killing a captive animal, through experimental or potentially injurious care or conducting research or sexual breeding activities on captive animals, outside the bounds of normal animal husbandry practices. Captive sexual breeding of corals is considered potentially injurious. Furthermore, the production of coral progeny has conservation implications (both positive and negative) for wild populations. Experimental or potentially injurious care or procedures and research or sexual breeding activities of corals or dusky sea snake may, depending on the circumstances, be authorized under an ESA section 10(a)(1)(A) permit for scientific research or the enhancement of the propagation or survival of the species. (i.e., held in a controlled environment at the time of listing, in a non-commercial activity); (3) Continued possession of live corals or dusky sea snakes that were in captivity or in a controlled environment (e.g., in aquaria) at the time of this listing, so long as the prohibitions under ESA section 9(a)(1) are not violated. Facilities must provide evidence that the animals were in captivity or in a controlled environment prior to listing. We suggest such facilities submit information to us on the animals in their possession (e.g., size, age, description of animals, and the source and date of acquisition) to establish their claim of possession (see FOR FURTHER INFORMATION CONTACT); and (4) Provision of care for live corals or dusky sea snakes that were in captivity at the time of listing. These individuals are still protected under the ESA and may not be killed or injured, or otherwise harmed, and, therefore, must receive proper care. Normal care of captive animals necessarily entails handling or other manipulation of the animals, and we do not consider such activities to constitute take or harassment of the animals so long as adequate care, including veterinary care, when such practices, procedures, or provisions are not likely to result in injury, is provided. Section 11(f) of the ESA gives NMFS authority to promulgate regulations that may be appropriate to enforce the ESA. NMFS may promulgate future regulations, including to regulate holding of these species, if necessary. NMFS will provide the public with the opportunity to comment on future proposed regulations. Identification of Those Activities That Would Not Likely Constitute a Violation of Section 9 of the ESA Although the determination of whether any given activity constitutes a violation is fact dependent, we consider the following actions, depending on the circumstances, as being unlikely to violate the prohibitions in ESA section 9: (1) Take authorized by, and carried out in accordance with the terms and conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for purposes of scientific research or the enhancement of the propagation or survival of the species; (2) Continued possession of parts that were in possession at the time of listing. Such parts may be non-commercially exported or imported; however the importer or exporter must be able to provide evidence to show that the parts meet the criteria of ESA section 9(b)(1) Revisions to the NMFS Lists We revise and add table subheadings in the Code of Federal Regulations to accommodate these new listings in our list of endangered species at 50 CFR 224.101 and revisions to the table subheadings for our list of threatened species at 50 CFR 223.102. We add the subheading ‘‘Corals’’ to our table at 50 CFR 224.101. This subheading has already been added to our table at 50 CFR 223.102 in a previous rulemaking (79 FR 20802; April 14, 2014). We are revising the subheading of ‘‘Sea Turtles’’ in the endangered species table at 50 CFR 224.101 and the threatened species table at 50 CFR 223.102 by changing the subheading to ‘‘Reptiles.’’ This new subheading will encompass all currently listed sea turtles as well as other marine reptiles like the dusky sea snake. These revisions and addition are not substantive changes, but having these headings will help the public identify PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\07OCR1.SGM 07OCR1 60564 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations and locate species of interest in a more efficient manner. References A complete list of the references used in this final rule is available upon request (see ADDRESSES). Classification National Environmental Policy Act The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA) (See NOAA Administrative Order 216–6). Executive Order 12866, Regulatory Flexibility Act, and Paperwork Reduction Act As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection-ofinformation requirement for the purposes of the Paperwork Reduction Act. Executive Order 13132, Federalism In accordance with E.O. 13132, we determined that this final rule does not have significant Federalism effects and that a Federalism assessment is not required. Dated: September 30, 2015. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 223 and 224 are amended as follows: PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 1. The authority citation for part 223 continues to read as follows: ■ Authority: 16 U.S.C. 1531–1543; subpart B, §§ 223.201 and 223.202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). List of Subjects in 50 CFR Parts 223 and 224 Administrative practice and procedure, Endangered and threatened species, Exports, Imports, Reporting and record keeping requirements, Transportation. 2. In § 223.102, amend the table in paragraph (e) by removing the table subheading ‘‘Sea Turtles 2’’ and adding in its place ‘‘Reptiles 2’’ to read as follows: § 223.102 Enumeration of threatened marine and anadromous species. ■ * * * (e) * * * * * Species 1 Common name * Citation(s) for listing determination(s) Description of listed entity Scientific name Critical habitat ESA rules * * * * * * * * * * * * REPTILES 2 * 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). 2 Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, is limited to turtles while in the water. * * * * * 4. In § 224.101, paragraph (h), amend the table by: ■ A. Removing the table subheading ‘‘Sea Turtles 2’’ and adding in its place ‘‘Reptiles 2’’; ■ B. Adding an entry for ‘‘dusky sea snake’’ in alphabetical order under the new ‘‘Reptiles 2’’ table subheading; ■ C. Adding a ‘‘Corals’’ table subheading to follow the ‘‘Molluscs’’ table subheading; and ■ PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES 3. The authority citation for part 224 continues to read as follows: ■ Authority: 16 U.S.C. 1531–1543 and 16 U.S.C. 1361 et seq. D. Adding entries for three species of coral in alphabetical order by scientific name under the ‘‘Corals’’ table subheading. The additions read as follows: ■ § 224.101 Enumeration of endangered marine and anadromous species. * * * (h) * * * * * Species 1 asabaliauskas on DSK5VPTVN1PROD with RULES Common name * * Citation(s) for listing determination(s) Description of listed entity Scientific name * * * Critical habitat ESA rules * * REPTILES 2 Sea snake, dusky .................. VerDate Sep<11>2014 17:26 Oct 06, 2015 Aipysurus fuscus ......... Jkt 238001 PO 00000 Entire species ......... Frm 00052 Fmt 4700 [Insert Federal Register citation and date]. Sfmt 4700 E:\FR\FM\07OCR1.SGM 07OCR1 NA NA 60565 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations Species 1 Common name * Citation(s) for listing determination(s) Description of listed entity Scientific name Critical habitat ESA rules * * * * * * * * * * * * MOLLUSCS * CORALS Coral, [no common name] ..... Cantharellus noumeae Entire species ......... Coral, [no common name] ..... Siderastrea glynni ........ Entire species ......... Coral, [no common name] ..... Tubastraea floreana .... Entire species ......... [Insert Federal Register citation and date]. [Insert Federal Register citation and date]. [Insert Federal Register citation and date]. NA NA NA NA NA NA. 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). 2 Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, is limited to turtles while in the water. * * * * * This correction is effective October 7, 2015. DATES: [FR Doc. 2015–25484 Filed 10–6–15; 8:45 am] BILLING CODE 3510–22–P FOR FURTHER INFORMATION CONTACT: Karla Gore, 727–824–5305; email: karla.gore@noaa.gov. DEPARTMENT OF COMMERCE On July 17, 2015, NMFS published a final rule in the Federal Register (80 FR 42423) to implement provisions for Amendment 8, that expands portions of the northern and western boundaries of the Oculina Bank HAPC and allows transit through the Oculina Bank HAPC by fishing vessels with rock shrimp onboard; modifies vessel monitoring systems (VMS) requirements for rock shrimp fishermen transiting through the Oculina Bank HAPC; expands a portion of the western boundary of the Stetson Reefs, Savannah and East Florida Lithotherms, and Miami Terrace Deepwater Coral HAPC (Stetson-Miami Terrace CHAPC), including modifications to shrimp access area 1; and expands a portion of the northern boundary of the Cape Lookout CHAPC. The purpose of the final rule is to increase protection for deepwater coral based on new information for deepwater coral resources in the South Atlantic. The final rule was effective August 17, 2015. The regulatory text in the Amendment 8 final rule in § 622.224(b)(1) contains three waypoints that were incorrectly listed for describing the Oculina Bank HAPC. These waypoints were correctly identified in Amendment 8 but were incorrectly converted to the coordinate format used for the proposed and final rules for Amendment 8. The incorrect waypoints are the origin point and points 7 and 8 for the Oculina Bank HAPC. SUPPLEMENTARY INFORMATION: National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 150626556–5886–02] RIN 0648–BD81 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coral, Coral Reefs, and Live/Hard Bottom Habitats of the South Atlantic Region; Amendment 8; Correction National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; correcting amendment. AGENCY: NMFS corrects the final rule that implemented management measures described in Amendment 8 to the Fishery Management Plan for Coral, Coral Reefs, and Live/Hard Bottom Habitats of the South Atlantic Region (FMP)(Amendment 8), which published in the Federal Register on July 17, 2015. The Amendment 8 final rule contained some incorrect waypoints for the Oculina Bank Habitat Area of Particular Concern (HAPC)(Oculina Bank HAPC) as well as incorrect language regarding the gear stowage requirements for vessels with rock shrimp onboard transiting through the Oculina Bank HAPC. The purpose of this correcting amendment is to fix these errors. asabaliauskas on DSK5VPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 Additionally, the proposed and final rules for Amendment 8 incorrectly described the gear stowage provisions for vessels transiting the Oculina Bank HAPC with rock shrimp onboard. The regulatory text in the Amendment 8 final rule in § 622.224(b)(1)(i)(C) states that appropriate stowage for shrimp trawl fishing gear includes the trawl doors and nets being out of the water and onboard the vessel deck or below deck. However, as described in the Amendment 8, the correct gear stowage for the trawl doors and nets is to have the doors and nets out of the water. Requiring the trawl doors and nets to be on deck was contrary to the intent of the South Atlantic Fishery Management Council (Council) and not consistent with Amendment 8. This notification corrects the table in § 622.224(b)(1) with the correct coordinates and corrects the gear stowage language in § 622.224(b)(1)(i)(C) by incorporating the necessary language from Amendment 8 back into the regulations. Correction As published, the final rule for Amendment 8, published on July 17, 2015 (80 FR 42423), incorrectly listed three waypoints for the Oculina Bank HAPC and incorrectly described gear stowage language for vessels transiting the area. Coordinates are added to § 622.224(b)(1) and language is revised in § 622.224(b)(1)(i)(C) to correct these errors. Classification The Regional Administrator, Southeast Region, NMFS has determined that this correcting amendment is necessary for the E:\FR\FM\07OCR1.SGM 07OCR1

Agencies

[Federal Register Volume 80, Number 194 (Wednesday, October 7, 2015)]
[Rules and Regulations]
[Pages 60560-60565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25484]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 140707555-5880-02]
RIN 0648-XD370

Endangered and Threatened Wildlife and Plants; Final Rule To List
the Dusky Sea Snake and Three Foreign Corals Under the Endangered
Species Act

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, NMFS, issue a final rule to list three foreign corals and
the dusky sea snake under the Endangered Species Act (ESA). We
considered comments submitted on the proposed listing rule and have
determined that the three foreign corals (Cantharellus noumeae,
Siderastrea glynni, and Tubastraea floreana) and the dusky sea snake
(Aipysurus fuscus) should be listed as endangered species. We will not
designate critical habitat for any of the species because the
geographical areas occupied by these species are entirely outside U.S.
jurisdiction, and we have not identified any unoccupied areas within
U.S. jurisdiction that are currently essential to the conservation of
any of these species.

DATES: This final rule is effective November 6, 2015.

ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910,
USA.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., NMFS, Office of
Protected Resources, (301) 427-8403.

SUPPLEMENTARY INFORMATION:

Background

On July 15, 2013, we received a petition from WildEarth Guardians
to list 81 marine species as threatened or endangered under the
Endangered Species Act (ESA). We found that the petitioned actions may
be warranted for 27 of the 81 species and announced the initiation of
status reviews for each of the 27 species (78 FR 63941, October 25,
2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79
FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On
December 16, 2014, we published a proposed rule to list the dusky sea
snake (Aipysurus fuscus) and three foreign corals (Cantharellus
noumeae, Siderastrea glynni, and Tubastraea floreana) as endangered
species, and we proposed to list the Banggai cardinalfish (Pterapogon
kauderni) and Harrisson's dogfish (Centrophorus harrissoni) as
threatened species (79 FR 74953). We requested public comment on
information in the status reviews and proposed rule, and the comment
period was open through February 17, 2015. This final rule provides a
discussion of the information we received during the public comment
period and our final determination on the petition to list the three
foreign corals (Cantharellus noumeae, Siderastrea glynni, and
Tubastraea floreana) and the dusky sea snake (Aipysurus fuscus) under
the ESA. Our final determinations for the other species proposed for
listing in the December 16, 2014, proposed rule (79 FR 74953; Banggai
cardinalfish (Pterapogon kauderni) and Harrisson's dogfish
(Centrophorus harrissoni)) will be made in a subsequent rule. The
status of the findings and relevant Federal Register notices for those
and the other 21 species can be found on our Web site at https://www.nmfs.noaa.gov/pr/species/petition81.htm.
We are responsible for determining whether species are threatened
or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this
determination, we consider first whether a group of organisms
constitutes a ``species'' under the ESA, then whether the status of the
species qualifies it for listing as either threatened or endangered.
Section 3 of the ESA defines a ``species'' to include ``any subspecies
of fish or wildlife or plants, and any distinct population segment of
any species of vertebrate fish or wildlife which interbreeds when
mature.''
Section 3 of the ESA defines an endangered species as ``any species
which is in danger of extinction throughout all or a significant
portion of its range'' and a threatened species as one ``which is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.'' We interpret an
``endangered species'' to be one that is presently in danger of
extinction. A ``threatened species,'' on the other hand, is not
presently in danger of extinction, but is likely to become so in the
foreseeable future (that is, at a later time). In other words, the
primary statutory difference between a threatened and endangered
species is the timing of when a species may be in danger of extinction,
either presently (endangered) or in the foreseeable future
(threatened).
Section 4(a)(1) of the ESA requires us to determine whether any
species is endangered or threatened due to any one or a combination of
the following five threat factors: The present or threatened
destruction, modification, or curtailment of its habitat or range;
overutilization for commercial, recreational, scientific, or
educational purposes; disease or predation; the inadequacy of existing
regulatory mechanisms; or other natural or manmade factors affecting
its continued existence. We are also required to make listing
determinations based solely on the best scientific and commercial data
available, after conducting a review of the species' status and after
taking into account efforts being made by any state or foreign nation
to protect the species.
In making a listing determination, we first determine whether a
petitioned species meets the ESA definition of a ``species.'' Next,
using the best available information gathered during the status

[[Page 60561]]

review for the species, we complete a status and extinction risk
assessment. In assessing extinction risk for these four species, we
considered the demographic viability factors developed by McElhany et
al. (2000) and the risk matrix approach developed by Wainwright and
Kope (1999) to organize and summarize extinction risk considerations.
The approach of considering demographic risk factors to help frame the
consideration of extinction risk has been used in many of our status
reviews, including for Pacific salmonids, Pacific hake, walleye
pollock, Pacific cod, Puget Sound rockfishes, Pacific herring,
scalloped hammerhead sharks, and black abalone (see https://www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this
approach, the collective condition of individual populations is
considered at the species level according to four demographic viability
factors: Abundance, growth rate/productivity, spatial structure/
connectivity, and diversity. These viability factors reflect concepts
that are well-founded in conservation biology and that individually and
collectively provide strong indicators of extinction risk.
We then assess efforts being made to protect the species, to
determine if these conservation efforts are adequate to mitigate the
existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary,
when making a listing determination for a species, to take into
consideration those efforts, if any, being made by any State or foreign
nation to protect the species.

Summary of Comments

In response to our request for comments on the proposed rule, we
received three comments on the three foreign corals, and the Australian
Government Department of the Environment submitted a letter neither
supporting nor opposing our proposed listing of the dusky sea snake.
The letter stated that the dusky sea snake is listed under Australia's
Environment Protection and Biodiversity Conservation Act, and thus it
is currently illegal to kill, injure, take or trade dusky sea snakes.
Because this information was acknowledged and considered in our status
review, this information did not affect the proposal to list the
species as endangered under the ESA. Three parties commented on the
three corals.
Comment 1: One commenter suggested active outside involvement in
the recovery of the species, including partnerships with reef
aquarists.
Response: We agree with the commenter that partnerships enhance
recovery of listed species and that reef aquarists are a potential
partner. We will look for opportunities to partner with parties
interested in the recovery of these species.
Comment 2: One commenter focused on the threat of carbon dioxide
emissions and climate change. They claimed we, and the Departments of
Commerce and Interior, should develop a National Climate Recovery Plan
to protect a wide variety of resources and that we should define
adverse modification under section 7 of the ESA for these proposed
species. This commenter also requested we designate critical habitat
for these species and suggested we alter our conclusion to say with
certainty that each of the three coral species is definitively
threatened by climate change, ocean warming, and sea level rise, and
alter our discussion of regulatory mechanisms and the effects of
listing as a result.
Response: We note that action to develop a National Climate
Recovery Plan is not part of the determination for listing that is the
subject of this action and thus cannot be considered further here. As
we noted in the proposed rule, we cannot designate critical habitat for
these species, as their range is entirely outside U.S. jurisdiction and
we have no evidence that unoccupied areas within our jurisdiction are
necessary for the conservation of any of the species. Because we cannot
designate critical habitat for these species, we have no reason to
define adverse modification of critical habitat under Section 7 of the
ESA for these corals. The commenter provided no species-specific
information on climate change-related threats, so we cannot change our
conclusion that habitat modification resulting from climate change is a
potential threat to all three species of coral. Similarly, based on the
same lack of new species-specific information, we cannot change our
discussion of the adequacy of regulatory mechanisms to address these
threats or the likely effects of listing.
Comment 3: A researcher provided information on studies of the
symbiotic Symbodinium algae residing in five specimens of Siderastrea
glynni. This researcher claims to have identified two symbiont species
in S. glynni, Symbodinium goreauii and Symbodinium trenchii. The
researcher believes there is evidence that the Symbodinium trenchii
occurring in S. glynni is of Caribbean origin and suggests this
provides evidence that S. glynni is from an introduction of Siderastrea
siderea to the eastern Pacific and is not some kind of separate rare
endemic species.
Response: We understand that Symbodinium trenchii and Symbodinium
goreauii also occur in other regions of the Pacific as symbionts with
other coral species. We are also aware that the strain of Symbodinium
trenchii occurring in S. glynni also occurs in Caribbean corals,
including species of Siderastrea (Pettay et al., 2015). According to
Guzman (personal communication (the person who described S. glynni)),
the research for the original description of S. glynni found that the
species was more closely related to a fossil species from Baja
California, Mexico than to the Caribbean S. siderea. If S. glynni has a
long history in the eastern Pacific as some of the data suggest
(Forsman et al., 2005), it could have been the source of, or another
host for, the strain of Symbodinium trenchii that recently entered the
Caribbean Sea. Alternatively, a Caribbean Siderastrea siderea could
have recently invaded the eastern Pacific through the Panama Canal
after the evolution of the Caribbean strain of Symbodinium trenchii.
Under this scenario then, S. glynni would not be a unique species
(Forsman et al., 2005). The direction and timing of movement of the
strain of Symbodinium trenchii that occurs in S. glynni across the
Isthmus of Panama between the Caribbean Sea and the eastern Pacific
Ocean is thus uncertain, and the data on these symbionts may not be
adequate to definitely distinguish among the competing hypotheses for
the origin and taxonomy of S. glynni. Guzman (personal communication)
is skeptical that the symbiont data provided by the commenter provides
definitive evidence regarding the taxonomic status of the species. We
agree, and thus decline to alter the existing published taxonomy of the
species.

Status Reviews

Status reviews for the petitioned species addressed in this finding
were conducted by NMFS staff. Separate draft status reviews were
completed for dusky sea snake (Manning, 2014), and the three foreign
corals (Meadows, 2014). In order to complete the status reviews, we
compiled information on the species' biology, ecology, life history,
threats, and conservation status from information contained in the
petition, our files, a comprehensive literature search, and
consultation with experts. We also considered information submitted by
the public and peer reviewers. Prior to publication of the proposed
rule, all status reviews were subjected to peer review. Peer reviewer
comments are available at https://

[[Page 60562]]

www.cio.noaa.gov/services_programs/prplans/PRsummaries.html.
The status review reports provide a thorough discussion of life
history, demographic risks, and threats to the particular species. We
considered all identified threats, both individually and cumulatively,
to determine whether the species responds in a way that causes actual
impacts at the species level. The collective condition of individual
populations was also considered at the species level, according to the
four demographic viability factors discussed above.
The proposed rule (79 FR 74953, December 16, 2014) summarizes
general background information on the species' natural history, range,
reproduction, population structure, distribution and abundance; none of
which has changed since the proposed rule. All of that information is
incorporated herein by reference.

Species Determinations

Based on the best available scientific and commercial information
described above and in the status review reports, we have determined
that the dusky sea snake (Aipysurus fuscus) and the three foreign
corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea
floreana) are taxonomically-distinct species and therefore meet the
definition of ``species'' pursuant to section 3 of the ESA and are
eligible for listing under the ESA.

Summary of Threat Factors Affecting the Four Species

Next we consider whether any one or a combination of the five
threat factors specified in section 4(a)(1) of the ESA contribute to
the extinction risk of these species. None of the information we
received from public comment on the proposed rule affected any of our
discussion or conclusions regarding any of the section 4(a)(1) factors
or their interactions for these species, so we incorporate the
discussion of these factors from the proposed rule (79 FR 74953,
December 16, 2014) by reference herein.

Extinction Risk

None of the information we received from public comment on the
proposed rule affected our extinction risk evaluations of these four
species. As such, our evaluations for these species remain the same as
in the status review reports and the discussion in the proposed rule
(79 FR 74953, December 16, 2014), and that discussion is incorporated
herein by reference.

Conservation Efforts

Finally, we considered conservation efforts to protect each species
and evaluated whether these conservation efforts are adequate to
mitigate the existing threats to the point where extinction risk is
significantly lowered and the species' status is improved. None of the
information we received from public comment on the proposed rule
affected any of our discussion or conclusions regarding conservation
efforts to protect the dusky sea snake or the three foreign coral
species, so we incorporate the discussion of these efforts from the
proposed rule (79 FR 74953, December 16, 2014) by reference herein.

Final Determination

We have reviewed the best available scientific and commercial
information, including the petition, the information in the status
review reports, public comment, and the comments of peer reviewers.
Based on the best available information, we find that the dusky sea
snake (Aipysurus fuscus) and the three foreign corals (Cantharellus
noumeae, Siderastrea glynni, and Tubastraea floreana) are in danger of
extinction throughout all of their ranges. We assessed the ESA section
4(a)(1) factors and demographic risk factors and conclude that the
dusky sea snake is at very low and declining abundance, has a very
restricted range and a presumed low rate of dispersal, and is
experiencing high rates of hybridization throughout its range. We also
conclude that Cantharellus noumeae has a small, restricted range,
likely low growth rate and genetic diversity, and may be threatened by
development, water pollution, sedimentation, heavy metals, and
potential illegal activities. Siderastrea glynni is affected by the
lack of known populations in the wild, a small captive population in a
single location, likely low growth rates and genetic diversity, and
potential increased threats from El Ni[ntilde]o, climate change,
disease, habitat degradation and other development (should the species
be reintroduced to Panama). Tubastraea floreana is affected by a small,
restricted range, documented declines, likely low levels of genetic
diversity, and threats from El Ni[ntilde]o, climate change,
development, and illegal activities. After considering efforts being
made to protect each of these species, we could not conclude that the
existing or proposed conservation efforts would alter the extinction
risk for any of these species. Therefore, we are listing each of these
species as endangered.

Effects of Listing

Conservation measures provided for species listed as endangered or
threatened under the ESA include recovery actions (16 U.S.C. 1533(f));
Federal agency requirements to consult with NMFS under section 7 of the
ESA to ensure their actions do not jeopardize the species or result in
adverse modification or destruction of critical habitat should it be
designated (16 U.S.C. 1536); designation of critical habitat if prudent
and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking
(16 U.S.C. 1538). In addition, recognition of the species' plight
through listing promotes conservation actions by Federal and state
agencies, foreign entities, private groups, and individuals. Because
the ranges of these four species are entirely outside U.S.
jurisdiction, the main effects of these endangered listings are
prohibitions on export and import.

Identifying Section 7 Consultation Requirements

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS
regulations require Federal agencies to consult with us to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of listed species or destroy or
adversely modify critical habitat. It is unlikely that the listing of
these species under the ESA will increase the number of section 7
consultations, because these species occur entirely outside of the
United States and are unlikely to be affected by Federal actions.

Critical Habitat

Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(5)) as: (1) The specific areas within the geographical area
occupied by a species, at the time it is listed in accordance with the
ESA, on which are found those physical or biological features (a)
essential to the conservation of the species and (b) that may require
special management considerations or protection; and (2) specific areas
outside the geographical area occupied by a species at the time it is
listed upon a determination that such areas are essential for the
conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C.
1533(a)(3)(A)) requires that, to the extent prudent and determinable,
critical habitat be designated concurrently with the listing of a
species. However, critical habitat shall not be designated in foreign
countries or other areas outside U.S. jurisdiction (50 CFR 424.12(h)).

[[Page 60563]]

The best available scientific and commercial data as discussed
above identify the geographical areas occupied by Aipysurus fuscus,
Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana as
being entirely outside U.S. jurisdiction, so we cannot designate
occupied critical habitat for these species. We can designate critical
habitat in areas in the United States currently unoccupied by the
species, if the area(s) are determined by the Secretary to be essential
for the conservation of the species. Based on the best available
information, we have not identified unoccupied area(s) in U.S. water
that are currently essential to the conservation of any of these four
species. Therefore, based on the available information, we do not
designate critical habitat for Aipysurus fuscus, Cantharellus noumeae,
Siderastrea glynni, or Tubastraea floreana.

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

On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that
requires us to identify, to the maximum extent practicable at the time
a species is listed, those activities that would or would not likely
constitute a violation of section 9 of the ESA. Because we are listing
the dusky sea snake and the three foreign corals as endangered, all of
the prohibitions of section 9(a)(1) of the ESA will apply to these
species. These include prohibitions against the import, export, use in
foreign commerce, or ``take'' of the species. These prohibitions apply
to all persons subject to the jurisdiction of the United States,
including in the United States, its territorial sea, or on the high
seas. Take is defined as ``to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct.'' The intent of this policy is to increase public awareness of
the effects of this listing on proposed and ongoing activities within
the species' ranges. Activities that we believe could (subject to the
exemptions set forth in 16 U.S.C. 1539) result in a violation of
section 9 prohibitions for these species include, but are not limited
to, the following:
(1) Possessing, delivering, transporting, or shipping any
individual or part (dead or alive) taken in violation of section
9(a)(1);
(2) Delivering, receiving, carrying, transporting, or shipping in
interstate or foreign commerce any individual or part, in the course of
a commercial activity;
(3) Selling or offering for sale in interstate or foreign commerce
any individual or part;
(4) Importing or exporting any individual or part;
(5) Releasing captive animals into the wild without a permit issued
under section 10(a)(1)(A). Although animals held non-commercially in
captivity at the time of listing are exempt from the prohibitions of
import and export, the individual animals are considered listed and
afforded most of the protections of the ESA, including most
importantly, the prohibition against injuring or killing. Release of a
captive animal has the potential to injure or kill the animal. Of an
even greater conservation concern, the release of a captive animal has
the potential to affect wild populations through introduction of
diseases or inappropriate genetic mixing; and
(6) Harming captive animals by, among other things, injuring or
killing a captive animal, through experimental or potentially injurious
care or conducting research or sexual breeding activities on captive
animals, outside the bounds of normal animal husbandry practices.
Captive sexual breeding of corals is considered potentially injurious.
Furthermore, the production of coral progeny has conservation
implications (both positive and negative) for wild populations.
Experimental or potentially injurious care or procedures and research
or sexual breeding activities of corals or dusky sea snake may,
depending on the circumstances, be authorized under an ESA section
10(a)(1)(A) permit for scientific research or the enhancement of the
propagation or survival of the species.

Identification of Those Activities That Would Not Likely Constitute a
Violation of Section 9 of the ESA

Although the determination of whether any given activity
constitutes a violation is fact dependent, we consider the following
actions, depending on the circumstances, as being unlikely to violate
the prohibitions in ESA section 9:
(1) Take authorized by, and carried out in accordance with the
terms and conditions of, an ESA section 10(a)(1)(A) permit issued by
NMFS for purposes of scientific research or the enhancement of the
propagation or survival of the species;
(2) Continued possession of parts that were in possession at the
time of listing. Such parts may be non-commercially exported or
imported; however the importer or exporter must be able to provide
evidence to show that the parts meet the criteria of ESA section
9(b)(1) (i.e., held in a controlled environment at the time of listing,
in a non-commercial activity);
(3) Continued possession of live corals or dusky sea snakes that
were in captivity or in a controlled environment (e.g., in aquaria) at
the time of this listing, so long as the prohibitions under ESA section
9(a)(1) are not violated. Facilities must provide evidence that the
animals were in captivity or in a controlled environment prior to
listing. We suggest such facilities submit information to us on the
animals in their possession (e.g., size, age, description of animals,
and the source and date of acquisition) to establish their claim of
possession (see For Further Information Contact); and
(4) Provision of care for live corals or dusky sea snakes that were
in captivity at the time of listing. These individuals are still
protected under the ESA and may not be killed or injured, or otherwise
harmed, and, therefore, must receive proper care. Normal care of
captive animals necessarily entails handling or other manipulation of
the animals, and we do not consider such activities to constitute take
or harassment of the animals so long as adequate care, including
veterinary care, when such practices, procedures, or provisions are not
likely to result in injury, is provided.
Section 11(f) of the ESA gives NMFS authority to promulgate
regulations that may be appropriate to enforce the ESA. NMFS may
promulgate future regulations, including to regulate holding of these
species, if necessary. NMFS will provide the public with the
opportunity to comment on future proposed regulations.

Revisions to the NMFS Lists

We revise and add table subheadings in the Code of Federal
Regulations to accommodate these new listings in our list of endangered
species at 50 CFR 224.101 and revisions to the table subheadings for
our list of threatened species at 50 CFR 223.102. We add the subheading
``Corals'' to our table at 50 CFR 224.101. This subheading has already
been added to our table at 50 CFR 223.102 in a previous rulemaking (79
FR 20802; April 14, 2014). We are revising the subheading of ``Sea
Turtles'' in the endangered species table at 50 CFR 224.101 and the
threatened species table at 50 CFR 223.102 by changing the subheading
to ``Reptiles.'' This new subheading will encompass all currently
listed sea turtles as well as other marine reptiles like the dusky sea
snake. These revisions and addition are not substantive changes, but
having these headings will help the public identify

[[Page 60564]]

and locate species of interest in a more efficient manner.

References

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

Classification

National Environmental Policy Act

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir.
1981), NMFS has concluded that ESA listing actions are not subject to
the environmental assessment requirements of the National Environmental
Policy Act (NEPA) (See NOAA Administrative Order 216-6).

Executive Order 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act

As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the listing process.
In addition, this final rule is exempt from review under Executive
Order 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction
Act.

Executive Order 13132, Federalism

In accordance with E.O. 13132, we determined that this final rule
does not have significant Federalism effects and that a Federalism
assessment is not required.

List of Subjects in 50 CFR Parts 223 and 224

Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and record keeping requirements,
Transportation.

Dated: September 30, 2015.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 223 and 224
are amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

Authority: 16 U.S.C. 1531-1543; subpart B, Sec. Sec. 223.201
and 223.202 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 Sec. 223.102, amend the table in paragraph (e) by removing the
table subheading ``Sea Turtles \2\'' and adding in its place ``Reptiles
\2\'' to read as follows:

Sec. 223.102 Enumeration of threatened marine and anadromous species.

* * * * *
(e) * * *

----------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Reptiles \2\

* * * * * * *
----------------------------------------------------------------------------------------------------------------
\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).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, is limited to turtles while in the water.

* * * * *

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
3. The authority citation for part 224 continues to read as follows:

Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

0
4. In Sec. 224.101, paragraph (h), amend the table by:
0
A. Removing the table subheading ``Sea Turtles \2\'' and adding in its
place ``Reptiles \2\'';
0
B. Adding an entry for ``dusky sea snake'' in alphabetical order under
the new ``Reptiles \2\'' table subheading;
0
C. Adding a ``Corals'' table subheading to follow the ``Molluscs''
table subheading; and
0
D. Adding entries for three species of coral in alphabetical order by
scientific name under the ``Corals'' table subheading.
The additions read as follows:

Sec. 224.101 Enumeration of endangered marine and anadromous species.

* * * * *
(h) * * *

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Reptiles \2\
----------------------------------------------------------------------------------------------------------------
Sea snake, dusky............ Aipysurus Entire species. [Insert Federal NA NA
fuscus. Register
citation and
date].

[[Page 60565]]

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Molluscs
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Corals
----------------------------------------------------------------------------------------------------------------
Coral, [no common name]..... Cantharellus Entire species. [Insert Federal NA NA
noumeae. Register
citation and
date].
Coral, [no common name]..... Siderastrea Entire species. [Insert Federal NA NA
glynni. Register
citation and
date].
Coral, [no common name]..... Tubastraea Entire species. [Insert Federal NA NA.
floreana. Register
citation and
date].
----------------------------------------------------------------------------------------------------------------
\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).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, is limited to turtles while in the water.

* * * * *
[FR Doc. 2015-25484 Filed 10-6-15; 8:45 am]
BILLING CODE 3510-22-P

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