Endangered and Threatened Species: Final Listing Determinations for Elkhorn Coral and Staghorn Coral, 26852-26872 [06-4321]

Download as PDF 26852 Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations Species Vertebrate population where endangered or threatened Historic range Common name Fly, Hawaiian wing. Fly, Hawaiian wing. Fly, Hawaiian wing. Fly, Hawaiian wing. Fly, Hawaiian wing. Fly, Hawaiian wing. Fly, Hawaiian wing. Scientific name Special rules Drosophila mulli ........ U.S.A. (HI) ................ NA T 756 NA NA picture- Drosophila musaphilia U.S.A. (HI) ................ NA E 756 NA NA picture- Drosophila neoclavisetae. Drosophila obatai ...... U.S.A. (HI) ................ NA E 756 NA NA U.S.A. (HI) ................ NA E 756 NA NA U.S.A. (HI) ................ NA E 756 NA NA U.S.A. (HI) ................ NA E 756 NA NA U.S.A. (HI) ................ NA E 756 NA NA picturepicturepicturepicture- Drosophila ochrobasis. Drosophila substenoptera. Drosophila tarphytrichia. * * Dated: May 2, 2006. H. Dale Hall, Director, Fish and Wildlife Service. [FR Doc. 06–4299 Filed 5–8–06; 8:45 am] DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 223 [Docket No. 050304058–6116–03; I.D. No. 060204C] RIN No. 0648–XB29 Endangered and Threatened Species: Final Listing Determinations for Elkhorn Coral and Staghorn Coral National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: SUMMARY: We, the National Marine Fisheries Service (NMFS), are publishing this final rule to implement our determination to list elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals as threatened species under the Endangered Species Act (ESA) of 1973, as amended. We have reviewed the status of the species and efforts being made to protect the species, and we have made our determinations based on the best scientific and commercial data available. We also solicit information that may be relevant to our analysis of protective regulations and to the designation of critical habitat for these two species. 15:32 May 08, 2006 Jkt 208001 * * The effective date of this rule is June 8, 2006. Responses to the request for information regarding a subsequent ESA section 4(d) Rule and critical habitat designation must be received by June 2, 2006. ADDRESSES: NMFS, Southeast Regional Office, Protected Resources Division, 263 13th Ave. South, St. Petersburg, FL 33701. FOR FURTHER INFORMATION CONTACT: Jennifer Moore or Stephania Bolden, NMFS, Southeast Region, at the address above or at (727) 824–5312, or Marta Nammack, NMFS, Office of Protected Resources, at (301) 713–1401. Reference materials regarding these determinations are available upon request or on the Internet at http:// sero.nmfs.noaa.gov. SUPPLEMENTARY INFORMATION: DATES: BILLING CODE 4310–55–P mstockstill on PROD1PC68 with RULES Critical habitat picture- * VerDate Aug<31>2005 When listed Status Background On June 11, 1991, we identified elkhorn and staghorn corals as ‘‘candidates’’ for listing under the ESA (56 FR 26797). Both species were subsequently removed from the candidate list on December 18, 1997, because we were not able to obtain sufficient information on their biological status and threats to meet the scientific documentation required for inclusion on the 1997 candidate species list (62 FR 37560). Using data from a 1998 analysis and information obtained during a public comment period, we again added the two species to the ESA candidate species list on June 23, 1999 (64 FR 33466). These two species qualified as ESA candidate species at that time because there was some evidence they had undergone substantial declines in abundance or range from historic levels. On April 15, 2004, we established a PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 * * ‘‘species of concern’’ list to differentiate those species for which we had concerns regarding their status from those species that were truly candidates for listing under the ESA (69 FR 19976). When we established this new list, we transferred both elkhorn and staghorn corals from the candidate species list to the species of concern list. On March 4, 2004, the Center for Biological Diversity (CBD) petitioned us to list elkhorn, staghorn, and fusedstaghorn corals as either threatened or endangered under the ESA and to designate critical habitat. On June 23, 2004, we made a positive 90–day finding (69 FR 34995) that CBD had presented substantial information indicating the petitioned actions may be warranted and announced the initiation of a formal status review as required by section 4(b)(3)(A) of the ESA. Concurrently, we solicited additional information from the public on these Acroporid corals regarding historic and current distribution and abundance, population status and trends, areas that may qualify as critical habitat, any current or planned activities that may adversely affect them, and known conservation efforts. Additional information was also requested during two public meetings held in December 2004 on: (1) distribution and abundance; (2) areas that may qualify as critical habitat; and (3) approaches or criteria that could be used to assess listing potential of the Acroporids (e.g., viability assessment, extinction risk, etc.). In order to conduct a comprehensive status review, we convened an Atlantic Acropora Biological Review Team (BRT) to compile and analyze the best available scientific and commercial information on these species. The E:\FR\FM\09MYR1.SGM 09MYR1 Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations mstockstill on PROD1PC68 with RULES members of the BRT were a diverse group of experts in their fields and included coral biologists and ecologists; specialists in coral disease, coral monitoring and restoration, climate, water quality, and coral taxonomy; regional experts in coral abundance/ distribution throughout the Caribbean Sea; and state and Federal resource managers. The comprehensive, peerreviewed status review report developed by the BRT incorporates and summarizes the best scientific and commercial data available as of March 2005. The report addresses the status of the species, the factors identified in section 4(a)(1) of the ESA, and current regulatory, conservation, and research efforts yielding protection to the corals. The BRT also reviewed and considered the petition and materials we received as a result of the Federal Register announcement of the 90–day finding (69 FR 34995) and the public meetings. On March 3, 2005, we determined that elkhorn and staghorn corals were likely to become endangered within the foreseeable future throughout their entire ranges, and, therefore, a proposal to list the two species as threatened under the ESA was warranted (70 FR 13151; March 18, 2005). We also found that fused-staghorn coral was a hybrid and did not warrant listing. On May 9, 2005, we published a proposed rule (70 FR 24359) to place both elkhorn and staghorn corals on the list of threatened species under the ESA and commenced a 90–day public comment period, which included public meetings. Statutory Framework for ESA Listing Determinations The ESA defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range, and a threatened species as one that is likely to become endangered in the foreseeable future throughout all or a significant portion of its range (sections 3(6) and 3(19) of the ESA, respectively). Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened because of any one or a combination of the following factors: the present or threatened destruction, modification or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are required to make this determination based solely on the best scientific and commercial data available after conducting a review of the status of the species, and after taking into VerDate Aug<31>2005 15:32 May 08, 2006 Jkt 208001 account those efforts being made by states or foreign nations to protect or conserve the species. Finally, section 4(b)(1)(B) of the ESA requires us to give consideration to species which: (1) have been designated as requiring protection from unrestricted commerce by any foreign nation or pursuant to an international agreement; or (2) have been identified as in danger of extinction, or likely to become so within the foreseeable future, by any state agency or by any agency of a foreign nation. Summary of Comments Received Below we address the comments received pertaining to the proposed listing for the Acroporid corals. For additional background and a summary of Acropora spp. natural history and threats to the species, the reader is referred to the March 3, 2005, Atlantic Acropora Status Review report (available at http://sero.nmfs.noaa.gov/ pr/protres.htm). In response to our request for public comments, we received 1,393 written and verbal responses to the proposed threatened listings. Comment 1: Numerous commenters stated that the elkhorn and staghorn corals qualified for an endangered listing based on the declines in abundance and the significant threats faced by the species throughout their ranges. Response: During the status review, we carefully analyzed threats facing the species and declines in abundance and considered this analysis when determining the status of the species. As depicted and described in the status review report, abundance of both species has declined over the past 30 years rangewide; however, recent surveys indicate an increase in abundance in some areas (e.g., Buck Island, U.S.V.I.), no change in some areas (e.g., Florida Keys), and fluctuating abundance in some areas (e.g., Belize). At present, the total numbers of colonies and presumably individuals remain very large, though the absolute number of colonies or percent coverage is unquantified. For example, one study of A. palmata in the Florida Keys in 2001 estimated colony density to be 0.8 colonies per square meter; expanding this same density to the overall available habitat within the wider Caribbean (on the order of thousands of square kilometers) would correspond to individual colony counts on the order of billions. Further, the species persist across a very large geographic range, and there is no current evidence of range contractions. Therefore, we believe the species are PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 26853 showing limited, localized recovery, and, rangewide, the rate of decline appears to have stabilized and is comparatively slow as evidenced by the persistence at reduced abundances for the past two decades. In addition to population trends, we considered the significance of individual threats, and the cumulative and synergistic effects of the threats, acknowledging that the major threats (i.e., disease, hurricanes, and elevated sea surface temperature) to the elkhorn and staghorn corals are severe, unpredictable, and likely to increase in the foreseeable future. However, given the large number of colonies, the species’ large geographic ranges that remain intact, and the fact that asexual reproduction (fragmentation) provides a source for new colonies (albeit clones) that can buffer natural demographic and environmental variability, it is likely both species retain significant potential for persistence, and are not currently at risk of extinction throughout all or a significant portion of their ranges. Comment 2: One commenter asked us to provide a threshold that the corals must attain to qualify as endangered. Response: In the proposed listing rule, we described the application of the ESA definitions of endangered and threatened to the status of and threats to the Acroporid corals (70 FR 24360). The threshold for a species to qualify for endangered status is that it is in danger of extinction throughout all or a significant portion of its range. We determined the two species are not currently in danger of extinction, as discussed in the response above. Comment 3: Several commenters stated that we did not conduct a proper ‘‘significant portion of the range’’ analysis. One commenter stated that our conclusion that ‘‘there is no evidence indicating that any elkhorn or staghorn population within the geographic range of the species is more or less important than the others’’ is evidence of arbitrary and capricious reasoning. The commenter stated that, in our analysis of whether any portion of the range was significant, we should have at least considered areas where the corals have shown limited recovery as more important to the survival and recovery of the species than other areas. One commenter discussed a number of court cases invalidating decisions not to list species where the U.S. Fish and Wildlife Service (FWS) or NMFS only analyzed a species’ rangewide status and did not separately evaluate whether a species was endangered or threatened in a significant portion of its range (SPOIR). One commenter stated that we must apply this statutory term such that E:\FR\FM\09MYR1.SGM 09MYR1 mstockstill on PROD1PC68 with RULES 26854 Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations it does not effectively conflate ’entire range’ with ’SPOIR,’ nor base a listing decision solely on whether a species is threatened or endangered within a fixed percentage of its range. One commenter stated that if a species is threatened or endangered in a SPOIR, it must be listed as threatened or endangered throughout its range. Response: Because we did not determine any portion of the species’ ranges to be significant, and their ranges are intact, there was no basis for further evaluating the extinction risk of or threats to the species in any particular geographic areas, or for determining whether the coral species were endangered or threatened throughout a significant portion of their ranges. We proceeded instead to evaluate whether the species were endangered or threatened throughout their respective ranges. We did not conflate ‘‘entire range’’ and ‘‘SPOIR,’’ nor did we require any fixed percentage of the species’ ranges to constitute a significant portion. Consistent with prior court holdings, we performed a separate SPOIR analysis. We analyzed the relative biological importance of portions of the species’ ranges and found that no area was more or less important (i.e., functionally, ecologically) than any other area. As discussed in further detail (see Species and Risk of Extinction section), we evaluated a recent study that examined genetic exchange and clonal population structure of A. palmata, and we found that it does not indicate source or sink areas, distinguishable or separable populations within each region, or any more or less significant areas or populations (i.e., in terms of differential biological value to the species). While there are a few locations (e.g., Buck Island Reef National Monument) where limited recovery appears to be progressing, the origin of recruits, presumably from a single sexual reproduction event, is unknown and their contribution to the corals’ rangewide recovery remains undetermined. Therefore, there is insufficient evidence indicating that any particular geographic area or population is more significant to the species than others. Comment 4: One commenter requested we specifically list the coral populations off Broward County, FL as endangered. Response: As stated in the proposed listing rule, the ESA does not provide for listing distinct population segments of invertebrate species, and corals are invertebrates. Listing determinations for invertebrate species must be made at the species or subspecies level. Therefore, VerDate Aug<31>2005 15:32 May 08, 2006 Jkt 208001 whether the populations of A. cervicornis on the Broward reefs are in danger of extinction, the ESA does not provide for listing a population of this species. Comment 5: A few commenters were critical that the 30–year period, defined as the foreseeable future for purposes of our analysis for a threatened status, is not sufficiently protective, asserting that current threats could cause large amounts of coral to be lost in 30 years. Response: The definition of foreseeable future applies only to the threshold for a ’threatened’ determination (i.e., whether a species is likely to become endangered within the foreseeable future throughout all of a significant portion of its range). As discussed in our responses to Comments 1 and 2, we determined that neither elkhorn nor staghorn coral is currently in danger of extinction (the threshold for making an ’endangered’ determination). In evaluating ’foreseeable future’ for our threatened determinations for elkhorn and staghorn coral, our 30–year timeframe was selected as the most appropriate, given the species’ biology and threats they face (see Species and Risk of Extinction section), as well as the purpose of the ESA, which is to provide for the conservation and recovery of the species and the ecosystems upon which they depend. The 30–year period identified for the two coral species is consistent with the logistic function indicated by the data portraying population decline (circa 1975–2005), the preceding 30– year period of relative stability in abundance, and the hypothesized cycle of hurricane frequency and intensity. We concur with the commenters that, without an ESA listing, the species’ abundance and distribution are likely to become further reduced in the next 30 years, with some local extirpations likely. Those considerations contributed to our determination to list the species as threatened. Given that we made a determination to list the species as threatened using the 30–year timeframe for foreseeable future, a shorter timeframe would have been no more protective. We believe our 30–year timeframe is both appropriate and protective. Comment 6: Comments were received challenging our determination that A. prolifera is a hybrid and, therefore, not considered a species for listing. Commenters stated that the hybrid should be listed because of its ecological function and separate taxonomic diagnosis. Commenters stated that the hybrid may not be as well-studied as other Acroporids, and interbreeding is not a requirement to classify a species. PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 Lastly, one commenter stated we did not use the best available science, referring us to recent court cases on taxonomic uncertainty in ESA listings. Response: The ESA does not allow us to consider a taxon for listing based solely on its ecological function; it must as an initial matter meet the ESA definition of species. To determine A. prolifera’s status as a species, we followed our regulations at 50 CFR section 424.11(a), which direct us to rely on the standard taxonomic distinctions and the appropriate biological expertise within the agency and the scientific community in order to determine whether a particular taxon or population is a species for purposes of the ESA. We used published literature and unpublished scientific research to describe A. prolifera’s taxonomy based on morphology, genetics, and potential to reproduce. We concluded that A. prolifera is a hybrid because: (1) it exhibits a wide range of intermediate morphologies; (2) all individuals sampled are first generation hybrids of A. palmata and A. cervicornis; and (3) in laboratory attempts, it does not produce successful offspring via sexual reproduction. Other Acropora spp. reproduce by both sexual and asexual modes, while A. prolifera is not able to reproduce by both modes. All known individuals are hybrids, and cannot interbreed when mature, and, therefore, A. prolifera does not meet the biological definition of species. We also followed the court’s ruling in Center for Biological Diversity v. Lohn, 296 F. Supp.2d 1223 (W.D. Wash. 2003), by basing our decision on the best available science instead of outdated taxonomic distinctions. Although A. prolifera has a separate taxonomic history, the best available science shows it is a first generation hybrid and not a species. Comment 7: A commenter stated the BRT appeared to rely on a draft policy on listing hybrids (61 FR 4710; February 7, 1996) in considering the status of A. prolifera. Response: While the status review report briefly describes the draft hybrid policy as ESA background, the report indicates that the policy is non-binding because it has never been finalized. The policy was never discussed or applied by the BRT in the remainder of the report. Similarly, we were aware of the draft policy, but did not rely on the draft policy when making our determination that A. prolifera should not be considered a species for ESA listing. Our determination was based on the scientific information summarized in the response above. Comment 8: Many comments were received recommending potential listing E:\FR\FM\09MYR1.SGM 09MYR1 mstockstill on PROD1PC68 with RULES Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations of A. prolifera under the ‘‘similarity of appearance’’ provision pursuant to section 4(e) of the ESA. Response: Because we have not prohibited take of A. palmata and A. cervicornis in this final listing rule, prohibiting take of A. prolifera by listing it under 4(e) of the ESA is not appropriate as part of this final rule. We will consider whether a ‘‘similarity of appearance’’ regulation for A. prolifera is appropriate if we issue an ESA section 4(d) rule to conserve the listed species. Comment 9: Numerous comments provided information on the threats we identified in the proposed rule. Several comments and journal articles addressing climate change and coral bleaching were received. Additionally, several commenters stated land-based sources of pollution (i.e., nutrients, sedimentation) are contributing to the decline of these species. We also received comments on the contribution of disease, hurricanes, poor boating, diving and fishing practices, and habitat loss to the status of elkhorn and staghorn corals. Many of the comments made suggestions regarding the relative importance of the threats and their contribution to the species’ status. Response: We evaluated all the information received on the threats affecting these species. No new threats were identified by any commenter. The suggested relative importance of the threats to the species’ status was consistent with the status review report and the proposed rule. The information received was also consistent with the data used to make our threatened determination. Comment 10: One commenter suggested we include a statement regarding the adequacy of the existing regulatory mechanisms pursuant to the Clean Water Act (CWA). Response: We acknowledge the importance of the CWA as a tool to protect marine life. Although the CWA sets water quality standards for salt water and delegates authority to set and enforce water quality standards to the states, we concur with the BRT’s conclusion that, despite existing regulations, degraded water quality resulting from nutrients and contaminants is contributing to the status of the two species. Comment 11: We received several comments pertaining to future regulatory actions under the ESA. These included suggestions to develop regulations to manage specific threats (e.g., emissions, water quality). Additionally, other commenters questioned how the proposed listing would affect their actions (e.g., fishing, VerDate Aug<31>2005 15:32 May 08, 2006 Jkt 208001 boating, diving). Commenters inquired about the timing of subsequent regulatory actions. Response: Because we are listing elkhorn and staghorn corals as threatened, the prohibitions under section 9 of the ESA are not automatically applied to these species. Section 4(d) of the ESA allows us to develop regulations necessary and advisable for the conservation of listed threatened species, including regulations that extend the section 9 prohibitions to such species. We are beginning to work with interested parties to evaluate the necessity and advisability of a 4(d) rule for elkhorn and staghorn corals. Similarly, because section 9 prohibitions are not automatically applied to these two species, this final rule will have no direct effects on the activities of private citizens. However, Federal agencies that fund, authorize, or carry out actions that are likely to adversely affect elkhorn or staghorn coral will be required to consult with us pursuant to section 7 of the ESA to ensure their actions are not likely to jeopardize the continued existence of either species. Section 4(a)(3)(A) of the ESA requires that critical habitat be designated, to the maximum extent prudent and determinable, concurrently with a determination that a species is endangered or threatened. When such a designation is not determinable at the time of final listing of a species, section 4(b)(6)(C)(ii) of the ESA provides for an additional year to promulgate a critical habitat designation. We have concluded that critical habitat for elkhorn and staghorn corals is not determinable at this time. Through the status review and public comment process, we have begun to collect information on the biological and physical features essential to the conservation of the two species. More information is still required to identify those features. Throughout the next year, we intend to gather and review current and ongoing studies on the habitat use and requirements of elkhorn and staghorn corals; this information is crucial for the designation of critical habitat. We will also gather information on the benefits and impacts of the designation. Comment 12: One commenter asked where take was occurring within the Caribbean Basin, because collection and sale of these corals is already prohibited. Response: Collection is not the only activity that constitutes take under the ESA. The ESA defines take as ‘‘to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,’’ PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 26855 which is a broader definition than the meaning suggested by the commenter. Although collection is prohibited in the United States and in many other Caribbean nations, there are many other activities currently occurring that may constitute take (see ‘‘Consideration of Causal Factors Relevant to Listing’’ section below). Comment 13: Many commenters stated it is essential to protect coral habitat, given the importance of coral reefs to the economy. Additionally, the commenters stated many cities and communities depend on coral reefs and associated commerce. Response: While the ESA and our listing regulations do not allow us to consider economics during listing, we are directed to consider the economic impacts, including relevant beneficial effects such as those raised by these commenters, when we designate critical habitat. Comment 14: Numerous commenters supported the proposed listing. Response: Comments noted. We look forward to partnering with these commenters and all stakeholders in the conservation of the two species. In addition to the comments relating to the proposed listing, the following were also received: (1) peer-reviewed journal articles regarding climate change; effectiveness of the ESA; and coral resistance, resilience, and bleaching; (2) additional detail pertaining to existing regulatory mechanisms evaluated in the status review; (3) geographic information identifying land development, runoff, sewer outfalls, and land-use; (4) statements regarding the functional role of corals as keystone and indicator species; (5) references to oceanographic processes and circulation patterns; (6) reiteration of biological information included in the status review report; (7) summary of the 2005 NOAA Fisheries Public Employees for Environmental Responsibility survey; and (8) information on the umbrella effect, ecosystem management, limitations in funding opportunities, bryozoans, mariand aquaculture, coral nurseries, species’ status, effectiveness of potential listing, recruitment fitness and success, application of the ESA, obtaining permits, and an Illinois State bill. After careful consideration, we conclude the additional information received, as summarized above, was considered previously or did not pertain to the listing determination for the Acroporid corals. Assessment of Species Status In the proposed rule to add elkhorn and staghorn corals to the list of E:\FR\FM\09MYR1.SGM 09MYR1 26856 Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations mstockstill on PROD1PC68 with RULES threatened species under the ESA, we outlined our rationale for our determination, including our finding that the BRT’s report constituted the best scientific and commercial data available. Below we have reiterated those portions of our evaluation pertinent to the public comments above and our final determination. Please refer to the proposed rule for additional information. Species and Risk of Extinction We first considered whether all three of the corals identified in the petition met the definition of ‘‘species’’ pursuant to section 3 of the ESA. The term ‘‘species’’ includes ‘‘any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.’’ Based on this language and the regulations at 50 CFR 424.11(a), ‘‘species’’ is given its ordinary, accepted biological meaning for these corals. Species diagnoses for both elkhorn and staghorn are not disputed; both species are recognized as separate taxa in the literature, have separate and discrete diagnoses and morphologies, produce offspring via asexual fragmentation, and produce viable gametes, larvae, and successful sexual offspring, which is typical of all species in the Acropora genus. In contrast, A. prolifera is a hybrid and does not meet the definition of species under the ESA (see Response to Comment 6). We then carefully examined whether the coral species met the definitions of endangered or threatened species in section 3 of the ESA: (1) ‘‘endangered species’’ is defined as ‘‘any species which is in danger of extinction throughout all or a significant portion of its range;’’ and (2) ‘‘threatened species’’ is defined as ‘‘any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.≥ Corals are invertebrates, and, therefore, only species or subspecies can be listed under the ESA. Distinct population segments of invertebrates cannot be listed. Further, we must also base a listing decision on whether a species is endangered or threatened throughout all or a significant portion of its range. Acropora spp. are widely distributed throughout the wider Caribbean and are found in waters off Florida, and Puerto Rico, U.S. Virgin Islands, Navassa, and the wider Caribbean (Belize, Colombia, Costa Rica, Guatemala, Honduras, Mexico, Nicaragua, Panama, Venezuela, and all the islands of the West Indies). Both elkhorn and staghorn corals were VerDate Aug<31>2005 15:32 May 08, 2006 Jkt 208001 historically (pre–1980s) the most abundant and most important species on Caribbean coral reefs in terms of accretion of reef structure. To assess if a geographic area could constitute a significant portion of the range of either elkhorn or staghorn coral, we examined the relative biological importance of populations throughout the species’ ranges. We considered the single genetic study available at the time of this determination that might support identification of portions of the species’ ranges that are distinguishable or separable (i.e., ‘‘distinct or discrete’’ as used in the May 9, 2005, proposed rule (70 FR 24359). The study examined genetic exchange and clonal population structure in A. palmata by sampling and genotyping colonies from 11 locations throughout its geographic range using microsatellite markers. Results indicate populations in the eastern Caribbean (St. Vincent and the Grenadines, U.S.V.I., Curacao, and Bonaire) have experienced little or no genetic exchange with populations in the western Caribbean (Bahamas, Florida, Mexico, Panama, Navassa, and Mona Island). Puerto Rico is an area of mixing where populations show genetic contribution from both regions, though it is more closely connected with the western Caribbean. Within these regions, some locations are entirely selfrecruiting and some receive immigrants from other locations within the region; however, the overall, rangewide average of the relative contribution of sexually versus asexually derived populations is approximately equal. No similar information exists for A. cervicornis. These data indicate that, on small and large scales, there are areas of mixing and areas that do not appear to have exchange; this indicates that there are no source or sink areas. In addition, although there are a few locations (e.g., Buck Island Reef National Monument) where limited recovery appears to be progressing, the origin of recruits, presumably from a single sexual reproduction event, is unknown, and their contribution to the corals’ rangewide recovery remains undetermined. Based on this, we cannot determine that there are any specific geographic areas or populations within the wider Caribbean that should be considered more or less significant (i.e., in terms of differential biological value to the species). Because we did not determine any portion of the species’ ranges to be significant, and their ranges are intact, there was no basis for further evaluating the extinction risk of or threats to the species in any particular PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 geographic areas, or for determining whether the coral species were endangered or threatened throughout a significant portion of their ranges. We proceeded instead to evaluate whether the species were endangered or threatened throughout their respective ranges. We determined that neither elkhorn nor staghorn corals are currently in danger of extinction throughout their entire ranges and neither meets the definition of endangered under the ESA. While the number and percent coverage of elkhorn and staghorn corals rangewide has declined precipitously over the last 30 years, the total number of colonies and presumably individuals remains very large (e.g., 0.8 colonies/sq m; therefore, over the species’ ranges, on the order of billions of individuals), though the absolute number of colonies or percent coverage is unquantified. Given the high number of colonies, the species’ large geographic ranges that remain intact (no evidence of current range constriction), and the fact that asexual reproduction (fragmentation) provides a source for new colonies (albeit clones) that can buffer natural demographic and environmental variability, we believe both species retain significant potential for persistence and are not currently at risk of extinction throughout their ranges. Additionally, as evidenced by the geologic record, both elkhorn and staghorn corals have persisted through climate cooling and heating fluctuation periods over millions of years, whereas other corals have gone extinct. We believe that, while elkhorn and staghorn corals are not currently in danger of extinction, as described above, they are likely to become so within the foreseeable future throughout their entire ranges. In making this determination, we established that the appropriate period of time corresponding to the foreseeable future is a function of the threats, life-history characteristics, and the specific habitat requirements for the species under consideration. We determined it is also consistent with the purpose of the ESA that the timeframe for the foreseeable future be adequate to provide for the conservation and recovery of threatened species and the ecosystems upon which they depend. The aspects of the species’ life histories that are relevant are slow growth rate, late maturation, and both sexual (annual broadcast spawning) and asexual (fragmentation) modes of reproduction. Given this conceptual framework, the fact that some threats are short term (e.g., hurricanes, major disease outbreaks) and others long term (e.g., habitat degradation, changes in sea E:\FR\FM\09MYR1.SGM 09MYR1 Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations mstockstill on PROD1PC68 with RULES surface temperature), aspects of the species’ life histories, and the fact that the current decline as summarized by the BRT occurred during the last 20 to 30 years, we determined the foreseeable future for these species to be 30 years. We then considered the following information on a 30–year timescale when evaluating the status of elkhorn and staghorn corals: 1. Recent drastic declines in abundance of both species have occurred throughout their ranges, and abundances, though still high, are at historic lows; 2. The species are vulnerable to range constrictions due to local extirpations resulting from a single stochastic event (e.g., hurricanes, new disease outbreak); 3. Sexual recruitment is limited in some areas and unknown in most; fertilization success from clones is virtually zero; and settlement of larvae is often unsuccessful, given limited amount of appropriate habitat; and 4. Fertilization success is declining as a result of greatly reduced densities of adult colonies (the Allee effect). Based on these facts, we believe that abundance and distribution of both elkhorn and staghorn coral are likely to become further reduced. Furthermore, a number of local extirpations is likely to occur within the next 30 years. The major threats to the species’ persistence (i.e., disease, elevated sea surface temperature, and hurricanes) are severe, unpredictable, likely to increase in the foreseeable future, and, at current levels of knowledge, unmanageable. Consideration of Causal Factors Relevant to Listing Section 4 of the ESA and regulations promulgated to implement the listing provisions of the ESA (50 CFR part 424) set forth the procedures for adding species to the Federal list. Section 4 requires that listing determinations be based solely on the best scientific and commercial data available, without consideration of possible economic or other impacts of such determinations. Section 4(a)(1) of the ESA provides that the Secretary of Commerce shall determine whether any species is endangered or threatened because of any of five specified factors; our analysis of these factors and their relevance to the status of elkhorn and staghorn corals is briefly discussed below. The BRT categorized threats to A. palmata and A. cervicornis as sources, stressors, or responses. Sources were considered as natural or anthropogenic processes that create stressful conditions for organisms (e.g., climate variability and change, coastal VerDate Aug<31>2005 15:32 May 08, 2006 Jkt 208001 development). A stressor is the specific condition that causes stress to the organisms (e.g., elevated sea surface temperature or sediment runoff). The response of the organisms to that stressor is often in the form of altered physiological processes (e.g., bleaching, reduced fecundity or growth) or mortality. The BRT tabulated and then classified each stressor into one, or more, of the ESA section 4(a)(1) factors. We determined that the major stressors affecting the status of the two species are disease, elevated sea surface temperature, and hurricanes. Other stressors identified as contributing to the status of the species, given their extremely reduced population sizes, are sedimentation, anthropogenic abrasion and breakage, competition, excessive nutrients, predation, contaminants, loss of genetic diversity, African dust, elevated carbon dioxide levels, and sponge boring. These stressors were categorized under several of the causal factors identified in section 4(a)(1) of the ESA: 1. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range Seven stressors (natural abrasion and breakage, anthropogenic abrasion and breakage, sedimentation, persistent elevated sea surface temperature, competition, excessive nutrients and sea level rise) were identified as affecting both species through present or threatened destruction, modification, or curtailment of their habitats or ranges. These stressors consist of destruction or disruption of substrate to grow on, and modification or alteration of the aquatic environment in which the corals live. Although habitat loss has occurred, the range of these two species has not been reduced, to date. However, because of the species’ extremely low abundance, local extirpations are possible in the foreseeable future, which would likely lead to a reduction in range. Elkhorn and staghorn corals, like most corals, require hard, consolidated substrate (i.e., attached, dead coral skeleton) for their larvae to settle or fragments to reattach. When the substrate is physically disturbed and when the attached corals are broken and reduced to unstable rubble or sediment, settlement and re-attachment habitat is lost. The most common causes of natural abrasion and breakage are severe storm events, including hurricanes. Severe storms can lead to the complete destruction and mortality of entire reef zones dominated by these species as well as destruction of the habitat on which these species depend (i.e., by covering settlement, reattachment, and PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 26857 growing surfaces with unstable rubble and sediment). Major storms have physically disrupted reefs throughout the wider Caribbean and are among the primary causes of elkhorn and staghorn coral habitat loss in certain locations. Human activity in coral reef areas is another source of abrasion and breakage likely to result in destruction of A. palmata and A. cervicornis habitat. These activities include marine transportation, boating, anchoring, fishing, recreational SCUBA diving and snorkeling, and an increasing variety of maritime construction and development activities. The shallow habitat requirements of these two species make them especially susceptible to impacts, such as abrasion and breakage, from these anthropogenic activities, which have been documented as causing effects similar to severe storms, though usually on a smaller scale. Acropora spp. also appear to be particularly sensitive to shading effects resulting from increased sediments in the water column. Because these corals are almost entirely dependent upon sunlight for nourishment, they are much more susceptible to increases in water turbidity and sedimentation than other coral species. Increased sediments in the water column can result from, among other things, land development and run-off, dredging and disposal activities, and major storm events. Sedimentation has also been documented to impede larval settlement. Optimal water temperatures for elkhorn and staghorn coral range from 25 to 29° C, with the species being able to tolerate higher temperatures for a brief period of time (i.e., days to weeks, depending on the magnitude of the temperature elevation). Documented increases in global air and sea surface temperatures make shallow reef habitats especially vulnerable. Water with temperatures above the optimal range does not provide suitable habitat for either of the two species. Because of their fast growth rates (relative to other corals) and canopyforming morphology, A. palmata and A. cervicornis are known to be competitive dominants within coral communities, in terms of their ability to overgrow other stony and soft corals. However, other types of reef benthic organisms (e.g., algae) have higher growth rates and, under certain conditions are expected to outcompete Acropora spp. Under current oceanographic conditions in shallow, coastal areas (i.e., elevated nutrients), algae are typically outcompeting both Acropora spp. for space on the reef. The consequence of this E:\FR\FM\09MYR1.SGM 09MYR1 26858 Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations competition is that less habitat is available for the two species to colonize. Nutrients are added to coral reefs from both point sources (readily identifiable inputs where pollutants are discharged to receiving surface waters from a pipe or drain) and non-point sources (inputs that occur over a wide area and are associated with particular land uses). Generally, coral reefs have been considered nutrient-limited systems, meaning levels of accessible nitrogen and phosphorus limit the rates of plant growth. When nutrients levels are raised in such a system, plant growth can be expected to increase; the widespread increase in algae abundance on Caribbean coral reefs has been attributed to nutrient enrichment. As a result of this increased algal growth, less habitat is available for elkhorn and staghorn coral larval settlement or fragment reattachment. Thus, destruction, modification, and curtailment of elkhorn and staghorn corals’ habitat has been identified as contributing to these species’ threatened status. mstockstill on PROD1PC68 with RULES 2. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Only one stressor under this ESA section 4(a)(1) factor was identified as having the potential to impact the status of elkhorn and staghorn corals: overharvest for curio/aquarium. Given current regulation and management, overutilization does not appear to be a significant threat to either of these two species or a factor contributing to the status of either species. 3. Disease or Predation Diseases were identified as the single largest cause of both elkhorn and staghorn coral mortality and decline. These stressors present the greatest threat to the two species’ persistence and recovery, given their widespread, episodic, and unpredictable occurrence and high resultant mortality. The threat from these stressors is exacerbated by the fact that coral diseases, though clearly severe, are poorly understood in terms of etiology and possible links to anthropogenic sources. Although the number or identity of specific disease conditions affecting Atlantic Acropora spp. and the causal factors involved are uncertain, several generalizations are evident. The total number, prevalence, and geographic range of impact of described Acroporid-specific diseases have increased over the past decade, and this trend is expected to continue. Additionally, diseases continue to have major impacts on population abundance and colony condition of both elkhorn VerDate Aug<31>2005 15:32 May 08, 2006 Jkt 208001 and staghorn coral. Diseases constitute an ongoing, major threat about which specific mechanistic and predictive understanding is largely lacking, thereby currently preventing effective control or management strategies. Diseases affecting these species may prevent or delay their recovery in the wider Caribbean. Acropora spp. are also subject to invertebrate (e.g., polychaete, mollusk, echinoderm) and vertebrate (fish) predation, but ‘‘plagues’’ of coral predators such as the Indo-Pacific crown-of-thorns starfish outbreaks (Acanthaster planci) have not been described in the Atlantic. Predation may directly cause mortality or injuries leading to invasion of other biota (e.g., algae, boring sponges). Thus, predation, while apparently much less than that of disease, is also contributing to the threatened status of these species. 4. Inadequacy of Existing Regulatory Mechanisms We evaluated existing regulatory mechanisms directed at managing threats to elkhorn and staghorn corals. Most existing regulatory mechanisms are not specific to these two coral species but were promulgated to manage corals or coral reefs in general. While the impacts of many stressors were determined to be slightly reduced as a result of implementation of existing regulations, none were totally abated. For example, the Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico and South Atlantic (under the Magnuson-Stevens Fishery Conservation and Management Act) protects all corals on the seabed in U.S. Federal waters from harvest, sale, and destruction from fishing related activities. However, in some cases, elkhorn and staghorn corals are incidentally destroyed during fishing practices, and, therefore, the regulation does not fully abate the threat from damaging fishing practices. The major threats to these species’ persistence (i.e., disease, elevated sea surface temperature, and hurricanes) are severe, unpredictable, have increased over the past 3 decades, and, at current levels of knowledge, the threats are unmanageable. There is no apparent indication these trends will change in the foreseeable future. No regulatory mechanisms are currently in place, or expected to be in place in the foreseeable future, to control or prevent these major threats. Therefore, the inadequacy of existing regulatory mechanisms is contributing to the threatened status of these species. PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 5. Other Natural or Manmade Factors Affecting Its Continued Existence We identified 11 other stressors with the potential to impact the status of elkhorn and staghorn corals: Elevated sea surface temperature, competition, elevated nutrients, sedimentation, sea level rise, abrasion and breakage, contaminants, loss of genetic diversity, African dust, elevated carbon dioxide, and sponge boring. Many of these stressors are the same as those identified in the first factor (habitat destruction) because the same mechanisms can cause direct impacts to the organisms in addition to destroying or disrupting their habitat. Impacts from some of these stressors are complex, resulting in synergistic habitat impacts. Elevation of the sea surface temperature in tropical and subtropical oceans stresses Acropora spp. Documented increases in global air and sea temperatures make shallow reef habitats especially vulnerable. When exposed to elevated sea surface temperatures, elkhorn and staghorn corals expel the symbiotic algae on which they depend for a photosynthetic contribution to their energy budget, enhancement of calcification, and color. This process is called bleaching. Temperature-induced bleaching affects growth, maintenance, reproduction, and survival of these two species. As summarized in the status review report, bleaching has been documented as the source of extensive elkhorn and staghorn mortality in numerous locations throughout their ranges. The extent and impact of bleaching is a function of the magnitude and duration of the increase in temperature. Mortality to Acropora spp. from a bleaching event can occur in a matter of days to weeks, though there is the potential for the coral to re-acquire the symbiotic algae and not suffer permanent damage. We conclude that temperature-induced bleaching is contributing to the status of elkhorn and staghorn corals. Along with elevated sea surface temperature, atmospheric carbon dioxide levels have increased in the last century, and there is no apparent evidence the trend will not continue. As atmospheric carbon dioxide is dissolved in surface seawater, seawater becomes more acidic, shifting the balance of inorganic carbon away from carbon dioxide and carbonate toward bicarbonate. This shift decreases the ability of corals to calcify because corals are thought to use carbonate, not bicarbonate, to build their aragonite skeletons. Experiments have shown a reduction of coral calcification in response to elevated carbon dioxide E:\FR\FM\09MYR1.SGM 09MYR1 mstockstill on PROD1PC68 with RULES Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations levels; therefore, increased carbon dioxide levels in seawater may be contributing to the status of the two species. Rapid sea level rise was identified as a potential threat to these species; however, under current conditions, we conclude that this particular stressor is not affecting either of the two species’ status. Increased sediments in the water column can result from, among other things, land development and run-off; dredging and disposal activities; and major storm events. In addition to the habitat impacts, sedimentation has been shown to cause direct physiological stress to elkhorn and staghorn corals. Direct deposition of sediments on coral tissue and shading due to sediments in the water column have caused tissue death in these species; therefore, sedimentation is contributing to the status of the two species. In addition to the habitat impacts described above, natural and anthropogenic sources of abrasion and breakage (e.g., severe storms, vessel groundings, fishing debris) cause direct mortality to elkhorn and staghorn corals. Their branching morphology makes them particularly susceptible to breakage. The creation of fragments through breakage is a natural means of asexual reproduction for these species. However, the fragments must encounter suitable habitat to be able to reattach and create a new colony. Under current conditions, suitable habitat is often not available, and entire elkhorn and staghorn reefs have been destroyed after these events; therefore, abrasion and breakage are contributing to the status of these two species. Many of the stressors identified as contributing to the status of elkhorn and staghorn coral are minor in intensity, but have an impact because of the extremely reduced population sizes of these coral species. For example, direct competition with other species, skeleton bioerosion by clionid sponges, and effects from African dust all are minor stressors, but they are exacerbating the species’ current status. The severity of all of the stressors (natural or manmade) ranges from high (e.g., elevated sea surface temperature) to low (e.g., sponge boring). Some stressors (e.g., contaminants and loss of genetic diversity) are known to be adversely affecting these two species, but the magnitude of their effect on the status of elkhorn and staghorn corals is undetermined and understudied. No one factor alone is responsible for the threatened status of elkhorn and staghorn corals; we conclude that four of the five ESA section 4(a)(1) factors VerDate Aug<31>2005 15:32 May 08, 2006 Jkt 208001 (all but overutilization) to some degree are contributing to the threatened status of the species. Although the interaction of individual stressors is difficult to study in a rigorous, controlled experiment, it is clear Acropora spp. corals are facing myriad stressors that act simultaneously on the species. Some of these stressors, such as contaminants or novel pathogens, might be new and outside of the species’ evolutionary experience. It is also clear that the corals are experiencing many of these stressors in new and severe combinations. It is logical to conclude that the synergistic effects of these combined stressors will continue. Efforts Being Made to Protect Elkhorn and Staghorn Corals In making listing determinations, section 4(b)(1) of the ESA requires us to take into account the efforts, if any, being made by states or foreign nations to protect the species and to give consideration to species which have been designated as requiring protection from unrestricted commerce by foreign nations or under international agreements or have been identified as in danger of extinction or likely to become so by any state or foreign nation. Acknowledging their reefs’ extreme importance to the ecosystem, the State of Florida and Commonwealth of Puerto Rico protect all corals to varying extents; however, neither provide specific protection to elkhorn or staghorn corals. Additionally, all corals, including elkhorn and staghorn corals, are protected under the U.S.V.I. Indigenous and Endangered Species Act of 1990, and both species have been listed recently in the ‘‘red book’’ of threatened marine invertebrates of Colombia by a technical commission coordinated by the Ministry of the Environment. Acropora cervicornis was considered a critically endangered species in Colombia, and A. palmata was included as endangered. Although certain governments offer specific protection to these two species, the measures are not sufficient to offset the impacts currently affecting elkhorn and staghorn corals. All corals are listed under Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, which regulates international trade of species to ensure survival. Thus, a determination to include the two Acropora species on the federal list of endangered and threatened species would be consistent with state and international actions regarding these species. PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 26859 Final Conclusions Regarding ESA Listing Status After reviewing the public comments received, we find that there is no substantive information that would cause us to reconsider the extinction risk assessments of the BRT or our assessment of the factors causing the threatened status of these two corals. We believe that abundance and distribution of both elkhorn and staghorn coral are likely to become further reduced. Furthermore, a number of local extirpations is likely to occur within the next 30 years. The major threats (e.g., disease, elevated sea surface temperature, and hurricanes) to these species’ persistence are severe, unpredictable, likely to increase in the foreseeable future, and, at current levels of knowledge, unmanageable. We believe that elkhorn and staghorn coral are not currently in danger of extinction throughout their ranges. However, they are likely to become so within the foreseeable future because of a combination of four of the five factors listed in section 4(a)(1) of the ESA, and this status is not being ameliorated by efforts to protect the species by state or foreign governments. Accordingly, the two species warrant listing as threatened. Prohibitions and Protective Regulations ESA section 9(a) take prohibitions (16 U.S.C. 1538(a)(1)(B)) apply to all species listed as endangered. In the case of threatened species, section 4(d) of the ESA directs the Secretary to issue regulations he considers necessary and advisable for the conservation of the species. The 4(d) protective regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species. These section 9(a) prohibitions and section 4(d) regulations apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. Subsequent to this rulemaking, we will evaluate the necessity and advisability of proposing protective regulations pursuant to section 4(d) of the ESA for these two coral species. Identification of Those Activities that Would Constitute a Violation of Section 9 of the ESA On July 1, 1994, we and the FWS published a policy requiring us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA (59 FR 34272). The intent of this policy is to increase public E:\FR\FM\09MYR1.SGM 09MYR1 26860 Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations awareness of the effect of listings on proposed and ongoing activities within the species’ range. However, because elkhorn and staghorn corals are being listed as threatened, section 9 ‘‘take’’ prohibitions are not applicable. mstockstill on PROD1PC68 with RULES Peer Review Policies In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Public Law 106–554), is intended to enhance the quality and credibility of the Federal government’s scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. Pursuant to our 1994 policy on peer review (59 FR 34270; July 1, 1994), we have solicited the expert opinions of at least three appropriate and independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, genetics, and supportive biological and ecological information for species under consideration for listing. We conclude that these expert reviews satisfy the requirements for ‘‘adequate [prior] peer review’’ contained in the Bulletin (sec. II.2.). Critical Habitat ‘‘Critical habitat’’ is defined in section 3 of the ESA (16 U.S.C. 1532(3)) as: ‘‘(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the [ESA], on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed ... upon a determination by the Secretary that such areas are essential for the conservation of the species.’’ ‘‘Conservation’’ is defined as the use of all methods and procedures necessary to bring the species to the point at which the measures of the ESA are no longer necessary. Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. Section 4(b)(6)(C)(ii) of the ESA provides for additional time to promulgate a critical habitat designation if such designation is not determinable VerDate Aug<31>2005 15:32 May 08, 2006 Jkt 208001 at the time of final listing of a species. Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. The designation of critical habitat is not determinable at this time due to the extremely complex biological and physical requirements of these two Acroporid species. Although we have gathered information through the status review and public comment processes, we currently do not have enough information to determine which of these features are essential to the conservation of elkhorn and staghorn corals and may require special management considerations or protection. We will continue to gather and review other ongoing studies on the habitat use and requirements of elkhorn and staghorn corals to attempt to identify these features. Additionally, we need more time to gather the information needed to perform the required analyses of the impacts of the designation. Once areas containing these features are identified and mapped, and economic, national security, and other relevant impacts are considered, we will publish, in a separate rule, to the maximum extent prudent, a proposed designation of critical habitat for elkhorn and staghorn corals. Information Solicited To ensure subsequent rulemaking resulting from this Final Rule will be as accurate and effective as possible, we are soliciting information from the public, other governmental agencies, the scientific community, industry, and any other interested parties. Specifically, we are interested in information that will inform the ESA section 4(d) rule making and the designation of critical habitat for elkhorn and staghorn corals, including: (1) current or planned activities within the range of these two species and their possible impact on these species; (2) necessary prohibitions on take to promote the conservation of these two species; (3) evaluations describing the quality and extent of their habitats (occupied currently or occupied in the past, but no longer occupied); (4) information on areas that may qualify as critical habitat including those physical and biological features essential for the conservation of these two species; (5) activities that could be affected by an ESA section 4(d) rule and/or critical habitat designation; and (6) the economic costs and benefits likely to result from protective PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 regulations and designation of critical habitat (see DATES and ADDRESSES). Classification National Environmental Policy Act The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir.1981), we have concluded that ESA listing actions are not subject to the environmental impact assessment requirements of the National Environmental Policy Act. Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork Reduction Act As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this rule is exempt from review under E.O. 12866. This final determination does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act, we make the following findings: (a) This final rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon state, local, tribal governments, or the private sector and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)-(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide E:\FR\FM\09MYR1.SGM 09MYR1 Federal Register / Vol. 71, No. 89 / Tuesday, May 9, 2006 / Rules and Regulations mstockstill on PROD1PC68 with RULES funding’’ and the state, local, or tribal governments ‘‘lack authority’’ to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.’’ The listing of a species does not impose a legally binding duty on non-Federal government entities or private parties. Under the ESA, the only regulatory effect of this final rule is that Federal agencies must ensure that their actions do not jeopardize the continued existence of any endangered or threatened species under section 7. While non-Federal entities who receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the listing of the species, the legally binding duty to avoid jeopardizing the continued existence of the species rests squarely on the Federal agency. Furthermore, to the extent that nonFederal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid VerDate Aug<31>2005 15:32 May 08, 2006 Jkt 208001 26861 program, the Unfunded Mandates Reform Act would not apply; nor would listing the species shift the costs of the large entitlement programs listed above to state governments. (b) Due to current public knowledge of coral protection in general and the prohibition on collection of these species, we do not anticipate that this final rule will significantly or uniquely affect small governments. As such, a Small Government Agency Plan is not required. Fisheries Service, Southeast Regional Office. March 3, 2005. 152 p + App. E.O. 13132 - Federalism E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific consultation directives for situations where a regulation will preempt state law, or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this final listing determination. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, the proposed rule was provided to the relevant agencies in each state in which the subject species occurs, and these agencies were invited to comment. Their comments were addressed with other comments in the Summary of Comments Received section. PART 223—THREATENED MARINE AND ANADROMOUS SPECIES References Acropora Biological Review Team. 2005. Atlantic Acropora Status Review Document. Report to National Marine PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 List of Subjects in 50 CFR Parts 223 Endangered and threatened species, Exports, Imports, Transportation. Dated: May 4, 2006. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For reasons set out in the preamble, 50 CFR part 223 is amended as follows: I 1. The authority citation for part 223 is revised as follows: I Authority: 16 U.S.C. 1531 1543; subpart B, § 223.201–202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). I 2. Revise § 223.102 to read as follows: § 223.102 Enumeration of threatened marine and anadromous species. The species determined by the Secretary of Commerce to be threatened pursuant to section 4(a) of the Act, as well as species listed under the Endangered Species Conservation Act of 1969 by the Secretary of the Interior and currently under the jurisdiction of the Secretary of Commerce, are listed in the table below. The table lists the common and scientific names of threatened species, the locations where they are listed, and the Federal Register citations for the listings and critical habitat designations. 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Agencies

[Federal Register Volume 71, Number 89 (Tuesday, May 9, 2006)]
[Rules and Regulations]
[Pages 26852-26872]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-4321]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 050304058-6116-03; I.D. No. 060204C]
RIN No. 0648-XB29


Endangered and Threatened Species: Final Listing Determinations 
for Elkhorn Coral and Staghorn Coral

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

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), are 
publishing this final rule to implement our determination to list 
elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals as 
threatened species under the Endangered Species Act (ESA) of 1973, as 
amended. We have reviewed the status of the species and efforts being 
made to protect the species, and we have made our determinations based 
on the best scientific and commercial data available. We also solicit 
information that may be relevant to our analysis of protective 
regulations and to the designation of critical habitat for these two 
species.

DATES: The effective date of this rule is June 8, 2006. Responses to 
the request for information regarding a subsequent ESA section 4(d) 
Rule and critical habitat designation must be received by June 2, 2006.

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

FOR FURTHER INFORMATION CONTACT: Jennifer Moore or Stephania Bolden, 
NMFS, Southeast Region, at the address above or at (727) 824-5312, or 
Marta Nammack, NMFS, Office of Protected Resources, at (301) 713-1401. 
Reference materials regarding these determinations are available upon 
request or on the Internet at http://sero.nmfs.noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    On June 11, 1991, we identified elkhorn and staghorn corals as 
``candidates'' for listing under the ESA (56 FR 26797). Both species 
were subsequently removed from the candidate list on December 18, 1997, 
because we were not able to obtain sufficient information on their 
biological status and threats to meet the scientific documentation 
required for inclusion on the 1997 candidate species list (62 FR 
37560).
    Using data from a 1998 analysis and information obtained during a 
public comment period, we again added the two species to the ESA 
candidate species list on June 23, 1999 (64 FR 33466). These two 
species qualified as ESA candidate species at that time because there 
was some evidence they had undergone substantial declines in abundance 
or range from historic levels. On April 15, 2004, we established a 
``species of concern'' list to differentiate those species for which we 
had concerns regarding their status from those species that were truly 
candidates for listing under the ESA (69 FR 19976). When we established 
this new list, we transferred both elkhorn and staghorn corals from the 
candidate species list to the species of concern list.
    On March 4, 2004, the Center for Biological Diversity (CBD) 
petitioned us to list elkhorn, staghorn, and fused-staghorn corals as 
either threatened or endangered under the ESA and to designate critical 
habitat. On June 23, 2004, we made a positive 90-day finding (69 FR 
34995) that CBD had presented substantial information indicating the 
petitioned actions may be warranted and announced the initiation of a 
formal status review as required by section 4(b)(3)(A) of the ESA. 
Concurrently, we solicited additional information from the public on 
these Acroporid corals regarding historic and current distribution and 
abundance, population status and trends, areas that may qualify as 
critical habitat, any current or planned activities that may adversely 
affect them, and known conservation efforts. Additional information was 
also requested during two public meetings held in December 2004 on: (1) 
distribution and abundance; (2) areas that may qualify as critical 
habitat; and (3) approaches or criteria that could be used to assess 
listing potential of the Acroporids (e.g., viability assessment, 
extinction risk, etc.).
    In order to conduct a comprehensive status review, we convened an 
Atlantic Acropora Biological Review Team (BRT) to compile and analyze 
the best available scientific and commercial information on these 
species. The

[[Page 26853]]

members of the BRT were a diverse group of experts in their fields and 
included coral biologists and ecologists; specialists in coral disease, 
coral monitoring and restoration, climate, water quality, and coral 
taxonomy; regional experts in coral abundance/distribution throughout 
the Caribbean Sea; and state and Federal resource managers. The 
comprehensive, peer-reviewed status review report developed by the BRT 
incorporates and summarizes the best scientific and commercial data 
available as of March 2005. The report addresses the status of the 
species, the factors identified in section 4(a)(1) of the ESA, and 
current regulatory, conservation, and research efforts yielding 
protection to the corals. The BRT also reviewed and considered the 
petition and materials we received as a result of the Federal Register 
announcement of the 90-day finding (69 FR 34995) and the public 
meetings.
    On March 3, 2005, we determined that elkhorn and staghorn corals 
were likely to become endangered within the foreseeable future 
throughout their entire ranges, and, therefore, a proposal to list the 
two species as threatened under the ESA was warranted (70 FR 13151; 
March 18, 2005). We also found that fused-staghorn coral was a hybrid 
and did not warrant listing. On May 9, 2005, we published a proposed 
rule (70 FR 24359) to place both elkhorn and staghorn corals on the 
list of threatened species under the ESA and commenced a 90-day public 
comment period, which included public meetings.

Statutory Framework for ESA Listing Determinations

    The ESA defines an endangered species as one that is in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as one that is likely to become endangered in the 
foreseeable future throughout all or a significant portion of its range 
(sections 3(6) and 3(19) of the ESA, respectively). Section 4(a)(1) of 
the ESA requires us to determine whether any species is endangered or 
threatened because of any one or a combination of the following 
factors: the present or threatened destruction, modification or 
curtailment of its habitat or range; overutilization for commercial, 
recreational, scientific, or educational purposes; disease or 
predation; the inadequacy of existing regulatory mechanisms; or other 
natural or manmade factors affecting its continued existence. We are 
required to make this determination based solely on the best scientific 
and commercial data available after conducting a review of the status 
of the species, and after taking into account those efforts being made 
by states or foreign nations to protect or conserve the species.
    Finally, section 4(b)(1)(B) of the ESA requires us to give 
consideration to species which: (1) have been designated as requiring 
protection from unrestricted commerce by any foreign nation or pursuant 
to an international agreement; or (2) have been identified as in danger 
of extinction, or likely to become so within the foreseeable future, by 
any state agency or by any agency of a foreign nation.

Summary of Comments Received

    Below we address the comments received pertaining to the proposed 
listing for the Acroporid corals. For additional background and a 
summary of Acropora spp. natural history and threats to the species, 
the reader is referred to the March 3, 2005, Atlantic Acropora Status 
Review report (available at http://sero.nmfs.noaa.gov/pr/protres.htm). 
In response to our request for public comments, we received 1,393 
written and verbal responses to the proposed threatened listings.
    Comment 1: Numerous commenters stated that the elkhorn and staghorn 
corals qualified for an endangered listing based on the declines in 
abundance and the significant threats faced by the species throughout 
their ranges.
    Response: During the status review, we carefully analyzed threats 
facing the species and declines in abundance and considered this 
analysis when determining the status of the species. As depicted and 
described in the status review report, abundance of both species has 
declined over the past 30 years rangewide; however, recent surveys 
indicate an increase in abundance in some areas (e.g., Buck Island, 
U.S.V.I.), no change in some areas (e.g., Florida Keys), and 
fluctuating abundance in some areas (e.g., Belize). At present, the 
total numbers of colonies and presumably individuals remain very large, 
though the absolute number of colonies or percent coverage is 
unquantified. For example, one study of A. palmata in the Florida Keys 
in 2001 estimated colony density to be 0.8 colonies per square meter; 
expanding this same density to the overall available habitat within the 
wider Caribbean (on the order of thousands of square kilometers) would 
correspond to individual colony counts on the order of billions. 
Further, the species persist across a very large geographic range, and 
there is no current evidence of range contractions. Therefore, we 
believe the species are showing limited, localized recovery, and, 
rangewide, the rate of decline appears to have stabilized and is 
comparatively slow as evidenced by the persistence at reduced 
abundances for the past two decades.
    In addition to population trends, we considered the significance of 
individual threats, and the cumulative and synergistic effects of the 
threats, acknowledging that the major threats (i.e., disease, 
hurricanes, and elevated sea surface temperature) to the elkhorn and 
staghorn corals are severe, unpredictable, and likely to increase in 
the foreseeable future. However, given the large number of colonies, 
the species' large geographic ranges that remain intact, and the fact 
that asexual reproduction (fragmentation) provides a source for new 
colonies (albeit clones) that can buffer natural demographic and 
environmental variability, it is likely both species retain significant 
potential for persistence, and are not currently at risk of extinction 
throughout all or a significant portion of their ranges.
    Comment 2: One commenter asked us to provide a threshold that the 
corals must attain to qualify as endangered.
    Response: In the proposed listing rule, we described the 
application of the ESA definitions of endangered and threatened to the 
status of and threats to the Acroporid corals (70 FR 24360). The 
threshold for a species to qualify for endangered status is that it is 
in danger of extinction throughout all or a significant portion of its 
range. We determined the two species are not currently in danger of 
extinction, as discussed in the response above.
    Comment 3: Several commenters stated that we did not conduct a 
proper ``significant portion of the range'' analysis. One commenter 
stated that our conclusion that ``there is no evidence indicating that 
any elkhorn or staghorn population within the geographic range of the 
species is more or less important than the others'' is evidence of 
arbitrary and capricious reasoning. The commenter stated that, in our 
analysis of whether any portion of the range was significant, we should 
have at least considered areas where the corals have shown limited 
recovery as more important to the survival and recovery of the species 
than other areas.
    One commenter discussed a number of court cases invalidating 
decisions not to list species where the U.S. Fish and Wildlife Service 
(FWS) or NMFS only analyzed a species' rangewide status and did not 
separately evaluate whether a species was endangered or threatened in a 
significant portion of its range (SPOIR). One commenter stated that we 
must apply this statutory term such that

[[Page 26854]]

it does not effectively conflate 'entire range' with 'SPOIR,' nor base 
a listing decision solely on whether a species is threatened or 
endangered within a fixed percentage of its range.
    One commenter stated that if a species is threatened or endangered 
in a SPOIR, it must be listed as threatened or endangered throughout 
its range.
    Response: Because we did not determine any portion of the species' 
ranges to be significant, and their ranges are intact, there was no 
basis for further evaluating the extinction risk of or threats to the 
species in any particular geographic areas, or for determining whether 
the coral species were endangered or threatened throughout a 
significant portion of their ranges. We proceeded instead to evaluate 
whether the species were endangered or threatened throughout their 
respective ranges. We did not conflate ``entire range'' and ``SPOIR,'' 
nor did we require any fixed percentage of the species' ranges to 
constitute a significant portion.
    Consistent with prior court holdings, we performed a separate SPOIR 
analysis. We analyzed the relative biological importance of portions of 
the species' ranges and found that no area was more or less important 
(i.e., functionally, ecologically) than any other area. As discussed in 
further detail (see Species and Risk of Extinction section), we 
evaluated a recent study that examined genetic exchange and clonal 
population structure of A. palmata, and we found that it does not 
indicate source or sink areas, distinguishable or separable populations 
within each region, or any more or less significant areas or 
populations (i.e., in terms of differential biological value to the 
species). While there are a few locations (e.g., Buck Island Reef 
National Monument) where limited recovery appears to be progressing, 
the origin of recruits, presumably from a single sexual reproduction 
event, is unknown and their contribution to the corals' rangewide 
recovery remains undetermined. Therefore, there is insufficient 
evidence indicating that any particular geographic area or population 
is more significant to the species than others.
    Comment 4: One commenter requested we specifically list the coral 
populations off Broward County, FL as endangered.
    Response: As stated in the proposed listing rule, the ESA does not 
provide for listing distinct population segments of invertebrate 
species, and corals are invertebrates. Listing determinations for 
invertebrate species must be made at the species or subspecies level. 
Therefore, whether the populations of A. cervicornis on the Broward 
reefs are in danger of extinction, the ESA does not provide for listing 
a population of this species.
    Comment 5: A few commenters were critical that the 30-year period, 
defined as the foreseeable future for purposes of our analysis for a 
threatened status, is not sufficiently protective, asserting that 
current threats could cause large amounts of coral to be lost in 30 
years.
    Response: The definition of foreseeable future applies only to the 
threshold for a 'threatened' determination (i.e., whether a species is 
likely to become endangered within the foreseeable future throughout 
all of a significant portion of its range). As discussed in our 
responses to Comments 1 and 2, we determined that neither elkhorn nor 
staghorn coral is currently in danger of extinction (the threshold for 
making an 'endangered' determination). In evaluating 'foreseeable 
future' for our threatened determinations for elkhorn and staghorn 
coral, our 30-year timeframe was selected as the most appropriate, 
given the species' biology and threats they face (see Species and Risk 
of Extinction section), as well as the purpose of the ESA, which is to 
provide for the conservation and recovery of the species and the 
ecosystems upon which they depend. The 30-year period identified for 
the two coral species is consistent with the logistic function 
indicated by the data portraying population decline (circa 1975-2005), 
the preceding 30-year period of relative stability in abundance, and 
the hypothesized cycle of hurricane frequency and intensity.
    We concur with the commenters that, without an ESA listing, the 
species' abundance and distribution are likely to become further 
reduced in the next 30 years, with some local extirpations likely. 
Those considerations contributed to our determination to list the 
species as threatened. Given that we made a determination to list the 
species as threatened using the 30-year timeframe for foreseeable 
future, a shorter timeframe would have been no more protective. We 
believe our 30-year timeframe is both appropriate and protective.
    Comment 6: Comments were received challenging our determination 
that A. prolifera is a hybrid and, therefore, not considered a species 
for listing. Commenters stated that the hybrid should be listed because 
of its ecological function and separate taxonomic diagnosis. Commenters 
stated that the hybrid may not be as well-studied as other Acroporids, 
and interbreeding is not a requirement to classify a species. Lastly, 
one commenter stated we did not use the best available science, 
referring us to recent court cases on taxonomic uncertainty in ESA 
listings.
    Response: The ESA does not allow us to consider a taxon for listing 
based solely on its ecological function; it must as an initial matter 
meet the ESA definition of species. To determine A. prolifera's status 
as a species, we followed our regulations at 50 CFR section 424.11(a), 
which direct us to rely on the standard taxonomic distinctions and the 
appropriate biological expertise within the agency and the scientific 
community in order to determine whether a particular taxon or 
population is a species for purposes of the ESA. We used published 
literature and unpublished scientific research to describe A. 
prolifera's taxonomy based on morphology, genetics, and potential to 
reproduce. We concluded that A. prolifera is a hybrid because: (1) it 
exhibits a wide range of intermediate morphologies; (2) all individuals 
sampled are first generation hybrids of A. palmata and A. cervicornis; 
and (3) in laboratory attempts, it does not produce successful 
offspring via sexual reproduction. Other Acropora spp. reproduce by 
both sexual and asexual modes, while A. prolifera is not able to 
reproduce by both modes. All known individuals are hybrids, and cannot 
interbreed when mature, and, therefore, A. prolifera does not meet the 
biological definition of species. We also followed the court's ruling 
in Center for Biological Diversity v. Lohn, 296 F. Supp.2d 1223 (W.D. 
Wash. 2003), by basing our decision on the best available science 
instead of outdated taxonomic distinctions. Although A. prolifera has a 
separate taxonomic history, the best available science shows it is a 
first generation hybrid and not a species.
    Comment 7: A commenter stated the BRT appeared to rely on a draft 
policy on listing hybrids (61 FR 4710; February 7, 1996) in considering 
the status of A. prolifera.
    Response: While the status review report briefly describes the 
draft hybrid policy as ESA background, the report indicates that the 
policy is non-binding because it has never been finalized. The policy 
was never discussed or applied by the BRT in the remainder of the 
report. Similarly, we were aware of the draft policy, but did not rely 
on the draft policy when making our determination that A. prolifera 
should not be considered a species for ESA listing. Our determination 
was based on the scientific information summarized in the response 
above.
    Comment 8: Many comments were received recommending potential 
listing

[[Page 26855]]

of A. prolifera under the ``similarity of appearance'' provision 
pursuant to section 4(e) of the ESA.
    Response: Because we have not prohibited take of A. palmata and A. 
cervicornis in this final listing rule, prohibiting take of A. 
prolifera by listing it under 4(e) of the ESA is not appropriate as 
part of this final rule. We will consider whether a ``similarity of 
appearance'' regulation for A. prolifera is appropriate if we issue an 
ESA section 4(d) rule to conserve the listed species.
    Comment 9: Numerous comments provided information on the threats we 
identified in the proposed rule. Several comments and journal articles 
addressing climate change and coral bleaching were received. 
Additionally, several commenters stated land-based sources of pollution 
(i.e., nutrients, sedimentation) are contributing to the decline of 
these species. We also received comments on the contribution of 
disease, hurricanes, poor boating, diving and fishing practices, and 
habitat loss to the status of elkhorn and staghorn corals. Many of the 
comments made suggestions regarding the relative importance of the 
threats and their contribution to the species' status.
    Response: We evaluated all the information received on the threats 
affecting these species. No new threats were identified by any 
commenter. The suggested relative importance of the threats to the 
species' status was consistent with the status review report and the 
proposed rule. The information received was also consistent with the 
data used to make our threatened determination.
    Comment 10: One commenter suggested we include a statement 
regarding the adequacy of the existing regulatory mechanisms pursuant 
to the Clean Water Act (CWA).
    Response: We acknowledge the importance of the CWA as a tool to 
protect marine life. Although the CWA sets water quality standards for 
salt water and delegates authority to set and enforce water quality 
standards to the states, we concur with the BRT's conclusion that, 
despite existing regulations, degraded water quality resulting from 
nutrients and contaminants is contributing to the status of the two 
species.
    Comment 11: We received several comments pertaining to future 
regulatory actions under the ESA. These included suggestions to develop 
regulations to manage specific threats (e.g., emissions, water 
quality). Additionally, other commenters questioned how the proposed 
listing would affect their actions (e.g., fishing, boating, diving). 
Commenters inquired about the timing of subsequent regulatory actions.
    Response: Because we are listing elkhorn and staghorn corals as 
threatened, the prohibitions under section 9 of the ESA are not 
automatically applied to these species. Section 4(d) of the ESA allows 
us to develop regulations necessary and advisable for the conservation 
of listed threatened species, including regulations that extend the 
section 9 prohibitions to such species. We are beginning to work with 
interested parties to evaluate the necessity and advisability of a 4(d) 
rule for elkhorn and staghorn corals.
    Similarly, because section 9 prohibitions are not automatically 
applied to these two species, this final rule will have no direct 
effects on the activities of private citizens. However, Federal 
agencies that fund, authorize, or carry out actions that are likely to 
adversely affect elkhorn or staghorn coral will be required to consult 
with us pursuant to section 7 of the ESA to ensure their actions are 
not likely to jeopardize the continued existence of either species.
    Section 4(a)(3)(A) of the ESA requires that critical habitat be 
designated, to the maximum extent prudent and determinable, 
concurrently with a determination that a species is endangered or 
threatened. When such a designation is not determinable at the time of 
final listing of a species, section 4(b)(6)(C)(ii) of the ESA provides 
for an additional year to promulgate a critical habitat designation. We 
have concluded that critical habitat for elkhorn and staghorn corals is 
not determinable at this time. Through the status review and public 
comment process, we have begun to collect information on the biological 
and physical features essential to the conservation of the two species. 
More information is still required to identify those features. 
Throughout the next year, we intend to gather and review current and 
ongoing studies on the habitat use and requirements of elkhorn and 
staghorn corals; this information is crucial for the designation of 
critical habitat. We will also gather information on the benefits and 
impacts of the designation.
    Comment 12: One commenter asked where take was occurring within the 
Caribbean Basin, because collection and sale of these corals is already 
prohibited.
    Response: Collection is not the only activity that constitutes take 
under the ESA. The ESA defines take as ``to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect,'' which is a broader 
definition than the meaning suggested by the commenter. Although 
collection is prohibited in the United States and in many other 
Caribbean nations, there are many other activities currently occurring 
that may constitute take (see ``Consideration of Causal Factors 
Relevant to Listing'' section below).
    Comment 13: Many commenters stated it is essential to protect coral 
habitat, given the importance of coral reefs to the economy. 
Additionally, the commenters stated many cities and communities depend 
on coral reefs and associated commerce.
    Response: While the ESA and our listing regulations do not allow us 
to consider economics during listing, we are directed to consider the 
economic impacts, including relevant beneficial effects such as those 
raised by these commenters, when we designate critical habitat.
    Comment 14: Numerous commenters supported the proposed listing.
    Response: Comments noted. We look forward to partnering with these 
commenters and all stakeholders in the conservation of the two species.
    In addition to the comments relating to the proposed listing, the 
following were also received: (1) peer-reviewed journal articles 
regarding climate change; effectiveness of the ESA; and coral 
resistance, resilience, and bleaching; (2) additional detail pertaining 
to existing regulatory mechanisms evaluated in the status review; (3) 
geographic information identifying land development, runoff, sewer 
outfalls, and land-use; (4) statements regarding the functional role of 
corals as keystone and indicator species; (5) references to 
oceanographic processes and circulation patterns; (6) reiteration of 
biological information included in the status review report; (7) 
summary of the 2005 NOAA Fisheries Public Employees for Environmental 
Responsibility survey; and (8) information on the umbrella effect, 
ecosystem management, limitations in funding opportunities, bryozoans, 
mari- and aquaculture, coral nurseries, species' status, effectiveness 
of potential listing, recruitment fitness and success, application of 
the ESA, obtaining permits, and an Illinois State bill. After careful 
consideration, we conclude the additional information received, as 
summarized above, was considered previously or did not pertain to the 
listing determination for the Acroporid corals.

Assessment of Species Status

    In the proposed rule to add elkhorn and staghorn corals to the list 
of

[[Page 26856]]

threatened species under the ESA, we outlined our rationale for our 
determination, including our finding that the BRT's report constituted 
the best scientific and commercial data available. Below we have 
reiterated those portions of our evaluation pertinent to the public 
comments above and our final determination. Please refer to the 
proposed rule for additional information.

Species and Risk of Extinction

    We first considered whether all three of the corals identified in 
the petition met the definition of ``species'' pursuant to section 3 of 
the ESA. The term ``species'' includes ``any subspecies of fish or 
wildlife or plants, and any distinct population segment of any species 
of vertebrate fish or wildlife which interbreeds when mature.'' Based 
on this language and the regulations at 50 CFR 424.11(a), ``species'' 
is given its ordinary, accepted biological meaning for these corals. 
Species diagnoses for both elkhorn and staghorn are not disputed; both 
species are recognized as separate taxa in the literature, have 
separate and discrete diagnoses and morphologies, produce offspring via 
asexual fragmentation, and produce viable gametes, larvae, and 
successful sexual offspring, which is typical of all species in the 
Acropora genus. In contrast, A. prolifera is a hybrid and does not meet 
the definition of species under the ESA (see Response to Comment 6).
    We then carefully examined whether the coral species met the 
definitions of endangered or threatened species in section 3 of the 
ESA: (1) ``endangered species'' is defined as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range;'' and (2) ``threatened species'' is defined as ``any species 
which is likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its range.
    Corals are invertebrates, and, therefore, only species or 
subspecies can be listed under the ESA. Distinct population segments of 
invertebrates cannot be listed. Further, we must also base a listing 
decision on whether a species is endangered or threatened throughout 
all or a significant portion of its range.
    Acropora spp. are widely distributed throughout the wider Caribbean 
and are found in waters off Florida, and Puerto Rico, U.S. Virgin 
Islands, Navassa, and the wider Caribbean (Belize, Colombia, Costa 
Rica, Guatemala, Honduras, Mexico, Nicaragua, Panama, Venezuela, and 
all the islands of the West Indies). Both elkhorn and staghorn corals 
were historically (pre-1980s) the most abundant and most important 
species on Caribbean coral reefs in terms of accretion of reef 
structure.
    To assess if a geographic area could constitute a significant 
portion of the range of either elkhorn or staghorn coral, we examined 
the relative biological importance of populations throughout the 
species' ranges. We considered the single genetic study available at 
the time of this determination that might support identification of 
portions of the species' ranges that are distinguishable or separable 
(i.e., ``distinct or discrete'' as used in the May 9, 2005, proposed 
rule (70 FR 24359). The study examined genetic exchange and clonal 
population structure in A. palmata by sampling and genotyping colonies 
from 11 locations throughout its geographic range using microsatellite 
markers. Results indicate populations in the eastern Caribbean (St. 
Vincent and the Grenadines, U.S.V.I., Curacao, and Bonaire) have 
experienced little or no genetic exchange with populations in the 
western Caribbean (Bahamas, Florida, Mexico, Panama, Navassa, and Mona 
Island). Puerto Rico is an area of mixing where populations show 
genetic contribution from both regions, though it is more closely 
connected with the western Caribbean. Within these regions, some 
locations are entirely self-recruiting and some receive immigrants from 
other locations within the region; however, the overall, rangewide 
average of the relative contribution of sexually versus asexually 
derived populations is approximately equal. No similar information 
exists for A. cervicornis. These data indicate that, on small and large 
scales, there are areas of mixing and areas that do not appear to have 
exchange; this indicates that there are no source or sink areas. In 
addition, although there are a few locations (e.g., Buck Island Reef 
National Monument) where limited recovery appears to be progressing, 
the origin of recruits, presumably from a single sexual reproduction 
event, is unknown, and their contribution to the corals' rangewide 
recovery remains undetermined. Based on this, we cannot determine that 
there are any specific geographic areas or populations within the wider 
Caribbean that should be considered more or less significant (i.e., in 
terms of differential biological value to the species). Because we did 
not determine any portion of the species' ranges to be significant, and 
their ranges are intact, there was no basis for further evaluating the 
extinction risk of or threats to the species in any particular 
geographic areas, or for determining whether the coral species were 
endangered or threatened throughout a significant portion of their 
ranges. We proceeded instead to evaluate whether the species were 
endangered or threatened throughout their respective ranges.
    We determined that neither elkhorn nor staghorn corals are 
currently in danger of extinction throughout their entire ranges and 
neither meets the definition of endangered under the ESA. While the 
number and percent coverage of elkhorn and staghorn corals rangewide 
has declined precipitously over the last 30 years, the total number of 
colonies and presumably individuals remains very large (e.g., 0.8 
colonies/sq m; therefore, over the species' ranges, on the order of 
billions of individuals), though the absolute number of colonies or 
percent coverage is unquantified. Given the high number of colonies, 
the species' large geographic ranges that remain intact (no evidence of 
current range constriction), and the fact that asexual reproduction 
(fragmentation) provides a source for new colonies (albeit clones) that 
can buffer natural demographic and environmental variability, we 
believe both species retain significant potential for persistence and 
are not currently at risk of extinction throughout their ranges. 
Additionally, as evidenced by the geologic record, both elkhorn and 
staghorn corals have persisted through climate cooling and heating 
fluctuation periods over millions of years, whereas other corals have 
gone extinct.
    We believe that, while elkhorn and staghorn corals are not 
currently in danger of extinction, as described above, they are likely 
to become so within the foreseeable future throughout their entire 
ranges. In making this determination, we established that the 
appropriate period of time corresponding to the foreseeable future is a 
function of the threats, life-history characteristics, and the specific 
habitat requirements for the species under consideration. We determined 
it is also consistent with the purpose of the ESA that the timeframe 
for the foreseeable future be adequate to provide for the conservation 
and recovery of threatened species and the ecosystems upon which they 
depend. The aspects of the species' life histories that are relevant 
are slow growth rate, late maturation, and both sexual (annual 
broadcast spawning) and asexual (fragmentation) modes of reproduction. 
Given this conceptual framework, the fact that some threats are short 
term (e.g., hurricanes, major disease outbreaks) and others long term 
(e.g., habitat degradation, changes in sea

[[Page 26857]]

surface temperature), aspects of the species' life histories, and the 
fact that the current decline as summarized by the BRT occurred during 
the last 20 to 30 years, we determined the foreseeable future for these 
species to be 30 years.
    We then considered the following information on a 30-year timescale 
when evaluating the status of elkhorn and staghorn corals:
    1. Recent drastic declines in abundance of both species have 
occurred throughout their ranges, and abundances, though still high, 
are at historic lows;
    2. The species are vulnerable to range constrictions due to local 
extirpations resulting from a single stochastic event (e.g., 
hurricanes, new disease outbreak);
    3. Sexual recruitment is limited in some areas and unknown in most; 
fertilization success from clones is virtually zero; and settlement of 
larvae is often unsuccessful, given limited amount of appropriate 
habitat; and
    4. Fertilization success is declining as a result of greatly 
reduced densities of adult colonies (the Allee effect).
    Based on these facts, we believe that abundance and distribution of 
both elkhorn and staghorn coral are likely to become further reduced. 
Furthermore, a number of local extirpations is likely to occur within 
the next 30 years. The major threats to the species' persistence (i.e., 
disease, elevated sea surface temperature, and hurricanes) are severe, 
unpredictable, likely to increase in the foreseeable future, and, at 
current levels of knowledge, unmanageable.

Consideration of Causal Factors Relevant to Listing

    Section 4 of the ESA and regulations promulgated to implement the 
listing provisions of the ESA (50 CFR part 424) set forth the 
procedures for adding species to the Federal list. Section 4 requires 
that listing determinations be based solely on the best scientific and 
commercial data available, without consideration of possible economic 
or other impacts of such determinations. Section 4(a)(1) of the ESA 
provides that the Secretary of Commerce shall determine whether any 
species is endangered or threatened because of any of five specified 
factors; our analysis of these factors and their relevance to the 
status of elkhorn and staghorn corals is briefly discussed below.
    The BRT categorized threats to A. palmata and A. cervicornis as 
sources, stressors, or responses. Sources were considered as natural or 
anthropogenic processes that create stressful conditions for organisms 
(e.g., climate variability and change, coastal development). A stressor 
is the specific condition that causes stress to the organisms (e.g., 
elevated sea surface temperature or sediment runoff). The response of 
the organisms to that stressor is often in the form of altered 
physiological processes (e.g., bleaching, reduced fecundity or growth) 
or mortality. The BRT tabulated and then classified each stressor into 
one, or more, of the ESA section 4(a)(1) factors. We determined that 
the major stressors affecting the status of the two species are 
disease, elevated sea surface temperature, and hurricanes. Other 
stressors identified as contributing to the status of the species, 
given their extremely reduced population sizes, are sedimentation, 
anthropogenic abrasion and breakage, competition, excessive nutrients, 
predation, contaminants, loss of genetic diversity, African dust, 
elevated carbon dioxide levels, and sponge boring. These stressors were 
categorized under several of the causal factors identified in section 
4(a)(1) of the ESA:

1. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    Seven stressors (natural abrasion and breakage, anthropogenic 
abrasion and breakage, sedimentation, persistent elevated sea surface 
temperature, competition, excessive nutrients and sea level rise) were 
identified as affecting both species through present or threatened 
destruction, modification, or curtailment of their habitats or ranges. 
These stressors consist of destruction or disruption of substrate to 
grow on, and modification or alteration of the aquatic environment in 
which the corals live. Although habitat loss has occurred, the range of 
these two species has not been reduced, to date. However, because of 
the species' extremely low abundance, local extirpations are possible 
in the foreseeable future, which would likely lead to a reduction in 
range.
    Elkhorn and staghorn corals, like most corals, require hard, 
consolidated substrate (i.e., attached, dead coral skeleton) for their 
larvae to settle or fragments to reattach. When the substrate is 
physically disturbed and when the attached corals are broken and 
reduced to unstable rubble or sediment, settlement and re-attachment 
habitat is lost. The most common causes of natural abrasion and 
breakage are severe storm events, including hurricanes. Severe storms 
can lead to the complete destruction and mortality of entire reef zones 
dominated by these species as well as destruction of the habitat on 
which these species depend (i.e., by covering settlement, reattachment, 
and growing surfaces with unstable rubble and sediment). Major storms 
have physically disrupted reefs throughout the wider Caribbean and are 
among the primary causes of elkhorn and staghorn coral habitat loss in 
certain locations.
    Human activity in coral reef areas is another source of abrasion 
and breakage likely to result in destruction of A. palmata and A. 
cervicornis habitat. These activities include marine transportation, 
boating, anchoring, fishing, recreational SCUBA diving and snorkeling, 
and an increasing variety of maritime construction and development 
activities. The shallow habitat requirements of these two species make 
them especially susceptible to impacts, such as abrasion and breakage, 
from these anthropogenic activities, which have been documented as 
causing effects similar to severe storms, though usually on a smaller 
scale.
    Acropora spp. also appear to be particularly sensitive to shading 
effects resulting from increased sediments in the water column. Because 
these corals are almost entirely dependent upon sunlight for 
nourishment, they are much more susceptible to increases in water 
turbidity and sedimentation than other coral species. Increased 
sediments in the water column can result from, among other things, land 
development and run-off, dredging and disposal activities, and major 
storm events. Sedimentation has also been documented to impede larval 
settlement.
    Optimal water temperatures for elkhorn and staghorn coral range 
from 25 to 29[deg] C, with the species being able to tolerate higher 
temperatures for a brief period of time (i.e., days to weeks, depending 
on the magnitude of the temperature elevation). Documented increases in 
global air and sea surface temperatures make shallow reef habitats 
especially vulnerable. Water with temperatures above the optimal range 
does not provide suitable habitat for either of the two species.
    Because of their fast growth rates (relative to other corals) and 
canopy-forming morphology, A. palmata and A. cervicornis are known to 
be competitive dominants within coral communities, in terms of their 
ability to overgrow other stony and soft corals. However, other types 
of reef benthic organisms (e.g., algae) have higher growth rates and, 
under certain conditions are expected to outcompete Acropora spp. Under 
current oceanographic conditions in shallow, coastal areas (i.e., 
elevated nutrients), algae are typically out-competing both Acropora 
spp. for space on the reef. The consequence of this

[[Page 26858]]

competition is that less habitat is available for the two species to 
colonize.
    Nutrients are added to coral reefs from both point sources (readily 
identifiable inputs where pollutants are discharged to receiving 
surface waters from a pipe or drain) and non-point sources (inputs that 
occur over a wide area and are associated with particular land uses). 
Generally, coral reefs have been considered nutrient-limited systems, 
meaning levels of accessible nitrogen and phosphorus limit the rates of 
plant growth. When nutrients levels are raised in such a system, plant 
growth can be expected to increase; the widespread increase in algae 
abundance on Caribbean coral reefs has been attributed to nutrient 
enrichment. As a result of this increased algal growth, less habitat is 
available for elkhorn and staghorn coral larval settlement or fragment 
reattachment. Thus, destruction, modification, and curtailment of 
elkhorn and staghorn corals' habitat has been identified as 
contributing to these species' threatened status.

2. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Only one stressor under this ESA section 4(a)(1) factor was 
identified as having the potential to impact the status of elkhorn and 
staghorn corals: overharvest for curio/aquarium. Given current 
regulation and management, overutilization does not appear to be a 
significant threat to either of these two species or a factor 
contributing to the status of either species.

3. Disease or Predation

    Diseases were identified as the single largest cause of both 
elkhorn and staghorn coral mortality and decline. These stressors 
present the greatest threat to the two species' persistence and 
recovery, given their widespread, episodic, and unpredictable 
occurrence and high resultant mortality. The threat from these 
stressors is exacerbated by the fact that coral diseases, though 
clearly severe, are poorly understood in terms of etiology and possible 
links to anthropogenic sources. Although the number or identity of 
specific disease conditions affecting Atlantic Acropora spp. and the 
causal factors involved are uncertain, several generalizations are 
evident. The total number, prevalence, and geographic range of impact 
of described Acroporid-specific diseases have increased over the past 
decade, and this trend is expected to continue. Additionally, diseases 
continue to have major impacts on population abundance and colony 
condition of both elkhorn and staghorn coral. Diseases constitute an 
ongoing, major threat about which specific mechanistic and predictive 
understanding is largely lacking, thereby currently preventing 
effective control or management strategies. Diseases affecting these 
species may prevent or delay their recovery in the wider Caribbean.
    Acropora spp. are also subject to invertebrate (e.g., polychaete, 
mollusk, echinoderm) and vertebrate (fish) predation, but ``plagues'' 
of coral predators such as the Indo-Pacific crown-of-thorns starfish 
outbreaks (Acanthaster planci) have not been described in the Atlantic. 
Predation may directly cause mortality or injuries leading to invasion 
of other biota (e.g., algae, boring sponges). Thus, predation, while 
apparently much less than that of disease, is also contributing to the 
threatened status of these species.

4. Inadequacy of Existing Regulatory Mechanisms

    We evaluated existing regulatory mechanisms directed at managing 
threats to elkhorn and staghorn corals. Most existing regulatory 
mechanisms are not specific to these two coral species but were 
promulgated to manage corals or coral reefs in general. While the 
impacts of many stressors were determined to be slightly reduced as a 
result of implementation of existing regulations, none were totally 
abated. For example, the Fishery Management Plan for Coral and Coral 
Reefs of the Gulf of Mexico and South Atlantic (under the Magnuson-
Stevens Fishery Conservation and Management Act) protects all corals on 
the seabed in U.S. Federal waters from harvest, sale, and destruction 
from fishing related activities. However, in some cases, elkhorn and 
staghorn corals are incidentally destroyed during fishing practices, 
and, therefore, the regulation does not fully abate the threat from 
damaging fishing practices.
    The major threats to these species' persistence (i.e., disease, 
elevated sea surface temperature, and hurricanes) are severe, 
unpredictable, have increased over the past 3 decades, and, at current 
levels of knowledge, the threats are unmanageable. There is no apparent 
indication these trends will change in the foreseeable future. No 
regulatory mechanisms are currently in place, or expected to be in 
place in the foreseeable future, to control or prevent these major 
threats. Therefore, the inadequacy of existing regulatory mechanisms is 
contributing to the threatened status of these species.

5. Other Natural or Manmade Factors Affecting Its Continued Existence

    We identified 11 other stressors with the potential to impact the 
status of elkhorn and staghorn corals: Elevated sea surface 
temperature, competition, elevated nutrients, sedimentation, sea level 
rise, abrasion and breakage, contaminants, loss of genetic diversity, 
African dust, elevated carbon dioxide, and sponge boring. Many of these 
stressors are the same as those identified in the first factor (habitat 
destruction) because the same mechanisms can cause direct impacts to 
the organisms in addition to destroying or disrupting their habitat. 
Impacts from some of these stressors are complex, resulting in 
synergistic habitat impacts.
    Elevation of the sea surface temperature in tropical and 
subtropical oceans stresses Acropora spp. Documented increases in 
global air and sea temperatures make shallow reef habitats especially 
vulnerable. When exposed to elevated sea surface temperatures, elkhorn 
and staghorn corals expel the symbiotic algae on which they depend for 
a photosynthetic contribution to their energy budget, enhancement of 
calcification, and color. This process is called bleaching. 
Temperature-induced bleaching affects growth, maintenance, 
reproduction, and survival of these two species. As summarized in the 
status review report, bleaching has been documented as the source of 
extensive elkhorn and staghorn mortality in numerous locations 
throughout their ranges. The extent and impact of bleaching is a 
function of the magnitude and duration of the increase in temperature. 
Mortality to Acropora spp. from a bleaching event can occur in a matter 
of days to weeks, though there is the potential for the coral to re-
acquire the symbiotic algae and not suffer permanent damage. We 
conclude that temperature-induced bleaching is contributing to the 
status of elkhorn and staghorn corals.
    Along with elevated sea surface temperature, atmospheric carbon 
dioxide levels have increased in the last century, and there is no 
apparent evidence the trend will not continue. As atmospheric carbon 
dioxide is dissolved in surface seawater, seawater becomes more acidic, 
shifting the balance of inorganic carbon away from carbon dioxide and 
carbonate toward bicarbonate. This shift decreases the ability of 
corals to calcify because corals are thought to use carbonate, not 
bicarbonate, to build their aragonite skeletons. Experiments have shown 
a reduction of coral calcification in response to elevated carbon 
dioxide

[[Page 26859]]

levels; therefore, increased carbon dioxide levels in seawater may be 
contributing to the status of the two species.
    Rapid sea level rise was identified as a potential threat to these 
species; however, under current conditions, we conclude that this 
particular stressor is not affecting either of the two species' status.
    Increased sediments in the water column can result from, among 
other things, land development and run-off; dredging and disposal 
activities; and major storm events. In addition to the habitat impacts, 
sedimentation has been shown to cause direct physiological stress to 
elkhorn and staghorn corals. Direct deposition of sediments on coral 
tissue and shading due to sediments in the water column have caused 
tissue death in these species; therefore, sedimentation is contributing 
to the status of the two species.
    In addition to the habitat impacts described above, natural and 
anthropogenic sources of abrasion and breakage (e.g., severe storms, 
vessel groundings, fishing debris) cause direct mortality to elkhorn 
and staghorn corals. Their branching morphology makes them particularly 
susceptible to breakage. The creation of fragments through breakage is 
a natural means of asexual reproduction for these species. However, the 
fragments must encounter suitable habitat to be able to reattach and 
create a new colony. Under current conditions, suitable habitat is 
often not available, and entire elkhorn and staghorn reefs have been 
destroyed after these events; therefore, abrasion and breakage are 
contributing to the status of these two species.
    Many of the stressors identified as contributing to the status of 
elkhorn and staghorn coral are minor in intensity, but have an impact 
because of the extremely reduced population sizes of these coral 
species. For example, direct competition with other species, skeleton 
bioerosion by clionid sponges, and effects from African dust all are 
minor stressors, but they are exacerbating the species' current status.
    The severity of all of the stressors (natural or manmade) ranges 
from high (e.g., elevated sea surface temperature) to low (e.g., sponge 
boring). Some stressors (e.g., contaminants and loss of genetic 
diversity) are known to be adversely affecting these two species, but 
the magnitude of their effect on the status of elkhorn and staghorn 
corals is undetermined and understudied.
    No one factor alone is responsible for the threatened status of 
elkhorn and staghorn corals; we conclude that four of the five ESA 
section 4(a)(1) factors (all but overutilization) to some degree are 
contributing to the threatened status of the species. Although the 
interaction of individual stressors is difficult to study in a 
rigorous, controlled experiment, it is clear Acropora spp. corals are 
facing myriad stressors that act simultaneously on the species. Some of 
these stressors, such as contaminants or novel pathogens, might be new 
and outside of the species' evolutionary experience. It is also clear 
that the corals are experiencing many of these stressors in new and 
severe combinations. It is logical to conclude that the synergistic 
effects of these combined stressors will continue.

Efforts Being Made to Protect Elkhorn and Staghorn Corals

    In making listing determinations, section 4(b)(1) of the ESA 
requires us to take into account the efforts, if any, being made by 
states or foreign nations to protect the species and to give 
consideration to species which have been designated as requiring 
protection from unrestricted commerce by foreign nations or under 
international agreements or have been identified as in danger of 
extinction or likely to become so by any state or foreign nation. 
Acknowledging their reefs' extreme importance to the ecosystem, the 
State of Florida and Commonwealth of Puerto Rico protect all corals to 
varying extents; however, neither provide specific protection to 
elkhorn or staghorn corals. Additionally, all corals, including elkhorn 
and staghorn corals, are protected under the U.S.V.I. Indigenous and 
Endangered Species Act of 1990, and both species have been listed 
recently in the ``red book'' of threatened marine invertebrates of 
Colombia by a technical commission coordinated by the Ministry of the 
Environment. Acropora cervicornis was considered a critically 
endangered species in Colombia, and A. palmata was included as 
endangered. Although certain governments offer specific protection to 
these two species, the measures are not sufficient to offset the 
impacts currently affecting elkhorn and staghorn corals.
    All corals are listed under Appendix II of the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora, 
which regulates international trade of species to ensure survival. 
Thus, a determination to include the two Acropora species on the 
federal list of endangered and threatened species would be consistent 
with state and international actions regarding these species.

Final Conclusions Regarding ESA Listing Status

    After reviewing the public comments received, we find that there is 
no substantive information that would cause us to reconsider the 
extinction risk assessments of the BRT or our assessment of the factors 
causing the threatened status of these two corals. We believe that 
abundance and distribution of both elkhorn and staghorn coral are 
likely to become further reduced. Furthermore, a number of local 
extirpations is likely to occur within the next 30 years. The major 
threats (e.g., disease, elevated sea surface temperature, and 
hurricanes) to these species' persistence are severe, unpredictable, 
likely to increase in the foreseeable future, and, at current levels of 
knowledge, unmanageable. We believe that elkhorn and staghorn coral are 
not currently in danger of extinction throughout their ranges. However, 
they are likely to become so within the foreseeable future because of a 
combination of four of the five factors listed in section 4(a)(1) of 
the ESA, and this status is not being ameliorated by efforts to protect 
the species by state or foreign governments. Accordingly, the two 
species warrant listing as threatened.

Prohibitions and Protective Regulations

    ESA section 9(a) take prohibitions (16 U.S.C. 1538(a)(1)(B)) apply 
to all species listed as endangered. In the case of threatened species, 
section 4(d) of the ESA directs the Secretary to issue regulations he 
considers necessary and advisable for the conservation of the species. 
The 4(d) protective regulations may prohibit, with respect to 
threatened species, some or all of the acts which section 9(a) of the 
ESA prohibits with respect to endangered species. These section 9(a) 
prohibitions and section 4(d) regulations apply to all individuals, 
organizations, and agencies subject to U.S. jurisdiction. Subsequent to 
this rulemaking, we will evaluate the necessity and advisability of 
proposing protective regulations pursuant to section 4(d) of the ESA 
for these two coral species.

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

    On July 1, 1994, we and the FWS published a policy requiring us to 
identify, to the maximum extent practicable at the time a species is 
listed, those activities that would or would not constitute a violation 
of section 9 of the ESA (59 FR 34272). The intent of this policy is to 
increase public

[[Page 26860]]

awareness of the effect of listings on proposed and ongoing activities 
within the species' range. However, because elkhorn and staghorn corals 
are being listed as threatened, section 9 ``take'' prohibitions are not 
applicable.

Peer Review Policies

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act (Public Law 106-554), is intended to enhance the quality 
and credibility of the Federal government's scientific information, and 
applies to influential or highly influential scientific information 
disseminated on or after June 16, 2005.
    Pursuant to our 1994 policy on peer review (59 FR 34270; July 1, 
1994), we have solicited the expert opinions of at least three 
appropriate and independent specialists regarding pertinent scientific 
or commercial data and assumptions relating to the taxonomy, genetics, 
and supportive biological and ecological information for species under 
consideration for listing. We conclude that these expert reviews 
satisfy the requirements for ``adequate [prior] peer review'' contained 
in the Bulletin (sec. II.2.).

Critical Habitat

    ``Critical habitat'' is defined in section 3 of the ESA (16 U.S.C. 
1532(3)) as: ``(i) the specific areas within the geographical area 
occupied by the species, at the time it is listed in accordance with 
the [ESA], on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by the species at the time 
it is listed ... upon a determination by the Secretary that such areas 
are essential for the conservation of the species.'' ``Conservation'' 
is defined as the use of all methods and procedures necessary to bring 
the species to the point at which the measures of the ESA are no longer 
necessary.
    Section 4(a)(3)(A) of the ESA requires that, to the maximum extent 
prudent and determinable, critical habitat be designated concurrently 
with the listing of a species. Section 4(b)(6)(C)(ii) of the ESA 
provides for additional time to promulgate a critical habitat 
designation if such designation is not determinable at the time of 
final listing of a species. Designations of critical habitat must be 
based on the best scientific data available and must take into 
consideration the economic, national security, and other relevant 
impacts of specifying any particular area as critical habitat.
    The designation of critical habitat is not determinable at this 
time due to the extremely complex biological and physical requirements 
of these two Acroporid species. Although we have gathered information 
through the status review and public comment processes, we currently do 
not have enough information to determine which of these features are 
essential to the conservation of elkhorn and staghorn corals and may 
require special management considerations or protection. We will 
continue to gather and review other ongoing studies on the habitat use 
and requirements of elkhorn and staghorn corals to attempt to identify 
these features. Additionally, we need more time to gather the 
information needed to perform the required analyses of the impacts of 
the designation. Once areas containing these features are identified 
and mapped, and economic, national security, and other relevant impacts 
are considered, we will publish, in a separate rule, to the maximum 
extent prudent, a proposed designation of critical habitat for elkhorn 
and staghorn corals.

Information Solicited

    To ensure subsequent rulemaking resulting from this Final Rule will 
be as accurate and effective as possible, we are soliciting information 
from the public, other governmental agencies, the scientific community, 
industry, and any other interested parties. Specifically, we are 
interested in information that will inform the ESA section 4(d) rule 
making and the designation of critical habitat for elkhorn and staghorn 
corals, including: (1) current or planned activities within the range 
of these two species and their possible impact on these species; (2) 
necessary prohibitions on take to promote the conservation of these two 
species; (3) evaluations describing the quality and extent of their 
habitats (occupied currently or occupied in the past, but no longer 
occupied); (4) information on areas that may qualify as critical 
habitat including those physical and biological features essential for 
the conservation of these two species; (5) activities that could be 
affected by an ESA section 4(d) rule and/or critical habitat 
designation; and (6) the economic costs and benefits likely to result 
from protective regulations and designation of critical habitat (see 
DATES and ADDRESSES).

Classification

National Environmental Policy Act

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

Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

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

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

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings: (a) This final rule will not produce a Federal 
mandate. In general, a Federal mandate is a provision in legislation, 
statute, or regulation that would impose an enforceable duty upon 
state, local, tribal governments, or the private sector and includes 
both ``Federal intergovernmental mandates'' and ``Federal private 
sector mandates.'' These terms are defined in 2 U.S.C. 658(5)-(7). 
``Federal intergovernmental mandate'' includes a regulation that 
``would impose an enforceable duty upon State, local, or tribal 
governments'' with two exceptions. It excludes ``a condition of Federal 
assistance.'' It also excludes ``a duty arising from participation in a 
voluntary Federal program,'' unless the regulation ``relates to a then-
existing Federal program under which $500,000,000 or more is provided 
annually to State, local, and tribal governments under entitlement 
authority,'' if the provision would ``increase the stringe