Endangered and Threatened Species; Conservation of Threatened Elkhorn and Staghorn Corals, 71102-71111 [E7-24211]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 240 (Friday, December 14, 2007)]
[Proposed Rules]
[Pages 71102-71111]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24211]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 071120724-7618-01]
RIN 0648-AU92


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

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

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

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SUMMARY: We, NMFS, are proposing to issue protective regulations under 
of the Endangered Species Act (ESA) for two species listed as 
threatened, the elkhorn

[[Page 71103]]

coral and the staghorn coral. The proposed regulations would apply all 
the prohibitions enumerated in the ESA to these two coral species, with 
limited exceptions for two specified classes of activities that 
contribute to the conservation of the listed corals. In addition, we 
are announcing the availability of an environmental assessment (EA) 
that analyzes the impacts of promulgating these regulations. We are 
furnishing this notification to allow other agencies and the public an 
opportunity to review and comment on the proposed rule. All comments 
received will become part of the public record and will be available 
for review.

DATES: Comments on this proposal must be received by March 13, 2008.

ADDRESSES: You may submit comments, identified by the Regulatory 
Information Number (RIN) 0648-AU92, by any of the following methods:
     Mail: Assistant Regional Administrator, Protected 
Resources Division, NMFS, Southeast Regional Office, 263 13th Ave. 
South, St. Petersburg, FL 33701.
     Facsimile (fax) to: 727-824-5309.
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal https://www.regulations.gov
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do no submit Confidential Business Information or otherwise 
sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Jennifer Moore or Sarah Heberling, 
NMFS, at the address above or at 727-824-5312; or Marta Nammack, NMFS, 
at 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On May 9, 2006, we published a final rule listing elkhorn (Acropora 
palmata) and staghorn (A. cervicornis) corals as threatened under the 
ESA (71 FR 26852). The final listing rule describes the background of 
the listing actions for elkhorn and staghorn corals and provides a 
summary of our conclusions regarding the status of the listed corals. 
We have not previously proposed any regulations pursuant to section 
4(d) of the ESA for listed corals.
    Section 4(d) of the ESA provides that whenever a species is listed 
as threatened, the Secretary of Commerce (Secretary) shall issue such 
regulations as the Secretary deems necessary and advisable to provide 
for the conservation of the species. Such regulations may include any 
or all of the prohibitions in ESA section 9(a)(1) that apply 
automatically to species listed as endangered. Those section 9(a)(1) 
prohibitions make it unlawful with limited specified exceptions, for 
any person subject to the jurisdiction of the United States to: ``(A) 
import any such species into, or export any such species from the 
United States; (B) take any such species within the United States or 
the territorial sea of the United States; (C) take any such species 
upon the high seas; (D) possess, sell, deliver, carry, transport, or 
ship, by any means whatsoever, any such species taken in violation of 
subparagraphs (B) and (C); (E) deliver, receive, carry, transport, or 
ship in interstate or foreign commerce, by any means whatsoever and in 
the course of a commercial activity, any such species; (F) sell or 
offer for sale in interstate or foreign commerce any such species; or 
(G) violate any regulation pertaining to such species or to any 
threatened species of fish or wildlife listed pursuant to section 4 of 
this Act and promulgated by the Secretary pursuant to authority 
provided by this Act.'' Section 11 of the ESA provides for civil and 
criminal penalties for violation of section 9 or regulations issued 
under the ESA.
    Whether section 9(a)(1) prohibitions or other regulations are 
necessary and advisable to provide for the conservation of species 
depends in large part upon the biological status of the species, the 
potential impacts of various activities on the species, and on factors 
such as the existence and efficacy of other conservation activities. 
The two acroporid coral species have survived for millions of years 
through cycles in ocean conditions and climate. However, as a part of 
the listing process, we concluded their abundances have been 
dramatically reduced to less than three percent of former population 
levels by disease, elevated sea surface temperature, and hurricanes. 
Additionally, given the extremely reduced population sizes of these 
species, we determined that the following lesser stressors are 
contributing to the threatened status of the species: sedimentation, 
anthropogenic abrasion and breakage, competition, excessive nutrients, 
predation, contaminants, loss of genetic diversity, African dust, 
elevated carbon dioxide levels, and sponge boring. We concluded that, 
within the jurisdiction of the United States, existing regulations have 
abated the threat posed by collection of the two species; however, 
existing regulatory mechanisms are inadequate to abate the myriad other 
threats causing the species' status. Although elkhorn and staghorn 
corals are not currently endangered, they are likely to become so 
within the foreseeable future because of a combination of four of the 
five factors listed in section 4(a)(1) of the ESA, and this status is 
not being ameliorated by state or foreign government efforts to protect 
the species. Therefore, as discussed below, we have determined it is 
necessary and advisable in most circumstances to apply the section 9 
prohibitions to both these threatened coral species, in order to 
provide for their conservation.

Application of Section 9 Prohibitions to Listed Corals

    As discussed above, the two coral species have declined to less 
than three percent of their former abundances and are currently 
impacted by myriad stressors that are acting simultaneously on the 
species throughout their ranges. We determined the major stressors 
(i.e., disease, elevated sea surface temperature, and hurricanes) to 
these species' persistence are severe, unpredictable, likely to 
increase in the foreseeable future, and, at current levels of 
knowledge, unmanageable. While the lesser stressors, enumerated above, 
have not been the primary causes of the species' decline, managing them 
will contribute to the conservation of the two species by slowing the 
rate of decline and reducing the synergistic effects of multiple 
stressors on the species. Therefore, we believe that the ESA section 
9(a)(1) prohibitions are necessary and advisable for the conservation 
of threatened elkhorn and staghorn corals, specifically to address the 
lesser stressors that are amenable to management. We believe that the 
prohibitions are not necessary and advisable in specific circumstances, 
and we are proposing specific exceptions for importation, exportation, 
and take, which are more fully described in the next section. Below is 
our discussion of the section 9 prohibitions which we are proposing to 
extend to the two listed corals.
    Section 9(a)(1)(A) prohibits the importation and exportation of 
endangered species to or from the United States. We believe that it is 
necessary and advisable to extend this prohibition to elkhorn and 
staghorn

[[Page 71104]]

corals. Existing laws prohibit and restrict extraction and trade of 
live elkhorn and staghorn corals. International agreement restricts 
international trade of both elkhorn and staghorn corals (Convention on 
the International Trade of Endangered Species or CITES). Federal 
regulations prohibit harvest or possession of elkhorn or staghorn coral 
in Federal waters (e.g., Caribbean and Gulf of Mexico and South 
Atlantic Coral Fisheries Management Plans), and the Lacey Act prohibits 
trade of illegally obtained specimens. Sale of coral extracted from any 
waters is illegal in the U.S. Virgin Islands (U.S.V.I.), Puerto Rico, 
and Florida, except that the sale of live elkhorn and staghorn corals 
extracted from Florida waters or the Exclusive Economic Zone (EEZ) is 
legal when these corals are products of aquaculture (e.g., the corals 
have settled and grown on live rock products). Neither threatened coral 
species, however, is a product of commercial aquaculture anywhere 
within the United States, nor is there a directed market for either 
elkhorn or staghorn corals. More information on the specific Federal, 
state, and local laws and regulations concerning the import and export 
of corals is available in the Atlantic Acropora Status Review Document 
(BRT, 2005) or the Regulatory Impact Review for this proposed rule.
    As discussed in the status review document, prior to listing the 
two species as threatened under the ESA, there was no evidence of 
extraction of live specimens from Federal or state waters, nor evidence 
of trade of live specimens taken from foreign waters and imported into 
the United States for aquaria or other uses. Lack of extraction and 
trade of live specimens prior to the listing of these corals can be 
attributed mostly to existing laws and regulations. However, it is 
possible that the ESA listing might encourage a black market for the 
trade of these species, as evidenced by the trade of other threatened 
and endangered species (e.g., sturgeon eggs, elephant ivory). The 
increased public exposure to these rare corals due to the ESA listing 
may make the two species more desirable for aquaria or other uses. 
Therefore, to prevent this activity and to support existing regulations 
concerning the import and export of these corals, we find it necessary 
and advisable to extend the ESA section 9(a)(1)(A) prohibition to 
elkhorn and staghorn corals in order to provide for the conservation of 
the two species.
    Section 9(a)(1)(B) of the ESA prohibits the take of endangered 
species within the United States or the territorial sea of the United 
States, and section 9(a)(1)(C) of the ESA prohibits the take of 
endangered species upon the high seas for any person subject to the 
jurisdiction of the United States. Take means to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to 
engage in any such conduct. Activities that constitute harm may include 
significant habitat modification or degradation that actually kills or 
injures fish or wildlife by significantly impairing essential 
behavioral patterns including breeding, spawning, rearing, migrating, 
feeding or sheltering (50 CFR 222.102). At the time of the drafting of 
the ESA, the high seas were defined as those waters not under any 
country's legal jurisdiction, and no country had yet designated an 
Exclusive Economic Zone (i.e., 200 nautical miles). Thus, ``take on the 
high seas'' is interpreted as take beyond any country's territorial 
seas, in the meaning of the ESA when it was first enacted. Based on 
available information, the territorial seas of countries within the 
range of the two threatened coral species end no more than 12 nautical 
miles NM (22.2 km) offshore (See, ``Table of claims to maritime 
jurisdiction'' as at December 29, 2006, at https://www.un.org/Depts/los/
LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf).
    Take of the listed corals can result from numerous private and 
public activities, including recreational and commercial activities, by 
direct and indirect impacts, and intentionally or incidentally. 
Protecting listed corals from direct forms of take, such as physical 
injury or killing, whether intentional or incidental, will help 
preserve the species' remaining populations and slow their rate of 
decline. Protecting listed corals from indirect forms of take, such as 
harm that results from habitat degradation, will likewise help preserve 
the species' populations and also decrease synergistic, negative 
effects from other stressors. We therefore propose to extend the ESA 
section 9(a)(1)(B) prohibition to elkhorn and staghorn corals to manage 
for these threats. There are likely few locations where elkhorn and 
staghorn corals may possibly occur farther than 12 NM (22.2 km) from 
land, because typically the depth is too great. However, due to the 
dramatic decline in abundance and the myriad threats facing them, it is 
necessary and advisable for these species' conservation to protect the 
species from take everywhere they occur, including on the high seas, 
and thus we propose extending the ESA section 9(a)(1)(C) prohibition to 
the listed corals. Ensuring that take is prohibited everywhere the 
corals may be found will also avoid difficulty in enforcing these 
regulations based on claims about the origin of coral specimens.
    Sections 9(a)(1)(D), (E), and (F) of the ESA prohibit, among other 
things, the possession, sale, and transport of endangered species that 
are taken illegally or that are entered into interstate or foreign 
commerce. For the same reasons discussed above regarding the 
prohibition pursuant to ESA section 9(a)(1)(A), it is necessary and 
advisable to extend these prohibitions to the two corals. The ESA 
listing of these two species may make them a desirable commodity and 
encourage a black market. Therefore, the extension of these 
prohibitions will discourage the development of a black market and 
reinforce existing regulations on commercial activities involving 
corals.
    Lastly, we are extending the section 9(a)(1)(G) prohibition against 
violating this and any other regulations we promulgate pertaining to 
these two corals.

Summary of Exceptions to Section 9 Prohibitions

    The ESA allows for specific exceptions to the section 9 
prohibitions through interagency consultation as prescribed by ESA 
section 7 or a permit issued pursuant to section 10. If this proposed 
rule becomes final and the section 9 prohibitions are extended to these 
two species, these exceptions would apply.
    Section 7 of the ESA requires all Federal agencies to consult with 
us if actions they fund, authorize, or carry out may affect threatened 
corals or any other species listed under the ESA. We consult on a broad 
range of activities conducted, funded, or authorized by Federal 
agencies. These activities include, but are not limited to, national 
water quality standards and discharge permits, coastal and nearshore 
construction, dredging or discharge of fill material, navigation 
regulation, fishery regulation, and live-rock aquaculture. Incidental 
take of these two threatened corals that results from federally funded, 
authorized, or implemented activities for which section 7 consultations 
are completed, will not constitute violations of section 9 prohibitions 
against take, provided the activities are conducted in accord with all 
reasonable and prudent measures (RPMs) and terms and conditions 
contained in any biological opinion and incidental take statement 
issued by us.
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide us with the 
authority

[[Page 71105]]

to grant exceptions to the ESA's prohibitions. Section 10(a)(1)(A) 
scientific research and enhancement permits may authorize exceptions to 
any of the section 9 prohibitions and may be issued to Federal and non-
Federal entities conducting research or conservation activities that 
involve a directed take of listed species. A directed take refers to 
the intentional take of listed species. Section 10(a)(1)(B) incidental 
take permits may be issued to non-Federal entities performing 
activities that may incidentally take listed species in the course of 
an otherwise lawful activity; these permits provide an exception to the 
section 9(a)(1)(B) prohibitions.
    We determined that in certain circumstances described below, 
extending the ESA section 9(a)(1)(A), (B), and (C) prohibitions to the 
two corals is not necessary and advisable. We are proposing exceptions 
to these prohibitions for two classes of activities that provide for 
the conservation of listed corals. Under specified conditions, (1) 
scientific research and enhancement activities conducted under six 
specific existing Federal, state, or territorial research permitting 
programs are exempt from the section 9(a)(1)(A), (B) and (C) 
prohibitions; and (2) restoration activities carried out by an 
authorized (under current laws) Federal, state, territorial, or local 
natural resource agency are exempt from the section 9(a)(1)(B) and (C) 
prohibitions. These exceptions are described in more detail in the 
following sections. These classes of activities are not excepted from 
the Section 9(a)(1)(D) through (F) prohibitions because allowing 
commercial activities does not provide for the conservation of the two 
species. The 9(a)(1)(G) prohibition will be applied to these activities 
so that it is unlawful to violate this rule or subsequent rules that we 
may promulgate under the ESA and pertaining to the corals.

Exception to Prohibitions for Scientific Research and Enhancement 
Activities

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

Exception to Prohibitions for Certain Restoration Activities

    This exception applies to both threatened corals and would except 
certain Federal, state, and territorial agency personnel, or their 
designees as applicable, from the prohibitions when they are performing 
specific restoration activities directed at the listed corals under an 
existing legal authority that provides for such restoration. For 
purposes of this exception, a ``restoration activity'' is the methods 
and processes used to provide immediate aid to injured individuals. For 
example, reattachment of colonies or fragments dislodged or broken by 
vessel groundings onto suitable hard substrates would be excepted from 
the prohibition when it is implemented under an existing legal 
authority. Thus, Florida Keys National Marine Sanctuary staff actions 
under the National Marine Sanctuaries Act's authority to undertake all 
necessary actions to prevent or minimize the destruction or loss of, or 
injury to, sanctuary resources, (16 U.S.C. 1443), would be excepted 
from the prohibitions when the restoration activity described in this 
prohibition is implemented for either of the two acroporid corals. 
Through this exception, we are not authorizing any activities which are 
not currently authorized under an existing statute, rather we are 
excepting these activities from the section 9(a)(1)(B) and (C) take 
prohibitions for the two listed corals. The activity which caused the 
injury is not excepted by this rule. Any person claiming this exception 
shall provide proof they are acting under the authority of the listed 
laws upon request by a law enforcement agent.
    Several Federal, state, and territorial government agencies have 
authorization to engage in the specific type of restoration activities 
covered by this proposed exception. We have included response, removal, 
or remedial authority under several Federal statutes in this proposed 
exception, because one or more of these authorities have been 
interpreted to include the type of natural resource restoration 
activity described above; for example, actions required to respond to a 
substantial threat of a discharge may dislodge or break coral 
fragments, and reattaching those fragments are legitimate response 
activities. However, we are not including removal or remedial authority 
in state or territorial laws, because we are not aware that these 
authorities have

[[Page 71106]]

been interpreted to include restoration activities. For state and 
territorial authorities, the following table currently only includes 
those that expressly provide for direct restoration of natural 
resources including corals. We are specifically requesting the states 
and territories included in Table 1 to comment on whether we have 
included all their authorities that could encompass the restoration 
activities proposed to be excepted from the prohibitions. The following 
table lists the authorizing statute, the specific provision, and 
specific agencies or offices authorized under existing statutes to 
implement the coral restoration activities defined in this proposed 
exception. We are also requesting that the agencies listed ensure the 
rule correctly identifies the specific offices authorized to implement 
the statutory provisions.

Table 1. Agencies and authorizing statutes whose coral restoration activities would be excepted from the section
                       9(a)(1)(B) and (C) prohibition by this proposed rule if finalized.
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                FEDERAL:
----------------------------------------------------------------------------------------------------------------
              Agency/Person                Statute and Specific Provision(s)       Description of Authority
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NOAA, National Ocean Service (NOS)        National Marine Sanctuaries Act 16  Authorized to conduct, among other
                                           U.S.C. 1433                         things, all necessary actions to
                                                                               prevent or minimize actual or
                                                                               imminent risk of destruction or
                                                                               loss of, or injury to, Sanctuary
                                                                               resources.
----------------------------------------------------------------------------------------------------------------
NOAA NOS                                  Coral Reef Conservation Act, 16     Authorized to conduct activities
                                           U.S.C. 6406                         to conserve coral reefs,
                                                                               including restoration.
----------------------------------------------------------------------------------------------------------------
Commandant, U.S. Coast Guard (USCG),      ''Oil Pollution Act''               Authorized to conduct the removal
 Authorized representatives of States or  33 U.S.C. 2702                       of discharges of oil, including
 Indian Tribes.                                                                the prevention, minimization or
                                                                               mitigation of substantial threats
                                                                               of discharges.
----------------------------------------------------------------------------------------------------------------
Designated Federal, State or Indian       33 U.S.C. 2706                      Authorized to restore or
 tribal natural resources trustees,                                            rehabilitate trust natural
 including NOAA, Department of Interior                                        resources injured, destroyed or
 (DOI), Florida Department of                                                  lost as a result of discharges of
 Environmental Protection (FDEP), Puerto                                       oil, or substantial discharges of
 Rico DNER, and U.S. Virgin Islands                                            oil.
 DPNR.
----------------------------------------------------------------------------------------------------------------
Administrator, Environmental Protection   ''Clean Water Act''                 Authorized to conduct removal of
 Agency (EPA) or Commandant, USCG;        33 U.S.C. 1321                       and mitigation or prevention of
 Authorized representatives of States.                                         substantial threats of discharges
                                                                               of oil or hazardous substances to
                                                                               certain waters; protection,
                                                                               rescue, and rehabilitation of,
                                                                               and minimization of risk of
                                                                               damage to, fish and wildlife
                                                                               resources harmed by, or that may
                                                                               be jeopardized by, discharges;
                                          ..................................  ..................................
Designated Federal, State or Indian       ..................................  Authorized to conduct restoration
 tribal natural resources trustees,                                            or rehabilitation of public trust
 including NOAA, DOI, FDEP, DNER, and                                          natural resources damaged or
 DPNR.                                                                         destroyed as a result of
                                                                               discharges.
----------------------------------------------------------------------------------------------------------------
Administrator of the EPA; States or       ''Superfund Act'' (CERCLA)          Authorized to conduct removal and
 Indian Tribes in cooperative agreements  42 U.S.C. 9604                       other remedial action for
 with EPA; Heads of other federal                                              releases or substantial threats
 agencies where release is from vessel                                         of releases of hazardous
 or facility solely under their control.                                       substances into the environment.
                                          ..................................  ..................................
Administrator of the EPA                  42 U.S.C. 9606                      Authorized to conduct abatement
                                                                               actions in response to imminent
                                                                               and substantial endangerment to
                                                                               the public health or welfare or
                                                                               the environment from actual or
                                                                               threatened releases of hazardous
                                                                               substances.
----------------------------------------------------------------------------------------------------------------
Designated Federal, State or Indian       42 U.S.C. 9607                      Authorized to conduct restoration
 tribal natural resources trustees,                                            and rehabilitation of natural
 including NOAA, DOI, FDEP, DNER, and                                          resources injured, destroyed or
 DPNR                                                                          lost as a result of actual or
                                                                               threatened releases of hazardous
                                                                               substances.
----------------------------------------------------------------------------------------------------------------
DOI, National Park Service (NPS)          Park System Resource Protection     Authorized to conduct all
                                           Act,                                necessary actions to prevent or
                                          16 U.S.C. 19jj                       minimize actual or imminent risk
                                          16 U.S.C. 668dd-668ee (National      of destruction, loss of, or
                                           Wildlife Refuge System)             injury to Park System resources,
                                                                               and to restore such resources.
----------------------------------------------------------------------------------------------------------------
DOI                                       National Wildlife Refuge System     Authorized to administer refuges
                                           Administration Act,                 for the conservation of fish and
                                          16 U.S.C. 668                        wildlife within refuges.
----------------------------------------------------------------------------------------------------------------

[[Page 71107]]

 
FLORIDA:
-----------------------------------------
The Board of Trustees of the Internal     State Lands; Board of Trustees to   Authorized, among other things, to
 Improvement Trust Fund                    Administer                          administer, manage, conserve, and
                                          FL Statute Sec.   253.03             protect all lands owned by the
                                                                               State or any of its agencies,
                                                                               departments, boards or
                                                                               commissions.
                                          ..................................  ..................................
                                          Duty of Board to Protect, etc.      Authorized to protect, conserve,
                                          FL Statute. Sec.   253.04            and prevent damage to state-owned
                                          FDEP                                 lands; FDEP authorized to assess
                                                                               civil penalties for damage to
                                                                               coral reefs in state waters.
----------------------------------------------------------------------------------------------------------------
Governor and Cabinet; FDEP                Land Acquisition for Conservation   Authorized to use monies in the
                                           or Recreation; Conservation and     Fund to, among other things,
                                           Recreation Lands Trust Fund         promote restoration activities,
                                          FL Statute Sec.   259.032            and manage lands acquired under
                                                                               this section to protect or
                                                                               restore their natural resource
                                                                               values.
----------------------------------------------------------------------------------------------------------------
FDEP                                      Pollutant Discharge Prevention and  Authorized to recover the costs of
                                           Removal; Liability for Damage to    restoration of state natural
                                           Natural Resources                   resources damages by pollution
                                          FL Statute Sec.   376.121            discharges, and to use funds
                                                                               recovered for, among other
                                                                               purposes, restoration of the
                                                                               damaged resources.
----------------------------------------------------------------------------------------------------------------
FDEP                                      Land and Water Management; Coral    Authorized to use monies in the
                                           Reef Restoration                    Ecosystem Management and
                                          FL Statute Sec.   390.0558           Restoration Trust Fund to restore
                                                                               or rehabilitate injured or
                                                                               destroyed coral reefs.
----------------------------------------------------------------------------------------------------------------
U.S. VIRGIN ISLANDS:
-----------------------------------------
DPNR                                      DPNR; Powers and Duties of          Authorized to undertake programs
                                           Department                          and projects for, among other
                                          3 V.I.C. Sec.   401                  things, the conservation of
                                                                               natural resources of the
                                                                               U.S.V.I., for the restoration and
                                                                               preservation of the scenic beauty
                                                                               of the U.S.V.I., and for the
                                                                               conservation, maintenance and
                                                                               management of U.S.V.I. wildlife,
                                                                               the resources thereof, and its
                                                                               habitat.
----------------------------------------------------------------------------------------------------------------
DPNR                                      Conservation; Croix East End        Authorized to protect
                                           Marine Park Established;            territorially significant marine
                                          12 V.I.C. Sec.   98                  resources, including coral reefs,
                                                                               in the St. Croix East End Marine
                                                                               Park.
----------------------------------------------------------------------------------------------------------------
PUERTO RICO:
-----------------------------------------
DNER                                      Conservation; Protection,           Authorized to, among other things,
                                           Conservation and Management of      take all measures needed for the
                                           Coral Reefs                         protection, conservation and
                                          12 L.P.R.A. Sec.  Sec.   241-241g    management of coral reefs and
                                           et seq.                             coral communities throughout the
                                                                               territorial waters of the
                                                                               Commonwealth of Puerto Rico.
----------------------------------------------------------------------------------------------------------------
DNER                                      Conservation; Natural Patrimony     Authorized to acquire, restore and
                                           Program                             manage lands, natural communities
                                          12 L.P.R.A. Sec.   1227              and habitats identified as, among
                                                                               other things, deserving
                                                                               preservation for their natural
                                                                               resource values.
----------------------------------------------------------------------------------------------------------------
DNER                                      Conservation; Tres Palmas de        Authorized to administer,
                                           Rincon Marine Reserve               rehabilitate and conserve the
                                          12 L.P.R.A. Sec.   5063              reserve.
----------------------------------------------------------------------------------------------------------------

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

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that 
requires us to identify, to the maximum extent practicable at the time 
a species is listed, those activities that would or would not 
constitute a violation of section 9 of the ESA. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within a species' range. We must 
identify to the extent known, specific activities not considered likely 
to result in violations of section 9, as well as activities that will 
be considered likely to result in violations. We believe that, based on 
the available information, the following

[[Page 71108]]

actions will not result in a violation of section 9:
    1. Collection, handling, and possession of listed corals that are 
acquired lawfully through an ESA section 10 permit or through one of 
the exceptions in this proposed rule; or
    2. Activities that result in incidental take authorized by an 
incidental take statement issued through a biological opinion pursuant 
to section 7 or permitted through section 10 of the ESA.
    Based on available information, we believe the following categories 
of activities are those most likely to result in a violation of the ESA 
section 9 prohibitions. We wish to emphasize that whether a violation 
results from a particular activity is entirely dependent upon the facts 
and circumstances of each incident. The mere fact that an activity may 
fall within one of these categories does not mean that the specific 
activity will cause a violation; due to such factors as location and 
scope, specific actions may not result in direct or indirect adverse 
effects on the species. Further, an activity not listed may in fact 
result in a violation. However, the following types of activities are 
those that may be most likely to violate the prohibitions in section 9, 
which would be extended to the listed corals through this rule:
    1. Removing, damaging, poisoning, or contaminating elkhorn or 
staghorn corals.
    2. Removing, poisoning, or contaminating plants, wildlife, or other 
biota required by listed corals for feeding, sheltering, or other 
essential behavioral patterns.
    3. Removing or altering substrate, vegetation, or other physical 
structures that are essential to the integrity and function of listed 
corals' habitat.
    4. Altering water flow or currents to an extent that impairs 
spawning, feeding, or other essential behavioral patterns of listed 
corals.
    5. Discharging pollutants, such as oil, toxic chemicals, 
radioactivity, carcinogens, mutagens, teratogens, or organic nutrient-
laden water, including sewage water, into listed corals' habitat to an 
extent that disrupts or prevents the reproduction, development, or 
normal physiology of listed corals.
    6. Releasing non-indigenous or artificially propagated species into 
listed corals' habitat or locations from where they may access the 
habitat of listed corals.
    7. Activities conducted in shallow water coral reef areas, 
including boating, anchoring, fishing, recreational SCUBA diving, and 
snorkeling, that result in abrasion of or breakage to the listed 
corals.
    8. Interstate and foreign commerce dealing in listed corals, and 
importing or exporting listed corals.
    9. Shoreline and riparian disturbances (whether in the riverine, 
estuarine, marine, or floodplain environment) that may disrupt or 
prevent the reproduction, settlement, reattachment, development, or 
normal physiology of listed corals (e.g., land development, run-off, 
dredging, and disposal activities that result in direct deposition of 
sediment on corals, shading, or covering of substrate for fragment 
reattachment or larval settlement).
    10. Activities that modify water chemistry in coral habitat to an 
extent that disrupts or prevents the reproduction, development, or 
normal physiology of listed corals.
    11. Activities that result in elevated water temperatures in coral 
habitat that cause bleaching or other degradation of physiological 
function of listed corals. For example, in our economic analysis on 
this rule, we identified discharges of cooling water effluent from 
power plants as an activity that may result in elevated sea surface 
temperature.
    This list provides examples of the types of activities that could 
have a high risk of causing a violation, but it is by no means 
exhaustive. It is intended to help people avoid violating the ESA and 
to encourage efforts to recover the threatened corals addressed in this 
proposed rule.
    Persons or entities concluding that their activity is likely to 
violate the ESA are encouraged to immediately adjust that activity to 
avoid violations and to seek authorization under: (a) an ESA section 10 
incidental take permit; (b) an ESA section 10 research and enhancement 
permit; or (c) an ESA section 7 consultation. The public is encouraged 
to contact us (see FOR FURTHER INFORMATION CONTACT) for assistance in 
determining whether circumstances at a particular location, involving 
these activities or any others, might constitute a violation of this 
proposed rule if finalized.
    In making a determination that it is not necessary and advisable to 
impose ESA section 9 take prohibitions on certain activities, we 
recognize that new information may require a reevaluation of that 
conclusion at any time. For any of the exceptions from the prohibitions 
described in this proposed rule, we will evaluate periodically the 
activity's effect on the conservation of listed corals. If we determine 
that it becomes necessary and advisable for the conservation of the 
species, we will impose take prohibitions on the activities previously 
excepted through rulemaking.

Public Comments Solicited

    To assist us in identifying appropriate prohibitions and exceptions 
identified in this proposed rule, we held seven public information-
gathering workshops in Florida, Puerto Rico, and the U.S.V.I. in May 
2006. Representatives from Federal, state, and territorial resource 
management agencies, non-governmental organizations, local fishing 
communities, academic and coral research institutions, and the general 
public attended the Acropora Conservation Workshops. The purpose of 
these workshops was to gather as much information as possible about 
activities and programs that affect the two threatened coral species, 
including information about the impacts of these activities and 
programs.
    We are soliciting comments, information, and/or recommendations on 
any aspect of this proposed rule from all concerned parties (see DATES 
and ADDRESSES). We will consider all relevant information, comments, 
and recommendations received before reaching a final decision on ESA 
section 4(d) regulations for listed corals. If we determine it is 
necessary and advisable for the conservation of the species, we may add 
or remove prohibitions or exceptions on the basis of public comment.

Classification

    We determined that this action is consistent to the maximum extent 
practicable with the enforceable policies of the approved coastal 
management programs of Florida, Puerto Rico, and U.S.V.I.. This 
determination has been submitted for review by the responsible state 
agencies under section 307 of the Coastal Zone Management Act.
    Pursuant to E.O. 13132, the Assistant Secretary for Legislative and 
Intergovernmental Affairs will provide notice of the proposed action 
and request comments from the appropriate official(s) in the states and 
territories where the two corals occur.
    This proposed rule has been determined not to be significant under 
Executive Order 12866.
    We prepared an initial regulatory flexibility analysis (IRFA), 
pursuant to section 603 of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), that describes the economic impact this proposed rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, and its legal basis are included in the 
preamble of this proposed rule. Small entities may be affected if a 
project they seek to

[[Page 71109]]

implement requires ESA section 7 consultation and may adversely affect 
the listed coral species, requiring minor changes to the project to 
lessen impacts on the corals (RPMs). Reporting requirements of the rule 
would be solely associated with implementation of the required section 
7 RPMs. No record keeping requirements are proposed. No existing 
Federal rules or laws duplicate or conflict with the proposed rule. 
Existing Federal rules and laws overlap the proposed rule only to the 
extent that they provide for the protection of natural resources or 
corals in general. A summary of the impacts analysis follows.
    The IRFA found that a number of existing Federal, state, or local 
laws prohibit take, possession, or sale of, and/or damage to, corals. 
Puerto Rico and U.S.V.I. law prohibit the take and sale of elkhorn and 
staghorn corals. Florida law prohibits take of these corals, with an 
exception provided for corals that attach to rock placed by aquaculture 
operations (i.e. live rock) that have appropriate permits. Florida law 
allows sales of dead elkhorn or staghorn coral skeletons with proof 
that the specimens were not taken illegally. There is anecdotal 
evidence that Florida shell shops have sold dead specimens of these 
species, and this rule does not preclude sales of dead specimens 
obtained legally before listing. There is no historical evidence of any 
live rock operations selling live rock with these species attached in 
the past 10 years of observations reported by live rock producers. 
There is also no historical evidence of international trade of either 
of these species.
    It is anticipated that, on average, approximately 44 non-Federal 
grantees or permittees, or their contractors, could be affected 
annually if the proposed rule is implemented. Historically, these 
projects have involved pipeline installation and maintenance, mooring 
construction and maintenance, dock/pier construction and repair, marina 
construction, bridge repair and construction, new dredging, maintenance 
dredging, National Pollutant Discharge Elimination System (NPDES)/water 
quality standards, cable installation, beach nourishment, shoreline 
stabilization, reef ball construction and installation, and port 
construction. Our database does not track whether applicants have been 
small entities, so it is impossible to determine the number of 
grantees, permittees, or contractors that may be small entities in the 
future. There is no indication that affected project applicants or 
their contractors would be limited to, nor disproportionately comprised 
of, small entities.
    The proposed rule will not result in an increase in the number of 
ESA section 7 consultations. Based on our experience with section 7 
consultations for other species, incremental administrative costs of 
identifying RPMs will be negligible, compared to the analytical 
requirements and associated costs already required by the duty to 
consult to ensure the action does not jeopardize listed species. Hence, 
we have assumed there will be no administrative costs of consultation 
associated with the proposed rule. Though we have characterized the 
costs associated with individual types of project modifications for the 
projected future activities, no total cost of this rule can be 
identified; the lack of specific information on the design and location 
of projected future projects limits our ability to forecast the exact 
type and amount of modifications required. However, the majority of the 
project modifications that NMFS would always require for these actions 
are currently required by other regulatory agencies. In addition, 
current ESA regulations require that RPMs cannot alter the basic 
design, location, scope, duration, and timing of an action and may only 
involve minor changes.
    We considered four alternatives for extending section 9(a)(1) 
prohibitions to threatened corals. These included a preferred 
alternative (i.e., this proposed rule), a no action alternative, and 
two additional alternatives. The no action alternative was not selected 
because it did not meet the conservation objectives of the proposed 
rule. The remaining two alternatives were not selected because they (1) 
were judged to have less conservation value for the corals, and (2) 
could result in smaller annual incomes generated by small businesses 
that rely on resident and visitor use of coral reefs.
    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.
    This proposed rule is consistent with E.O. 13089, which is intended 
to preserve and protect the biodiversity, health, heritage, and social 
and economic value of U.S. coral reef ecosystems and the marine 
environment.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: December 7, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

    Authority: 16 U.S.C. 1533(d).

    2. In subpart B of part 223, add Sec.  223.208 to read as follows:


Sec.  223.208  Corals.

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

[[Page 71110]]

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

Table 1 to Sec.   223.208. Agencies and authorizing statutes whose coral
    restoration activities are excepted from certain prohibitions in
                     paragraph (A) of this section.
------------------------------------------------------------------------
                                FEDERAL:
-------------------------------------------------------------------------
            Agency/Person              Statute and Specific Provision(s)
------------------------------------------------------------------------
NOAA, National Ocean Service (NOS)     National Marine Sanctuaries Act
                                       16 U.S.C. 1433
------------------------------------------------------------------------
NOAA NOS                               Coral Reef Conservation Act
                                       16 U.S.C. 6406
------------------------------------------------------------------------
Commandant, U.S. Coast Guard (USCG),   ''Oil Pollution Act''
 Authorized representatives of States  33 U.S.C. 2702
 or Indian Tribes.
------------------------------------------------------------------------
Designated Federal, State or Indian    33 U.S.C. 2706
 tribal natural resources trustees,
 including NOAA, Department of
 Interior (DOI), Florida Department
 of Environmental Protection (FDEP),
 Puerto Rico Department of Natural
 and Environmental Resources (DNER),
 and U.S. Virgin Islands Department
 of Planning and Natural Resources
 (DPNR)
------------------------------------------------------------------------
Administrator, Environmental           ''Clean Water Act''
 Protection Agency (EPA) or            33 U.S.C. 1321
 Commandant, USCG; Authorized
 representatives of States.
 
Designated Federal, State or Indian    .................................
 tribal natural resources trustees,
 including NOAA, DOI, FDEP, DNER, and
 DPNR.
------------------------------------------------------------------------
Administrator of the EPA; States or    ''Superfund Act'' (CERCLA)
 Indian Tribes in cooperative          42 U.S.C. 9604
 agreements with EPA; Heads of other
 Federal agencies where release is
 from vessel or facility solely under
 their control.
 
Administrator of the EPA               42 U.S.C. 9606
 

[[Page 71111]]

 
Designated Federal, State or Indian    42 U.S.C. 9607
 tribal natural resources trustees,
 including NOAA, DOI, FDEP, DNER, and
 DPNR
------------------------------------------------------------------------
DOI, National Park Service (NPS)       Park System Resource Protection
                                        Act,
                                       16 U.S.C. 19jj
                                       16 U.S.C. 668dd-668ee (National
                                        Wildlife Refuge System)
------------------------------------------------------------------------
DOI                                    National Wildlife Refuge System
                                        Administration Act,
                                       16 U.S.C. 668
------------------------------------------------------------------------
FLORIDA:
--------------------------------------
The Board of Trustees of the Internal  State Lands; Board of Trustees to
 Improvement Trust Fund                 Administer
                                       FL Statute Sec.   253.03
 
                                       Duty of Board to Protect, etc.
                                       FL Statute. Sec.   253.04
                                       FDEP
------------------------------------------------------------------------
Governor and Cabinet; FDEP             Land Acquisition for Conservation
                                        or Recreation; Conservation and
                                        Recreation Lands Trust Fund
                                       FL Statute Sec.   259.032
------------------------------------------------------------------------
FDEP                                   Pollutant Discharge Prevention
                                        and Removal; Liability for
                                        Damage to Natural Resources
                                       FL Statute Sec.   376.121
------------------------------------------------------------------------
FDEP