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

Download as PDF 60560 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations Manufacturer Subject lines VOLVO ......................................................................................... Passat. Tiguan. S60. 1 Granted an exemption from the parts marking requirements beginning with MY 2016. X1 carline was replaced by the X1 MPV line beginning in MY 2016. According to BMW, production of its X1 carline ceased in MY 2015. 3 Granted an exemption from the parts marking requirements beginning with MY 2015. 4 According to Mercedes-Benz, the CL-Class was renamed the S-Coupe Class beginning with MY 2015. 2 The Under authority delegated in 49 CFR part 1.95. Raymond R. Posten, Associate Administrator for Rulemaking. FOR FURTHER INFORMATION CONTACT: [FR Doc. 2015–25369 Filed 10–6–15; 8:45 am] Background On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species as threatened or endangered under the Endangered Species Act (ESA). We found that the petitioned actions may be warranted for 27 of the 81 species and announced the initiation of status reviews for each of the 27 species (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On December 16, 2014, we published a proposed rule to list the dusky sea snake (Aipysurus fuscus) and three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) as endangered species, and we proposed to list the Banggai cardinalfish (Pterapogon kauderni) and Harrisson’s dogfish (Centrophorus harrissoni) as threatened species (79 FR 74953). We requested public comment on information in the status reviews and proposed rule, and the comment period was open through February 17, 2015. This final rule provides a discussion of the information we received during the public comment period and our final determination on the petition to list the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) and the dusky sea snake (Aipysurus fuscus) under the ESA. Our final determinations for the other species proposed for listing in the December 16, 2014, proposed rule (79 FR 74953; Banggai cardinalfish (Pterapogon kauderni) and Harrisson’s dogfish (Centrophorus harrissoni)) will be made in a subsequent rule. The status of the findings and relevant Federal Register notices for those and the other 21 species can be found on our Web site at http://www.nmfs.noaa.gov/pr/ species/petition81.htm. We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we consider first BILLING CODE 4910–59–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 140707555–5880–02] RIN 0648–XD370 Endangered and Threatened Wildlife and Plants; Final Rule To List the Dusky Sea Snake and Three Foreign Corals Under the Endangered Species Act National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: We, NMFS, issue a final rule to list three foreign corals and the dusky sea snake under the Endangered Species Act (ESA). We considered comments submitted on the proposed listing rule and have determined that the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) and the dusky sea snake (Aipysurus fuscus) should be listed as endangered species. We will not designate critical habitat for any of the species because the geographical areas occupied by these species are entirely outside U.S. jurisdiction, and we have not identified any unoccupied areas within U.S. jurisdiction that are currently essential to the conservation of any of these species. DATES: This final rule is effective November 6, 2015. ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910, USA. asabaliauskas on DSK5VPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 Dwayne Meadows, Ph.D., NMFS, Office of Protected Resources, (301) 427–8403. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 whether a group of organisms constitutes a ‘‘species’’ under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a ‘‘species’’ to include ‘‘any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.’’ Section 3 of the ESA defines an endangered species as ‘‘any species which is in danger of extinction throughout all or a significant portion of its range’’ and a threatened species as one ‘‘which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ We interpret an ‘‘endangered species’’ to be one that is presently in danger of extinction. A ‘‘threatened species,’’ on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened). Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species’ status and after taking into account efforts being made by any state or foreign nation to protect the species. In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a ‘‘species.’’ Next, using the best available information gathered during the status E:\FR\FM\07OCR1.SGM 07OCR1 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations asabaliauskas on DSK5VPTVN1PROD with RULES review for the species, we complete a status and extinction risk assessment. In assessing extinction risk for these four species, we considered the demographic viability factors developed by McElhany et al. (2000) and the risk matrix approach developed by Wainwright and Kope (1999) to organize and summarize extinction risk considerations. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews, including for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, scalloped hammerhead sharks, and black abalone (see http:// www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four demographic viability factors: Abundance, growth rate/productivity, spatial structure/ connectivity, and diversity. These viability factors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk. We then assess efforts being made to protect the species, to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species. Summary of Comments In response to our request for comments on the proposed rule, we received three comments on the three foreign corals, and the Australian Government Department of the Environment submitted a letter neither supporting nor opposing our proposed listing of the dusky sea snake. The letter stated that the dusky sea snake is listed under Australia’s Environment Protection and Biodiversity Conservation Act, and thus it is currently illegal to kill, injure, take or trade dusky sea snakes. Because this information was acknowledged and considered in our status review, this information did not affect the proposal to list the species as endangered under the ESA. Three parties commented on the three corals. Comment 1: One commenter suggested active outside involvement in the recovery of the species, including partnerships with reef aquarists. Response: We agree with the commenter that partnerships enhance VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 recovery of listed species and that reef aquarists are a potential partner. We will look for opportunities to partner with parties interested in the recovery of these species. Comment 2: One commenter focused on the threat of carbon dioxide emissions and climate change. They claimed we, and the Departments of Commerce and Interior, should develop a National Climate Recovery Plan to protect a wide variety of resources and that we should define adverse modification under section 7 of the ESA for these proposed species. This commenter also requested we designate critical habitat for these species and suggested we alter our conclusion to say with certainty that each of the three coral species is definitively threatened by climate change, ocean warming, and sea level rise, and alter our discussion of regulatory mechanisms and the effects of listing as a result. Response: We note that action to develop a National Climate Recovery Plan is not part of the determination for listing that is the subject of this action and thus cannot be considered further here. As we noted in the proposed rule, we cannot designate critical habitat for these species, as their range is entirely outside U.S. jurisdiction and we have no evidence that unoccupied areas within our jurisdiction are necessary for the conservation of any of the species. Because we cannot designate critical habitat for these species, we have no reason to define adverse modification of critical habitat under Section 7 of the ESA for these corals. The commenter provided no species-specific information on climate change-related threats, so we cannot change our conclusion that habitat modification resulting from climate change is a potential threat to all three species of coral. Similarly, based on the same lack of new species-specific information, we cannot change our discussion of the adequacy of regulatory mechanisms to address these threats or the likely effects of listing. Comment 3: A researcher provided information on studies of the symbiotic Symbodinium algae residing in five specimens of Siderastrea glynni. This researcher claims to have identified two symbiont species in S. glynni, Symbodinium goreauii and Symbodinium trenchii. The researcher believes there is evidence that the Symbodinium trenchii occurring in S. glynni is of Caribbean origin and suggests this provides evidence that S. glynni is from an introduction of Siderastrea siderea to the eastern Pacific and is not some kind of separate rare endemic species. PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 60561 Response: We understand that Symbodinium trenchii and Symbodinium goreauii also occur in other regions of the Pacific as symbionts with other coral species. We are also aware that the strain of Symbodinium trenchii occurring in S. glynni also occurs in Caribbean corals, including species of Siderastrea (Pettay et al., 2015). According to Guzman (personal communication (the person who described S. glynni)), the research for the original description of S. glynni found that the species was more closely related to a fossil species from Baja California, Mexico than to the Caribbean S. siderea. If S. glynni has a long history in the eastern Pacific as some of the data suggest (Forsman et al., 2005), it could have been the source of, or another host for, the strain of Symbodinium trenchii that recently entered the Caribbean Sea. Alternatively, a Caribbean Siderastrea siderea could have recently invaded the eastern Pacific through the Panama Canal after the evolution of the Caribbean strain of Symbodinium trenchii. Under this scenario then, S. glynni would not be a unique species (Forsman et al., 2005). The direction and timing of movement of the strain of Symbodinium trenchii that occurs in S. glynni across the Isthmus of Panama between the Caribbean Sea and the eastern Pacific Ocean is thus uncertain, and the data on these symbionts may not be adequate to definitely distinguish among the competing hypotheses for the origin and taxonomy of S. glynni. Guzman (personal communication) is skeptical that the symbiont data provided by the commenter provides definitive evidence regarding the taxonomic status of the species. We agree, and thus decline to alter the existing published taxonomy of the species. Status Reviews Status reviews for the petitioned species addressed in this finding were conducted by NMFS staff. Separate draft status reviews were completed for dusky sea snake (Manning, 2014), and the three foreign corals (Meadows, 2014). In order to complete the status reviews, we compiled information on the species’ biology, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. We also considered information submitted by the public and peer reviewers. Prior to publication of the proposed rule, all status reviews were subjected to peer review. Peer reviewer comments are available at http:// E:\FR\FM\07OCR1.SGM 07OCR1 60562 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations www.cio.noaa.gov/services_programs/ prplans/PRsummaries.html. The status review reports provide a thorough discussion of life history, demographic risks, and threats to the particular species. We considered all identified threats, both individually and cumulatively, to determine whether the species responds in a way that causes actual impacts at the species level. The collective condition of individual populations was also considered at the species level, according to the four demographic viability factors discussed above. The proposed rule (79 FR 74953, December 16, 2014) summarizes general background information on the species’ natural history, range, reproduction, population structure, distribution and abundance; none of which has changed since the proposed rule. All of that information is incorporated herein by reference. Species Determinations Based on the best available scientific and commercial information described above and in the status review reports, we have determined that the dusky sea snake (Aipysurus fuscus) and the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) are taxonomically-distinct species and therefore meet the definition of ‘‘species’’ pursuant to section 3 of the ESA and are eligible for listing under the ESA. Summary of Threat Factors Affecting the Four Species Next we consider whether any one or a combination of the five threat factors specified in section 4(a)(1) of the ESA contribute to the extinction risk of these species. None of the information we received from public comment on the proposed rule affected any of our discussion or conclusions regarding any of the section 4(a)(1) factors or their interactions for these species, so we incorporate the discussion of these factors from the proposed rule (79 FR 74953, December 16, 2014) by reference herein. asabaliauskas on DSK5VPTVN1PROD with RULES Extinction Risk None of the information we received from public comment on the proposed rule affected our extinction risk evaluations of these four species. As such, our evaluations for these species remain the same as in the status review reports and the discussion in the proposed rule (79 FR 74953, December 16, 2014), and that discussion is incorporated herein by reference. VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 Conservation Efforts Effects of Listing Finally, we considered conservation efforts to protect each species and evaluated whether these conservation efforts are adequate to mitigate the existing threats to the point where extinction risk is significantly lowered and the species’ status is improved. None of the information we received from public comment on the proposed rule affected any of our discussion or conclusions regarding conservation efforts to protect the dusky sea snake or the three foreign coral species, so we incorporate the discussion of these efforts from the proposed rule (79 FR 74953, December 16, 2014) by reference herein. Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); designation of critical habitat if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking (16 U.S.C. 1538). In addition, recognition of the species’ plight through listing promotes conservation actions by Federal and state agencies, foreign entities, private groups, and individuals. Because the ranges of these four species are entirely outside U.S. jurisdiction, the main effects of these endangered listings are prohibitions on export and import. Final Determination We have reviewed the best available scientific and commercial information, including the petition, the information in the status review reports, public comment, and the comments of peer reviewers. Based on the best available information, we find that the dusky sea snake (Aipysurus fuscus) and the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) are in danger of extinction throughout all of their ranges. We assessed the ESA section 4(a)(1) factors and demographic risk factors and conclude that the dusky sea snake is at very low and declining abundance, has a very restricted range and a presumed low rate of dispersal, and is experiencing high rates of hybridization throughout its range. We also conclude that Cantharellus noumeae has a small, restricted range, likely low growth rate and genetic diversity, and may be threatened by development, water pollution, sedimentation, heavy metals, and potential illegal activities. Siderastrea glynni is affected by the lack of known populations in the wild, a small captive population in a single location, likely low growth rates and genetic diversity, and potential ˜ increased threats from El Nino, climate change, disease, habitat degradation and other development (should the species be reintroduced to Panama). Tubastraea floreana is affected by a small, restricted range, documented declines, likely low levels of genetic diversity, and threats ˜ from El Nino, climate change, development, and illegal activities. After considering efforts being made to protect each of these species, we could not conclude that the existing or proposed conservation efforts would alter the extinction risk for any of these species. Therefore, we are listing each of these species as endangered. PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 Identifying Section 7 Consultation Requirements Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. It is unlikely that the listing of these species under the ESA will increase the number of section 7 consultations, because these species occur entirely outside of the United States and are unlikely to be affected by Federal actions. Critical Habitat Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(h)). E:\FR\FM\07OCR1.SGM 07OCR1 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations The best available scientific and commercial data as discussed above identify the geographical areas occupied by Aipysurus fuscus, Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana as being entirely outside U.S. jurisdiction, so we cannot designate occupied critical habitat for these species. We can designate critical habitat in areas in the United States currently unoccupied by the species, if the area(s) are determined by the Secretary to be essential for the conservation of the species. Based on the best available information, we have not identified unoccupied area(s) in U.S. water that are currently essential to the conservation of any of these four species. Therefore, based on the available information, we do not designate critical habitat for Aipysurus fuscus, Cantharellus noumeae, Siderastrea glynni, or Tubastraea floreana. asabaliauskas on DSK5VPTVN1PROD with RULES Identification of Those Activities That Would Likely Constitute a Violation of Section 9 of the ESA On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not likely constitute a violation of section 9 of the ESA. Because we are listing the dusky sea snake and the three foreign corals as endangered, all of the prohibitions of section 9(a)(1) of the ESA will apply to these species. These include prohibitions against the import, export, use in foreign commerce, or ‘‘take’’ of the species. These prohibitions apply to all persons subject to the jurisdiction of the United States, including in the United States, its territorial sea, or on the high seas. Take is defined as ‘‘to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.’’ The intent of this policy is to increase public awareness of the effects of this listing on proposed and ongoing activities within the species’ ranges. Activities that we believe could (subject to the exemptions set forth in 16 U.S.C. 1539) result in a violation of section 9 prohibitions for these species include, but are not limited to, the following: (1) Possessing, delivering, transporting, or shipping any individual or part (dead or alive) taken in violation of section 9(a)(1); (2) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any individual or part, in the course of a commercial activity; VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 60563 (3) Selling or offering for sale in interstate or foreign commerce any individual or part; (4) Importing or exporting any individual or part; (5) Releasing captive animals into the wild without a permit issued under section 10(a)(1)(A). Although animals held non-commercially in captivity at the time of listing are exempt from the prohibitions of import and export, the individual animals are considered listed and afforded most of the protections of the ESA, including most importantly, the prohibition against injuring or killing. Release of a captive animal has the potential to injure or kill the animal. Of an even greater conservation concern, the release of a captive animal has the potential to affect wild populations through introduction of diseases or inappropriate genetic mixing; and (6) Harming captive animals by, among other things, injuring or killing a captive animal, through experimental or potentially injurious care or conducting research or sexual breeding activities on captive animals, outside the bounds of normal animal husbandry practices. Captive sexual breeding of corals is considered potentially injurious. Furthermore, the production of coral progeny has conservation implications (both positive and negative) for wild populations. Experimental or potentially injurious care or procedures and research or sexual breeding activities of corals or dusky sea snake may, depending on the circumstances, be authorized under an ESA section 10(a)(1)(A) permit for scientific research or the enhancement of the propagation or survival of the species. (i.e., held in a controlled environment at the time of listing, in a non-commercial activity); (3) Continued possession of live corals or dusky sea snakes that were in captivity or in a controlled environment (e.g., in aquaria) at the time of this listing, so long as the prohibitions under ESA section 9(a)(1) are not violated. Facilities must provide evidence that the animals were in captivity or in a controlled environment prior to listing. We suggest such facilities submit information to us on the animals in their possession (e.g., size, age, description of animals, and the source and date of acquisition) to establish their claim of possession (see FOR FURTHER INFORMATION CONTACT); and (4) Provision of care for live corals or dusky sea snakes that were in captivity at the time of listing. These individuals are still protected under the ESA and may not be killed or injured, or otherwise harmed, and, therefore, must receive proper care. Normal care of captive animals necessarily entails handling or other manipulation of the animals, and we do not consider such activities to constitute take or harassment of the animals so long as adequate care, including veterinary care, when such practices, procedures, or provisions are not likely to result in injury, is provided. Section 11(f) of the ESA gives NMFS authority to promulgate regulations that may be appropriate to enforce the ESA. NMFS may promulgate future regulations, including to regulate holding of these species, if necessary. NMFS will provide the public with the opportunity to comment on future proposed regulations. Identification of Those Activities That Would Not Likely Constitute a Violation of Section 9 of the ESA Although the determination of whether any given activity constitutes a violation is fact dependent, we consider the following actions, depending on the circumstances, as being unlikely to violate the prohibitions in ESA section 9: (1) Take authorized by, and carried out in accordance with the terms and conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for purposes of scientific research or the enhancement of the propagation or survival of the species; (2) Continued possession of parts that were in possession at the time of listing. Such parts may be non-commercially exported or imported; however the importer or exporter must be able to provide evidence to show that the parts meet the criteria of ESA section 9(b)(1) Revisions to the NMFS Lists We revise and add table subheadings in the Code of Federal Regulations to accommodate these new listings in our list of endangered species at 50 CFR 224.101 and revisions to the table subheadings for our list of threatened species at 50 CFR 223.102. We add the subheading ‘‘Corals’’ to our table at 50 CFR 224.101. This subheading has already been added to our table at 50 CFR 223.102 in a previous rulemaking (79 FR 20802; April 14, 2014). We are revising the subheading of ‘‘Sea Turtles’’ in the endangered species table at 50 CFR 224.101 and the threatened species table at 50 CFR 223.102 by changing the subheading to ‘‘Reptiles.’’ This new subheading will encompass all currently listed sea turtles as well as other marine reptiles like the dusky sea snake. These revisions and addition are not substantive changes, but having these headings will help the public identify PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\07OCR1.SGM 07OCR1 60564 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations and locate species of interest in a more efficient manner. References A complete list of the references used in this final rule is available upon request (see ADDRESSES). Classification National Environmental Policy Act The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA) (See NOAA Administrative Order 216–6). Executive Order 12866, Regulatory Flexibility Act, and Paperwork Reduction Act As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection-ofinformation requirement for the purposes of the Paperwork Reduction Act. Executive Order 13132, Federalism In accordance with E.O. 13132, we determined that this final rule does not have significant Federalism effects and that a Federalism assessment is not required. Dated: September 30, 2015. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 223 and 224 are amended as follows: PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 1. The authority citation for part 223 continues to read as follows: ■ Authority: 16 U.S.C. 1531–1543; subpart B, §§ 223.201 and 223.202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). List of Subjects in 50 CFR Parts 223 and 224 Administrative practice and procedure, Endangered and threatened species, Exports, Imports, Reporting and record keeping requirements, Transportation. 2. In § 223.102, amend the table in paragraph (e) by removing the table subheading ‘‘Sea Turtles 2’’ and adding in its place ‘‘Reptiles 2’’ to read as follows: § 223.102 Enumeration of threatened marine and anadromous species. ■ * * * (e) * * * * * Species 1 Common name * Citation(s) for listing determination(s) Description of listed entity Scientific name Critical habitat ESA rules * * * * * * * * * * * * REPTILES 2 * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 2 Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, is limited to turtles while in the water. * * * * * 4. In § 224.101, paragraph (h), amend the table by: ■ A. Removing the table subheading ‘‘Sea Turtles 2’’ and adding in its place ‘‘Reptiles 2’’; ■ B. Adding an entry for ‘‘dusky sea snake’’ in alphabetical order under the new ‘‘Reptiles 2’’ table subheading; ■ C. Adding a ‘‘Corals’’ table subheading to follow the ‘‘Molluscs’’ table subheading; and ■ PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES 3. The authority citation for part 224 continues to read as follows: ■ Authority: 16 U.S.C. 1531–1543 and 16 U.S.C. 1361 et seq. D. Adding entries for three species of coral in alphabetical order by scientific name under the ‘‘Corals’’ table subheading. The additions read as follows: ■ § 224.101 Enumeration of endangered marine and anadromous species. * * * (h) * * * * * Species 1 asabaliauskas on DSK5VPTVN1PROD with RULES Common name * * Citation(s) for listing determination(s) Description of listed entity Scientific name * * * Critical habitat ESA rules * * REPTILES 2 Sea snake, dusky .................. VerDate Sep<11>2014 17:26 Oct 06, 2015 Aipysurus fuscus ......... Jkt 238001 PO 00000 Entire species ......... Frm 00052 Fmt 4700 [Insert Federal Register citation and date]. Sfmt 4700 E:\FR\FM\07OCR1.SGM 07OCR1 NA NA 60565 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations Species 1 Common name * Citation(s) for listing determination(s) Description of listed entity Scientific name Critical habitat ESA rules * * * * * * * * * * * * MOLLUSCS * CORALS Coral, [no common name] ..... Cantharellus noumeae Entire species ......... Coral, [no common name] ..... Siderastrea glynni ........ Entire species ......... Coral, [no common name] ..... Tubastraea floreana .... Entire species ......... [Insert Federal Register citation and date]. [Insert Federal Register citation and date]. [Insert Federal Register citation and date]. NA NA NA NA NA NA. 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 2 Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, is limited to turtles while in the water. * * * * * This correction is effective October 7, 2015. DATES: [FR Doc. 2015–25484 Filed 10–6–15; 8:45 am] BILLING CODE 3510–22–P FOR FURTHER INFORMATION CONTACT: Karla Gore, 727–824–5305; email: karla.gore@noaa.gov. DEPARTMENT OF COMMERCE On July 17, 2015, NMFS published a final rule in the Federal Register (80 FR 42423) to implement provisions for Amendment 8, that expands portions of the northern and western boundaries of the Oculina Bank HAPC and allows transit through the Oculina Bank HAPC by fishing vessels with rock shrimp onboard; modifies vessel monitoring systems (VMS) requirements for rock shrimp fishermen transiting through the Oculina Bank HAPC; expands a portion of the western boundary of the Stetson Reefs, Savannah and East Florida Lithotherms, and Miami Terrace Deepwater Coral HAPC (Stetson-Miami Terrace CHAPC), including modifications to shrimp access area 1; and expands a portion of the northern boundary of the Cape Lookout CHAPC. The purpose of the final rule is to increase protection for deepwater coral based on new information for deepwater coral resources in the South Atlantic. The final rule was effective August 17, 2015. The regulatory text in the Amendment 8 final rule in § 622.224(b)(1) contains three waypoints that were incorrectly listed for describing the Oculina Bank HAPC. These waypoints were correctly identified in Amendment 8 but were incorrectly converted to the coordinate format used for the proposed and final rules for Amendment 8. The incorrect waypoints are the origin point and points 7 and 8 for the Oculina Bank HAPC. SUPPLEMENTARY INFORMATION: National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 150626556–5886–02] RIN 0648–BD81 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coral, Coral Reefs, and Live/Hard Bottom Habitats of the South Atlantic Region; Amendment 8; Correction National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; correcting amendment. AGENCY: NMFS corrects the final rule that implemented management measures described in Amendment 8 to the Fishery Management Plan for Coral, Coral Reefs, and Live/Hard Bottom Habitats of the South Atlantic Region (FMP)(Amendment 8), which published in the Federal Register on July 17, 2015. The Amendment 8 final rule contained some incorrect waypoints for the Oculina Bank Habitat Area of Particular Concern (HAPC)(Oculina Bank HAPC) as well as incorrect language regarding the gear stowage requirements for vessels with rock shrimp onboard transiting through the Oculina Bank HAPC. The purpose of this correcting amendment is to fix these errors. asabaliauskas on DSK5VPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 17:26 Oct 06, 2015 Jkt 238001 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 Additionally, the proposed and final rules for Amendment 8 incorrectly described the gear stowage provisions for vessels transiting the Oculina Bank HAPC with rock shrimp onboard. The regulatory text in the Amendment 8 final rule in § 622.224(b)(1)(i)(C) states that appropriate stowage for shrimp trawl fishing gear includes the trawl doors and nets being out of the water and onboard the vessel deck or below deck. However, as described in the Amendment 8, the correct gear stowage for the trawl doors and nets is to have the doors and nets out of the water. Requiring the trawl doors and nets to be on deck was contrary to the intent of the South Atlantic Fishery Management Council (Council) and not consistent with Amendment 8. This notification corrects the table in § 622.224(b)(1) with the correct coordinates and corrects the gear stowage language in § 622.224(b)(1)(i)(C) by incorporating the necessary language from Amendment 8 back into the regulations. Correction As published, the final rule for Amendment 8, published on July 17, 2015 (80 FR 42423), incorrectly listed three waypoints for the Oculina Bank HAPC and incorrectly described gear stowage language for vessels transiting the area. Coordinates are added to § 622.224(b)(1) and language is revised in § 622.224(b)(1)(i)(C) to correct these errors. Classification The Regional Administrator, Southeast Region, NMFS has determined that this correcting amendment is necessary for the E:\FR\FM\07OCR1.SGM 07OCR1

Agencies

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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

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


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

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

ACTION: Final rule.

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

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

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

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

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

SUPPLEMENTARY INFORMATION: 

Background

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

[[Page 60561]]

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

Summary of Comments

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

Status Reviews

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

[[Page 60562]]

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

Species Determinations

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

Summary of Threat Factors Affecting the Four Species

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

Extinction Risk

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

Conservation Efforts

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

Final Determination

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

Effects of Listing

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

Identifying Section 7 Consultation Requirements

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

Critical Habitat

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

[[Page 60563]]

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

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

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

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

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

Revisions to the NMFS Lists

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

[[Page 60564]]

and locate species of interest in a more efficient manner.

References

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

Classification

National Environmental Policy Act

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

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

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

Executive Order 13132, Federalism

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

List of Subjects in 50 CFR Parts 223 and 224

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

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

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

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec. Sec.  223.201 
and 223.202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 
5503(d) for Sec.  223.206(d)(9).


0
2. In Sec.  223.102, amend the table in paragraph (e) by removing the 
table subheading ``Sea Turtles \2\'' and adding in its place ``Reptiles 
\2\'' to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                          Species \1\
---------------------------------------------------------------  Citation(s) for     Critical
                                                Description of       listing          habitat        ESA rules
         Common name          Scientific name   listed entity   determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
        Reptiles \2\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
  National Marine Fisheries Service, is limited to turtles while in the water.

* * * * *

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

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

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


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


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                          Species \1\
---------------------------------------------------------------  Citation(s) for     Critical
                                                Description of       listing          habitat        ESA rules
         Common name          Scientific name   listed entity   determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
        Reptiles \2\
----------------------------------------------------------------------------------------------------------------
Sea snake, dusky............  Aipysurus        Entire species.  [Insert Federal               NA              NA
                               fuscus.                           Register
                                                                 citation and
                                                                 date].
 

[[Page 60565]]

 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
          Molluscs
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
           Corals
----------------------------------------------------------------------------------------------------------------
Coral, [no common name].....  Cantharellus     Entire species.  [Insert Federal               NA              NA
                               noumeae.                          Register
                                                                 citation and
                                                                 date].
Coral, [no common name].....  Siderastrea      Entire species.  [Insert Federal               NA              NA
                               glynni.                           Register
                                                                 citation and
                                                                 date].
Coral, [no common name].....  Tubastraea       Entire species.  [Insert Federal               NA             NA.
                               floreana.                         Register
                                                                 citation and
                                                                 date].
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
  National Marine Fisheries Service, is limited to turtles while in the water.

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