89 FR 242 pgs. 101993-102000 - Endangered and Threatened Wildlife and Plants: Reclassification of Pillar Coral (
Dendrogyra cylindrus
) From Threatened to Endangered
Type: RULEVolume: 89Number: 242Pages: 101993 - 102000
Pages: 101993, 101994, 101995, 101996, 101997, 101998, 101999, 102000Docket number: [Docket No. 241112-0291; RTID 0648-XR126]
FR document: [FR Doc. 2024-29082 Filed 12-16-24; 8:45 am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
[top]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 241112-0291; RTID 0648-XR126]
Endangered and Threatened Wildlife and Plants: Reclassification of Pillar Coral ( Dendrogyra cylindrus ) From Threatened to Endangered
AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Final rule.
SUMMARY:
NMFS is changing the status of pillar coral ( Dendrogyra cylindrus ) from threatened to endangered on the Federal List of Threatened and Endangered Species. We have considered the 5-year review of the status of D. cylindrus, expert reviewer comments, and public comments submitted on the proposed rule. Based on this information, we have determined that D. cylindrus is in danger of extinction throughout all or a significant portion of its range. Thus, we are changing the status of D. cylindrus from threatened to endangered under the Endangered Species Act (ESA) of 1973.
DATES:
This final rule is effective on February 18, 2025.
ADDRESSES:
Public comments that were submitted on the proposed rule to change the status of D. cylindrus are available at: https://www.regulations.gov identified by docket number NOAA-NMFS-2023-0002. A list of references cited in the final rule and other supporting materials are available at: https://www.fisheries.noaa.gov/species/pillar-coral/conservation-management, or by submitting a request to the National Marine Fisheries Service, Southeast Regional Office, Protected Resources Division, 263 13th Avenue South, St. Petersburg, Florida 33701.
FOR FURTHER INFORMATION CONTACT:
Alison Moulding, 727-551-5607, alison.moulding@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
On September 10, 2014, we published a final rule listing D. cylindrus, along with 4 other Caribbean coral species and 15 Indo-Pacific coral species, as threatened under the ESA (79 FR 53851, September 10, 2014). In early 2021, we announced a 5-year review of 7 threatened Caribbean coral species, including D. cylindrus (86 FR 1091, January 7, 2021) to determine whether the listing classification of these species was still accurate. Based on the findings of the 5-year review (NMFS, 2022), we published a proposed rule to change the status of D. cylindrus from threatened to endangered (88 FR 59494, August 29, 2023). We solicited peer review of the scientific information contained in the proposed rule from three independent experts from the scientific community who have expertise in D. cylindrus biology, ecology, conservation, and threats to the species, and we incorporated their comments prior to publication of the proposed rule. We requested comments on the proposed rule from the public during a 60-day comment period and held a virtual public hearing on September 26, 2023, at which we also accepted public comments.
In this final rule, we are reclassifying D. cylindrus from a threatened species to an endangered species under the ESA. We have determined that D. cylindrus is in danger of extinction throughout all or a significant portion of its range. This final determination is based on the information in the 5-year review, from expert peer reviewers, and from public comments, which together comprise the best scientific and commercial data available.
Listing Determinations Under the ESA
[top] Section 3 of the ESA defines an endangered species as any species that is in danger of extinction throughout all or a significant portion of its range and a threatened species as one that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(6) and (20)). Thus, an "endangered species" is 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 within the foreseeable future ( i.e., at a later time). So, the primary statutory difference between a threatened and endangered species is the timing of when a species is in danger of extinction, either presently (endangered) or not presently but within the foreseeable future (threatened).
The statute requires us to determine whether a species is threatened or endangered as a result of any of the factors listed in section 4(a)(1) of the ESA: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Changes to a listed species' status must be determined on the basis of these factors using solely the best scientific and commercial data available (16 U.S.C. 1533(c)(2)(B)). Implementing regulations in 50 CFR 424.11(b) reiterate the requirement that changes in a species' classifications must be based solely on the best available scientific and commercial information regarding a species' status.
Public Comments and Our Responses
Public comments were accepted by standard mail, email, during the public hearing, and through the Federal eRulemaking portal. We received 17 public comments on the proposed rule from individuals, government agencies, and conservation organizations. Of these, 14 comments were supportive of the proposed reclassification of D. cylindrus, 1 comment was against reclassification, and 2 comments were neutral and asked for clarification on the effects of the reclassification. Most of the supportive comments expressed general support for the proposed rule but did not include substantive content. Several comments presented general information on threats or information that was already considered in the proposed rule. We received 3 comments that provided documentation that reinforced the information on demographic factors and threats considered in the proposed rule, including population declines and susceptibility to climate-induced ocean warming, ocean acidification, nutrients, sedimentation, and disease. We also received 1 comment that is outside the scope of the proposed rule that stated that we need to provide support for the increased administrative burden on state and Federal agencies that results from listing and changing the status of species under the ESA, and that we need to increase the Federal funds designated for the management and recovery of ESA-listed species. All substantive public comments on the proposed rule to reclassify D. cylindrus as endangered are addressed in the following summary. We have categorized comments by topic, and, where appropriate, we have combined similar comments from multiple people or groups and addressed them together.
Demographics and Threats
Comment 1: Three commenters provided additional references (Jones et al., 2021, Alvarez-Filip et al., 2022) that addressed population decline of D. cylindrus from disease and were not included in the proposed rule or 5-year review (NMFS, 2022).
Response: We thank these commenters for the submission of additional data to inform the status of the species and this final rule. Jones et al. (2021) suggests that thermal stress in 2014 and 2015 exacerbated underlying disease and resulted in a disease outbreak that led to the extirpation of D. cylindrus in southeast Florida. Alvarez-Filip et al. (2022), reported that greater than 80 percent of D. cylindrus surveyed in Mexico suffered mortality or were infected by disease between 2018 and 2020. Population declines in Florida and Mexico and the threats of disease and ocean warming were considered in the proposed rule as factors leading to the extinction risk of D. cylindrus. The additional references are consistent with the information we considered in the proposed rule. Thus, these comments support our conclusions regarding the threats of ocean warming and disease and provide additional support for our conclusion that D. cylindrus meets the definition of an endangered species. These references were incorporated into the final rule.
Comment 2: We received several comments and references about the threat of climate change and its negative effects on corals that increase the extinction risk for D. cylindrus.
Response: We agree that the effects of climate change are contributing to the risk of extinction of D. cylindrus. In the original listing rule (79 FR 53851, September 10, 2014), we identified factors acting directly as stressors on D. cylindrus ( e.g., elevated ocean temperature and sedimentation) as distinct from the sources responsible for those factors ( e.g., climate change and land management practices) and evaluated the impact each threat has on the species' extinction risk. The susceptibility of D. cylindrus to ocean warming and ocean acidification was addressed in the 5-year review (NMFS, 2022) and in the proposed reclassification rule (88 FR 59494, August 29, 2023). The additional references are consistent with the information we considered in the proposed rule. Thus, these comments support our conclusions regarding the threats of ocean warming and ocean acidification and provide additional support for our conclusion that D. cylindrus meets the definition of an endangered species. Because stressors stemming from climate change are already identified as threats contributing to the extinction risk for D. cylindrus, no changes were made to the final rule in response to these comments.
Comment 3: We received a comment that human activities such as coastal development, dredging, wastewater disposal, and shipping have contributed to the susceptibility of D. cylindrus to stony coral tissue loss disease (SCTLD).
Response: In the original listing rule (79 FR 53851, September 10, 2014), we identified factors acting directly as stressors on D. cylindrus ( e.g., elevated ocean temperature and sedimentation) as distinct from the sources responsible for those factors ( e.g., climate change and land management practices) and evaluated the impact each threat has on the species' extinction risk. Although causative factors of coral disease remain poorly understood, we agree that the presence of stressors such as sedimentation and nutrient enrichment from human activities like coastal development and wastewater disposal can increase the susceptibility of corals to disease. A diseased state results from a complex interplay of factors including the cause or agent ( e.g., pathogen, environmental toxicant), the host, and the environment. The interaction of disease and other stressors was discussed in the original listing rule (79 FR 53851, September 10, 2014), and the susceptibility of D. cylindrus to disease, sedimentation, and nutrients was considered in the 5-year review (NMFS, 2022) and in the proposed reclassification rule (88 FR 59494, August 29, 2023). The public comments are consistent with the information we considered in the proposed rule. Thus, these comments support our conclusions regarding the threats of disease, nutrient enrichment, and sedimentation and provide additional support for our conclusion that D. cylindrus meets the definition of an endangered species.
Analyses
Comment 4: We received a comment that there is no benefit to changing the status of D. cylindrus to endangered since the ESA has no mechanism of protecting against the major threats of climate change and disease.
[top] Response: Under section 4(b) of the ESA, we are required to base listing decisions solely on the best scientific and commercial data available after conducting a review of the status of the
Comment 5: We received a comment stating that there is a need for expanded and purposeful opportunities for states and territories with coral reefs in their jurisdiction to comment on, participate in, and lead efforts before the Federal government makes any decisions under the ESA, such as listing or reclassifying a species, and requesting that states and territories be consulted on which data are used as the best available science for informing decisions.
Response: The ESA and the implementing regulations describe the process NMFS must use when listing species under the ESA (16 U.S.C. 1533; 50 CFR part 424). This process includes giving actual notice of the proposed listing regulation to the state agency in each state in which the species is believed to occur and to each county or equivalent jurisdiction in which the species is believed to occur and inviting them to comment on the proposal (16 U.S.C. 1533(b)(5)(A)(ii); 50 CFR 424.16(c)(1)(ii)). In accordance with this requirement, we notified the states, counties, and territories where D. cylindrus is known to occur when we published the proposed rule to reclassify D. cylindrus as endangered. We accepted comments by standard mail, email, during the public hearing on September 26, 2023, and through the Federal eRulemaking portal. This allowed those government agencies the opportunity to participate in the decision to reclassify D. cylindrus as endangered, including providing input on the best scientific and commercial data available. We considered all relevant comments within the scope of this rulemaking received during the comment period when making this final determination to reclassify D. cylindrus from threatened to endangered.
We also note that we worked cooperatively with states and territories to obtain unpublished coral monitoring data to inform the 5-year review of ESA-listed Caribbean coral species. We considered the information in the 5-year review, including the population data obtained from the states and territories, when making the determination that D. cylindrus met the definition of an endangered species. By seeking unpublished monitoring data from states and territories, giving notice of the proposed listing regulation to states and territories in which the species occurs, and considering comments from states and territories, we provided opportunities for these groups to participate in the decision to change the status of D. cylindrus from threatened to endangered.
Comment 6: We received a comment that we should incorporate data from mesophotic reefs, which may serve as thermal refugia for shallow water species, into factors considered for listing and reclassifying species under the ESA.
Response: For the proposed rule to reclassify D. cylindrus to endangered, we evaluated the best scientific and commercial data available. As stated in the proposed rule, D. cylindrus inhabits most reef environments in depths between 1 and 25 meters (m) and is most common in reef environments in water depths between 5 and 15 m. We have found no evidence that D. cylindrus occurs at mesophotic depths (30-150 m), and the commenter did not provide any information to the contrary. Therefore, we did not consider the role of mesophotic reefs as a factor in the decision to change the status of D. cylindrus from threatened to endangered.
Effects of the Reclassification
Comment 7: We received a comment asking if exporting dead samples of D. cylindrus for scientific research would require an ESA section 10(a)(1)(A) permit if they were collected prior to reclassification.
Response: If samples of D. cylindrus (alive, dead, or preserved) were collected prior to reclassification, an ESA section 10(a)(1)(A) permit is not needed to import or export them; rather, NMFS can issue a Letter of Determination to authorize import and export, provided certain criteria are met. In addition, D. cylindrus is listed on Appendix II of the Convention on International Trade in Endangered Species (CITES), and, therefore, a CITES export permit issued by the exporting country would be required. For more information on Letters of Determination, see https://www.fisheries.noaa.gov/permit/letter-determination-protected-species-parts-and-products. For more information on CITES, see https://www.fws.gov/international-affairs/cites.
Comment 8: We received a comment that it was unclear whether transport and transfer of captive D. cylindrus to another holding facility within the United States was a violation of the ESA section 9(a)(1) prohibitions and would require an ESA section 10(a)(1)(A) permit.
Response: Transportation of D. cylindrus or D. cylindrus parts within the United States is not a violation of the ESA section 9 prohibitions, provided that the corals were legally obtained and that the transport is not in the course of a commercial activity. Transfer of D. cylindrus between U.S. facilities is, therefore, allowable without the need for a NMFS ESA section 10(a)(1)(A) permit. Documentation of the transfer to a different holding facility should be maintained.
Comment 9: We received 2 comments that reclassification of D. cylindrus to endangered would have negative impacts on conservation efforts like restoration and rescue and cause delays, obstacles, and a greater administrative burden on restoration practitioners and state and territorial jurisdictions who would need to apply for an ESA section 10(a)(1)(A) permit. One of the commenters asked that NMFS minimize and streamline ESA section 10(a)(1)(A) permitting as much as possible to eliminate barriers to restoration and recovery. They recommended issuing a single permit to a state agency to authorize multiple practitioners to carry out restoration activities and developing a centralized database with online reporting that provides data access to all managing agencies.
[top] Response: As explained in the response to Comment 4, listing and reclassification determinations must be made solely on the basis of the best available scientific and commercial information regarding a species' status and without reference to possible economic or other impacts of such determinations (16 U.S.C. 1533(b)(1)(A) and 50 CFR 424.11(b)). Thus, when making a listing or reclassification determination, we cannot consider whether the listing or reclassification will increase the administrative burden associated with applying for ESA permits for conservation activities.
NMFS is committed to making ESA section 10(a)(1)(A) permitting as clear and streamlined as possible within the bounds of the law. We will streamline the permitting process through several mechanisms, including issuing permits valid for up to 10 years, conducting programmatic consultation under section 7 of the ESA to eliminate the need for individual consultation on each permit application, and reprogramming the online application system, Authorizations and Permits for Protected Species (APPS) (see https://apps.nmfs.noaa.gov ) to accept applications for D. cylindrus. ESA section 10 Permit Holders can submit annual reports of their permitted activities in APPS. While these currently are not publically accessible in APPS, copies of submitted reports may be requested from the NMFS Office of Protected Resources, Permits and Conservation Division under the Freedom of Information Act. We are further recommending that individuals and groups that are working on the same project, at the same institution, or under the same funding to consider applying together to work under a single permit. These options allow for less frequent and reduced numbers of permit applications and can reduce processing times.
In anticipation of a final determination to reclassify D. cylindrus to endangered, we held webinars on April 16 and 19, 2024, to present information on the effects of a reclassification and the ESA section 10(a)(1)(A) permitting process. We announced the webinars to researchers and restoration practitioners known to work with D. cylindrus and agencies that issue research and restoration permits. We also announced these webinars on a coral listserv ( i.e., Coral List) to reach a broader audience. During the webinars, we included information on what activities would need an ESA permit should D. cylindrus be reclassified as endangered and how and when to submit an ESA permit application. We encouraged attendees to apply for an ESA permit before a final determination was made so that conservation activities could continue uninterrupted if a final rule went into effect. Additional permitting guidance can be found on our website at: https://www.fisheries.noaa.gov/species/pillar-coral/conservation-management.
Summary of Changes From the Proposed Listing Rule
We did not receive, nor did we find, data or references that presented substantial new information that would cause us to change our proposed listing determination. We received several sources of new information (see Comment 1), which provided population data that supported the information considered in the 5-year review report (NMFS, 2022) and proposed rule. We also received additional information related to threats ( e.g., ocean warming, ocean acidification, disease, sedimentation, and nutrient enrichment) which was consistent with or reinforced information in the 5-year review and proposed rule (see Comments 2 and 3). Therefore, while the new information contributed to our overall understanding of population dynamics and threats, it did not alter the outcome of the extinction risk analysis nor our interpretation of risk factors across the range of the species. Therefore, in this rule, we are finalizing the change in the classification of D. cylindrus from a threatened species to an endangered species under the ESA.
In response to questions received about ESA permits, we have added additional information to the Effects of Listing section of this final rule to clarify that a Letter of Determination is needed for import or export of D. cylindrus or D. cylindrus parts in possession before the reclassification takes effect. In consultation with our ESA permitting division, we also provide further clarification in the Effects of Listing section with respect to prohibited and non-prohibited activities. These clarifications include rephrasing some of the descriptions to focus on the activity rather than the impact to the species, rearranging or splitting the activities in the list to differentiate prohibited activities that would need an ESA section 10(a)(1)(A) permit from non-prohibited activities, and adding more detail to describe the particular prohibited and non-prohibited activities.
Assessment of Species Status
In the proposed rule to reclassify D. cylindrus from threatened to endangered under the ESA, we outlined the rationale for our determination. Below, we summarize our evaluation and final determination. We relied on the best scientific and commercial data available including the information in the 5-year review and the public comments received. Please refer to the proposed rule for additional information (88 FR 59494, August 29, 2023).
Species Abundance, Trends, and Distribution
Dendrogyra cylindrus is a colonial coral that can form large pillars (up to 3 m) upon an encrusting base. It is a gonochoric ( i.e., separate sexes), broadcast spawning coral species, but some hermaphroditic colonies have been observed (Kabay, 2016; Neely et al., 2018; Neely et al., 2020a; O'Neil et al., 2021). Spawning observations have also suggested that eggs may be fertilized within female colonies prior to release (Marhaver et al., 2015). It has a relatively low annual egg production and low sexual recruitment, with no reports of observed sexual recruitment in the wild. Dendrogyra cylindrus can also reproduce asexually through fragmentation and reattachment to the substrate.
Dendrogyra cylindrus is present in the western Atlantic and throughout the greater Caribbean. It is absent in the Flower Garden Banks National Marine Sanctuary in the Gulf of Mexico and from the southwest Gulf of Mexico. It inhabits most reef environments in water depths ranging from 1 to 25 m and is most common in reef environments in water depths between 5 and 15 m. It has a naturally uncommon to rare occurrence, appearing as scattered, isolated colonies. It is sometimes found in highly clonal aggregations, likely resulting from fragmentation events (Chan et al., 2019).
Population trend information indicates the species has continued to decline since being listed in 2014. Surveys of D. cylindrus conducted in Colombia in 2012 show a reduced spatial extent, loss of colonies, and higher prevalence and amount of partial mortality 10 years after initial surveys (Bernal-Sotelo et al., 2019). Multiple thermal bleaching events in 2014 and 2015 and ongoing and emerging disease events (SCTLD) since 2014 have caused near extirpation of D. cylindrus in Florida (Jones et al., 2021; Lewis, 2018; Lewis et al., 2017; Neely et al., 2021a; Neely, 2024), and D. cylindrus is now considered functionally extinct ( i.e., the population is no longer viable and will not be able to sustain itself) along the Florida reef tract (Neely et al., 2021a).
[top] Although quantitative population trend data are only available from Florida and Colombia, we assumed the species is in decline throughout most of its range based on the evidence from these regions (northern and southwestern portions of its range) and the more widespread evidence of severe disease impacts from SCTLD, which has spread from Florida to the eastern, western, and southern Caribbean (see https://www.agrra.org/coral-disease-outbreak/ for a map of confirmed sightings of SCTLD in the greater Caribbean). Dendrogyra cylindrus is highly susceptible to SCTLD (Florida Coral Disease Response Research &
Summary of Factors Affecting the Species
Dendrogyra cylindrus was listed as threatened in 2014 because of its susceptibility to and impacts from multiple threats, including ocean warming (ESA Factor E), disease (C), acidification (E), nutrient enrichment (A and E), sedimentation (A and E), trophic effects of fishing (A), and inadequate existing regulatory mechanisms to address global threats (D). As indicated in the proposed rule to reclassify D. cylindrus as endangered, these threats continue to contribute to the species' extinction risk. Several commenters provided additional information related to these threats, including ocean warming, ocean acidification, nutrient enrichment, sedimentation, and disease, which was consistent with the proposed rule and did not change our conclusions about any of these threats. Since its listing as threatened, D. cylindrus has declined in abundance and distribution in multiple locations with the most severe decline in the northern portions of its range. These declines are predominantly due to the effects of SCTLD, which emerged as a devastating and deadly new disease since the listing (Precht et al., 2016). Though the occurrence of D. cylindrus has historically been uncommon to rare, the species has become even rarer as a result of SCTLD. Furthermore, no observed sexual recruitment has been reported in the wild, and we concluded that reductions in population size and local extirpations will further inhibit the species' ability to persist and replenish diminished populations through asexual and sexual reproduction.
Conservation Measures
We evaluated conservation measures used to protect D. cylindrus, including treatment of individual colonies for SCTLD (Miller et al., 2020; Neely et al., 2020b; Neely et al., 2021c; O'Neil et al., 2018; Shilling et al., 2021; Walker et al. 2021), ex situ banking (Kabay, 2016; Neely et al., 2021b; Neely, 2024; O'Neil et al., 2021), and propagation of D. cylindrus for future restoration (Marhaver et al., 2015; Neely, 2019; Neely et al., 2020a; O'Neil et al., 2021; Villalpando et al., 2021). We concluded that the conservation actions would benefit the species but would not affect the status of D. cylindrus to the point at which listing as an endangered species is not warranted. Further, because current conservation actions do not directly address the root causes of threats such as disease, we concluded that they are insufficient to protect the species from the risk of extinction. See the proposed rule for additional discussion of conservation measures (88 FR 59497, August 29, 2023).
Final Listing Determination
We reviewed the best scientific and commercial information available on the status of D. cylindrus, threats to the species, and conservation measures. Based on consideration of this information and public comments, we determine that D. cylindrus meets the definition of an endangered species. We find that D. cylindrus is in danger of extinction throughout all or a significant portion of its range. Dendrogyra cylindrus is susceptible to multiple threats including ocean warming (ESA Factor E), disease (C), acidification (E), nutrient enrichment (A and E), sedimentation (A and E), trophic effects of fishing (A), and inadequate existing regulatory mechanisms to address global threats (D). In addition, the following characteristics contribute to its risk of extinction:
(1) It is geographically located in the highly disturbed Caribbean where localized human impacts are high and threats are predicted to increase. A range constrained to this particular geographic area that is likely to experience severe and increasing threats indicates that a high proportion of the population of this species is likely to be exposed to those threats;
(2) It has an uncommon to rare occurrence throughout its range, which heightens the potential effect of localized mortality events and leaves the species vulnerable to becoming of such low abundance that it may be at risk from depensatory processes, environmental stochasticity, or catastrophic events;
(3) Its low sexual recruitment limits its capacity for recovery from threat-induced mortality events throughout its range; and
(4) It has experienced population declines, primarily due to SCTLD, in multiple locations throughout its range, including severe declines in the northern portion of its range, which has resulted in diminished distribution and local extirpation.
The combination of these characteristics indicates that D. cylindrus is in danger of extinction throughout its range and warrants listing as an endangered species due to factors A, C, D, and E.
Effects of Listing
Conservation measures provided for species listed as endangered or threatened under the ESA include recovery plans (16 U.S.C. 1553(f)), critical habitat designations, Federal agency consultation requirements (16 U.S.C. 1536), and prohibitions of certain acts under the ESA (16 U.S.C. 1538). Because D. cylindrus was previously listed as threatened, Federal agency consultation requirements are already in effect, and a recovery outline has been developed to guide recovery until a full recovery plan has been finalized. Critical habitat has also been designated for D. cylindrus (88 FR 54026, August 9, 2023).
All of the prohibitions in section 9(a)(1) of the ESA automatically apply to fish and wildlife listed as endangered species. Section 9(a)(1) includes prohibitions on importing, exporting, engaging in foreign or interstate commerce, or "taking" of the species. "Take" is defined under the ESA as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or an attempt to engage in any such conduct" (16 U.S.C. 1532(19)). 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. Upon the effective date of this rule to reclassify D. cylindrus as endangered, section 9 of the ESA would expressly prohibit the following:
(1) Taking of D. cylindrus within the United States or its territorial sea, or upon the high seas;
(2) Possessing, selling, delivering, carrying, transporting, or shipping any D. cylindrus that was illegally taken;
(3) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any D. cylindrus in the course of a commercial activity;
(4) Selling or offering D. cylindrus for sale in interstate or foreign commerce; or
(5) Importing D. cylindrus into, or exporting D. cylindrus from, the United States.
[top] On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service (FWS) published a policy statement (59 FR 34272) that requires the agencies to identify, to the extent known at the time a species is listed, those activities that
(1) Collection of D. cylindrus, including colonies, fragments, tissue samples, and gametes, from the wild;
(2) Research outside the bounds of normal animal husbandry that results in harm ( e.g., injuring or killing) to captive D. cylindrus;
(3) Removing, relocating, or reattaching D. cylindrus in the wild;
(4) Damaging, poisoning, contaminating, or killing D. cylindrus;
(5) Scientific research activities on wild D. cylindrus involving the manipulation of the coral or its environment;
(6) Release of captive D. cylindrus into the wild. Release of a captive coral could have the potential to injure or kill the coral or to affect wild populations of D. cylindrus through introduction of disease;
(7) Habitat alternation, such as removal of substrate or alteration of water quality, resulting in injury or death of D. cylindrus;
(8) Discharging pollutants ( e.g., toxic chemicals, radioactive matter, carcinogens, mutagens, teratogens) or organic nutrient-laden water, including sewage water, into D. cylindrus habitat to an extent that harms or kills D. cylindrus;
(9) Shoreline and riparian disturbances (whether in the riverine, estuarine, marine, or floodplain environment) that may harm or kill D. cylindrus, for instance, by disrupting or preventing the reproduction, settlement, reattachment, development, or normal physiology of D. cylindrus. Such disturbances could include land development, run-off, dredging, and disposal activities that result in direct deposition of sediment on D. cylindrus, shading, or covering of substrate for fragment reattachment or larval settlement; and
(10) Activities that modify water chemistry in D. cylindrus habitat to an extent that disrupts or prevents the reproduction, development, or normal physiology of D. cylindrus.
Some categories of activities are unlikely to constitute a violation of the section 9 prohibitions. Again, we 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 not cause a violation. We consider the following activities to be ones that are unlikely to violate the ESA section 9 prohibitions:
(1) Taking of wild D. cylindrus, including collection of colonies, fragments, tissue samples, and gametes, authorized by an ESA section 10(a)(1)(A) permit issued by NMFS for the purposes of scientific research or the enhancement of propagation or survival of the species and carried out in accordance with the terms and conditions of the permit;
(2) Incidental taking of D. cylindrus resulting from federally authorized, funded, or conducted projects for which consultation under section 7 of the ESA has been completed and when the project is conducted in accordance with any terms and conditions set forth by NMFS in an incidental take statement in a biological opinion pursuant to section 7 of the ESA;
(3) Import or export of D. cylindrus or D. cylindrus parts authorized by a CITES permit and an ESA section 10(a)(1)(A) permit (or Letter of Determination for D. cylindrus or D. cylindrus parts in possession before the reclassification takes effect) issued by NMFS;
(4) Continued possession of D. cylindrus parts or live D. cylindrus that were in captivity at the time of up-listing to an endangered species, including any progeny produced from captive corals after the rule is finalized, so long as the prohibitions of ESA section 9(a)(1) are not violated. Corals are considered to be in captivity if they are maintained in a controlled environment or under human care in ocean-based coral nurseries. Individuals or organizations should be able to provide evidence that D. cylindrus or D. cylindrus parts were in captivity prior to its listing as an endangered species. We suggest such individuals or organizations submit information to us on the D. cylindrus in their possession ( e.g., type, number, size, source, date of acquisition), to establish their claim of possession (see FOR FURTHER INFORMATION CONTACT );
(5) Providing normal care for captive D. cylindrus. Captive corals are still protected under the ESA and may not be killed or injured or otherwise harmed and must receive proper care. Normal husbandry care of captive corals includes handling, cleaning, maintaining water quality within an acceptable range, extracting tissue samples for the purposes of diagnosis of condition or genetics, treating or preventing spread of maladies such as disease or parasites using established methods proven to be effective, propagating corals by sexual or asexual means ( i.e., fragmenting larger coral colonies into smaller colonies to increase the number of corals, maintain corals of manageable size, or accelerate their growth rate) within the bounds of normal husbandry practices, attaching to artificial surfaces, and removing dead skeleton. Scientific studies that are intended to improve the husbandry practices of caring for captive D. cylindrus, where there is a reasonable expectation that they would not cause harm to D. cylindrus ( e.g., trialing new food supplements, comparing different lighting systems, testing different attachment substrates), would not require an ESA permit;
(6) Interstate and intrastate transportation of legally obtained captive D. cylindrus and D. cylindrus parts provided it is not in the course of a commercial activity. If captive corals or D. cylindrus parts are to be moved to a different holding location, records documenting transfer of corals should be maintained;
(7) Stabilization of loose or unattached D. cylindrus, including fragments, in the wild by experienced individuals and as authorized by an ESA section 10(a)(1)(A) permit issued by NMFS;
(8) Relocation of wild D. cylindrus from one site to another under the authorization of an ESA section 10(a)(1)(A) permit issued by NMFS;
(9) Use of captive D. cylindrus for scientific studies under the authorization of an ESA Section 10(a)(1)(A) permit issued by NMFS. Scientific studies that have the potential to injure or harm captive D. cylindrus ( e.g., altered temperature outside of ideal range, exposure to contaminants, potentially harmful chemicals, or disease, introduction of coral predators) require an ESA section 10(a)(1)(A) permit;
[top] (10) Research activities that involve collection or manipulation of D. cylindrus in the wild under the
(11) Observational studies on D. cylindrus in the wild that do not involve collection or manipulation of D. cylindrus such as benthic surveys, photographs, and videos;
(12) Release of captive D. cylindrus into the wild, as authorized by an ESA section 10(a)(1)(A) permit issued by NMFS; and
(13) Treatment of wild D. cylindrus for disease by experienced individuals using non-experimental methods proven to be effective and as authorized by state and territorial permits.
Information Quality Act and Peer Review
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Peer Review Bulletin (the Bulletin), implemented under the Information Quality Act (Pub. L. 106-554), is intended to enhance the quality and credibility of the Federal Government's scientific information and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the Bulletin, the proposed rule was subject to peer review. A peer review plan was posted on the NOAA peer review agenda and can be found at: https://www.noaa.gov/information-technology/endangered-species-act-proposed-rule-for-pillar-coral-dendrogyra-cylindrus-id432. Our synthesis and assessment of scientific information supporting the proposed action was peer reviewed via individual letters soliciting the expert opinions of three qualified specialists selected from the academic and scientific community. The charge to the peer reviewers and the peer review report have been placed in the administrative record and posted on the agency's peer review agenda. In meeting the OMB Peer Review Bulletin requirements, we have also satisfied the requirements of the 1994 joint U.S. Fish and Wildlife Service/NMFS peer review policy (59 FR 34270; July 1, 1994).
References
A complete list of the references used in this rule is available online (see www.fisheries.noaa.gov/species/pillar-coral#conservation-management ) and upon request (see FOR FURTHER INFORMATION CONTACT ).
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).
Regulatory Flexibility 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.
Executive Order 12866
This final rule is exempt from review under Executive Order 12866.
Paperwork Reduction Act
This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
Executive Order 13132
In accordance with Executive Order 13132, agencies are required to take into account any federalism impacts of regulations under development. This Executive order includes specific consultation directives for situations where a regulation will preempt state law or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this final listing determination. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, the proposed rule was provided to the relevant agencies in each state in which the subject species occurs, and these agencies were invited to comment. Their comments were addressed with other comments in the Public Comments and Our Responses section.
Executive Order 12898
Executive Order 12898 requires that Federal actions address environmental justice in the decision-making process. In particular, the environmental effects of the actions should not have a disproportionately high and adverse effect on the health or environment of minority and low-income populations. The purpose of this rule is to update the classification of a coral species that is already protected under the ESA. This rule will serve to continue the protection and conservation of this coral species and is expected to promote a healthy ecosystem. Therefore, this rule is not expected to have a disproportionately high or adverse effect on the health or the environment of minority populations or low-income populations.
List of Subjects
50 CFR Part 223
Endangered and threatened species, Exports, Imports, Transportation.
50 CFR Part 224
Administrative practice and procedure, Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Dated: November 12, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
For the reason set out in the preamble, we amend 50 CFR parts 223 and 224 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, §?223.201-202 also issued under 16 U.S.C. 1361 et seq. ; 16 U.S.C. 5503(d) for §?223.206(d)(9).
§?223.102 [Amended]
2. In §?223.102, amend the table in paragraph (e), under the subheading "Corals," by removing the entry for "Coral, pillar."
PART 224-ENDANGERED MARINE AND ANADROMOUS SPECIES
3. The authority citation of part 224 continues to read as follows:
Authority:
16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
4. In §?224.101, amend the table in paragraph (h), under the subheading "Corals," by adding an entry for "Coral, pillar" in alphabetical order by common name to read as follows:
§?224.101 Enumeration of endangered marine and anadromous species.
[top] (h) * * *
| Species? 1 | Common name | Scientific name | Description of listed entity | Citation(s) for listing determination(s) | Critical habitat | ESA rules |
|---|---|---|---|---|---|---|
| * * * * * * * | ||||||
| Corals | ||||||
| * * * * * * * | ||||||
| Coral, pillar | Dendrogyra cylindrus | Entire species | [INSERT FEDERAL REGISTER CITATION], December 17, 2024 | 226.230 | 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). | ||||||
[FR Doc. 2024-29082 Filed 12-16-24; 8:45 am]
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