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 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:// 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 Niño, 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 Niño, 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)).

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 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

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).

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:

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.

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

D. Adding entries for three species of coral in alphabetical order by scientific name under the “Corals” table subheading.

The additions read as follows: