Proposed Rule2023-17492
Endangered and Threatened Wildlife and Plants; Proposed Protective Regulations for the Threatened Banggai Cardinalfish (Pterapogon kauderni)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 15, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
Under section 4(d) of the Endangered Species Act (ESA), the Secretary of Commerce (Secretary) shall issue protective regulations the Secretary deems necessary and advisable for the conservation of species listed as threatened. The Secretary may apply any of the prohibitions in section 9 of the ESA. This proposed rule would promulgate protective regulations to apply a subset of the ESA section 9 prohibitions to the Banggai cardinalfish (Pterapogon kauderni). We also announce the availability of a draft environmental assessment (EA) that analyzes the environmental impacts of this action, and solicit comments regarding this action and the draft EA.
Full Text
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[Federal Register Volume 88, Number 156 (Tuesday, August 15, 2023)]
[Proposed Rules]
[Pages 55431-55436]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17492]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 230802-0182]
RIN 0648-BL87
Endangered and Threatened Wildlife and Plants; Proposed
Protective Regulations for the Threatened Banggai Cardinalfish
(Pterapogon kauderni)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments; notice of availability of
a draft environmental assessment.
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SUMMARY: Under section 4(d) of the Endangered Species Act (ESA), the
Secretary of Commerce (Secretary) shall issue protective regulations
the Secretary deems necessary and advisable for the conservation of
species listed as threatened. The Secretary may apply any of the
prohibitions in section 9 of the ESA. This proposed rule would
promulgate protective regulations to apply a subset of the ESA section
9 prohibitions to the Banggai cardinalfish (Pterapogon kauderni). We
also announce the availability of a draft environmental assessment (EA)
that analyzes the environmental impacts of this action, and solicit
comments regarding this action and the draft EA.
DATES: Comments regarding the proposed rule and supporting documents
may be sent to the appropriate address (see ADDRESSES), no later than 5
p.m. Eastern Standard Time on October 16, 2023. A public hearing may be
requested by September 29, 2023. Notice of the location and time of any
such hearing will be published in the Federal Register not less than 15
days before the hearing is held.
ADDRESSES: You may submit comments, identified by NOAA-NMFS-2023-0099,
by Electronic Submissions: Submit all electronic public comments via
the Federal eRulemaking Portal <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter
NOAA-NMFS-2023-0099 in the Search box. Click on the ``Comment'' icon,
complete the required fields, and enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> without change. All Personal Identifying
Information (e.g., name, address, etc.) voluntarily submitted by the
commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
We will accept anonymous comments (enter N/A in the required fields
if you wish to remain anonymous). Attachments to electronic comments
will be accepted in Microsoft Word, Excel, or Adobe PDF file formats
only.
FOR FURTHER INFORMATION CONTACT: Celeste Stout, NMFS, Office of
Protected Resources, <a href="/cdn-cgi/l/email-protection#0c6f6960697f7869227f786379784c62636d6d226b637a"><span class="__cf_email__" data-cfemail="f794929b92848392d98483988283b799989696d9909881">[email protected]</span></a>, (301) 427-8436; Erin
Markin, NMFS, Office of Protected Resources, <a href="/cdn-cgi/l/email-protection#701502191e5e1d11021b191e301e1f11115e171f06"><span class="__cf_email__" data-cfemail="f590879c9bdb9894879e9c9bb59b9a9494db929a83">[email protected]</span></a>,
(301) 427-8416.
SUPPLEMENTARY INFORMATION:
Background
On January 20, 2016, we published a final rule listing the Banggai
cardinalfish (Pterapogon kauderni) as a threatened species under the
ESA (81 FR 3023). At that time, we summarized the process for
considering the application of ESA section 9 prohibitions (16 U.S.C.
1538) to the threatened Banggai cardinalfish and stated that we would
consider potential protective regulations pursuant to ESA section 4(d)
(16 U.S.C. 1533(d)) for the Banggai cardinalfish in a future
rulemaking.
The prohibitions listed under section 9(a)(1) of the ESA
automatically apply when a species is listed as endangered but not when
listed as threatened. In the case of a threatened species, section 4(d)
of the ESA requires the Secretary to issue such regulations the
Secretary deems necessary and advisable to provide for the conservation
of the species. The Secretary may by regulation prohibit with respect
to any threatened species any act prohibited under ESA section 9(a)(1).
Thus, NMFS has flexibility under ESA section 4(d) to tailor protective
regulations, taking into account the effectiveness of available
conservation measures. The status review of the Banggai cardinalfish
(Conant, 2015), and the Banggai Cardinalfish 5-Year Review (2021)
provided extensive information on the status of the Banggai
cardinalfish. The information and conclusions from these documents are
briefly summarized below.
On April 22, 2021, NMFS received a petition from the Center for
Biological Diversity, the Animal Welfare Institute, and the Defenders
of Wildlife requesting NMFS promulgate a rule under section 4(d) of the
ESA to provide for the conservation of the Banggai cardinalfish. On
August 4, 2021, NMFS published in the Federal Register a notice of
receipt of that petition (86 FR 41935) and requested information and
comments for evaluating the request during a 60-day comment period. In
addition to comments and information pertaining to any aspect of the
petition, we specifically requested information regarding: (1) the
adequacy of existing measures regulating the collection and trade of
the Banggai cardinalfish throughout its range; (2) the availability and
efficacy of captive-bred fish for aquaria trade, both domestic and
international; (3) information on the collection/harvest (including,
but not limited to, number, location, mortality rate), and trade
(import/export data, value, transit mortality rates) of wild fish for
aquaria trade; and (4) implementation and efficacy of Indonesia's
National Plan of Action (NPOA) (2017-2021) for Banggai cardinalfish and
adequacy of enforcement of Banggai cardinalfish
[[Page 55432]]
regulations. We received 18,395 comments on that notice, of which
18,391 were from concerned citizens, scientists, and the Center for
Biological Diversity, Animal Welfare Institute, and Defenders of
Wildlife, in support of promulgating protective regulations. The
comments focused on the importance of conserving the species,
specifically by prohibiting the importation of Banggai cardinalfish
into the United States. The other four comments did not support
promulgating protective regulations. Those comments expressed concern
regarding the effect applying the prohibitions in section 9 of the ESA
to this species would have on the aquaculture production of Banggai
cardinalfish and on conservation efforts for this species in Indonesia.
In the case of threatened species, pursuant to ESA section 4(d),
the Secretary may by regulation prohibit any act prohibited under ESA
section 9(a)(1). Such regulations may include any or all of the
prohibitions in section 9(a)(1) that apply to endangered species. Those
section 9(a)(1) prohibitions make it unlawful, with limited specified
exceptions, for any person subject to the jurisdiction of the United
States to: (A) import any such species into, or export any such species
from the United States; (B) take any such species within the United
States or the territorial sea of the United States; (C) take any such
species upon the high seas; (D) possess, sell, deliver, carry,
transport, or ship, by any means whatsoever, any such species taken in
violation of subparagraphs (B) and (C); (E) deliver, receive, carry,
transport, or ship in interstate or foreign commerce, by any means
whatsoever and in the course of a commercial activity, any such
species; (F) sell or offer for sale in interstate or foreign commerce
any such species; or (G) violate any regulation pertaining to such
species or to any threatened species of fish or wildlife listed
pursuant to section 4 of the ESA and promulgated by the Secretary
pursuant to authority provided by the ESA. Section 11 of the ESA
provides for civil and criminal penalties for violation of section 9 or
regulations issued under the ESA.
The Banggai cardinalfish is a foreign species and occurs only in
areas beyond the U.S. exclusive economic zone and territorial waters.
The Banggai cardinalfish is a relatively small marine fish. Adults
generally do not exceed 55 to 57 millimeters (mm) standard length
(Vagelli, 2011). The species is distinguished by its tasseled first
dorsal fin, elongated anal and second dorsal fin rays, and deeply
forked caudal fin (Allen, 2000). It is brilliantly colored, with
contrasting black and light bars with whitish spots over a silvery
body. The Banggai cardinalfish has an exceptionally restricted natural
range limited to 20-34 kilometers\2\ of shallow-water habitat around 34
islands within the Banggai Archipelago, Indonesia. It inhabits a
variety of shallow (from about 0.5 to 6 meters) habitats including
coral reefs, seagrass beds, and less commonly, open areas of low
branching coral and rubble. To avoid predators, it associates with
microhabitats, such as sea urchins and anemones (Vagelli, 2011).
Banggai cardinalfish are found in waters ranging from 26 to 31 degrees
Celsius ([deg]C), but averaging 28 [deg]C (Ndobe et al., 2013).
The Banggai cardinalfish exhibits reversed sex roles, where males
provide parental care and brood eggs in their mouths. It lacks a
planktonic larval stage and extends the brooding of larvae for about 7
days after hatching, which results in the release of fully formed
juveniles. Spawning occurs year-round but peaks around September
through October, which is a period of fewer storms in the region (Ndobe
et al., 2013). Its lifespan in the wild has been estimated at
approximately 2.5-3 years (Vagelli, 2011), with a maximum lifespan up
to 3-5 years (Ndobe et al., 2013). Banggai cardinalfish mature at <1
year of age, which corresponds to approximately 40 mm standard length.
The number of eggs in an egg mass ranges from 20 to 102 (mean = 59),
while the number of eggs brooded ranges from 45 to 99 (mean = 59). High
mortality occurs during the first days after release from the brood
pouch due to predation, including parental and non-parental cannibalism
(Vagelli, 1999).
As a part of the listing process, we concluded that Banggai
cardinalfish had experienced a decline in abundance, as evidenced by a
decrease in mean density at survey sites between 2004 and 2012.
Moreover, some researchers believe that the population may have
experienced a dramatic decline from historical abundance due to
overharvest based on comparisons between populations in a private bay
and other populations (Conant, 2015). Several threats to the Banggai
cardinalfish were identified as contributing to this decline, including
the degradation of habitat, international trade as a live marine
ornamental reef fish, disease linked to high mortality of wild-caught
fish imported for the ornamental trade, and inadequate protections in
its endemic range. The threat of overharvest was and continues to be a
considerable threat to the Banggai cardinalfish for use in the
international aquarium trade. According to the best available data,
approximately 120,000 Banggai cardinalfish are imported to the United
States each year, primarily for use in the aquarium and pet trade. This
number is anticipated to remain fairly stable over the foreseeable
future. The U.S. Fish and Wildlife Service tracks the importation of
wildlife--including Banggai cardinalfish--and their derived products
into the U.S. through the Law Enforcement Management Information System
(LEMIS) database. While LEMIS data include select records of imports of
Banggai cardinalfish declared under the Banggai cardinalfish species
code, most imports of the fish are coded under the generic marine
ornamental fish species code. As a result, our estimate of average
annual imports of Banggai cardinalfish to the U.S. also reflects input
from pet industry trade group representatives and academic experts.
On March 29, 2021, NMFS completed a review of the species ESA
classification pursuant to section 4(c)(2), also known as a 5-year
review, which again concluded that the threatened Banggai cardinalfish
is at risk of extinction primarily because its populations have been
reduced by anthropogenic stressors that include, but are not limited
to: (1) degradation of habitat; (2) international trade as a live
marine ornamental reef fish; (3) disease linked to high mortality of
wild-caught fish imported for the ornamental trade; and (4) inadequate
protections in its endemic range.
The review further concluded that the Banggai cardinalfish is
likely to become an endangered species within the foreseeable future
and should continue to be classified as a threatened species.
Proposed 4(d) Protective Regulations for the Banggai Cardinalfish
The ESA does not specify particular prohibitions for threatened
species. Instead, under section 4(d) of the ESA, the Secretary has
discretion to issue such protective regulations as the Secretary deems
necessary and advisable to provide for the conservation of the species.
The Secretary also has the discretion to, by regulation, prohibit with
respect to any threatened species of fish or wildlife, any act
prohibited under ESA section 9(a)(1). Permits may be issued to allow
persons to engage in otherwise prohibited acts for certain purposes.
Under section 4(d) of the ESA, the Secretary may develop specific
prohibitions and exceptions tailored to the particular conservation
needs of a threatened species. In such cases, the Secretary may issue a
4(d) rule that includes some or all of the prohibitions set out in the
ESA. We are exercising
[[Page 55433]]
our discretion to propose a 4(d) rule for the Banggai cardinalfish.
Our conservation objective is to prevent further reduction of
existing wild populations of Banggai cardinalfish. Therefore, we are
proposing to apply to the Banggai cardinalfish the prohibitions in ESA
section 9(a)(1)(A). The ESA section 9(a)(1)(A) prohibitions would make
it unlawful for any person subject to the jurisdiction of the United
States to import the species into or export the species from the United
States.
Import and Export
This proposed rule would apply to all commercial and noncommercial
international shipments of live and dead Banggai cardinalfish and parts
and products, including the import and export of personal pets and
research samples. The import and export of wild-caught and captive-bred
Banggai cardinalfish into and from the United States and its
territories would be prohibited.
We assessed the conservation needs of the Banggai cardinalfish in
light of the lack of protections or other regulations of the
international trade in this species. The best available commercial data
indicate that the legal and illegal trade of Banggai cardinalfish for
use in the international aquarium trade is currently a threat to the
persistence of the species. The Banggai cardinalfish is a popular
marine ornamental fish that has been heavily traded in the aquarium
trade since the mid-1990s. The current trade estimates are between
500,000 and 900,000 individuals annually worldwide (Ndobe et al.,
2018a; Akmal et al., 2020). Tracking the trade of Banggai cardinalfish
is very difficult, as it is not listed under the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES), which provides a legal framework to regulate the international
trade of species listed under CITES, and as such Parties are not
required to include trade in this species in their annual report to
CITES. However, Banggai cardinalfish was ranked the 10th, 11th, and 8th
most imported aquarium fish into the United States in 2008, 2009, and
2011, respectively (Rhyne et al., 2017a), and the current trade
estimates remain comparable to the annual numbers noted in the 2015
status review (Conant, 2015). As mentioned previously, LEMIS data only
includes select records of imports of Banggai cardinalfish declared
under the Banggai cardinalfish species code, and most imports of the
fish are coded under the generic marine ornamental fish species code.
As a result, our estimate of average annual imports of Banggai
cardinalfish to the U.S. also reflects input from pet industry trade
group representatives and academic experts. According to data gathered
for the initial regulatory flexibility analysis (IRFA) (described below
in the Classification section), there are five or fewer businesses that
account for all imports of Banggai cardinalfish into the United States.
These businesses import approximately 120,000 Banggai cardinalfish per
year.
Interstate Commerce
This rule proposes to prohibit the import into and export from the
United States and its territories. No other prohibitions under section
9 of the ESA would be applied. A person would continue to be able to
deliver, receive, carry, transport, ship, sell, offer to sell,
purchase, or offer to purchase Banggai cardinalfish in interstate
commerce. Although we do not have current data, we believe there are a
number of Banggai cardinalfish in the United States. However, we have
no information to suggest that interstate commerce activities within
the United States are associated with threats to Banggai cardinalfish
or would negatively affect any efforts aimed at the recovery of wild
populations of the species, and therefore we are not proposing to
prohibit those activities.
Effects of This Rule
The Banggai cardinalfish is a foreign species and occurs only in
areas beyond the U.S. exclusive economic zone and territorial waters.
The ESA primarily protects foreign species by restricting trade; under
the ESA, certain activities, including import, export, take, commercial
activity, interstate commerce, and foreign commerce may be prohibited.
This rule proposes to prohibit the import and export of Banggai
cardinalfish into and from the United States and its territories.
Research and enhancement activities that require import or export
authorization will be examined on a case-by-case basis as prescribed by
ESA section 10. The effects of such authorizations would be limited,
because the general import into and export from the United States and
its territories would be prohibited, thereby eliminating international
trade of the species into and from the United States and its
territories.
Public Comments Solicited
We invite comments and suggestions from all interested parties
regarding this proposed rule to issue protective regulations under ESA
section 4(d) for the threatened Banggai cardinalfish (see ADDRESSES).
Data, information, and comments that are accompanied by supporting
documentation such as maps, logbooks, bibliographic references,
personal notes, and/or reprints of pertinent publications are helpful
and appreciated.
Public Hearing
NMFS will consider holding a public hearing on this proposal, if
requested. Requests must be filed by the date specified in the DATES
section above.
Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review (Peer Review
Bulletin), establishing minimum peer review standards, a transparent
process for public disclosure, and opportunities for public input. The
Peer Review Bulletin, implemented under the Information Quality Act
(Pub. L. 106-554), is intended to provide public oversight on the
quality of agency information, analyses, and regulatory activities. The
text of the Peer Review Bulletin was published in the Federal Register
on January 14, 2005 (70 FR 2664). The Peer Review Bulletin requires
Federal agencies to subject ``influential'' scientific information to
peer review prior to public dissemination. Influential scientific
information is defined as ``information the agency reasonably can
determine will have or does have a clear and substantial impact on
important public policies or private sector decisions,'' and the Peer
Review Bulletin provides agencies broad discretion in determining the
appropriate process and level of peer review. The Peer Review Bulletin
establishes stricter standards for the peer review of ``highly
influential'' scientific assessments, defined as information whose
``dissemination could have a potential impact of more than $500 million
in any 1 year on either the public or private sector or that the
dissemination is novel, controversial, or precedent-setting, or has
significant interagency interest.'' We do not consider the scientific
information underlying this proposed rule to issue ESA section 4(d)
protective regulations to constitute influential scientific information
as defined in the Peer Review Bulletin. Therefore, the agency expects
the information to be non-controversial and have minimal impacts on
important public policies or private sector decisions.
[[Page 55434]]
References
A complete list of the references used in this proposed rule is
available upon request (see ADDRESSES).
Classification
Executive Order (E.O.) 12866--Regulatory Planning and Review
This proposed rule has been determined to be not significant for
purposes of E.O. 12866 review. An IRFA has been prepared that considers
the economic costs and benefits of this proposed rule to issue ESA
section 4(d) protective regulations and alternatives to this rulemaking
as required under E.O. 12866. To review this report, see the ADDRESSES
section above.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) was
designed to ensure that the government considers the potential for its
regulations to unduly inhibit the ability of small entities to compete.
The goals of the RFA include increasing the government's awareness of
the impact of regulations on small entities and encouraging agencies to
exercise flexibility to provide regulatory relief to small entities.
When a proposed rule is published for public comment in the Federal
Register, the RFA requires the agency to prepare and make available for
public comment an analysis that describes the effect of the rule on
small entities (i.e., small businesses, small organizations, and small
governmental jurisdictions). For this proposed rulemaking, this
analysis takes the form of an IRFA, which we prepared in accordance
with section 603 of the RFA. We welcome comment on this IRFA, which is
summarized below and is available as a supplementary document to this
proposed rule.
The proposed rule would prohibit the import and export of Banggai
cardinalfish and would, therefore, directly regulate entities that
import and sell the fish, as well as any entities that export the fish.
The large majority of direct impacts of the proposed rule would be
borne by businesses that import and sell the Banggai cardinalfish
wholesale. Entities that import and sell Banggai cardinalfish wholesale
are classified under the Other Miscellaneous Nondurable Goods Merchant
Wholesalers industry of the North American Industry Classification
System (NAICS). Direct impacts to these entities would comprise the
loss of revenues from the sale of Banggai cardinalfish that would be
generated absent the proposed rule.
According to data gathered for the IRFA, five or fewer businesses
account for all imports of Banggai cardinalfish. These businesses
import approximately 120,000 Banggai cardinalfish per year, and there
is no anticipated increase or decrease in the level of imports over the
foreseeable future. With an estimated wholesale price of $11 per
Banggai cardinalfish, this proposed rule would result in annualized
impacts to all wholesalers of approximately $1.32 million (in 2022
dollars) in lost revenues, relative to the baseline. According to data
provided by industry trade group representatives, between 80 and 90
percent of these impacts are anticipated to be borne by a single
entity, whose primary NAICS industry is Other Miscellaneous Nondurable
Goods Merchant Wholesalers industry (NAICS Code 424990). For NAICS Code
424990, the Small Business Administration's (SBA's) Table of Small
Business Size Standards designates a small business as one which
employs 100 or fewer employees. Based on employment estimates for this
entity gathered from the Dun and Bradstreet Hoovers database, this
entity qualifies as a small business under SBA's small business size
standards. The IRFA estimates that revenue generated from sale of the
Banggai cardinalfish accounts for just under 6 percent of this
company's average annual revenues. It is unknown how many additional
importers would be impacted through the loss of the remaining 10-20
percent of annual U.S. wholesale sales of the Banggai cardinalfish and
whether any of these businesses are small entities.
While not directly regulated by the proposed action, pet stores and
other aquarium industry retailers of the Banggai cardinalfish would
also be affected through the loss of revenues generated under the
baseline. Entities that sell the fish retail are classified under the
Pet and Pet Supplies Retailers NAICS industry. Based on an estimated
retail price of approximately $33 per fish and total annual retail
sales of approximately 120,000 fish, the IRFA estimates annualized
impacts to these retailers of just under $4 million (in 2022 dollars).
According to data provided by industry trade group representatives,
between 80 and 90 percent of these impacts are anticipated to be borne
by a single large business in the NAICS Pet and Pet Supplies Retailers
industry (NAICS Code 459910). This business has annual sales greater
than $1 billion, which is well above the SBA's small business size
standard of $32 million in annual sales for companies in this industry.
Impacts to this business are estimated to account for less than 0.1
percent of its average annual revenues. It is unknown how many
additional retailers would be impacted through the loss of the
remaining 10-20 percent of annual U.S. retail sales of the Banggai
cardinalfish and whether any of these businesses are small entities.
According to interviews with industry trade group representatives,
wholesale and retail sales of the Banggai cardinalfish account for
nearly all U.S. trade of the fish. In comparison, import by aquaria and
export for commercial or other purposes account for a small fraction of
the trade of the species. Data were not available to quantify impacts
to entities conducting these activities. The proposed rule would impact
entities conducting scientific research on Banggai cardinalfish or
other activities that enhance the propagation or survival of the
species to the extent that obtaining required ESA section 10 permits
would incrementally incur costs to the regulated entities and NMFS,
relative to the baseline. However, ESA section 10 permits would only be
required for entities conducting research on imported Banggai
cardinalfish, and the extent to which current research relies on
obtaining imported Banggai cardinalfish, and the resulting extent of
potential impacts to the entities conducting such research, is
uncertain and cannot be quantified due to the lack of available data.
Under the proposed rule, it is possible that directly regulated
importers and indirectly impacted retailers could benefit from
increased demand for imported aquarium fish species that represent
substitutes for the Banggai cardinalfish. Retailers could also benefit
from increased demand for domestically bred Banggai cardinalfish.
However, these potential benefits would be indirect and are too
uncertain to quantify.
The proposed rule would not duplicate or conflict with any other
laws or regulations. Currently, there are no Federal restrictions on
importing the Banggai cardinalfish into or exporting the fish from the
United States, and Banggai cardinalfish are not listed in any
appendices of the CITES.
The RFA requires consideration of any significant alternatives to
the proposed rule that would accomplish the stated objectives of the
applicable statutes and would minimize significant economic impacts to
small entities. We considered the following alternatives when
developing this proposed rule.
Alternative 1. No Action Alternative. Under the No Action
Alternative, NMFS would not establish ESA section 4(d)
[[Page 55435]]
protective regulations (i.e., no change from current management
policies). The No Action Alternative represents the regulatory status
quo. Without the ESA section 4(d) protective regulations established in
this proposed rule, Banggai cardinalfish would remain vulnerable to a
range of threats. No incremental impacts would be borne by small (or
other) entities, but the Banggai cardinalfish would continue to be at
risk of further declines in abundance and increased risk of extinction.
Declining abundance of the species in the wild could lead to reduced
imports of Banggai cardinalfish into the U.S. and/or higher costs per
fish to importers as supply dwindles, which could ultimately negatively
affect revenues of small entities that sell the fish wholesale or
retail. Moreover, the No Action Alternative would not accomplish the
stated objectives of the ESA, because it would not aid in the
conservation of the threatened Banggai cardinalfish. Thus, the No
Action Alternative is not necessarily a ``no cost'' alternative for
small entities.
Alternative 2. Application of All ESA section 9(a)(1) Prohibitions.
Prohibitions under this alternative would include, but not be limited
to, the import, export, possession, and sale of Banggai cardinalfish,
and the delivery, receiving, carrying, transporting, or shipping of
Banggai cardinalfish in interstate or foreign commerce in the course of
a commercial activity. Incremental impacts to small entities under
Alternative 2 could be substantially greater than those that would
occur under Alternative 3, the Proposed Action, in part because of the
interstate commerce prohibition, which would significantly constrain
the development of wholesale and retail markets for domestically bred
Banggai cardinalfish. The IRFA does not seek to quantify impacts under
Alternative 2 incremental to those under Alternative 3, the Proposed
Alternative for this action (see below), due to significant uncertainty
regarding the extent to which a domestic market would develop for
domestically bred Banggai cardinalfish under each alternative. Under
Alternative 2, entities could apply for ESA section 10 permits for
activities that involve the take of the Banggai cardinalfish for
scientific purposes or to enhance the propagation or survival of the
species. Unlike under Alternative 3, however, an ESA section 10 permit
would be required for such activities not only if the Banggai
cardinalfish are obtained through foreign commerce, but also if the
Banggai cardinalfish are obtained domestically.
Alternative 3. Application of ESA section 9(a)(1)(A) Prohibitions
(Proposed Alternative for this Action). Section 9(a)(1)(A) of the ESA
would be applied to Banggai cardinalfish, thus prohibiting the species'
import into or export from the United States. This alternative would
allow for delivery, receipt, carry, transport, or shipment, and sale or
offer for sale of Banggai cardinalfish in interstate commerce. As with
Alternative 2, under Alternative 3, import and export of Banggai
cardinalfish into and from the United States would be limited solely to
research or other activities that enhance the survival of the species
pursuant to the requirements of section 10 of the ESA. Unlike under
Alternative 2, under Alternative 3, an ESA section 10 permit would not
be required for such activities if the Banggai cardinalfish are
obtained domestically. Alternative 3 was selected as the Proposed
Alternative for this Action because it would promote the survival and
recovery of the Banggai cardinalfish, and because this alternative
would reduce the economic impacts on entities as compared to the
economic impacts of Alternative 2.
E.O. 12988--Civil Justice Reform
We have determined that this proposed rule does not unduly burden
the judicial system and meets the requirements of sections 3(a) and
3(b)(2) of E.O. 12988. We are proposing protective regulations pursuant
to the provisions of ESA section 4(d) and other ESA provisions.
E.O. 13175--Consultation and Coordination With Indian Tribal
Governments
The longstanding and distinctive relationship between the Federal
and Tribal Governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate Tribal
Governments from the other entities that deal with, or are affected by,
the Federal Government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and with respect
to Indian lands, tribal trust resources, and the exercise of tribal
rights. Pursuant to these authorities, lands have been retained by
Indian Tribes or have been set aside for tribal use. These lands are
managed by Indian Tribes in accordance with tribal goals and objectives
within the framework of applicable treaties and laws. E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, outlines
the responsibilities of the Federal Government in matters affecting
tribal interests.
E.O. 13175 requires that if NMFS issues a regulation that
significantly or uniquely affects the communities of Indian Tribal
Governments and imposes substantial direct compliance costs on those
communities, NMFS must consult with those governments, or the Federal
Government must provide the funds necessary to pay the direct
compliance costs incurred by the Tribal Governments. In developing this
proposed rule, we found that it would not impose substantial direct
compliance costs on the communities of Indian Tribal Governments and
thus does not have tribal implications.
E.O. 13132--Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations where a regulation will preempt
state law, or impose substantial direct compliance costs on State and
local governments (unless required by statute). Neither of those
circumstances is applicable to this proposed rule.
Paperwork Reduction Act
This proposed rule does not contain any new or revised collection
of information requirements. This rule, if adopted, would not impose
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations.
National Environmental Policy Act (NEPA)
In the case of a species listed as threatened, section 4(d) of the
ESA directs that the Secretary of Commerce shall issue such regulations
as the Secretary deems necessary and advisable to provide for the
conservation of the species. The Secretary may, by regulation, prohibit
with respect to any threatened species of fish or wildlife any or all
acts prohibited under section 9(a)(1). Accordingly, the promulgation of
ESA section 4(d) protective regulations is subject to the requirements
of NEPA, and we have prepared a draft EA analyzing the proposed 4(d)
regulations and alternatives. We are seeking comment on the draft EA,
which is available on the Federal eRulemaking Portal website (<a href="https://www.regulations.gov">https://www.regulations.gov</a>) or upon request (see DATES and ADDRESSES, above).
[[Page 55436]]
E.O. 13211--Energy Supply, Distribution, or Use
E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. According to E.O. 13211,
``significant energy action'' means any action by an agency that is
expected to lead to the promulgation of a final rule or regulation that
is a significant regulatory action under E.O. 12866 and is likely to
have a significant adverse effect on the supply, distribution, or use
of energy. NMFS has determined that the energy effects are unlikely to
exceed the energy impact thresholds identified in E.O. 13211 because
this proposed rule is not significant under E.O. 12866. Therefore, no
Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
Dated: August 9, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 223 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. 223.201-202
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 subpart B, add Sec. 223.215 to read as follows:
Sec. 223.215 Banggai cardinalfish.
(a) Prohibitions. The prohibitions of section 9(a)(1)(A) of the ESA
(16 U.S.C. 1538(a)(1)(A)) relating to endangered species apply to the
threatened Banggai cardinalfish listed in Sec. 223.102(e).
(b) [Reserved]
[FR Doc. 2023-17492 Filed 8-14-23; 8:45 am]
BILLING CODE 3510-22-P
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