Proposed Rule2023-26051
Endangered and Threatened Species; Designation of Critical Habitat for Five Species of Threatened Indo-Pacific Corals
Primary source
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Published
November 30, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
On November 27, 2020, we, NMFS, published in the Federal Register a proposal to designate 17 island units of critical habitat in the Pacific Islands Region for 7 Indo-Pacific coral species listed under the Endangered Species Act (ESA). Based on public comments and new information regarding the interpretation of the records of the listed corals and application to critical habitat, a substantial revision of the proposed rule is warranted. Accordingly, we are withdrawing the 2020 proposed rule and publishing this new proposed rule. We propose to designate critical habitat for five of the seven coral species that were addressed in the 2020 proposed rule: Acropora globiceps, Acropora retusa, Acropora speciosa, Euphyllia paradivisa, and Isopora crateriformis. Proposed critical habitat includes 16 island units encompassing approximately 251 square kilometers ((km\2\); 97 square miles (mi\2\)) of marine habitat. Several areas are ineligible for critical habitat because of final Department of Defense Integrated Natural Resource Management Plans that we have determined will benefit the listed corals. We have considered economic, national security, and other relevant impacts of the proposed designations, but are not proposing to exclude any areas from the critical habitat designations due to anticipated impacts.
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[Federal Register Volume 88, Number 229 (Thursday, November 30, 2023)]
[Proposed Rules]
[Pages 83644-83691]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26051]
[[Page 83643]]
Vol. 88
Thursday,
No. 229
November 30, 2023
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 223 and 226
Endangered and Threatened Species; Designation of Critical Habitat for
Five Species of Threatened Indo-Pacific Corals; Proposed Rule
Federal Register / Vol. 88 , No. 229 / Thursday, November 30, 2023 /
Proposed Rules
[[Page 83644]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 226
[Docket No: 231120-0274]
RIN 0648-BJ52
Endangered and Threatened Species; Designation of Critical
Habitat for Five Species of Threatened Indo-Pacific Corals
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; withdrawal and reproposal; request for comments.
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SUMMARY: On November 27, 2020, we, NMFS, published in the Federal
Register a proposal to designate 17 island units of critical habitat in
the Pacific Islands Region for 7 Indo-Pacific coral species listed
under the Endangered Species Act (ESA). Based on public comments and
new information regarding the interpretation of the records of the
listed corals and application to critical habitat, a substantial
revision of the proposed rule is warranted. Accordingly, we are
withdrawing the 2020 proposed rule and publishing this new proposed
rule. We propose to designate critical habitat for five of the seven
coral species that were addressed in the 2020 proposed rule: Acropora
globiceps, Acropora retusa, Acropora speciosa, Euphyllia paradivisa,
and Isopora crateriformis. Proposed critical habitat includes 16 island
units encompassing approximately 251 square kilometers ((km\2\); 97
square miles (mi\2\)) of marine habitat. Several areas are ineligible
for critical habitat because of final Department of Defense Integrated
Natural Resource Management Plans that we have determined will benefit
the listed corals. We have considered economic, national security, and
other relevant impacts of the proposed designations, but are not
proposing to exclude any areas from the critical habitat designations
due to anticipated impacts.
DATES: Comments on this proposal must be received by February 28, 2024.
Public hearings: Public hearings on this proposed rule will be held
during the public comment period at dates, times and locations to be
announced in a forthcoming Federal Register Notice.
ADDRESSES: You may submit comments on this document, identified by the
FDMS docket number NOAA-NMFS-2016-0131, by any of the following
methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and type NOAA-NMFS-2016-0131 in the Search box
(note: copying and pasting the FDMS Docket Number directly from this
document may not yield search results). Click on the ``Comment'' icon,
complete the required fields, and enter or attach your comments.
<bullet> Mail: Lance Smith, Protected Resources Division, NMFS,
Pacific Islands Regional Office, NOAA Inouye Regional Center, 1845 Wasp
Blvd., Bldg. 176, Honolulu, HI 96818.
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.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
FOR FURTHER INFORMATION CONTACT: Lance Smith, NMFS, Pacific Islands
Regional Office (PIRO), 808-725-5131, <a href="/cdn-cgi/l/email-protection#563a3738353378253b3f223e163839373778313920"><span class="__cf_email__" data-cfemail="385459565b5d164b55514c507856575959165f574e">[email protected]</span></a>; or, Celeste
Stout, NMFS, Office of Protected Resources, 301-427-8436,
<a href="/cdn-cgi/l/email-protection#afcccac3cadcdbca81dcdbc0dadbefc1c0cece81c8c0d9"><span class="__cf_email__" data-cfemail="086b6d646d7b7c6d267b7c677d7c4866676969266f677e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
We listed 20 reef coral species as threatened under the ESA on
September 10, 2014 (79 FR 53851), 15 of which occur in the Indo-
Pacific. The remaining five species occur in the Caribbean. On November
27, 2020, we proposed critical habitat for the seven listed Indo-
Pacific species that were then considered to occur within U.S.
jurisdiction (85 FR 76262) and the five listed Caribbean species (85 FR
76302). All 20 of these listed coral species have undergone some level
of population decline and are susceptible to multiple threats,
including ocean warming, diseases, ocean acidification, ecological
effects of fishing, and land-based sources of pollution. We determined
that these species are likely to become endangered throughout their
ranges within the foreseeable future as a result of a combination of
threats, the most severe of which are related to climate change.
On November 27, 2020, NMFS proposed to designate critical habitat
for the seven listed Indo-Pacific corals that were then considered to
occur within U.S. jurisdiction (Acropora globiceps, Acropora
jacquelineae, Acropora retusa, Acropora speciosa, Euphyllia paradivisa,
Isopora crateriformis, and Seriatopora aculeata) and opened a public
comment period (85 FR 76262). In response to multiple requests from the
public, the initial 60-day public comment period was extended three
times, with the last extension ending on May 26, 2021. Two virtual
public hearings were held in January 2021. Approximately 80 public
comments were received on the proposed rule.
The coral critical habitat proposed for designation in 2020 (the
``2020 proposed rule'') consisted of substrate and water column habitat
characteristics essential for the reproduction, recruitment, growth,
and maturation of the seven listed coral species. A total of 17 areas
or ``units'' were proposed to be designated as critical habitat,
including 4 units in American Samoa (Tutuila and Offshore Banks, Ofu-
Olosega, Ta'u, Rose Atoll), 1 unit in Guam, 7 units in the Commonwealth
of the Northern Mariana Islands (CNMI; Rota, Aguijan, Tinian, Saipan,
Anatahan, Pagan, Maug), and 5 units in the Pacific Remote Islands Areas
(PRIA; Howland, Palmyra Atoll, Kingman Reef, Johnston Atoll, Jarvis).
Based on the best available information at that time, between 1 and 6
listed coral species were thought to occur within each of these 17
units. Several other areas were also found to be either ineligible for
designation as critical habitat, or were proposed to be excluded from
the designation due to national security impacts. These areas included
the following: A complex of overlapping Navy Surface Danger Zones off
of Ritidian Point in Guam, other parts of Guam, parts of Tinian in
CNMI, a group of six Navy anchorage berths on Garapan Bank in Saipan in
CNMI, all of Farallon de Medinilla in CNMI, and all of Wake Atoll in
PRIA.
The ESA defines critical habitat under section 3(5)(A) as the (1)
specific areas within the geographical area occupied by the species at
the time it is listed, on which are found those physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection; and (2)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary of
Commerce (Secretary) that such areas are essential for the conservation
of the species (16 U.S.C. 1532(5)(A)). Conservation is defined in
[[Page 83645]]
section 3(3) of the ESA as to use, and the use of, all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to this Act are no longer necessary (16 U.S.C. 1532(3)). Section
3(5)(C) of the ESA provides that, except in those circumstances
determined by the Secretary, critical habitat shall not include the
entire geographical area which can be occupied by the threatened or
endangered species. ESA implementing regulations provide that critical
habitat shall not be designated within foreign countries or in other
areas outside U.S. jurisdiction (50 CFR 424.12(g)).
Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense (DOD) or designated for its use, that are
subject to an Integrated Natural Resources Management Plan (INRMP)
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is designated. Section 4(b)(2)
of the ESA requires us to designate critical habitat for threatened and
endangered species on the basis of the best scientific data available
and after taking into consideration the economic, national security,
and any other relevant impact, of specifying any particular area as
critical habitat. Pursuant to this section, the Secretary may exclude
any area from critical habitat if she determines the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat. However, the Secretary cannot exclude areas if
failure to designate them as critical habitat will result in the
extinction of the species (16 U.S.C. 1533(b)(2)).
Once critical habitat is designated, section 7(a)(2) of the ESA
requires Federal agencies to ensure that actions they fund, authorize,
or carry out are not likely to destroy or adversely modify that habitat
(16 U.S.C. 1536(a)(2)). This requirement is in addition to the section
7(a)(2) requirement that Federal agencies ensure their actions are not
likely to jeopardize the continued existence of ESA-listed species.
Specifying the geographic location of critical habitat also facilitates
implementation of section 7(a)(1) of the ESA by identifying areas where
Federal agencies can focus their conservation programs and use their
authorities to further the purposes of the ESA. Critical habitat
requirements do not apply to citizens engaged in actions on private
land that do not involve a Federal agency. The requirements of section
7(a)(2) to not destroy or adversely modify critical habitat apply only
to Federal agencies and do not apply to non-Federal entities on non-
Federal land or within non-Federal waters in the absence of a Federal
nexus (e.g. Federal funding, Federal permit). However, designating
critical habitat can help focus the efforts of other conservation
partners (e.g., state and local governments, individuals, and non-
governmental organizations).
On July 5, 2022, the U.S. District Court for the Northern District
of California issued an order vacating the ESA section 4 implementing
regulations that were revised or added to 50 CFR part 424 in 2019
(``2019 regulations,'' see 84 FR 45020, August 27, 2019) without making
a finding on the merits. On September 21, 2022, the U.S. Court of
Appeals for the Ninth Circuit granted a temporary stay of the district
court's July 5 order (Wash. Cattlemen's Ass'n, No. 22-70194, 2022 WL
4393033). On November 14, 2022, the Northern District of California
issued an order granting the government's request for voluntary remand
without vacating the 2019 regulations. The District Court issued a
slightly amended order two days later on November 16, 2022 (Ctr. for
Biological Diversity v. Haaland, No. 19-cv-05206-JST, 2022 WL
19975245). As a result, the 2019 regulations remain in effect, and we
are applying the 2019 regulations here. We also note that, on June 22,
2023, our agency in coordination with the Department of Interior
jointly published proposed revisions to the ESA section 4 regulations
(88 FR 40764). For purposes of this determination and in an abundance
of caution, we considered whether the analysis or its conclusions would
be any different under the current, pre-2019, and recently proposed
regulations. We have determined that while the analysis differs in some
ways, the conclusions presented here would not be any different. We
will consider any changes to the section 4 regulations, as appropriate,
should they be finalized and become effective prior to completion of a
final critical habitat determination.
In this rulemaking, the terms ``occupied area,'' ``specific area,''
and ``critical habitat unit'' each have distinct meanings. The terms
``occupied area'' and ``specific area'' are species-specific, whereas
the term ``critical habitat unit'' is not species-specific. The term
``occupied area'' is consistent with the definition of the
``geographical area occupied by the species'' in 50 CFR 424.02 and
refers to the area that may generally be delineated around species'
occurrences at the time of listing, as determined by the Secretary--
i.e., range. Within each occupied area, ``specific areas'' are the
areas containing the essential feature of critical habitat for the
species. We use the term ``critical habitat unit'' to refer to the
cumulative specific areas for one or more species around the 16 islands
proposed for designation. Critical habitat units are named according to
the particular island or offshore bank around, or on which, the coral
habitat is located. For example, overlapping occupied areas for five
listed coral species occur around Tutuila Island and its offshore
banks, which is thus named the Tutuila and Offshore Banks Unit of coral
critical habitat.
Rationale for Withdrawing 2020 Proposed Rule
We evaluated the comments and information received during the
public comment period and at the public hearings that were held for the
2020 proposed rule, as well as other new information that has become
available, as described in the Critical Habitat Information Report for
this proposed rule (NMFS, 2023) and its appendices. Based on our
consideration of the comments and information, a substantial revision
of the 2020 proposed rule is needed for three main reasons:
1. The initial methodology used to compile existing records of
listed coral species in U.S. waters was not exhaustive, resulting in
the inadvertent exclusion of some islands within the occupied area for
some listed species that should have been included as occupied areas.
2. The initial methodology used to determine which U.S. islands
were within the occupied area for each listed coral species at the time
of listing (2014) was too simplistic, resulting in the inadvertent
inclusion of some islands in the occupied area for some listed species
that should not have been included.
3. The initial methodology used to determine the depth range of
each listed species on each island within its occupied area used
incorrect assumptions, resulting in inaccurate depth ranges for some
species in some locations (i.e., some depth ranges were larger than
they should have been).
With regard to the compilation of records of listed coral species
in U.S. waters, in developing the 2020 proposed rule, we relied on
Federal coral reef monitoring programs as the only source of records
used for most of the remote
[[Page 83646]]
islands. However, as pointed out in the public comments and also as
indicated by new information, other records exist for some islands.
Specifically, several sources of photo records and expert data records
have been published or shared since the 2020 proposed rule published,
and some previously unused historical photo records were found to have
been mislabeled with the names of unlisted species. As a result,
numerous existing records that were not considered in the 2020 proposed
rule, including some that provide the only records of any listed coral
species on some islands, were considered in developing this proposed
rule.
With regard to determining the occupied area within U.S.
jurisdiction for each listed coral species for the 2020 proposed rule,
we assumed that any expert record of a listed coral species was
adequate to conclude that the island was within the occupied area for
that species at the time of listing. However, as pointed out in the
public comments and also as indicated by new information, for those
islands with very few records for a listed coral species, such records
may not provide adequate evidence that the island was within the
occupied area of the listed species at the time of listing. There are
several potential reasons for this, including species
misidentifications, old records of species that were no longer present
at the time of listing, and the likelihood that a single record of a
colony of a listed species represents a vagrant individual. For
example, only a single colony of the listed coral Acropora jacquelineae
has ever been recorded in U.S. waters on Tutuila, an island that has
been frequently surveyed by coral experts since that single colony was
recorded in 2008, and that record was used as the basis for including
A. jacquelineae in the 2020 proposed rule. However, as indicated in the
public comments and by new information, that record likely represents a
vagrant individual of A. jacquelineae, and thus Tutuila should not be
considered as being occupied by the species at the time of listing.
Therefore, the mere existence of an expert record of a listed coral
from an island is not necessarily adequate to support a conclusion that
the area was within the occupied area of the species at the time of
listing.
With regard to the species' depth ranges applied in the 2020
proposed rule, we assumed that the depth range of a listed coral
species shown by the records from an extensively surveyed island was
similarly representative of that species' depth range on other islands.
For example, since the records of A. globiceps from Tutuila showed a
depth range of 0-20 m on that island, we assumed that the species'
depth range was 0-20 m in other locations where we lacked depth
distribution data, including islands within (e.g., Rose Atoll) and
outside (e.g., Guam) the Samoan Archipelago. However, as indicated in
the public comments and by new information, the depth range of a listed
coral species can vary from island to island, especially between
archipelagos. For example, surveys that became available or were
conducted since the 2020 proposed rule between 10 and 20 m on both
Tutuila and Guam indicate that A. globiceps is commonly found to 20 m
on Tutuila in the Samoan Islands but only to 12 m on Guam in the
Mariana Islands.
In order to address these issues with the 2020 proposed rule, a
systematic methodology was developed and implemented for compilation,
assessment, and interpretation of the records of each listed coral
species in order to determine its occupied area within U.S. waters at
the time of listing in 2014 (i.e., which islands) as well as the depth
range of each species on each of those islands. This new methodology
resulted in significant changes to the occupied area (i.e., which
islands are included or not), as well as depth ranges of critical
habitat for most listed coral species. Ultimately, these changes
altered which species are considered to occupy areas within U.S.
jurisdiction and the location and boundaries of the areas proposed for
designation. Specifically, two species included in the 2020 proposed
rule, Acropora jacquelineae and Seriatopora aculeata, are no longer
considered to have occupied areas within U.S. jurisdiction at the time
of listing, and we cannot designate critical habitat in areas outside
U.S. jurisdictions (50 CFR 424.12(g)). In addition, some new areas are
being proposed that were not included in the 2020 proposed rule
(Alamagan and Uracas in CNMI, French Frigate Shoals in Hawaii). Given
these multiple, substantial changes, we concluded it was necessary to
withdraw the 2020 proposed rule and publish this proposed rule to
provide the public an opportunity to comment on the new methodology and
the different areas being proposed as critical habitat.
New Methodology for Determining Occupied Areas and Depth Ranges
The determinations of the occupied areas and depth ranges that
inform critical habitat are based on the records of each listed coral
species within U.S. waters. However, using the records for critical
habitat requires overcoming three major challenges: (1) Finding all the
records (compilation); (2) accounting for the high variability in the
quality, quantity, age, species identification uncertainty, survey
effort, and other factors associated with the records (assessment); and
(3) interpreting the records to determine which islands are within the
occupied area for each listed species and thus should be included in
critical habitat (application). In order to address these challenges
and ensure that coral critical habitat is based on the best available
information, we conducted exhaustive searches to compile all the
available records for each listed coral species around each island
within U.S. Pacific Islands jurisdictions, and developed a consistent
and transparent methodology for assessing and applying the records. The
results are provided in appendix A of the Information Report (NMFS,
2023), hereafter referred to as the Records Document, and provide the
foundation for this new proposed rule. The compilation, assessment, and
application of the records are summarized from the Records Document
below.
Compilation of Records
We compiled the available records for each listed coral species
around each island within U.S. Pacific Islands waters via the following
steps: (1) Reviewed all relevant NOAA Fisheries files, such as those
used for the final coral listing rule and 2020 proposed critical
habitat; (2) gathered records from government agencies that have
conducted coral reef monitoring within these areas; (3) gathered
records from other sources such as research projects, site surveys,
area inventories, etc.; (4) conducted an exhaustive virtual search; and
(5) consulted with experts from the Territorial Governments (American
Samoa, Guam, CNMI) and the Marine National Monuments (Rose Atoll,
Pacific Remote Islands, Marianas Trench) to ensure that no records were
overlooked. Some of these records were brought to our attention by the
public comments that we received during the public comment period in
2021. The search produced records of seven listed coral species (A.
globiceps, A. jacquelineae, A. retusa, A. speciosa, E. paradivisa, I.
crateriformis, and S. aculeata) from U.S. Pacific Islands waters (NMFS,
2023, appendix A). This comprehensive compilation process yielded more
than twice as many records as were used for the 2020 proposed rule,
including historical records that we were unaware of in 2020 as well as
new data collected since then.
The records were divided into 45 records groups by island and
species.
[[Page 83647]]
Throughout this proposed rule and in the supporting documents, we refer
to high islands (volcanic, e.g., Guam), atolls (e.g., Rose Atoll),
stand-alone reefs (e.g., Kingman Reef), shoals (e.g., French Frigate
Shoals (FFS)), and pinnacles (e.g., Gardner Pinnacles) as ``islands.''
The 45 records groups included a total of 24 such islands, 4 of which
were in American Samoa (Tutuila and Offshore Banks, Ofu-Olosega, Ta'u,
Rose Atoll), 1 in Guam (Guam), 9 in CNMI (Rota, Aguijan, Tinian,
Saipan, Farallon de Medinilla (FDM), Alamagan, Pagan, Maug Islands,
Uracas), 7 in PRIA (Howland, Baker, Palmyra Atoll, Kingman Reef,
Johnston Atoll, Wake Atoll, Jarvis), and 3 in the Northwestern Hawaiian
Islands (FFS, Maro Reef, Gardner Pinnacles) in Hawaii, as shown in
table 2 of appendix A. We found no records of any listed species in any
of the Main Hawaiian Islands (NMFS, 2023, appendix A).
Assessment of Records
We assessed each of the 45 records groups (i.e., all records of a
listed species from an island) in terms of the multiple factors,
including (1) quality of records, (2) quantity of records, (3) age of
records, (4) species identification uncertainty, and (5) survey effort.
We addressed the quality of records by organizing the records into
three mutually-exclusive categories: ``photo records,'' ``expert data
records,'' or ``other records.'' Because of species identification
uncertainty, photo records are ideal, as long as the location and date
of the photo are known, and the photo clearly shows colony and branch
morphology. However, many records of coral species are in the form of
data sheets or species lists, and lack photos. Any such record
collected by a recognized Indo-Pacific reef-building coral species
expert is considered an expert data record. Records that do not meet
the criteria for photo records or expert data records are considered
other records (e.g., personal communications). We confirmed all records
via direct communication with the experts who took the records, or with
experts who were able to vouch for the records. Our determinations of
whether the island was within the occupied area for a listed species at
the time of listing relied almost entirely upon photo records and
expert data records. However, other records provided valuable
information for some islands or parts thereof. For example, records
that do not meet the criteria for photo or expert data records (i.e.,
exact dates and locations not available) provide information on depth
and habitat distributions (NMFS, 2023, appendix A).
Although we did not specify a particular quantity of records
necessary to support a determination that a particular island was
within the occupied area for a listed species at the time of listing,
the more photo records and expert data records we have for a species
from an island, the greater the likelihood that the island was within
the occupied area for a listed species at the time of listing. Islands
with a single photo record or expert data record of a listed species
may or may not have been within the occupied area of that species at
the time of listing (2014), depending on other factors (NMFS, 2023,
appendix A).
Older records are not necessarily lower quality, thus age of
records was not a consideration for determining the quality of a
record. However, the more that a record predates listing, the less
relevance it had to our determination of whether the island was within
the occupied area for a listed species at the time of listing (NMFS,
2023, appendix A).
Species identification uncertainty is substantial for most of the
15 listed Indo-Pacific reef coral species, even for experts. For listed
coral species that are consistently distinct from similar species and
frequently observed, species identification uncertainty has decreased
since listing, as survey effort and expertise have increased. This is
the case with A. globiceps and I. crateriformis. In addition, E.
paradivisa and S. aculeata are consistently distinct from similar
species, although they are very infrequently observed within U.S.
waters. For these four listed species, identification uncertainty is
relatively low at this point in time for coral species experts based in
the U.S. Pacific Islands. In contrast, for listed species that are very
similar to other species, the increase in survey effort since listing
in 2014 has emphasized the difficulty in distinguishing them. This is
the case with A. retusa, especially in the Marianas and PRIA. The
combination of high colony morphological variability and low numbers of
records from the Marianas (i.e., Guam and CNMI) and PRIA is such that
we have low confidence in these records, even though they are expert
data records. Even more challenging are those listed species that are
very similar to other species but are very infrequently observed, such
as A. jacquelineae and A. speciosa. For these three listed species,
identification uncertainty is relatively high at this point in time,
even for coral species experts who focus on the U.S. Pacific Islands
(NMFS, 2023, appendix A).
A particular species identification uncertainty problem is the
apparent variability in colony morphology of A. retusa and related
species between the American Samoa, Guam-CNMI, and PRIA archipelagos.
The combination of high colony morphological variability and low
numbers of records in Guam-CNMI and PRIA is such that we have low
confidence in these records, even though they are expert data records.
However, in American Samoa, there is apparently lower colony
morphological variability and higher numbers of records for A. retusa,
thus we have high confidence in these records.
Survey effort refers to the amount of expert coral species surveys
that have been conducted on an island. Historical survey effort has
been highly variable from island to island, potentially influencing the
interpretation of the records. However, all islands in this document
except FDM in CNMI have been included in the Pacific Islands Fisheries
Science Center's (PIFSC) species-level standardized coral reef
monitoring surveys at least one time since listing in 2014, and some
islands have also been included in standardized surveys by other
agencies. PIFSC's surveys are quite extensive around each island,
including a large number of transects and covering wide depth ranges
(appendix A). The Department of the Navy (DON) restricts access to FDM,
hence PIFSC does not survey there. However, the Navy periodically
conducts species-level coral surveys at FDM by recognized Indo-Pacific
reef-building coral species experts, thus numerous surveys have been
conducted on FDM both around and since the time of listing. All islands
have been subject to extensive species-level surveys (i.e., the PIFSC
and DON surveys) around or since the time of listing, including within
the depth ranges and habitat types of all listed coral species (NMFS,
2023, appendix A).
Several other factors were taken into consideration in assessing
the records, including taxonomic issues, morphological variability
across archipelagos, and habitat preferences. Taxonomic issues include
confusion of A. globiceps with A. humilis, and the name change from
Acropora crateriformis to Isopora crateriformis, both of which affected
how we treated historical records. Finally, some types of coral reef
habitats are surveyed more than others, mainly because of accessibility
and safety. Of the surveys that produced the records in this document,
the majority took place on forereefs (AKA reef slopes) between about 5
and 20 m of depth, and some surveys included reef slopes of 20-30 m
[[Page 83648]]
depth. Fewer surveys were done in backreef habitats, such as pools,
lagoons, and reef flats, raising the possibility that the records may
not be representative of species' distributions across habitats.
However, for some of the more frequently surveyed islands, habitat-
specific information is available, as noted in the species-island
sections (NMFS, 2023, appendix A).
Based on the assessment factors, we developed a 10-category system
for rating the level of evidence provided by each records group (i.e.,
all records of a listed species from an island) that the island was
within the occupied area for the listed species at the time of listing
in 2014, from the least to the most evidence (table 1). Then we
interpreted the rating results of each records group to determine
whether the island was within the occupied area for the listed species
at the time of listing, and thus should be included in critical
habitat. For islands within the occupied area of a listed species, we
also used the records to determine the depth range of that species on
the island.
Table 1--Rating System for Evidence Provided by Each of the Records Groups That the Island Was Within the
Occupied Area for the Listed Species at the Time of Listing in 2014, and the Resulting Ratings of the 45 Records
Groups
[NMFS, 2023, appendix A, tables 1 and 2]
----------------------------------------------------------------------------------------------------------------
Evidence category for Ratings results for the
Rating Species ID uncertainty records groups 45 records groups
----------------------------------------------------------------------------------------------------------------
1............................ High......................... Up to a few pre-listing 10 records groups: A.
photo or expert data jacquelineae from
records are available, Tutuila; A. retusa from
but no post-listing Ta'u, Guam, Rota,
records are available. Tinian, Howland,
Kingman Reef, and
Johnston Atoll; and A.
speciosa from Guam and
Kingman Reef.
2............................ Low.......................... '' '' ''................ 7 records groups: A.
globiceps from Howland,
Baker, Kingman Reef,
Maro Reef, and Gardner
Pinnacles; and S.
aculeata from Guam and
Saipan.
3............................ High......................... Up to a few post-listing 1 records group: A.
photo or expert data retusa from Jarvis.
records are available,
but post-listing
standardized monitoring
surveys have not
detected colonies.
4............................ Low.......................... '' '' ''................ 2 records groups: A.
globiceps from Alamagan
and Uracas.
5............................ High......................... More than a few post- 2 records groups: A.
listing photo or expert retusa from Wake Atoll;
data records are and A. speciosa from
available, but post- Tutuila.
listing standardized
monitoring surveys have
not detected colonies.
6............................ Low.......................... '' '' ''................ 7 records groups: A.
globiceps from Ta'u,
Rose Atoll, FDM,
Palmyra Atoll, Johnston
Atoll, and FFS; and E.
paradivisa from
Tutuila.
7............................ High......................... More than a few post- 1 records group: A.
listing photo or expert retusa from Ofu-
data records are Olosega.
available, and post-
listing standardized
monitoring surveys have
detected colonies.
8............................ Low.......................... '' '' ''................ 6 records groups: A.
globiceps from Ofu-
Olosega, Aguijan,
Pagan, Maug Islands,
and Wake Atoll; and I.
crateriformis from
Ta'u.
9............................ High......................... At least dozens of post- 2 records groups: A.
listing photo and retusa from Tutuila and
expert data records are Rose Atoll.
available, and post-
listing standardized
monitoring surveys have
detected colonies at
multiple sites over
multiple years.
10........................... Low.......................... '' '' ''................ 7 records groups: A.
globiceps from Tutuila,
Guam, Rota, Tinian, and
Saipan; and I.
crateriformis from
Tutuila and Ofu-
Olosega.
----------------------------------------------------------------------------------------------------------------
We interpreted the ratings of the records groups in terms of the
likelihood that the island was within the occupied area for the listed
species at the time of listing in 2014. We considered record groups
with ratings of 1-3 as providing inadequate evidence that the island
was within the occupied area for the listed species at the time of
listing. Eighteen of the 45 records groups were rated as 1-3 (table 1).
The rationales for why these records groups provide inadequate evidence
for the species being within the occupied area at the time of listing
are summarized below from the Records Document (NMFS, 2023, appendix
A).
One A. jacquelineae records group was rated as 1 (Tutuila), a
species with high species identification uncertainty even for trained
experts. This record consists of photos of a single colony of A.
jacquelineae on Tutuila taken in 2008. Since then, hundreds of expert
surveys have been conducted on Tutuila within the habitat and depth
range of the species, including at the location of the original record,
but no other records have been documented. The regulatory definition of
an occupied area does not include habitats used solely by vagrant
individuals (i.e., waifs). Waifs are a single individual or small group
of individuals found outside of its normal range, presumably advected
by unusual currents or weather conditions (Johnson et al., 2000), which
are common among reef corals (Turak and DeVantier, 2019). Based on the
fact that no other colonies of A. jacquelineae have been observed
before or since 2008 on Tutuila despite extensive expert surveys, there
is considerable likelihood that the single observed colony of A.
jacquelineae on Tutuila was a waif colony. Since occupied areas do not
include habitats used solely by vagrant individuals (i.e., waifs), this
record provides inadequate evidence that Tutuila was within the
occupied area of A. jacquelineae at the time of listing in 2014 (NMFS,
2023, appendix A).
Seven A. retusa records groups were rated as 1 (Ta'u, Guam, Rota,
Tinian, Howland, Kingman Reef, Johnston Atoll), a species with high
species identification uncertainty even for trained experts. All seven
records groups consist of one or two records collected at least several
years before listing (2004--2010). Five of the records groups each
consist of one or two photo records that all appear to be of closely-
related but undescribed species. The other two records groups (Ta'u,
Rota) each consist of a single expert data record but because of
species identification uncertainty and lack of photos, identifications
could not be confirmed. Because these records groups each consist of
only one or two ambiguous records collected at least several years
before listing, and expert surveys of all seven islands since listing
have not recorded any A. retusa
[[Page 83649]]
colonies, these records groups provide inadequate evidence that any of
the seven islands were within the occupied area of A. retusa at the
time of listing in 2014 (NMFS, 2023, appendix A).
Two A. speciosa records groups were rated as 1 (Guam, Kingman
Reef), a species with high species identification uncertainty even for
trained experts. The Guam records group consists of several photos of a
single colony in Apra Harbor of Guam taken in 2010. Definitive species
identification requires examination of a skeletal sample, but no sample
was taken. Many subsequent expert dives and surveys were conducted in
the area in the following years, but neither the original colony nor
any other colonies resembling A. speciosa were recorded. The Kingman
Reef records group consists of a single expert data record collected
between 2004 and 2006 with no photos or skeletal sample. Because these
records groups each consist of only a single ambiguous colony recorded
at least several years before listing, and expert surveys of both
islands since listing have not recorded any A. speciosa colonies, these
records groups provide inadequate evidence that either island was
within the occupied area of A. speciosa at the time of listing in 2014
(NMFS, 2023, appendix A).
Five A. globiceps records were groups rated as 2 (Howland, Baker,
Kingman Reef, Maro Reef, Gardner Pinnacles), a species with low species
identification uncertainty for trained experts. All five records groups
consist of one or two photo records collected at least several years
before listing (2000-2006). The three records groups from PRIA
(Howland, Baker, Kingman Reef) each consist of one or two photo records
taken between 2004 and 2006 and identified by an expert at that time
but that are clearly not A. globiceps, and thus provide no evidence
that these three islands were within the occupied area of A. globiceps
at the time of listing in 2014. The two records groups from NWHI (Maro
Reef, Gardner Pinnacles) are a photo of a single colony from 2004 (Maro
Reef) and photos of a group of colonies in close proximity from 2000
(Gardner Pinnacles). Because these records groups each consist of only
a single colony or group of colonies (i.e., likely clones) collected
many years before listing, multiple expert surveys conducted at Maro
Reef and Gardner Pinnacles through 2008 did not record any A. globiceps
colonies, and an expert survey of both islands since listing did not
record any A. globiceps colonies, these records groups provide
inadequate evidence that either island was within the occupied area of
A. globiceps at the time of listing in 2014 (NMFS, 2023, appendix A).
Two S. aculeata records groups were rated as 2 (Guam, Saipan), a
species with low species identification uncertainty for trained
experts. The Guam records group consists of three photo records (two
from the 1970s and one from 2010), while the Saipan records group
consists of an expert data record of a cluster of colonies in close
proximity (i.e., likely clones) from 2011. Since 2010 and 2011,
hundreds of expert surveys have been conducted on Guam and Saipan
within the habitat and depth range of S. aculeata, but no additional
records have been documented. Since the most recent of these records
were collected in 2010 (Guam) and 2011 (Saipan), there have been sharp
declines in coral cover throughout Guam and Saipan, especially of
branching corals such as S. aculeata, due to a multitude of
disturbances. There are several reasons why these records groups
provide inadequate evidence that either island was within the occupied
area of S. aculeata at the time the species was listed in 2014. First,
each records group consists of only a few records collected between the
1980s and 2010. Second, hundreds of expert surveys have been conducted
on Guam and Saipan since listing in 2014 but did not record any
additional S. aculeata colonies. Third, there have been sharp declines
in the coral cover of branching corals such as S. aculeata on Guam and
Saipan that started at least several years before listing in 2014
(NMFS, 2023, appendix A).
One A. retusa records group was rated as 3 (Jarvis), a species with
high species identification uncertainty even for trained experts. This
records group consists of a single photo taken in 2018 although the
photo does not clearly show branch and colony morphology. Like the
other A. retusa photo records from PRIA, the colony could only be
identified as possible A. retusa colonies because of a combination of
species identification uncertainty and taxonomic ambiguity. Because A.
retusa has high species identification uncertainty especially in PRIA,
the records group consists of only one poor quality and ambiguous photo
record, and post-listing standardized monitoring surveys in 2015 and
2018 at Jarvis did not detect any A. retusa colonies, this records
group does not provide adequate evidence that Jarvis was within the
occupied area of A. retusa at the time of listing in 2014 (NMFS, 2023,
appendix A).
We considered record groups with ratings of 4-10 to provide
adequate evidence that the island was within the occupied area for the
listed species at the time of listing. Twenty-seven of the 45 records
groups were rated as 4-10 (table 1), and the rationales for why these
records groups provide adequate evidence for the species being within
the occupied area at the time of listing are summarized below from the
Records Document (NMFS, 2023, appendix A).
Two A. globiceps records groups were rated as 4 (Alamagan, Uracas),
a species with low species identification uncertainty for trained
experts. These records groups consist of one (Alamagan) and two
(Uracas) photo records, all taken in 2017. No expert surveys have been
conducted on either island since then, except PIFSC's standardized
monitoring survey in 2022, details for which are not yet available.
Because A. globiceps has low species identification uncertainty, and
these records consist of photo records taken in 2017, these records
groups provide adequate evidence that the two islands were within the
occupied area of A. globiceps at the time of listing in 2014 (NMFS,
2023, appendix A).
Two records groups were rated as 5, A. retusa from Wake Atoll, and
A. speciosa from Tutuila. Both species have high species identification
uncertainty even for trained experts. The A. retusa/Wake records group
consists of many photo and expert data records since listing in 2014,
although standardized monitoring surveys have not detected the species
on Wake. The A. speciosa/Tutuila records group consists of several
photo and expert data records before and after listing in 2014,
including two from 2016 that were confirmed with skeletal samples, and
one record from a standardized monitoring survey that was not confirmed
with a skeletal sample. Although both species have high species
identification uncertainty even for trained experts, the A. retusa/Wake
records group consists of many photo and expert data records since
listing, and the A. speciosa/Tutuila records group includes multiple
post-listing records that were confirmed with skeletal samples. Thus
the records groups provide adequate evidence that Wake Atoll was within
the occupied area of A. retusa, and that Tutuila was within the
occupied area of A. speciosa, at the time of listing in 2014 (NMFS,
2023, appendix A).
Seven records groups were rated as 6, six for A. globiceps (Ta'u,
Rose Atoll, FDM, Palmyra Atoll, Johnston Atoll, FFS), and one for E.
paradivisa from Tutuila. Both species have low species identification
uncertainty for trained experts. Each of the seven records
[[Page 83650]]
groups include several records collected before and after listing in
2014. Because both species have low species identification uncertainty,
multiple records are available for all seven islands, and records were
collected after listing, these records groups provide adequate evidence
that the six islands were within the occupied area of A. globiceps, and
that Tutuila was within the occupied area of E. paradivisa, at the time
of listing in 2014 (NMFS, 2023, appendix A).
One A. retusa records group was rated as 7 (Ofu-Olosega), a species
with high species identification uncertainty even for trained experts.
This records group consists of several records collected before and
after listing in 2014. Although A. retusa generally has high species
identification uncertainty, colonies of the species have a typical and
distinct appearance in American Samoa. Because multiple records are
available, some of which were collected after listing, this records
group provides adequate evidence that Ofu-Olosega was within the
occupied area of A. retusa at the time of listing in 2014 (NMFS, 2023,
appendix A).
Six records groups were rated as 8, five for A. globiceps (Ofu-
Olosega, Aguihan, Pagan, Maug Islands, Wake Atoll), and one for I.
crateriformis from Ta'u. Both species have low species identification
uncertainty for trained experts. Each of the six records groups consist
of many records collected after listing in 2014. Because both species
have low species identification uncertainty, and many records are
available for all six islands since listing, these records groups
provide adequate evidence that the five islands were within the
occupied area of A. globiceps, and that Ta'u was within the occupied
area of I. crateriformis, at the time of listing in 2014 (NMFS, 2023.,
appendix A).
Two A. retusa records groups were rated as 9 (Tutuila, Rose Atoll),
a species with high species identification uncertainty even for trained
experts. These records groups each consist of dozens of records
collected after listing in 2014. Although A. retusa generally has high
species identification uncertainty, colonies of the species have a
typical and distinct appearance in American Samoa. Because dozens of
records are available from after listing for both islands, these
records groups provide adequate evidence that Tutuila and Rose Atoll
were within the occupied area of A. retusa at the time of listing in
2014 (NMFS, 2023, appendix A).
Seven records groups were rated as 10, five for A. globiceps
(Tutuila, Guam, Rota, Tinian, Saipan), and two for I. crateriformis
(Tutuila, Ofu-Olosega). Both species have low species identification
uncertainty for trained experts. Each of the seven records groups
consist of dozens to hundreds of records collected after listing in
2014. Because both species have low species identification uncertainty,
and many records are available for all seven islands since listing,
these records groups provide adequate evidence that the five islands
were within the occupied area of A. globiceps, and that Tutuila and
Ofu-Olosega were within the occupied area of I. crateriformis, at the
time of listing in 2014 (NMFS, 2023, appendix A).
Summary of Results for Occupied Areas and Depth Ranges
In summary, and based on the new methodology for identifying
occupied areas and depth ranges as described above and in the Records
Document (NMFS, 2023, appendix A), 18 records groups each provide
inadequate evidence that the island where the records were collected
was within the occupied area of the listed species at the time of
listing, while 27 records groups each provide adequate evidence that
the island was within the occupied area of the listed species at the
time of listing. These 27 records groups were from 18 islands for A.
globiceps, 4 islands for A. retusa, 1 island each for A. speciosa and
E. paradivisa, and 3 islands for I. crateriformis (table 2).
In addition, the 27 records groups were used to determine the depth
ranges of each listed species around each island. For A. globiceps, the
depth ranges are 0-20 m (3 islands), 0-12 m (10 islands), and 0-10 m (5
islands). For the other 4 species, the depth ranges are 0-20 m for A.
retusa (4 islands) and I. crateriformis (3 islands), and 20-50 m for A.
speciosa and E. paradivisa (table 2).
Table 2--Depth Ranges (in Meters) of the Listed Species Around Each of the Islands Considered To Be Occupied at
the Time of Listing Based on Application of the Records Assessment Methodology
[NMFS, 2023, appendix A]
----------------------------------------------------------------------------------------------------------------
Island A. globiceps A. retusa A. speciosa E. paradivisa I. crateriformis
----------------------------------------------------------------------------------------------------------------
Tutuila and Offshore Banks..... 0-20 0-20 20-50 20-50 0-20
Ofu-Olosega.................... 0-20 0-20 .............. .............. 0-20
Ta'u........................... 0-20 ........... .............. .............. 0-20
Rose Atoll..................... 0-10 0-20 .............. .............. ..................
Guam........................... 0-12 ........... .............. .............. ..................
Rota........................... 0-12 ........... .............. .............. ..................
Aguijan........................ 0-12 ........... .............. .............. ..................
Tinian......................... 0-12 ........... .............. .............. ..................
Saipan......................... 0-12 ........... .............. .............. ..................
Farallon de Medinilla.......... 0-12 ........... .............. .............. ..................
Alamagan....................... 0-12 ........... .............. .............. ..................
Pagan.......................... 0-12 ........... .............. .............. ..................
Maug Islands................... 0-12 ........... .............. .............. ..................
Uracas......................... 0-12 ........... .............. .............. ..................
Palmyra Atoll.................. 0-10 ........... .............. .............. ..................
Johnston Atoll................. 0-10 ........... .............. .............. ..................
Wake Atoll..................... 0-10 0-20 .............. .............. ..................
French Frigate Shoals.......... 0-10 ........... .............. .............. ..................
----------------------------------------------------------------------------------------------------------------
[[Page 83651]]
Changes From the 2020 Proposed Rule
Application of the records assessment methodology described above
led to substantive changes from the 2020 proposed rule: (1) a reduction
in the number of listed corals whose occupied areas occurred within
U.S. jurisdiction at the time of listing from seven to five species;
(2) changes in the numbers of islands included within the occupied
areas for most of the listed species; and (3) changes in the depth
ranges for all of the listed species. These substantive changes led to
other changes in this proposed rule, including refinement of critical
habitat boundaries, and elimination of all proposed exclusions from
critical habitat under 4(b)(2). Changes between this and the 2020
proposed rule are summarized in table 3 and described in further detail
below.
Table 3--Comparison of 2020 and New Proposed Rules
------------------------------------------------------------------------
2020 Proposed rule New proposed rule
------------------------------------------------------------------------
Listed Coral Species With 7 species: A. 5 species: A.
Occupied Areas *. globiceps, A. globiceps, A.
jacquelineae, A. retusa, A.
retusa, A. speciosa, E.
speciosa, E. paradivisa, I.
paradivisa, I. crateriformis.
crateriformis, S.
aculeata.
Considered for Coral 19 island units: 18 island units:
Critical Habitat (i.e., Tutuila & Offshore Tutuila & Offshore
Islands Within Occupied Banks, Ofu-Olosega, Banks, Ofu-Olosega,
Areas **). Ta'u, Rose Atoll, Ta'u, Rose Atoll,
Guam, Rota, Guam, Rota,
Aguijian, Tinian, Aguijan, Tinian,
Saipan, FDM, Saipan, FDM,
Anatahan, Pagan, Alamagan, Pagan,
Maug Islands, Maug Islands,
Howland, Palmyra Uracas, Palmyra
Atoll, Kingman Atoll, Johnston
Reef, Johnston Atoll, Wake Atoll,
Atoll, Wake Atoll, FFS.
Jarvis.
Jurisdictions With Occupied 4 jurisdictions: 5 jurisdictions:
Areas. American Samoa, American Samoa,
Guam, CNMI, PRIA. Guam, CNMI, PRIA,
Hawaii.
Combined Depth Ranges ***... 0-10 m (3 units), 0- 0-10 m (3 units), 0-
20 m (12 units), 0- 12 m (10 units), 0-
40 m (4 units). 20 m (4 units), 0-
50 m (1 unit).
Mapping of Specific Areas... All areas within Only suitable
depth ranges around substrates within
all islands depth ranges
included. included.
4(a)(3) Ineligible Areas.... All of FDM and Wake, No changes.
most of Tinian,
part of Guam.
4(b)(2) National Security 7 areas excluded: 6 No areas excluded.
Exclusions. Navy anchorages off
of Saipan, 1 Navy
area off of
Ritidian Point on
Guam.
Proposed for Coral Critical 17 island units: The 16 island units: The
Habitat. 19 island units 18 island units
within the occupied within the occupied
areas of the listed areas of the listed
species, except FDM species, except FDM
and Wake Atoll, and Wake Atoll,
which are which are
ineligible because ineligible because
of 4(a)(3) INRMPs. of 4(a)(3) INRMPs.
------------------------------------------------------------------------
* These are the listed Indo-Pacific coral species whose occupied areas
include islands within U.S. jurisdiction. The islands within the
occupied area for each listed coral species are shown in table 2.
** These are the areas for which coral critical habitat was considered,
most of which is proposed, for all of the listed coral species
combined.
*** These are the depth ranges around a given island for all of the
listed species found on that island. The depth ranges of each listed
species on each island are shown in table 2.
Changes to the Occupied Areas
Application of the new methodology for determining the occupied
area for each listed species (NMFS, 2023, appendix A) resulted in
changes to the numbers of islands included within the occupied areas at
the time of listing (2014) for five of the seven listed species in the
2020 proposed rule. For A. globiceps, some new islands were added while
some islands that were included in the 2020 proposed rule were removed.
For A. jacquelineae, A. retusa, A. speciosa, and S. aculeata, some
islands that were included in the 2020 proposed rule were removed. No
changes to the islands included within the occupied areas were made for
E. paradivisa or I. crateriformis.
For A. globiceps, four islands were added to the occupied area that
were not in the 2020 proposed rule: Alamagan and Uracas in CNMI,
Johnston Atoll in PRIA, and French Frigate Shoals in Hawaii. Also, two
islands from the 2020 proposed rule were removed, Anatahan in CNMI and
Kingman Reef in PRIA. Since 16 islands were within the occupied area
for A. globiceps in the 2020 proposed rule, and 4 new islands have been
added while 2 have been removed, this proposed rule includes 18 islands
within the occupied area for A. globiceps. These 18 islands are in 5
jurisdictions, including 4 in American Samoa, 1 in Guam, 9 in CNMI, 3
in PRIA, and 1 in Hawaii (table 2).
For A. jacquelineae, one island from the 2020 proposed rule was
removed, Tutuila and Offshore Banks in American Samoa. Since that was
the only island within the occupied area for this species, the range of
A. jacquelineae is considered to be entirely outside of U.S. waters.
For A. retusa, eight islands from the 2020 proposed rule were
removed: Ta'u in American Samoa, Guam, Tinian in CNMI, and Howland,
Kingman Reef, Johnston Atoll, Wake Atoll, and Jarvis in PRIA. Since 11
islands were within the occupied area for A. retusa in the 2020
proposed rule, and 8 have been removed, this proposed rule includes 3
islands within the occupied area for A. retusa, all of which are in
American Samoa (table 2).
For A. speciosa, one island from the 2020 proposed rule was
removed, Kingman Reef in PRIA. Since two islands were within the
occupied area for A. speciosa in the 2020 proposed rule, and one has
been removed, this proposed rule includes one island within the
occupied area for A. speciosa, Tutuila and Offshore Banks in American
Samoa (table 2).
For S. aculeata, two islands from the 2020 proposed rule were
removed: Guam and Saipan in CNMI. Since these were the only islands
within the occupied area for this species, the range of S. aculeata is
considered to be entirely outside of U.S. waters.
In conclusion, based on the results of the new methodology, the
islands within the occupied areas changed, and therefore the
geographical areas occupied by five of the seven listed species have
been revised accordingly from the 2020 proposed rule, including: A.
jacquelineae, A. globiceps, A. retusa, A. speciosa, and S. aculeata.
Since the occupied areas for two of the listed species, A. jacquelineae
and S. aculeata, do not include any areas within U.S. jurisdiction,
those two species have been removed from this proposed rule. A total of
18 islands are within the occupied area for at least one listed
species, including 5 islands with multiple listed species, Tutuila and
Offshore Banks (5 species), Ofu-Olosega (3 species), and Ta'u, Rose
Atoll, and Wake Atoll (2 species each). The other 13 islands are within
the occupied area for A. globiceps only (table 2).
Changes to the Depth Ranges
The records compiled via the new methodology for determining the
occupied area for each listed species (NMFS, 2023, appendix A) also
provided new depth range information for all five listed species in
this proposed rule. Depth ranges were determined for each listed
species around each island within its occupied area.
[[Page 83652]]
For A. globiceps, depth ranges were 0-20 m around all 16 islands
considered for this species in the 2020 proposed rule. Based on the
updated records, the depth ranges of A. globiceps around the 18 islands
within its occupied area are now 0-20 m (3 islands), 0-12 m (10
islands), and 0-10 m (5 islands) (table 2).
For A. retusa, depth ranges were 0-10 m around all 11 islands
considered for this species in the 2020 proposed rule. Based on the
updated records, the depth ranges of A. retusa around the four islands
within its occupied area are now 0-20 m (table 2).
For A. speciosa, depth ranges were 12-40 m around the two islands
considered for this species in the 2020 proposed rule. Based on the
updated records, the depth range of A. speciosa around the one island
within its occupied area is now 20-50 m (table 2).
For E. paradivisa, depth range was 2-40 m around the one island
considered for this species in the 2020 proposed rule. Based on the
updated records, the depth range of E. paradivisa around the one island
within its occupied area is now 20-50 m (table 2).
For I. crateriformis, depth ranges were 0-12 m around the three
islands considered for this species in the 2020 proposed rule. Based on
the updated records, the depth ranges of I. crateriformis around the
three islands within its occupied area are now 0-20 m (table 2).
Changes to the Specific Areas
In this proposed rule, we refined the boundaries of the specific
areas (i.e., areas containing the essential feature of critical habitat
for a species) for all species and islands. As a result of additional
records collected to develop the proposed critical habitat designation,
we obtained new information on habitat preferences indicating that the
listed coral species are found entirely or predominantly on certain
types of hard substrates but not others. We used that new information
along with benthic maps showing the types of hard substrates throughout
the occupied areas and depth ranges to delineate the boundaries of the
specific areas for each of the listed corals. That is, we used detailed
island-scale benthic habitat maps illustrating the variety of hard
substrates that occur within the depth ranges of the listed species,
together with habitat preference information showing that the listed
species occur entirely or predominantly on certain hard substrate types
but not on others. Thus, the benthic substrate maps, the habitat
preferences, and other site-specific sources of substrate and water
quality information were used to delineate the boundaries of the
specific areas around each island within the listed species' occupied
areas and depth ranges, as described further in the Specific Areas
section.
Changes to Areas Excluded From Designation
Section 4(b)(2) of the ESA requires that we consider the economic
impact, impact on national security, and any other relevant impact, of
designating any particular area as critical habitat. The 4(b)(2)
analyses in this proposed rule have been updated with new information
and data on national security and economic impacts. In particular, the
Navy's exclusion request for six anchorage berths in the Saipan Unit,
which was granted in the 2020 proposed rule, is now moot because the
depth range of proposed critical habitat is 0-12 m in this unit instead
of 0-40 m as in the 2020 proposed rule. That is, the deepest point of
critical habitat in this proposed rule in the Saipan Unit is shallower
than the shallowest point within any of these six anchorage berths. One
national security exclusion request remains in this proposed rule at
the Navy's Ritidian Point Surface Danger Zone Complex on Guam. A full
description of the 4(b)(2) analyses is provided in the Application of
ESA section 4(b)(2) section of this document.
Critical Habitat Identification and Designation
In the following sections, we describe the relevant definitions and
requirements in the ESA and our implementing regulations, and the key
information and criteria used to prepare this proposed critical habitat
designation for the five listed corals (A. globiceps, A. retusa, A.
speciosa, E. paradivisa, and I. crateriformis). In accordance with
section 4(b)(2) of the ESA and our implementing regulations (50 CFR
424.12), this proposed rule is based on the best scientific information
available.
Our five-step process for identifying critical habitat areas for
the threatened corals was to determine the following: (1) the
geographical areas occupied by the listed corals at the time of listing
(i.e., occupied areas, as well as depth ranges for the listed corals
within the occupied areas); (2) the physical or biological features
essential to the conservation of the listed corals (i.e., essential
feature); (3) whether the physical or biological features within these
geographical areas may require special management considerations or
protection; (4) the specific areas within each of the occupied areas
where the essential features occur (this step consists of four sub-
steps); and (5) whether any unoccupied areas are essential to the
conservation of any of the corals. Our evaluation and determinations
are described in detail in the Information Report (NMFS, 2023) and are
summarized below.
Geographical Area Occupied by the Species (Occupied Area)
The process for determining the occupied areas for the listed
corals species is described in the preceding sections. The islands
within the occupied area for each of the five listed species are listed
in table 2, which include marine habitat around: 18 islands for A.
globiceps, 4 islands for A. retusa, 3 islands for I. crateriformis, and
1 island each for A. speciosa and E. paradivisa.
The occupied area for each listed species is further defined by its
depth range around each island within its occupied area, also shown in
table 2. For A. globiceps, the depth ranges are 0-20 m (3 islands), 0-
12 m (10 islands), and 0-10 m (5 islands). For the other 4 species, the
depth ranges are 0-20 m for A. retusa (4 islands) and I. crateriformis
(3 islands), and 20-50 m for A. speciosa and E. paradivisa (1 island
each).
The occupied areas for the 5 listed species include a total of 18
islands, 5 of which include overlapping occupied areas for multiple
listed species (Tutuila and Offshore Banks, Ofu-Olosega, Ta'u, Rose
Atoll, and Wake Atoll).
Physical or Biological Features Essential for Conservation
Within the occupied areas, critical habitat consists of specific
areas in which are found those physical and biological features (PBFs)
essential to the conservation of the species and that may require
special management considerations or protection. PBFs essential to the
conservation of the species are defined as the features that occur in
specific areas and that are essential to support the life-history needs
of the species, including water characteristics, soil type, geological
features, sites, prey, vegetation, symbiotic species, or other
features. A feature may be a single habitat characteristic, or a more
complex combination of habitat characteristics. Features may include
habitat characteristics that support ephemeral or dynamic habitat
conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity (50 CFR 424.02).
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Based on the best scientific information available, we identify the
following physical feature essential to the conservation of the five
corals.
Reproductive, recruitment, growth, and maturation habitat. Sites
that support the normal function of all life stages of the corals,
including reproduction, recruitment, and maturation. These sites are
natural, consolidated hard substrate or dead coral skeleton, which is
free of algae and sediment at the appropriate scale at the point of
larval settlement or fragment reattachment, and the associated water
column. Several attributes of these sites determine the quality of the
area and influence the value of the associated feature to the
conservation of the species:
(1) Substrate with presence of crevices and holes that provide
cryptic habitat, the presence of microbial biofilms, or presence of
crustose coralline algae;
(2) Reefscape (all the visible features of an area of reef) with no
more than a thin veneer of sediment and low occupancy by fleshy and
turf macroalgae;
(3) Marine water with levels of temperature, aragonite saturation,
nutrients, and water clarity that have been observed to support any
demographic function; and
(4) Marine water with levels of anthropogenically-introduced (from
humans) chemical contaminants that do not preclude or inhibit any
demographic function.
With regard to the first and second attributes, reef-building
corals, including the listed species, require exposed natural
consolidated hard substrate for the settlement and recruitment of
larvae or asexual fragments. Substrate provides the physical surface
and space necessary for settlement of coral larvae, a stable
environment for metamorphosis of the larvae into the primary polyp,
growth of juvenile and adult colonies, and re-attachment of fragments.
A number of attributes have been shown to influence coral larval
settlement. Positive cues include the presence of crustose coralline
algae, biofilms, and cryptic habitat such as crevices and holes.
Attributes that negatively affect settlement include presence of
sediment and algae (NMFS, 2023).
With regard to the third and fourth attributes, reef-building
corals, including the listed species, require seawater temperature,
aragonite saturation, nutrients, and water clarity conditions within
suitable ranges to enable coral growth, reproduction, and recruitment.
Corals may tolerate and survive in conditions outside these suitable
ranges, depending on the local conditions to which they have
acclimatized and the intensity and duration of deviations outside the
suitable ranges. Extended deviations from suitable ranges result in
direct negative effects on all life stages. The listed corals thrive in
warm, clear, nutrient-poor marine waters with calcium carbonate
concentrations that allow for symbiont photosynthesis, coral
physiological processes and skeleton formation. This water must also
have low to no levels of contaminants that would interfere with normal
functions of all life stages (NMFS, 2023).
Some new information relevant to the essential feature was provided
during the public comment period for the 2020 proposed rule or has
become available since then, and has been added to the description of
the essential feature in the Information Report (NMFS, 2023). The new
information did not, however, result in any changes to the definition
of the essential feature from the 2020 proposed rule.
Need for Special Management Considerations or Protection
As described in the Information Report (NMFS, 2023), we determined
that the essential feature may require special management
considerations or protection throughout the species' ranges because
threats to this feature exist within these areas. Such threats include
global and local threats, especially ocean warming, ocean
acidification, coral disease, land-based sources of pollution, and
fishing. There were no public comments on this section of the Draft
Information Report or 2020 proposed rule, nor has any relevant new
information become available that would alter our conclusion regarding
the potential need for special management considerations or protection.
Specific Areas Containing the Essential Feature Within the Geographical
Areas Occupied by the Species
As described under Geographical Area Occupied by the Species
(Occupied Area) and shown in table 2, we identified 18 island units
that we considered for proposed coral critical habitat. Each island
unit includes occupied habitat for at least one listed coral species.
Within each occupied area in each island unit, we delineated more
specific areas that contain the essential feature using a 4-step
process: (1) general information was used to delineate soft vs. hard
substrates; (2) for the hard substrate areas identified in Step 1,
specific substrate information was used to delineate unsuitable vs.
suitable hard substrates; (3) for the suitable hard substrate areas
identified in Step 2, we used water quality information to further
delineate suitable vs. unsuitable areas; and (4) from the suitable
areas identified in Steps 1-3, we removed any overlapping artificial
substrates and managed areas. The 4 steps were implemented for each of
the 18 units as follows:
(1) For Step 1, we used comprehensive substrate maps developed by
PIFSC (PIFSC, 2021) to delineate soft vs. hard substrates, leaving only
hard substrate areas within the combined depth ranges of all listed
species in each unit, except for Wake Atoll and FFS, for which PIFSC
(2021) did not produce maps. For Wake Atoll, we used the substrate map
from the Pacific Islands Benthic Habitat Mapping Center (PIBHMC)
(PIBHMC 2021). For French Frigate Shoals, we used the geomorphological
structure component of the maps developed by National Centers for
Coastal and Ocean Sciences (NCCOS) (NCCOS, 2003).
(2) For Step 2, we started with the hard substrate areas identified
in Step 1, then distinguished unsuitable vs. suitable hard substrates.
Many hard substrates are unsuitable because: (1) highly-fluctuating
physical conditions cause frequent and extreme environmental changes
(e.g., high tide surge vs. low tide sun exposure on many reef flat
substrates); (2) water motion continuously mobilizes sediment (e.g.,
pavement with sand channels) or unstable substrate (e.g., rubble); or
(3) flat, low-relief areas provide poor settlement and growth habitat
(e.g., pavement). Removal of these areas left suitable hard substrates,
including spur-and-groove, individual patch reef, aggregate reef,
aggregated patch reef, scattered coral/rock, and rock/boulder. For this
step, primary information sources were Brainard et al. (2008, 2012,
2019), NCCOS (2003, 2005, 2010), PIBHMC (2021), PIFSC (2021), the
detailed public comment letters from the Territories (AS DMWR 2021,
Guam DOAG 2021, CNMI DLNR 2021), and the American Samoa, Guam, CNMI,
PRIA, and Northwestern Hawaiian Islands (NWHI) chapters in Waddell and
Clarke (2008). Additional sources for individual units are cited in the
unit sections in the Information Report (NMFS, 2023).
(3) For Step 3, starting with the suitable hard substrate areas
identified in Step 2, we used water quality information to further
delineate suitable vs. unsuitable areas. Unsuitable areas are those
with water quality conditions that chronically fall outside of suitable
[[Page 83654]]
ranges. For example, some of the areas identified in Step 2 are nearly
constantly exposed to pollution such as excessive nutrients, excessive
sediment (i.e., more than a thin veneer), or contaminants, making them
unsuitable. Generally, such areas occur in enclosed lagoons and inner
harbors where there is high runoff and limited water circulation.
Outside of such areas, point and non-point sources of pollution
generally do not overlap with suitable hard substrates because
wastewater outfalls are located on soft substrates beyond the reef
slopes, and stormwater and freshwater discharges occur primarily on
soft substrates (sand or mud) or unsuitable hard substrates (pavement
or rubble) along or near shorelines. For this step, primary information
sources were Brainard et al. (2008, 2012, 2019), EPA (2021a-f), the
detailed public comment letters from the Territories (AS DMWR, 2021,
Guam DOAG, 2021, CNMI DLNR, 2021), Territory water quality assessments
(AS EPA, 2020, CNMI BECQ, 2018), and sources for individual units cited
in the Information Report (NMFS, 2023).
(4) For Step 4, from the suitable areas identified via the above
three steps, we removed any artificial substrates and managed areas,
because they do not provide the essential feature. ``Managed areas,''
for the purposes of this proposed rule, are specific areas where the
substrate has been persistently disturbed by planned management
authorized by local, state, or Federal governmental entities at the
time of critical habitat designation, and expectations are that the
areas will continue to be periodically disturbed by such management.
Examples include, but are not necessarily limited to, all harbors and
their entrance channels, navigation channels, turning basins, and
berthing areas that are periodically dredged or maintained. This only
applies to existing artificial substrates and managed areas, not
proposed or planned artificial substrates and managed areas.
The resulting specific areas are where we consider the essential
feature to be distributed currently within each island unit and depth
range, based on the best available information. However, on smaller
spatial scales, there are likely locations within the specific areas
that lack the essential feature, and the exact locations with and
without the essential feature are likely to change somewhat over time
in response to changing conditions. Thus, the specific areas described
below are intended to delineate areas containing the essential feature,
rather than areas made up completely and permanently of the essential
feature. As described in detail in the Information Report (NMFS, 2023),
these 4 steps were applied to each of the 18 units to delineate the
specific areas of proposed coral critical habitat in more detail than
in the 2020 proposed rule.
Unoccupied Critical Habitat Areas
Section 3(5)(A)(ii) of the ESA authorizes the designation of
specific areas outside the geographical area occupied by the species
(referred to here as ``unoccupied areas''), if those areas are
determined to be essential for the conservation of the species. Our
regulations at 50 CFR 424.12(b)(2) require that we first evaluate areas
occupied by the species, and only consider unoccupied areas to be
essential where a critical habitat designation limited to geographical
areas occupied would be inadequate to ensure the conservation of the
species.
To evaluate unoccupied areas that may qualify as critical habitat,
we first considered the ranges at the time of listing of the five coral
species that occur in areas under U.S. jurisdiction (NMFS 2023). The
best available data provides no evidence that those occupied areas have
been reduced from the historical ranges for any of the five listed
species. Areas within U.S. jurisdiction that are outside the occupied
ranges and that could serve as habitat for these species represent <1%
of the area of each of their current ranges. Because these species
still occupy their historical ranges, the feature essential to their
conservation is present in these areas, and the unoccupied areas
represent a very small amount of potential habitat, we find the
occupied areas adequate to ensure the conservation of the species
(NMFS, 2023). Thus, we are not proposing to designate any unoccupied
areas within U.S. jurisdiction as critical habitat. The impacts of
global climate change-related threats (especially ocean warming and
ocean acidification) to the listed corals and their habitats are
projected to substantially worsen in the foreseeable future, which may
result in range shifts for some or all of the 5 listed coral species,
as well as the other 10 species of corals that occur outside U.S.
jurisdiction. For the five species occurring within U.S. waters, the
areas outside their occupied ranges mostly occur along the northern
edges of their ranges, thus ocean warming could make the ocean
temperatures of these areas more suitable for the listed species in the
foreseeable future. In contrast, ocean acidification is likely to have
the opposite effect, causing ocean pH levels along the northern fringes
of the species' ranges to become less suitable (Brainard et al. 2011,
NMFS 2014). However, it is not possible to determine where such changes
are likely to happen, and how they would affect any of the listed
species' habitat.
We also considered whether these conclusions would differ under the
regulations that were in effect prior to the revisions to the
regulations in 50 CFR 424.12(b)(2) in 2019 (see 84 FR 45020, August 27,
2019). We conclude that while our analysis would necessarily differ,
the decision not to propose designating any unoccupied areas would not
be any different. Because the five coral species each still occupy
their historical ranges, the feature essential to their conservation is
present in these areas, and unoccupied areas represent a very small
amount of potential habitat, we cannot conclude that any unoccupied
areas are essential to their conservation.
Application of ESA Section 4(a)(3)(B)(i) (INRMPs)
Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense (DOD), or designated for its use, that are
subject to an Integrated Natural Resources Management Plan (INRMP)
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary of Commerce determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation.
Two INRMPs are applicable to the proposed coral critical habitat:
(1) The Navy's Joint Region Marianas INRMP (JRM INRMP), finalized and
signed in 2019 (DON, 2019a); and (2) the Air Force's INRMP for Wake
Island Air Field, Wake Atoll, Kokee Air Force Station, Kauai, Hawaii,
and Mt. Kaala Air Force Station, Oahu, Hawaii (Wake INRMP), finalized
and signed in 2023 (USAF, 2023a). The JRM INRMP is a composite of
management plans for many distinct DOD-controlled areas in the Mariana
Islands, including areas in Guam, Tinian, and FDM (DON, 2019a).
Summaries of the analyses in the Information Report (NMFS, 2023) of
whether these two INRMPs are likely to benefit the ESA-listed corals or
their habitat in Guam and CNMI (JRM INRMP) and Wake (Wake INRMP) are
provided below. The analyses address the four considerations outlined
in our implementing regulations at 50 CFR 424.12(h). These four
considerations are: (1) the extent of the area and essential feature
present in the area; (2) The type and frequency of use of the area by
the listed species; (3) The
[[Page 83655]]
relevant elements of the INRMP in terms of management objectives,
activities covered, and best management practices, and the certainty
that the relevant elements will be implemented; and (4) The degree to
which the relevant elements of the INRMP will protect the habitat
(essential feature) from the types of effects that would be addressed
through a destruction-or-adverse-modification analysis under section 7
of the ESA.
JRM INRMP--Guam
In Guam, the JRM INRMP encompasses three marine areas (hereafter
``INRMP marine areas'') that include potential proposed coral critical
habitat for the one listed coral that occurs in the Mariana Islands, A.
globiceps: (1) Naval Base Guam--Main Base (NBG Main Base) Submerged
Lands; (2) Naval Base Guam--Telecommunications Site (NBG TS) Submerged
Lands; and (3) Andersen Air Force Base (AAFB) Submerged Lands. A
summary of the analyses of whether the INRMP is likely to benefit the
habitat of A. globiceps in each of these three INRMP marine areas is
provided below, from the full analyses in the Information Report (NMFS,
2023).
With regard to the extent of the area and essential feature
present: (1) the NBG Main Base Submerged Lands cover approximately
30,000 acres (12,100 hectares) along the coastline from Orote Peninsula
to Asan (described in the JRM INRMP, section 5.3, DON, 2019a); (2) the
NBG TS Submerged Lands cover approximately 19,500 acres on the
northwestern side of Guam (described in the JRM INRMP, section 8.3,
DON, 2019a); and (3) AAFB Submerged Lands cover approximately 26,500
acres (10,700 hectares) of Submerged Lands on the northern side of Guam
(described in the JRM INRMP, section 9.3, DON, 2019a). Each of the
three INRMP marine areas include extensive habitat for A. globiceps
(NMFS, 2023). The potential critical habitat within the three INRMP
marine areas includes both the substrate and water quality components
of the essential feature of coral critical habitat (i.e.,
characteristics of substrate and water quality to support coral life
history, including reproduction, recruitment, growth, and maturation),
based on information provided in the Guam section of the Information
Report (NMFS, 2023) and the INRMP (DON, 2019a).
With regard to the relevant elements of the INRMP, and the
certainty that the relevant elements will be implemented, the two parts
of this step are addressed separately below. The relevant elements of
the JRM INRMP for each INRMP marine area include: (1) for the NBG Main
Base Submerged Lands, the INRMP includes a Coral Habitat Enhancement
Plan (section 5.4.2.1), consisting of eight specific actions in three
categories (three monitoring and adaptive management actions, three
collaboration with local partners actions, and two reduction of vessel
impacts actions); (2) for NBG TS Submerged Lands, the INRMP includes a
Coral Habitat Enhancement plan (section 8.4.2.1), consisting of a
similar set of eight specific actions as for NBG Main Base; and (3) for
AAFB Submerged Lands, the INRMP includes a Coral Habitat Enhancement
plan (section 9.4.2.1), consisting of a similar set of seven specific
actions as for NBG Main Base, except that there is less focus on
reduction in vessel impacts because of the much lower vessel traffic
there. The actions, projects, and updates through the end of 2023 are
described in detail in the Information Report (NMFS, 2023).
NMFS concludes that the Navy will implement the relevant elements
of the JRM INRMP for the previously described three INRMP marine areas
for three reasons:
(1) Clear and Recent Documentation--the 2019 JRM INRMP includes
Coral Habitat Enhancement plans for INRMP marine areas in Guam, with
clear strategies and actions that address the habitat conservation
needs of ESA-listed corals within these areas. The JRM INRMP's appendix
D also includes annual reports describing how coral conservation
efforts had been implemented in the years leading up to the 2019 final
INRMP. These coral habitat conservation plans, as well as progress
reports from the most recent years (DON, 2019b, 2020, 2021a,b,c,d,
2023), clearly articulate how the Navy is conserving coral habitat
within the INRMP marine areas in Guam, and how it is planning to do so
in the future.
(2) Demonstration of Good Faith Efforts for Listed Corals--the Navy
has already implemented coral habitat conservation projects that are
beneficial to ESA-listed corals within some INRMP marine areas in Guam,
as described in the INRMP itself and its appendix D (DON, 2019b), as
well as progress reports (DON, 2019b, 2020, 2021a,b,c,d, 2023). Many of
these projects have been ongoing for several years and are proactive,
in that they were not required of the Navy by the ESA.
(3) History of Strong Conservation Work--in our experience working
with the Navy on the development of the marine resource components of
its 2013 and 2019 final INRMPs (DON, 2013, 2019a), we have found the
Navy to be successful at carrying out marine habitat conservation work
on Guam, and that it often takes the initiative on conservation efforts
whether requested by NMFS or not. For example, many of the coral
habitat conservation projects in the 2019 JRM INRMP (DON, 2019a) and
progress reports (DON, 2019b, 2020, 2021a,b,c,d, 2023) had already been
started by the Navy before corals were listed in 2014, and were being
done to improve conservation of marine resources on the island,
regardless of whether they were required by Federal statute or not.
The coral habitat enhancement elements of the JRM INRMP described
previously are expected to substantially reduce the types of effects
within the three INRMP marine areas in Guam that would be addressed
through the destruction-or-adverse-modification analysis. The Navy
would accomplish this primarily by using the results of its own
monitoring program to develop and implement management measures to
minimize the impacts of the Navy's actions in Guam on coral habitat
within the INRMP marine areas. Thus, implementation of the JRM INRMP is
likely to provide substantial protection to the essential feature of
coral critical habitat (reproductive, recruitment, growth, and
maturation habitat) within the Guam INRMP marine areas from the types
of effects that would be addressed through critical habitat
consultation (DON, 2021a,b,d, 2023).
JRM INRMP--CNMI
In CNMI, the JRM INRMP encompasses two marine areas that include
potential proposed coral critical habitat for the one listed coral that
occurs in the Mariana Islands, A. globiceps: (1) the Tinian Marine
Lease Area (Tinian MLA) Submerged Lands; and (2) the Farallon de
Medinilla (FDM) Submerged Lands (DON, 2019a). A summary of the analyses
of whether the INRMP is likely to benefit the habitat of A. globiceps
in each of these two INRMP marine areas is provided below, from the
full analyses in the Information Report (NMFS, 2023).
With regard to the extent of the area and essential feature
present: (1) the Tinian MLA Submerged Lands cover approximately 47,500
acres (19,200 hectares) surrounding the northern portion of Tinian
(described in the JRM INRMP, section 11.3, DON, 2019a); (2) the FDM
Submerged Lands consists of approximately 25,000 acres (10,100
hectares) surrounding FDM (described in the JRM INRMP, section 12.3,
DON, 2019a). Most or all of the potential critical habitat within the
two INRMP marine areas includes both the substrate and water quality
components of the
[[Page 83656]]
essential feature of coral critical habitat (i.e., characteristics of
substrate and water quality to support coral life history, including
reproduction, recruitment, growth, and maturation), based on
information provided in the Tinian and FDM sections of the Information
Report (NMFS, 2023) and the INRMP (DON, 2019a).
With regard to the relevant elements of the INRMP, and the
certainty that the relevant elements will be implemented, the two parts
of this step are addressed separately below. The relevant elements of
the JRM INRMP for each INRMP marine area include: (1) for the Tinian
MLA Submerged Lands, the INRMP includes a Coral Habitat Enhancement
plan, consisting of three specific actions to enhance coral habitat by
monitoring health and acute impacts (section 11.4.2.1; DON, 2019a); and
(2) for the FDM Submerged Lands, the INRMP includes marine habitat
management actions, consisting of surveys and mapping of ESA-listed
corals, coral reef, and other marine habitats within the area (section
12.4.2; DON, 2019a). The INRMP also includes an assessment of ESA-
listed corals, as required by the 2015 biological opinion on the Navy's
Mariana Islands Testing and Training program (section 12.4.2.2; DON,
2019a). The actions, projects, and updates through the end of 2021, are
described in detail in the Information Report (NMFS, 2023).
NMFS concludes that the Navy will implement these relevant elements
of the JRM INRMP for three reasons:
(1) Clear and Recent Documentation--the 2019 JRM INRMP includes
Coral Habitat Enhancement plans for INRMP marine areas in CNMI (Tinian
MLA, FDM Submerged Lands), with clear strategies and actions that
address the habitat conservation needs of ESA-listed corals within
these areas. The JRM INRMP's appendix D also includes annual reports
describing how coral conservation efforts had been implemented in the
years leading up to the 2019 final INRMP. These coral habitat
conservation plans, as well as progress reports from the most recent
years (DON, 2019b, 2020, 2021a,b,c,d, 2023), clearly articulate how the
Navy is conserving coral habitat within the INRMP marine areas in CNMI,
and how it will do so in the future.
(2) Demonstration of Good Faith Efforts for Listed Corals--the Navy
has already implemented coral projects that have the potential to
benefit the habitat of ESA-listed corals within INRMP marine areas in
CNMI (Tinian MLA, FDM Submerged Lands). For example, coral species
presence and abundance surveys were conducted within the Tinian MLA in
2013 (Tetra Tech, 2014) and 2017 (DON, 2017), and around FDM in 2012
(Smith and Marx, 2016), 2017 (Carilli et al., 2018), and 2022 (DON
2023). These surveys have the potential to benefit the habitat of ESA-
listed corals by providing the information needed to better protect
these areas in the future.
(3) History of Strong Conservation Work--the Navy has a long
history of carrying out successful marine habitat conservation work in
the Mariana Islands and often takes the initiative on conservation
efforts whether requested by NMFS or not. For example, many of the
coral habitat conservation projects in the 2019 JRM INRMP (DON 2019a)
and progress reports (DON, 2019b, 2020, 2021a,b,c,d, 2023) had already
been started by the Navy before corals were listed in 2014. These
projects were conducted to improve the conservation of marine resources
on the island, regardless of whether they were required by Federal
statute or not. While the majority of these projects have been
implemented in Guam rather than CNMI, the JRM INRMP includes many plans
for CNMI (as noted above), and the same Navy command (Joint Region
Marianas) is responsible for carrying out such work in both Guam and
CNMI.
The coral habitat enhancement elements of the JRM INRMP described
above will substantially reduce the types of effects within the INRMP
marine areas in CNMI that would be addressed through the destruction-
or-adverse-modification analysis. The Navy would accomplish this
primarily by using the results of its own monitoring program to develop
and implement management measures to minimize the impacts of the Navy's
actions in CNMI on coral habitat within the INRMP marine areas. Thus,
implementation of the JRM INRMP is likely to provide substantial
protection to the essential feature of coral critical habitat
(reproductive, recruitment, growth, and maturation habitat) within the
CNMI INRMP marine areas from the types of effects that would be
addressed through critical habitat consultation (DON 2021a,c,d, 2023).
Wake INRMP
On Wake Atoll, the Wake INRMP (USAF, 2023a) encompasses the entire
area considered for coral critical habitat for the two listed corals on
the atoll, A. globiceps and A. retusa, as described in the Information
Report (NMFS, 2023). A summary of the analyses of whether the INRMP is
likely to benefit the habitat of ESA-listed corals in this INRMP marine
area is provided below, from the full analyses in the Information
Report (NMFS, 2023).
With regard to the extent of the area and essential feature
present, the Wake INRMP marine area includes nearly 500,000 acres
(202,300 hectares) of Submerged Lands and waters within the lagoon and
surrounding the atoll out to 12 nautical miles (22.2 km) from the mean
low water line (USAF, 2023a), and thus includes all reef-building
corals and coral reefs associated with the atoll. Most or all of the
potential critical habitat within the INRMP marine area includes both
the substrate and water quality components of the essential feature of
coral critical habitat (i.e., reproductive, recruitment, growth, and
maturation habitat provided by suitable substrate and suitable water
quality), based on information provided in the Wake section of the
Information Report (NMFS, 2023) and the INRMP (USAF, 2023a).
With regard to the relevant elements of the INRMP, and the
certainty that the relevant elements will be implemented, the two parts
of this step are addressed separately below. The relevant element of
the Wake INRMP is the coral conservation component that was added to
the INMRP in 2017 (Appendix K, Coral Conservation Actions at Wake
Atoll; USAF, 2023a), which is made up of four groups of actions, each
of which includes multiple projects: Water quality improvements (six
projects), education and outreach (two projects), fisheries management
(four projects), and physical DOD presence on Wake Atoll (three
projects; USAF, 2023a). The actions, projects, and updates through the
end of 2021, are described in detail in the Information Report (NMFS,
2023).
NMFS concludes that the Air Force will implement these relevant
elements of the Wake INRMP for three reasons:
(1) Clear and Recent Documentation--the Wake INRMP includes a coral
conservation plan (USAF, 2023a) with a 4-pronged strategy (water
quality improvement, outreach and education for Wake-based staff,
fisheries management, and physical DOD presence on Wake Atoll, i.e.,
restriction of access and overall natural resource management) that
comprehensively addresses the conservation needs of ESA-listed corals
on Wake Atoll. This coral conservation plan clearly articulates how
U.S. Air Force (USAF) is conserving corals on Wake, and how it will do
so in the future. The ongoing implementation of the Wake INRMP is
reported via progress updates and reviews (USAF, 2018, 2019, 2021a,b,
2023b).
(2) Demonstration of Good Faith Efforts for Listed Corals--In the
years
[[Page 83657]]
leading up to the final Wake INRMP (USAF, 2023a), USAF implemented
projects on Wake related to each of its 4-pronged coral conservation
strategy, as explained in appendix S of the Wake INRMP. For water
quality improvement, in 2016 USAF began implementation of both the
stormwater pollution prevention and invasive plant control projects.
For outreach and education, in 2016 USAF revised the Wake Island Dive
Club Charter to further reduce the potential impacts of recreational
activities on corals. For fisheries management, in 2017 USAF updated
its fishing rules, which are part of the Wake Island Operating
Guidance, to prohibit the use of (1) cast nets on the exterior of the
atoll, (2) anchoring on coral reef habitat, and (3) and trolling over
coral reef habitat. For physical DOD presence on Wake Atoll, in 2016
USAF funded and provided logistical support for a Fish and Wildlife
Service (FWS) coral survey that documented two ESA-listed corals on the
atoll for the first time. Since 2017, USAF has implemented projects on
Wake for each of its 4-pronged coral conservation strategy, as noted
above in the 2021 updates, and detailed in the progress updates and
reviews (USAF, 2018, 2019, 2021a,b, 2023b).
(3) History of Strong Conservation Work--USAF has a long history of
carrying out successful conservation work on Wake and often takes the
initiative on conservation efforts whether requested by NMFS or not.
For example, many of the projects in the INRMP's coral conservation
strategy had already been started by USAF before corals were listed in
2014, and were being done to improve the conservation of marine and
terrestrial resources on the atoll, regardless of whether they were
required by Federal statute or not. Likewise, in 2016, USAF funded and
supported the FWS coral survey of the atoll, leading to the discovery
that the two ESA-listed corals occur on the atoll. In addition, USAF
has historically been a strong conservation partner with NMFS,
supporting a wide variety of marine and terrestrial conservation
projects, and actively engaging both agencies in the INRMP planning and
implementation process, as described in the progress updates and
reviews (USAF, 2018, 2019, 2021a,b, 2023b).
The coral conservation component of the Wake INRMP (Appendix K,
Coral Conservation Actions at Wake Atoll; USAF, 2023a) is expected to
reduce both direct and indirect impacts to listed corals via
minimization or avoidance of recreational impacts (fishing, diving,
anchoring), and terrestrial impacts (i.e., run-off from land-based
activities), thereby addressing two of the primary threats to listed
corals (fishing and land-based sources of pollution). That is, the
coral conservation elements of the Wake Atoll INRMP described
previously are expected to substantially reduce the types of effects at
Wake Atoll that would be addressed through the destruction-or-adverse-
modification analysis. Based on the fact that the Wake INRMP's coral
conservation strategy is well-designed to reduce impacts to listed
corals, and also that recent progress updates and reviews (USAF, 2018,
2019, 2021a,b, 2023b) demonstrate substantial progress with the
implementation of the strategy, we determined that the Wake INRMP
provides a benefit to listed corals, and their critical habitat
(reproductive, recruitment, growth, and maturation habitat).
Conclusion Regarding Areas Subject to INRMPs
Based on the analyses summarized previously and provided in the
Information Report (NMFS, 2023), we conclude both the JRM INRMP (DON,
2019a) and the Wake INRMP (USAF, 2023a) provide a conservation benefit
to the listed corals and their habitats within all INRMP marine areas
on Guam, CNMI, and Wake. Thus, the potential coral critical habitat
areas within the INRMP marine areas on Guam, Tinian, FDM, and Wake are
ineligible for designation as critical habitat.
Application of ESA Section 4(b)(2)
Section 4(b)(2) of the ESA requires that we consider the economic
impact, impact on national security, and any other relevant impact, of
designating any particular area as critical habitat. Additionally, the
Secretary has the discretion to consider excluding any area from
critical habitat if they determine that the benefits of exclusion (that
is, avoiding some or all of the impacts that would result from
designation) outweigh the benefits of designation based upon the best
scientific and commercial data available. The Secretary may not exclude
an area from designation if exclusion will result in the extinction of
the species.
The following sub-sections summarize the economic, national
security, and other relevant impacts analyses in the Information Report
(NMFS, 2023) that we projected would result from proposed coral
critical habitat. We considered these impacts when deciding whether to
exercise our discretion to exclude particular areas from the
designation. Both positive and negative impacts were identified and
considered (these terms are used interchangeably with benefits and
costs, respectively). Impacts were evaluated in quantitative terms
where feasible, but qualitative appraisals were used where that is more
appropriate.
The primary impacts of a critical habitat designation result from
the ESA section 7(a)(2) requirement that Federal agencies ensure that
their actions are not likely to result in the destruction or adverse
modification of critical habitat and that they consult with NMFS in
fulfilling this requirement. The impacts of designating coral critical
habitat are only those that would be in addition to the impacts of
listing (i.e., incremental impacts). The distribution of listed corals
within critical habitat strongly influences the extent of incremental
impacts. That is, the more colonies of listed corals that are
distributed throughout coral critical habitat, the lower the proportion
of Federal actions that would affect critical habitat but not listed
corals, and thus the lower the incremental impacts of critical habitat
designation. As described in section 3.3.19 of the Information Report
(NMFS, 2023), colonies of listed corals are generally distributed
throughout the specific areas being considered for proposed coral
critical habitat, thus the incremental impacts are expected to be quite
low.
Summaries of the economic, national security, and other relevant
impact analyses in the Information Report (NMFS, 2023) are provided
below. The analyses follow the guidance for 4(b)(2) analyses provided
in our 2016 policy (81 FR 7226, February 11, 2016) and regulations at
50 CFR 424.19.
4(b)(2) Economic Impact Analysis
The economic impacts of designating the areas identified as coral
critical habitat are analyzed in the full 4(b)(2) Economic Impact
Analysis document, completed in late 2021, which is appendix C of the
Information Report (NMFS, 2023). Economic impacts are projected for the
10-year period 2022-2031, and uncertainty is accounted for by using
low-end and high-end scenarios to estimate incremental impacts. The
Economic Impact Analysis Report (NMFS, 2023, appendix C) presents
economic impacts in terms of present value versus annualized costs. For
example, table 17 of the report summarizes the low-end estimated cost
of coral critical habitat as $373,171 in terms of the present value of
the total cost over the 10-yr period of 2022-2031, with an estimated
annualized cost of $53,131 over that 10-yr period. Present value over
the 10-year period is not
[[Page 83658]]
simply 10 times the annualized cost because present value represents
the sum of a series of past or future cash flows discounted at a
specified discount rate (in this case, 7 percent) and expressed in
constant dollars, whereas annualized cost provides a comparison of
impacts across activities with varying forecast periods (NMFS, 2023,
appendix C).
For the low-end scenario, total incremental costs over the 10-year
period are estimated at $373,171 for all jurisdictions combined or
$53,131 annualized. These are entirely administrative costs since the
low-end scenario assumes that no project modifications would be
required. For the high-end scenario, total incremental costs over the
10-year period are estimated at $6,815,860 for all jurisdictions
combined or $970,425 annualized. Of these costs, 95 percent are derived
from project modifications because, for purposes of this analysis, the
high-end scenario assumes that 100 percent of section 7 consultations
will be formal consultations that result in the need for project
modifications to avoid destruction or adverse modification of the
critical habitat. The jurisdiction with the highest economic impacts in
both scenarios is Guam, due to the relatively high number of expected
consultations there (NMFS, 2023).
While the low-end vs. high-end scenarios are useful for
illustrating the range of potential economic impacts, the following
points are relevant to interpreting the results:
(1) Both scenarios assumed that proposed coral critical habitat
would be 0-50 m depth around all island units considered in proposed
coral critical habitat; however, proposed coral critical habitat is 0-
50 m depth on just one island (Tutuila) and 0-20 m, 0-12 m, and 0-10 m
on the others.
(2) Colonies of listed corals occur within all specific areas being
considered for proposed coral critical habitat (NMFS, 2023, appendix
A), thus reducing incremental impacts. That is, since colonies of
listed corals occur in all specific areas of proposed coral critical
habitat, there would be a low proportion of future Federal actions that
would affect critical habitat but not listed corals. As the proposed
coral critical habitat will not include extensive areas where listed
coral colonies are absent, the incremental impacts of proposed coral
critical habitat are likely to be quite low, which minimizes economic
impacts.
(3) A comparison of projected vs. actual consultations in 2016-2019
was included in the economic analysis done for the 2020 proposed coral
critical habitat rule (NMFS 2020, appendix B), which showed that three
times more formal consultations were projected in the high-end scenario
than actually occurred. That is, the reality of consultations was more
similar to the low-end scenario than the high-end scenario.
For these reasons, it is reasonable to conclude that the actual
economic impacts are likely to be much closer to those projected in the
low-end scenario than the high-end scenario. In addition, economic
benefits would be relatively high in the high-end scenario (because
project modifications would provide better protection of coral reef
ecosystems, which produce economic benefits, as described in section
5.1.6 of the Information Report (NMFS, 2023), but lower in the low-end
scenario (because there would be no project modifications, and thus no
increased protection of coral reef ecosystems).
4(b)(2) National Security Impact Analysis
We received a request from the Department of the Navy (Navy) to
exclude one site based on national security impacts: The portion of the
Navy's Ritidian Point Surface Danger Zone (SDZ) Complex outside of DOD
Submerged Lands on Guam. For this site, we weighed the national
security impacts of designating the site as critical habitat against
the conservation benefits to the listed corals of designating the site
as critical habitat. If impacts to national security outweigh the
benefits of including an area in the designation, the Secretary may
exercise her discretion to exclude that particular area from critical
habitat. If the benefits of including the area in the designation
outweigh the impacts to national security, however, the site cannot be
considered for exclusion from critical habitat (81 FR 7226, February
11, 2016).
The Ritidian Point SDZ complex overlaps with a small area of
forereef identified for potential designation as coral critical
habitat. The area is 0-12 m of depth and consists primarily of spur-
and-groove and aggregate reef that provides high quality coral habitat.
A species-level coral survey conducted in 2021 at this site indicated
that A. globiceps was present, finding a total of four colonies along
eight 50-m transects at 6 m depth within forereef habitat at the site.
In contrast, a species-level coral survey conducted in 2006 at this
site did not find any A. globiceps colonies along a different set of
eight 50-m transects between 1 and 20 m within forereef and reef flat
habitat (NMFS, 2023).
National security impacts depend on the additional section 7
requirements that would result from the coral critical habitat, above
and beyond those already required to avoid jeopardizing the continued
existence of any listed species or avoid destruction or adverse
modification of other, designated critical habitats (i.e. incremental
impacts). The Navy noted that the Ritidian Point SDZ complex supports
training at the Marine Corps Live Fire Training Range Complex (LFTRC)
at AAFB, and construction of new facilities (e.g., range administration
building, range maintenance building, and observation towers) at AAFB,
to meet the individual weapons training/qualification requirements of
the Marine Corps. This SDZ is expected to be operational for 32 weeks
per year and extends approximately 2 miles over open water in the event
stray bullets go over the berm and into the ocean. If this occurs, the
bullets will settle on the seafloor (NMFS, 2023).
The Navy stated that designation of the marine component of this
site as coral critical habitat would result in limitations on live fire
training at LFTRC. The Navy explained that such limitations would occur
because limited staff time and resources would be diverted to preparing
additional documents required to implement activities in critical
habitat areas from work required on other vital environmental items. In
2021 and 2022, the Navy confirmed that this information is still
applicable to the site. Because many training and construction
activities are planned at LFTRC adjacent to this marine area, the
listed coral A. globiceps occurs there, and the planned activities have
the potential to affect this listed species, ESA section 7
consultations would likely be necessary whether critical habitat is
designated or not. That is, the additional consultation requirement
above and beyond what would already be required by the fact that listed
corals occur at the site is not expected to be substantial. Also, the
additional consultation for critical habitat would be for activities
that are planned in advance, and thus the additional section 7
consultation workload would not be unpredictable but rather could be
anticipated and managed ahead of time.
The Navy noted that the individual live fire training for Marine
Corps personnel at the LFTRC on Guam is a prerequisite for conducting
unit level and combined level training. The Navy further explained that
without the qualification of these live fire training events,
individuals and small teams are not capable of conducting larger unit
[[Page 83659]]
collective events, and that the LFTRC provides the necessary foundation
for which training progression is built upon. Plans are in place to
considerably expand LFTRC in anticipation of growing Marine Corps
training needs. No other facility on Guam or elsewhere in the Mariana
Islands provides this type of training. In 2021 and 2022, the Navy
confirmed that this information is still applicable to the site (NMFS,
2023).
In determining benefits to the conservation of ESA-listed corals we
considered whether designation of critical habitat at the particular
site would lead to additional conservation of the species beyond what
is already provided by the species' listing. The potential for
additional conservation at a given site is a function of the listed
corals' use of the area, the level of protection already provided by
existing management (e.g., the site is entirely within Guam National
Wildlife Refuge), and the likelihood of non-DOD actions that are likely
to affect the area and that are subject to the consultation
requirements of section 7.
As elsewhere on Guam, the coral reef habitat within the area being
considered for proposed coral critical habitat is made up of forereef
from 0--12 m depth, consisting primarily of spur-and-groove and
aggregate reef. As noted above, A. globiceps occurs at this site.
However, colonies of the species may die off in response to natural
disturbances and not reappear for a few years, which may be why the
2021 survey found A. globiceps there but the 2006 survey did not
despite surveying within the same habitat and depth range. Such
mortality and recovery and associated disappearance and reappearance of
coral populations at any given site is a normal response to natural
disturbance. Critical habitat protects the essential feature whether
colonies of the listed coral species occur at the site at the time of
consultation or not.
The area being considered for potential designation as coral
critical habitat is entirely within U.S. Fish and Wildlife Service
(USFWS) Submerged Lands, which forms the marine component of the Guam
National Wildlife Refuge (NWR), and is managed according to the Guam
NWR Comprehensive Conservation Plan. The plan includes Strategies to
Restore, Protect, and Maintain Native Marine Communities, such as
marine debris removal and area closures. The site is also entirely
within Essential Fish Habitat (EFH) for coral reef ecosystems, but EFH
protections are not mandatory (NMFS, 2023).
It is possible that non-DOD Federal actions will be proposed within
this site that could affect the essential feature (e.g., actions
proposed by USFWS), but that would no longer be subject to the critical
habitat provision if the particular area were excluded from the
designation. When the site is not closed by the SDZ, non-DOD actions
could potentially occur there, for example those permitted or carried
out by USFWS. Although such actions would presumably be consistent with
the Guam NWR Comprehensive Conservation Plan (USFWS 2009), they may
affect the essential feature (NMFS, 2023).
Based on the considerations described above, we conclude that the
impacts to national security of including this area within critical
habitat do not outweigh the conservation benefits to the listed corals,
and thus do not propose to exclude the Ritidian Point SDZ complex from
proposed coral critical habitat designation. The most important factors
supporting this recommendation are: (1) the national security impacts
of coral critical habitat are unlikely to be either substantial or
unpredictable because listed corals are known to occur at this site at
least some of the time, meaning that the Navy would already be
conducting section 7 consultations on listed corals for any of their
activities that may affect listed corals at this site even without
critical habitat, resulting in little additional consultation work; and
(2) the conservation benefits of coral critical habitat could be
considerable because critical habitat would provide additional
protection of the high quality essential feature that is found
throughout the area from future proposed Federal actions (NMFS, 2023).
Other Relevant Impacts
Other relevant impacts include the benefits of critical habitat
designation and impacts on governmental or private entities that are
implementing existing management plans that provide benefits to the
listed species. The three main types of benefits of critical habitat
designation are increased protection of the essential feature from
Federal actions, ecosystem service benefits of coral reef conservation,
and education and awareness.
Critical habitat is habitat needed to support recovery of listed
species. That is, the most direct benefits of the critical habitat
designation stem from the increased protection of the essential feature
from Federal actions. While listed corals are generally distributed
throughout the specific areas, there are still many locations within
the specific areas that lack colonies of listed corals at any given
point in time due to natural spatial and temporal fluctuations of coral
colony presence. That is, individual colonies of listed corals may
decrease or disappear from particular locations in response to local
disturbances, then return and increase as local conditions improve.
Such dynamic spatial and temporal fluctuations in the distribution of
colonies of listed corals within the specific areas is a natural
process. Critical habitat thus protects the essential feature in
locations and during times when specific areas lack colonies of listed
corals and Federal actions are proposed at that location (NMFS, 2023).
Overall, coral reef ecosystems, including those comprising
populations of the listed corals, provide important ecosystem services
of value to individuals, communities, and economies. These include
recreational opportunities (and associated tourism spending in the
regional economy), habitat and nursery functions for recreationally and
commercially valuable fish species, shoreline protection in the form of
wave attenuation and reduced beach erosion, and climate stabilization
via carbon sequestration. As of 2021, the total economic value of coral
reefs in the three U.S. Pacific Islands jurisdictions where the great
majority of critical habitat is being proposed is (1) American Samoa--
$13.4 million/year, (2) Guam--$165.0 million/year, and (3) CNMI--$60.4
million/year (NMFS, 2023). Efforts to conserve the listed corals also
benefit the broader reef ecosystems, thereby preserving or improving
these ecosystem services and values (NOAA Coral Reef Conservation
Program, 2013). While we cannot quantify the precise economic benefits
of designating critical habitat, providing these values gives an
indication of the value of conserving coral habitat.
There is the potential for education and awareness benefits arising
from the critical habitat designation, stemming from entities that
engage in section 7 consultations, and from members of the general
public interested in coral conservation. Entities that engage in
section 7 consultations may alter their activities to benefit the
species or essential feature because they were made aware of the
critical habitat designation through either the section 7 consultation
process or the original listings. Members of the public may engage in
similar efforts because they learned of the critical habitat
designation through outreach materials (NMFS, 2023).
Impacts may also occur to governmental or private entities that are
[[Page 83660]]
implementing existing management plans that provide benefits to the
listed species, although such potential impacts would be limited to
actions that have a Federal nexus and affect critical habitat.
There are a large number of Federal marine protected areas in
American Samoa, Guam, CNMI, PRIA, and NWHI where coral critical habitat
is being proposed, and many of these jurisdictions have draft or
proposed management plans (NMFS, 2023). Impacts of critical habitat
designation on the agencies responsible for natural resource management
planning of these areas (e.g., the National Park Service, USFWS, and
Territorial natural resources management agencies), depend on the type
and number of section 7 consultations that may result from the
designation in the areas covered by those plans, as well as any
potential project modifications recommended by these consultations.
Negative impacts to these entities could result if the critical habitat
designation interferes with these agencies' ability to provide for the
conservation of the species, or otherwise hampers the management of
these areas.
Existing or proposed management plans in the marine protected areas
and their associated regulations protect existing coral reef resources,
but they may not specifically protect the substrate and water quality
components of the essential feature for purposes of increasing listed
coral abundance and eventual recovery. However, section 7 consultations
on the implementation of these Federal marine protected area plans over
the next 10 years are not expected to result in incremental project
modifications, thus any section 7 impacts will likely be limited to
administrative costs (NMFS, 2023, appendix C).
Conclusions for Section 4(b)(2)
We are not exercising our discretion to exclude any areas from the
proposed coral critical habitat based on economic or national security
impacts. As summarized in the 4(b)(2) Economic Impact Analysis section,
the economic impacts of the proposed coral critical habitat are likely
to be low, even on the islands with concentrated economic activity
(Tutuila, Guam, Saipan). Since these are the three units where most
future proposed Federal actions that could affect critical habitat are
expected (NMFS, 2023, appendix C), the conservation benefits of
critical habitat are the greatest in these three units. Thus, economic
impacts do not outweigh conservation benefits. Likewise, as summarized
in the 4(b)(2) National Security Impact Analysis section, the national
security impacts of the proposed coral critical habitat on the one
requested exclusion site, the Navy's Ritidian Point Surface Danger Zone
complex in Guam, are not expected to outweigh the conservation benefits
of designating critical habitat.
Proposed Critical Habitat Designations
We are proposing to designate critical habitat for 5 listed coral
species around 16 islands in 5 U.S. Pacific Islands jurisdictions. For
A. globiceps, specific areas around all 16 islands are proposed,
including 4 in American Samoa, 1 in Guam, 9 in CNMI, 3 in PRIA, and 1
in Hawaii. The depth ranges of the specific areas for A. globiceps are
0-20 m (3 islands), 0-12 m (9 islands), and 0-10 m (4 islands). For A.
retusa, specific areas around three islands are proposed, all of which
are in American Samoa. The depth ranges of the specific areas for A.
retusa are 0-20 m on all three islands. For A. speciosa and E.
paradivisa, specific areas around Tutuila and its offshore banks in
American Samoa are proposed. The depth ranges of the specific areas for
A. speciosa and E. paradivisa are 20-50 m. For I. crateriformis,
specific areas around three islands are proposed, all of which are in
American Samoa. The depth ranges of the specific areas for I.
crateriformis are 0-20 m on all three islands (table 4). The
4(a)(3)(B)(i) INRMP analyses found that the entire areas around FDM and
Wake Atoll, several areas off of Guam, and most of Tinian are
ineligible for proposed coral critical habitat. Maps of the proposed
critical habitat for each of the listed species around each of the 16
islands are provided at the end of this rulemaking (table 4).
Table 4--The 16 Island Units That Contain Proposed Critical Habitat for the 5 Listed Coral Species
[For each species, depth ranges in meters and figure numbers (``Fig.'') for the maps are shown. Maps showing areas that were deemed ineligible for designation of critical habitat by the
4(a)(3)(B)(i) INRMP analyses are also noted.]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
A. globiceps A. retusa A. speciosa E. paradivisa I. crateriformis 4(a)(3)(B)(i)
Island (unit) ------------------------------------------------------------------------------------------------------------------------------
Depth Fig. Depth Fig. Depth Fig. Depth Fig. Depth Fig. Fig.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Tutuila and Offshore Banks....................................... 0-20 1 0-20 1 20-50 2 20-50 2 0-20 1 ...............
Ofu-Olosega...................................................... 0-20 3 0-20 3 ......... ......... ......... ......... 0-20 3 ...............
Ta'u............................................................. 0-20 4 ......... ......... ......... ......... ......... ......... 0-20 4 ...............
Rose Atoll....................................................... 0-10 5 0-20 5 ......... ......... ......... ......... ......... ......... ...............
Guam............................................................. 0-12 6 ......... ......... ......... ......... ......... ......... ......... ......... 6
Rota............................................................. 0-12 7 ......... ......... ......... ......... ......... ......... ......... ......... ...............
Aguijan.......................................................... 0-12 8 ......... ......... ......... ......... ......... ......... ......... ......... ...............
Tinian........................................................... 0-12 9 ......... ......... ......... ......... ......... ......... ......... ......... 9
Saipan........................................................... 0-12 10 ......... ......... ......... ......... ......... ......... ......... ......... ...............
Alamagan......................................................... 0-12 11 ......... ......... ......... ......... ......... ......... ......... ......... ...............
Pagan............................................................ 0-12 12 ......... ......... ......... ......... ......... ......... ......... ......... ...............
Maug Islands..................................................... 0-12 13 ......... ......... ......... ......... ......... ......... ......... ......... ...............
Uracas........................................................... 0-12 14 ......... ......... ......... ......... ......... ......... ......... ......... ...............
Palmyra Atoll.................................................... 0-10 15 ......... ......... ......... ......... ......... ......... ......... ......... ...............
Johnston Atoll................................................... 0-10 16 ......... ......... ......... ......... ......... ......... ......... ......... ...............
FFS.............................................................. 0-10 17 ......... ......... ......... ......... ......... ......... ......... ......... ...............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Effects of Critical Habitat Designations
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, to ensure that any action authorized, funded, or carried out by
the agency does not jeopardize the continued existence of any
threatened or endangered species or destroy or adversely modify
designated critical habitat. When a species is listed or critical
habitat is designated, Federal agencies must consult with NMFS on any
agency actions to be conducted in an area where the species is present
and that may affect the species or its critical habitat. During formal
consultation, NMFS would evaluate the agency's action to determine
whether the action may adversely affect listed species or designated
critical habitat and issue its
[[Page 83661]]
findings in a biological opinion. If NMFS concludes in the biological
opinion that the proposed agency action would likely result in the
destruction or adverse modification of designated critical habitat,
NMFS would identify any reasonable and prudent alternatives to the
action. Reasonable and prudent alternatives are defined in 50 CFR
402.02 as alternative actions identified during formal consultation
that can be implemented in a manner consistent with the intended
purpose of the action, that are consistent with the scope of the
Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that would avoid the
likelihood of jeopardizing the continued existence of listed species or
resulting in the destruction or adverse modification of critical
habitat. If NMFS concludes in the biological opinion that the proposed
agency action would not likely result in the destruction or adverse
modification of designated critical habitat, NMFS may provide
discretionary conservation recommendations.
Regulations at 50 CFR 402.16 require Federal agencies that have
retained discretionary involvement or control over an action, or where
such discretionary involvement or control is authorized by law, to
reinitiate consultation on previously reviewed actions in instances in
which (1) critical habitat is subsequently designated, or (2) new
information or changes to the action may result in effects to critical
habitat not previously considered in the biological opinion.
Consequently, some Federal agencies may request reinitiation of
consultation or to conference with NMFS on actions for which formal
consultation has been completed, if those actions may adversely modify
or destroy designated critical habitat or adversely modify or destroy
proposed critical habitat, respectively.
Activities That May Be Affected
Section 4(b)(8) of the ESA requires that we describe briefly, and
evaluate in any proposed or final regulation to designate critical
habitat, those activities that may adversely modify such habitat or
that may be affected by such designation. A wide variety of Federal
activities may require ESA section 7 consultation because they may
affect the essential feature of critical habitat (i.e., suitable
substrate and suitable water quality). Specific future activities would
need to be evaluated with respect to their potential to destroy or
adversely modify critical habitat, in addition to their potential to
affect and jeopardize the continued existence of listed species. For
example, activities may adversely modify the essential feature by
removing or altering the substrate or reducing water clarity through
turbidity. These activities would require ESA section 7 consultation
when they are authorized, funded, or carried out by a Federal agency.
Non-Federal entities may also be affected by these proposed critical
habitat designations if they are undertaking a project that requires a
Federal permit or receives Federal funding. Categories of activities
that may be affected by the designations include in-water and coastal
construction, dredging and disposal, water quality and discharges,
fishery management, military activities, shipwreck and marine debris
removal, scientific research and monitoring, aquaculture, protected
area management, and beach nourishment/shoreline protection. Further
information is provided in the Economic Impact Analysis in our
Information Report (NMFS, 2023, appendix C). Questions regarding
whether specific activities will constitute destruction or adverse
modification of critical habitat should be directed to us (see
ADDRESSES and FOR FURTHER INFORMATION CONTACT).
Public Comments Solicited
We request that interested persons submit comments, information,
and suggestions concerning this proposed rule during the comment period
(see DATES). We are soliciting comments or suggestions from the public,
other concerned governments and agencies, the scientific community,
industry, or any other interested party concerning this proposed rule,
including any foreseeable economic, national security, or other
relevant impact resulting from the proposed designations. We are
seeking comments on the changes in this proposed rule from the 2020
proposed rule, including the following: (1) development of the
methodology for using records of listed coral species to determine
their occupied areas for critical habitat; (2) changes to the occupied
areas for the listed coral species; (3) changes to the depth ranges for
the listed coral species; and (4) other changes including refinement of
critical habitat boundaries. These changes are summarized in the
Summary of Changes From the 2020 Proposed Rule above and described in
detail in the Information Report (NMFS, 2023). You may submit your
comments and materials concerning this proposal by any one of several
methods (see ADDRESSES). Copies of the proposed rule and supporting
documentation are available at <a href="https://www.fisheries.noaa.gov/action/proposed-rule-designate-critical-habitat-threatened-indo-pacific-corals">https://www.fisheries.noaa.gov/action/proposed-rule-designate-critical-habitat-threatened-indo-pacific-corals</a>, or upon request (see FOR FURTHER INFORMATION CONTACT). We will
consider all comments pertaining to this designation received during
the comment period in preparing the final rule. Accordingly, the final
designation may differ from this proposal.
References Cited
A complete list of all references cited in this rulemaking is
available at <a href="https://www.fisheries.noaa.gov/action/proposed-rule-designate-critical-habitat-threatened-indo-pacific-corals">https://www.fisheries.noaa.gov/action/proposed-rule-designate-critical-habitat-threatened-indo-pacific-corals</a>, or upon
request (see FOR FURTHER INFORMATION CONTACT). In addition, PDF copies
of all cited documents are available upon request from the NMFS Pacific
Islands Regional Office in Honolulu, HI (see ADDRESSES).
Information Quality Act and Peer Review
The data and analyses supporting this action have undergone a
predissemination review and have been determined to be in compliance
with applicable information quality guidelines implementing the
Information Quality Act (section 515 of Pub. L. 106-554). On December
16, 2004, OMB issued its Final Information Quality Bulletin for Peer
Review (Bulletin). The Bulletin was published in the Federal Register
on January 14, 2005 (70 FR 2664), and went into effect on June 16,
2005. The primary purpose of the Bulletin is to improve the quality and
credibility of scientific information disseminated by the Federal
Government by requiring peer review of ``influential scientific
information'' and ``highly influential scientific information'' 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. The Bulletin provides agencies broad
discretion in determining the appropriate process and level of peer
review. Stricter standards were established 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 one year on either the public or private sector or that the
dissemination is novel, controversial, or precedent-setting, or has
significant interagency interest.
The information in the Critical Habitat Information Report (NMFS,
2023) and its appendices was
[[Page 83662]]
considered influential scientific information and subject to peer
review. To satisfy our requirements under the OMB Bulletin, we obtained
independent peer review of the the Critical Habitat Information Report
(NMFS, 2023) and its appendices. The resulting Peer Review Reports are
available on our website <a href="https://www.noaa.gov/information-technology/endangered-species-act-critical-habitat-designation-for-7-indo-pacific-corals-information-report">https://www.noaa.gov/information-technology/endangered-species-act-critical-habitat-designation-for-7-indo-pacific-corals-information-report</a>.
Classification
Takings (Executive Order 12630)
Under E.O. 12630, Federal agencies must consider the effects of
their actions on constitutionally protected private property rights and
avoid unnecessary takings of private property. A taking of property
includes actions that result in physical invasion or occupancy of
private property and regulations imposed on private property that
substantially affect its value or use. In accordance with E.O. 12630,
this proposed rule would not have significant takings implications,
because it does not include, occupy or invade private property or
otherwise affect the value or use of private property to qualify as a
taking. A takings implication assessment is not required.
Regulatory Planning and Review (E.O.s 12866, 14094, 13563)
This rulemaking has been determined to be significant for purposes
of E.O. 12866 as amended by Executive Order 14094. Executive Order
14094, which amends E.O. 12866 and reaffirms the principles of E.O.
12866 and E.O 13563, states that regulatory analysis should facilitate
agency efforts to develop regulations that serve the public interest,
advance statutory objectives, and be consistent with E.O. 12866, E.O.
13563, and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this proposed rule in a manner consistent with
these requirements.
A draft economic impact analysis report, which has been prepared as
part of the Information Report (see appendix C of NMFS, 2023),
considers the economic costs and benefits of this proposed critical
habitat designation and alternatives to this rulemaking as required
under E.O. 12866. Based on the impact analysis report, low-end total
incremental costs over the 10-year period are estimated at $373,171 for
all jurisdictions combined or $53,131 annualized. These are 100 percent
administrative costs since the low-end scenario assumes that no project
modifications will be required. For the high-end, total incremental
costs over the 10-year period are estimated at $6,815,860 for all
jurisdictions combined or $970,425 annualized. Of these costs, 95
percent are derived from project modifications since the high-end
scenario assumes that 100 percent of section 7 consultations will be
formal. The jurisdiction with the highest economic impacts in both
scenarios is Guam, due to the relatively high number of expected
consultations there (NMFS, 2023, appendix C).
As explained under the 4(b)(2) Economic Impact Analysis, we find
that the actual economic impacts are likely to be much closer to the
low-end scenario's projections than the high-end scenario's
projections. In addition, economic benefits would be relatively high in
the high-end scenario (because project modifications would provide
better protection of coral reef ecosystems, which produce economic
benefits), but non-existent in the low-end scenario (because there
would be no project modifications, and thus no increased protection of
coral reef ecosystems). We conclude that the economic impacts of the
proposed coral critical habitat are likely to be much closer to those
projected by the low-end scenario than the high-end scenario, and also
that there would be low economic benefits. That is, we find that the
economic analysis and IRFA support the conclusion that the proposed
coral critical habitat would have low economic effects on small
entities. A proposed Economic Impact Analysis Report (appendix C of the
Information Report; NMFS, 2023) and Final ESA section 4(b)(2) Report
(i.e., the 4(b)(2) section of the Information Report; NMFS, 2023) have
been prepared to support the exclusion process under section 4(b)(2) of
the ESA and our consideration of alternatives to this rulemaking. These
supporting documents are available at the link provided in ADDRESSES,
or upon request (see FOR FURTHER INFORMATION CONTACT).
Federalism (E.O. 13132)
The E.O. on Federalism, Executive Order 13132, requires agencies to
take into account any federalism impacts of regulations under
development. It includes specific consultation directives for
situations in which a regulation may preempt State law or impose
substantial direct compliance costs on State and local governments
(unless required by statute). Pursuant to E.O. 13132, we determined
that this proposed rule does not have significant federalism effects
and that a federalism assessment is not required. In keeping with
Department of Commerce policies and consistent with ESA regulations at
50 CFR 424.16(c)(1)(ii), we requested information for this rulemaking
from the appropriate marine resources agencies in American Samoa, Guam,
CNMI, PRIA, and Hawaii. The designation may have some benefit to State
and local resource agencies in that the rule more clearly defines the
physical and biological feature essential to the conservation of the
species and the areas in which that feature is found. While this
designation would not alter where and what non-federally sponsored
activities may occur, it may assist local governments in long-range
planning (rather than waiting for case-by-case ESA section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests only on the Federal agency.
Energy Supply, Distribution, and Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking an action 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. OMB
Guidance on Implementing E.O. 13211 (July 13, 2001) states that
significant adverse effects could include any of the following outcomes
compared to a world without the regulatory action under consideration:
(1) reductions in crude oil supply in excess of 10,000 barrels per day;
(2) reductions in fuel production in excess of 4,000 barrels per day;
(3) reductions in coal production in excess of 5 million tons (4.5
million metric tons) per year;
[[Page 83663]]
(4) reductions in natural gas production in excess of 25 million cubic
feet (708,000 cubic meters) per year; (5) reductions in electricity
production in excess of 1 billion kilowatt-hours per year or in excess
of 500 megawatts of installed capacity; (6) increases in energy use
required by the regulatory action that exceed any of the thresholds
previously described; (7) increases in the cost of energy production in
excess of 1 percent; (8) increases in the cost of energy distribution
in excess of 1 percent; or (9) other similarly adverse outcomes. A
regulatory action could also have significant adverse effects if it (1)
adversely affects in a material way the productivity, competition, or
prices in the energy sector; (2) adversely affects in a material way
productivity, competition, or prices within a region; (3) creates a
serious inconsistency or otherwise interferes with an action taken or
planned by another agency regarding energy; or (4) raises novel legal
or policy issues adversely affecting the supply, distribution or use of
energy arising out of legal mandates, the President's priorities, or
the principles set forth in E.O. 12866 and 13211.
The economic impacts of this rulemaking are analyzed in the full
4(b)(2) Economic Impact Analysis, which is appendix C of the
Information Report (NMFS, 2023). Based on the results of that analysis,
the economic impacts on energy supply, distribution, and use would
either be non-existent or far below the above thresholds. Thus, we have
determined that this rulemaking will not have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, we
have not prepared a Statement of Energy Effects.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
We prepared an Initial Regulatory Flexibility Analysis (IRFA)
pursuant to section 603 of the Regulatory Flexibility Act (RFA). The
IRFA analyzes the impacts to small entities that may be affected by the
proposed designation and is included as appendix D of the Information
Report (NMFS, 2023), which is available at the link provided in
ADDRESSES, or upon request (see FOR FURTHER INFORMATION CONTACT). We
welcome public comment on the IRFA, which is summarized below, as
required by section 603 of the RFA.
The IRFA uses the best available information to identify the
potential impacts of designating critical habitat on small entities.
However, uncertainty regarding the extent to which impacts of the
proposed designation would be allocated between large and small
entities complicates quantification of impacts specifically borne by
small entities. Absent specific knowledge regarding which small
entities may be involved in consultations with NMFS over the next ten
years, this analysis relies on industry- and location-specific
information on small businesses with North American Classification
System (NAICS) codes that were identified as relevant to the major
activity categories considered in the economic analysis and which
operate within counties or territories that share a coastline with the
proposed critical habitat. Activities considered in the draft economic
report and the IRFA include in-water and coastal construction, dredging
and disposal, water quality and discharges, fishery management,
military activities, shipwreck and marine debris removal, scientific
research and monitoring, aquaculture, protected area management, and
beach nourishment/shoreline protection.
Information presented in section 4.0 of the Economic Impact
Analysis Report demonstrates the lack of third-party involvement in
consultations on the effects of Federal fishery management, protected
area management, shipwreck removal, scientific research and monitoring,
and military activities on ESA-listed marine species within the island
units considered for proposed coral critical habitat in the five
jurisdictions. Unlike consultations on in-water and coastal
construction and dredging projects, these consultations are conducted
directly between NMFS and the Federal action agency with no third-party
involvement. Each of these five categories of consultation is
represented in the consultations completed in 2005-2020 that were
reviewed for the economic impact analysis, and third parties were not
involved in any of them. As discussed in the IRFA and section 6
Economic Impact Analysis Report, consultations on water quality
management include inter-agency consultations on regional water quality
standards, which do not involve third parties, and project-specific
consultations regarding point source water pollution, such as National
Pollutant Discharge Elimination System (NPDES) permits issued to third
parties in American Samoa, Guam, and CNMI. The third parties issued
NPDES permits are either businesses or territorial or commonwealth
governments that do not qualify as small entities. In addition, because
no section 7 consultations on beach nourishment and shoreline
protection projects occurred within the historical time frame selected
for the economic impact analysis, no section 7 consultations on such
projects were projected over the next ten years. As a result, no
incremental costs are assigned to small entities for these activities.
While consultations on aquaculture projects have the potential to
involve third parties, the potential economic impacts to third parties
are considered de minimis. Moreover, all of the historical aquaculture
projects that resulted in consultations considered in the economic
impact analysis were sponsored by public entities, none of which
qualify as small entities.
Consultations on in-water and coastal construction and dredging and
disposal (as determined by the 4(b)(2) Economic Impact Analysis Report,
which is appendix C of the Information Report (NMFS, 2023)), all have
the potential to involve third parties, such as recipients of Clean
Water Act section 404 permits. These activities were combined into one
broad industry category that may experience impacts to small entities:
In-Water and Coastal Construction and Dredging. NAICS industries that
are relevant to in-water and coastal construction and dredging
activities include:
<bullet> Water and Sewer Line and Related Structures Construction
(NAICS 237110).
<bullet> Highway, Street, and Bridge Construction (NAICS 237310).
<bullet> Other Heavy and Civil Engineering Construction (237990).
<bullet> Dredging and Surface Cleanup (NAICS 237990).
The IRFA relies on the estimated incremental impacts resulting from
the proposed critical habitat designation, as described in section 6.0
of the Economic Impact Analysis Report. To be consistent with this
analysis, the IRFA provides low-end and high-end estimates of the
impacts to small entities. The IRFA estimates the impacts of the
proposed coral critical habitat in terms of the percentage of revenues
per small entity, which ranged from 0.20 percent under the low-end
(IRFA, table 1) to 36.9 percent under the high-end (IRFA, table 2).
These impacts are anticipated to be borne by the small entities engaged
in in-water and coastal construction and dredging that consult with
NMFS regarding the listed Indo-Pacific coral species critical habitat
in the next 10 years. Impacts are presented in the IRFA for each of the
three U.S. Pacific jurisdictional areas where one or more of the listed
coral species occur and where small businesses engaged in the relevant
activities have been identified--American Samoa, Guam, and CNMI.
According to section 6.0 of the Economic Impact Analysis Report, two or
fewer consultations on in-water
[[Page 83664]]
and coastal construction projects are forecasted to occur in both the
NWHI and the PRIA. However, because no businesses are located in either
the NWHI or the PRIA, it is not possible to determine what small
entities, if any, would be affected. In any case, given that few
consultations are expected to occur and that these consultations are
likely to be informal, the potential costs to small entities associated
with in-water and coastal construction projects in the NWHI and the
PRIA are anticipated to be negligible.
The low-end estimate assumes no incremental project modifications
occur because baseline permit conditions/regulations would provide
sufficient protection to avoid adverse modification of critical
habitat. Impacts to small entities are thus assumed to be due solely to
the additional administrative costs of considering the potential for
adverse effects to critical habitat during section 7 consultations. In
addition, the low-end estimate assumes that trends in the frequency of
informal consultations over the next 10 years will resemble those of
the past 10 years (section 6.0 of the Economic Impact Analysis Report).
The low-end estimate of total annualized impacts to small entities is
$4,675 (IRFA, table 1).
The high-end estimate of the impacts to small entities assumes that
all future projects related to in-water and coastal construction and
dredging will require formal consultations and that there will be
incremental project modification costs for all these future projects
(section 6.0 of the Economic Impact Analysis Report). In order to
present a conservative estimate of the impacts to small entities (i.e.,
an estimate more likely to overstate impacts than understate them), the
IRFA assumes that all project modification costs are borne by third
parties. The high-end estimate of total annualized impacts to small
entities is $872,331 (IRFA, table 1).
Given the uncertainty regarding which small entities in a given
industry will need to consult with NMFS, this analysis estimates
impacts to small entities under two different scenarios for both the
low-end and high-end estimates. These scenarios are intended to reflect
the range of uncertainty regarding the number of small entities that
may be affected by the designation and the potential impacts of
critical habitat designation on their annual revenues.
Under Scenario 1, the IRFA assumes that all third parties involved
in future consultations are small entities and that incremental impacts
for each territory or commonwealth (American Samoa, Guam, and CNMI) are
distributed evenly across all of the entities in the respective
territory or commonwealth. Scenario 1 accordingly reflects a high
estimate of the number of potentially affected small entities (14 for
both the low-end and high-end estimates) and a low estimate of the
potential effect in terms of percent of revenue, except for American
Samoa, where it is estimated that only one entity is conducting
construction activities in the areas considered for critical habitat.
The assumption under Scenario 1 is that 14 small entities will be
involved in consultation annually reflects the forecast that
approximately 14 consultations will occur annually on construction
activities involving third parties. This assumes that each consultation
on construction activities involves a unique small entity, including 1
small entity in American Samoa, 10 small entities in Guam, and 3 small
entities in CNMI. For the low-end estimate, this analysis anticipates
that approximately 14 small entities will incur $4,675 in annualized
costs under Scenario 1, including $1,244 in costs to the America Samoa-
based small entity, $281 in costs per Guam-based small entity, and $235
in costs per CNMI-based small entity. Annualized impacts of the
rulemaking are estimated to make up less than 1 percent of average
annual revenues of approximately $2.36 million for each affected small
entity.\1\ For the high-end estimate, this analysis anticipates that 14
small entities will incur $872,331 in annualized costs under Scenario
1, including $254,356 in costs to the America Samoa-based small entity,
$48,953 in costs per Guam-based small entity, and $47,751 in costs per
CNMI-based small entity. Annualized impacts of the rulemaking are
estimated to make up 17.0 percent of average annual revenues of $1.5
million for the American Samoa-based entity, 2.1 percent of average
annual revenues of approximately $2.37 million for Guam-based small
entities, and 1.9 percent of average annual revenues of $2.47 million
for CNMI-based small entities.
---------------------------------------------------------------------------
\1\ Average annual revenues were calculated based on company-
specific revenue data sourced from the Dun & Bradstreet Hoovers
database.
---------------------------------------------------------------------------
Under Scenario 2, this analysis assumes that all third parties
participating in future consultations are small and that costs
associated with each consultation action are borne each year by a
single small entity within the potentially impacted construction
industries. This method likely understates the number of small entities
affected and overstates the likely impacts on the impacted small
entity. For the low-end estimate, this analysis anticipates that a
single small entity will bear $4,675 in annualized costs. These
annualized impacts make up less than 1 percent of estimated average
annual revenues of $2.36 million for the impacted small entity. For the
high-end estimate, this analysis anticipates that a single small entity
will bear $872,331 in annualized costs. These impacts represent
approximately 37 percent of estimated average annual revenues for the
impacted small entity.
As explained under 4(b)(2) Economic Impact Analysis, we conclude
that the actual economic impacts are likely to be much closer to the
low-end scenario's projections than the high-end scenario's
projections. In addition, economic benefits would be relatively high in
the high-end scenario (because project modifications would provide
better protection of coral reef ecosystems, which produce economic
benefits), but non-existent in the low-end scenario (because there
would be no project modifications, and thus no increased protection of
coral reef ecosystems). Moreover, while Scenario 1 and Scenario 2
present a range of potentially affected entities and the associated
revenue effects, we expect the actual number of small entities affected
and revenue effects will be somewhere in the middle. In other words,
some subset of the small entities in American Samoa, Guam, and CNMI
greater than 2 and up to 14 will participate in section 7 consultations
on Indo-Pacific coral critical habitat and bear associated impacts
annually. We conclude that the economic impacts of the proposed coral
critical habitat are likely to be much closer to those projected by the
low-end scenario than the high-end scenario, and also that there would
be low economic benefits. That is, we find that the economic analysis
and IRFA support the conclusion that the proposed coral critical
habitat would have low economic effects on small entities.
There are no record-keeping requirements associated with the
rulemaking. Similarly, there are no reporting requirements.
No Federal laws or regulations duplicate or conflict with this
proposed rule. However, the protection of listed species and habitat
under critical habitat may overlap other sections of the ESA. For
instance, listing of the threatened Indo-Pacific corals under the ESA
already requires Federal agencies to consult with NMFS to avoid
jeopardy to the species. However, this analysis only examines the
incremental impacts to small entities from the proposed critical
habitat rule.
The RFA requires consideration of alternatives to the proposed rule
that
[[Page 83665]]
would minimize significant economic impacts to small entities. We
considered the following alternatives when developing the proposed
critical habitat rule.
Alternative 1: No Action Alternative
Under the no action alternative, we would not designate critical
habitat for the listed corals. The alternative of not designating
critical habitat was considered in this IRFA but rejected because, in
this case, it would violate the legal requirements of the ESA.
Moreover, we have determined that the physical feature forming the
basis for critical habitat designation is essential to the corals'
conservation, and conservation for these species will not succeed
without this feature being available. Thus, the lack of protection of
the critical habitat feature from adverse modification could result in
continued declines in abundance of the listed corals, and loss of
associated economic and other values these corals provide to society,
such as recreational and commercial fishing and diving services, and
shoreline protection services. Small entities engaged in some coral
reef-dependent industries would be adversely affected by the continued
declines in the listed corals. Thus, the no action alternative is not
necessarily a ``no cost'' alternative for small entities.
Alternative 2: Preferred Alternative
Under this alternative, the areas designated are waters ranging
from 0 to 10 m deep to 0 to 50 m deep in the 15 units located in
American Samoa, Guam, CNMI, the NWHI, and the PRIA. As noted in the
Critical Habitat Information Report, the following areas are ineligible
for proposed critical habitat: parts of Guam, parts of Tinian all of
Farallon de Medinilla, and all of Wake Atoll. An analysis of the costs
and benefits of the preferred alternative designation is presented in
appendix C of the Information Report. Relative to the no action
alternative, this alternative will likely involve an increase in
administrative and project modification costs for those section 7
consultations required to avoid adverse impacts to critical habitat,
above and beyond those required due to the corals' listing alone. We
have determined that no categories of activities would require
consultation, and no categories of project modifications would be
required, in the future solely due to this rulemaking and the need to
prevent adverse modification of critical habitat. Similarly, all
categories of activities have similar potential to adversely impact
corals and critical habitat, and the same project modifications would
remedy both sets of adverse effects. However, in some areas of proposed
coral critical habitat, there may be locations with no colonies of
listed corals, especially after a natural disturbance event (e.g.,
coral bleaching or crown-of-thorns starfish outbreak). For future
Federal actions that have small action areas within such locations,
costs to small entities could occur, and would represent an incremental
impact of this rulemaking. On the other hand, because projects with
larger or more diffuse action areas are more likely to impact both the
listed corals and their critical habitat, consultation and project
modification costs associated with those projects would more likely be
coextensive with the coral listings or another regulatory requirement.
The preferred alternative was selected because it best implements the
critical habitat provisions of the ESA by including the well-defined
environmental features essential to the species' conservation, and due
to the important conservation benefits that will result from this
alternative relative to the no action alternative.
Alternative 3: Designating a Subset of Areas
A third alternative was considered that would have excluded from
designation those areas in which, on economic or national security
bases, the benefits of exclusion outweigh the benefits of inclusion. No
areas, other than those excluded in the Preferred Alternative on the
basis of national security impacts, were identified where it was
determined that the benefits of exclusion outweigh the conservation
value of designation to the species. In addition, the public did not
submit comments on the benefits of exclusion and inclusion in general,
nor were comments submitted on those benefits as they relate to
specific areas. Thus, we rejected this alternative because it would
lessen the conservation value to the species.
Coastal Zone Management Act (16 U.S.C. 1451 et seq.)
Under section 307(c)(1)(A) of the Coastal Zone Management Act
(CZMA) and its implementing regulations (15 CFR part 923), each Federal
activity within or near coastal zones that has reasonably foreseeable
effects on any land or water use or natural resource of the coastal
zone shall be carried out in a manner which is consistent to the
maximum extent practicable with the enforceable policies of approved
State coastal management programs. Upon publication of the proposed
rule (85 FR 76262, November 27, 2020), we determined that the proposed
designation of critical habitat for the listed corals would have no
reasonably foreseeable effects on the enforceable policies of Guam's,
CNMI's, and American Samoa's approved Coastal Zone Management Programs,
and submitted our determinations to each of the responsible Territorial
agencies.
CNMI and Guam formally objected to our determinations on February
12, 2021, and March 26, 2021, respectively. Both Territories stated
that there were reasonably foreseeable coastal effects of coral
critical habitat for several reasons, including administrative burdens,
economic impacts, and third-party impacts. CNMI requested a consistency
determination and identified specific enforceable policies to be
addressed. Guam interpreted our determination as a consistency
determination, and requested a new consistency determination that
addressed specific enforceable policies. In response to these
objections and concerns expressed informally by American Samoa, we held
a meeting with the three Territorial CZM Programs (American Samoa,
Guam, and CNMI) on July 27, 2021. We explained the basis for our
determinations at the July meeting and scheduled follow-up meetings
with representatives of CNMI and Guam CZM Programs to review their
objections in detail.
On September 2, 2021, and September 7, 2021, we held meetings with
CNMI's and Guam's CZM Programs, respectively, and the NOAA Office of
Coastal Management, to review the Territories' objections to our
determinations. The Territories explained why they find that coral
critical habitat, as proposed in 2020, would result in administrative
burdens, economic impacts, and third-party impacts. The Territorial
representatives stated that they believe incomplete biological and
economic data were used in the 2020 proposed rule, resulting in the
habitat needs of the listed corals being overstated, and the extent of
economic impacts of critical habitat being understated in the proposed
rule. Subsequently, the Territories requested that NMFS work with their
experts to obtain more thorough and recent biological and economic data
to inform the proposed coral critical habitat rule. On September 30,
2021, and October 28, 2021, NMFS held meetings with biologists based in
American Samoa, CNMI, Guam, and Honolulu to review records of listed
corals in the Territories, which contributed to the development of
appendix A in the Information Report (NMFS, 2023). On September 23,
2021, and September 25,
[[Page 83666]]
2021, Guam and CNMI submitted letters to NMFS with updated economic
data, which was used in section 5.1.7 of the Information Report (NMFS,
2023).
In making revisions to the 2020 proposed critical habitat, in
addition to considering other public comments received, we considered
the comments submitted by each of the Territories regarding their
respective concerns about the proposed critical habitat. With the
withdrawal of the 2020 proposed rule, we also withdraw the November 27,
2020, CZMA determinations for the American Samoa, Guam, and CNMI CZM
Programs. Consistent with the CZMA, we will determine how to proceed
for the critical habitat now being proposed and coordinate accordingly
with the responsible agencies in American Samoa, Guam, CNMI, and
Hawaii.
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This proposed rule does not contain any new or revised collection
of information, defined by the Paperwork Reduction Act of 1995.
Notwithstanding any other provision of the law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the PRA, unless that collection of information displays a currently
valid OMB Control Number.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
This proposed rule will not produce a Federal mandate. The
designation of critical habitat does not impose a legally-binding duty
on non-Federal government entities or private parties. The only
regulatory effect is that Federal agencies must ensure that their
actions do not destroy or adversely modify critical habitat under
section 7 of the ESA. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
affected by the designation of critical habitat, but the Federal agency
has the legally binding duty to avoid destruction or adverse
modification of critical habitat.
We do not anticipate that this proposed rule will significantly or
uniquely affect small governments. Therefore, a Small Government Action
Plan is not required.
Consultation and Coordination With Indian Tribal Governments (E.O.
13175)
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 towards 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. Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, outlines
the responsibilities of the Federal Government in matters affecting
tribal interests. The proposed critical habitat designations for
threatened Indo-Pacific corals are located in U.S. Pacific Islands and
therefore do not have tribal implications in accordance with Executive
Order 13175.
Environmental Justice and Racial Equity (E.O.s 12898, 14096, 14019,
13985)
The designation of critical habitat is not expected to have a
disproportionately high effect on minority populations or low-income
populations. The purpose of this rulemaking is to protect and conserve
ESA-listed species through the designation of critical habitat and is
expected to help promote a healthy environment; thus, we do not
anticipate minority populations or low-income populations to experience
disproportionate and adverse human health or environmental burdens. The
designation of critical habitat is not expected to disproportionately
affect minority populations, low-income populations, or populations
otherwise adversely affected by persistent poverty or inequality.
Further, it is not expected to create any barriers to opportunity for
underserved communities.
List of Subjects and Maps
50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 226
Endangered and threatened species.
Dated: November 21, 2023.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, we propose to amend 50 CFR
parts 223 and 226 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 Sec. 223.102(e), in the table, under the heading ``Corals''
revise the entries for ``Acropora globiceps,'' ``Acropora retusa,''
``Acropora speciosa,'' ``Euphyllia paradivisa,'' and ``Isopora
crateriformis'' to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous
species.
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
------------------------------------------------------------------------------------- Citation(s) for listing Critical
Description of listed determination(s) habitat ESA rules
Common name Scientific name entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Corals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coral, [no common name]............. Acropora globiceps.... Entire species........ 79 FR 53852, Sept. 10, 226.230 NA.
2014.
* * * * * * *
Coral, [no common name]............. Acropora retusa....... Entire species........ 79 FR 53852, Sept. 10, 226.230 NA.
2014.
* * * * * * *
Coral, [no common name]............. Acropora speciosa..... Entire species........ 79 FR 53852, Sept. 10, 226.230 NA.
2014.
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* * * * * * *
Coral, [no common name]............. Euphyllia paradivisa.. Entire species........ 79 FR 53852, Sept. 10, 226.230 NA.
2014.
* * * * * * *
Coral, [no common name]............. Isopora crateriformis. Entire species........ 79 FR 53852, Sept. 10, 226.230 NA.
2014.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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).
PART 226--DESIGNATED CRITICAL HABITAT
0
3. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
4. Add Sec. 226.231 to read as follows:
Sec. 226.231 Critical habitat for Acropora globiceps, Acropora
retusa, Acropora speciosa, Euphyllia paradivisa, and Isopora
crateriformis.
Critical habitat is designated in the following jurisdictions for
the following species as depicted in the maps below and described in
paragraphs (a) through (e) of this section. The maps can be viewed or
obtained with greater resolution (available at <a href="https://www.fisheries.noaa.gov/action/proposed-rule-designate-critical-habitat-threatened-indo-pacific-corals">https://www.fisheries.noaa.gov/action/proposed-rule-designate-critical-habitat-threatened-indo-pacific-corals</a>) to enable a more precise inspection of
the proposed critical habitat for A. globiceps, A. retusa, A. speciosa,
E. paradivisa, and I. crateriformis.
(a) Critical habitat locations. Critical habitat is designated for
the following species in the following jurisdictions:
Table 1 to Paragraph (a)
------------------------------------------------------------------------
State--counties (or other
Species jurisdiction)
------------------------------------------------------------------------
Acropora globiceps..................... American Samoa (AS), Guam (Gu),
Commonwealth of the Northern
Mariana Islands (CNMI),
Pacific Remote Island Areas
(PRIA), Hawaii (HI).
Acropora retusa........................ AS, PRIA.
Acropora speciosa...................... AS.
Euphyllia paradivisa................... AS.
Isopora crateriformis.................. AS.
------------------------------------------------------------------------
(b) Critical habitat boundaries. Except as noted in paragraph (d)
of this section, critical habitat for the five species includes all
specific areas depicted in the maps below.
(c) Essential feature. The feature essential to the conservation of
A. globiceps, A. retusa, A. speciosa, E. paradivisa and I.
crateriformis is: Sites that support the normal function of all life
stages of the corals, including reproduction, recruitment, and
maturation. These sites are natural, consolidated hard substrate or
dead coral skeleton, which is free of algae and sediment at the
appropriate scale at the point of larval settlement or fragment
reattachment, and the associated water column. Several attributes of
these sites determine the quality of the area and influence the value
of the associated feature to the conservation of the species:
(1) Substrate with presence of crevices and holes that provide
cryptic habitat, the presence of microbial biofilms, or presence of
crustose coralline algae;
(2) Reefscape with no more than a thin veneer of sediment and low
occupancy by fleshy and turf macroalgae;
(3) Marine water with levels of temperature, aragonite saturation,
nutrients, and water clarity that have been observed to support any
demographic function; and
(4) Marine water with levels of anthropogenically-introduced (from
humans) chemical contaminants that do not preclude or inhibit any
demographic function.
(d) Areas not included in critical habitat. Critical habitat does
not include the following particular areas where they overlap with the
areas described in paragraphs (a) through (c) of this section:
(1) Pursuant to ESA section 4(a)(3)(B)(i), all areas subject to the
2017 Wake Island and 2019 Joint Region Marianas Integrated Natural
Resources Management Plans;
(2) Managed areas that do not provide the quality of substrate
essential for the conservation of the five Indo-Pacific corals are
defined as particular areas whose consistently disturbed nature renders
them poor habitat for coral growth and survival over time. These
managed areas include specific areas where the substrate has been
disturbed by planned management authorized by local, territorial,
State, or Federal governmental entities at the time of critical habitat
designation, and will continue to be periodically disturbed by such
management. Examples include, but are not necessarily limited to,
dredged navigation channels, shipping basins, vessel berths, and active
anchorages. A comprehensive list of managed areas is provided in
appendix B of the Information Report (NMFS, 2023);
(3) Existing artificial substrates including but not limited to:
fixed and floating structures, such as aids-to-navigation (AToNs),
seawalls, wharves, boat ramps, fishpond walls, pipes, submarine cables,
wrecks, mooring balls, docks, aquaculture cages. A comprehensive list
of artificial substrates is provided in appendix B of the Information
Report (NMFS, 2023).
(e) Critical habitat maps. The specific areas of critical habitat
within the 16 island units for the 5 listed coral species are shown on
the following 24 maps. These black and white maps are based
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on the maps in the Information Report (NMFS, 2023) that are color-coded
for the listed coral species. Multiple substrate data sources were used
for the maps, as cited in the island sub-sections in section 3.4 of the
Information Report (NMFS, 2023).
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[FR Doc. 2023-26051 Filed 11-29-23; 8:45 am]
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