NMFS Solicits Public Comment on Protective Regulations for Listed Coral Species

14 Jan, 2015

Acropora sp. photographed at the Federated States of Micronesia, Chuuk. Image by David Burdick, NOAA | CC BY 2.0

Acropora sp. photographed at the Federated States of Micronesia, Chuuk. Image by David Burdick, NOAA | CC BY 2.0

January 13th, 2015, the National Oceanic and Atmospheric Administration‘s (NOAA) National Marine Fishery Service (NMFS) officially began soliciting public input as they consider developing a section 4(d) rule for the 20 species of coral recently listed under the Endangered Species Act (ESA). “Advanced Notice of Proposed Rulemaking and Request for Information for the Issuance of Protective Regulations Under Section 4(d) of the Endangered Species Act for the Conservation of Threatened Corals” appeared 13 January 2015 in the Federal Register and is an advanced notice of proposed rulemaking that could limit activity related to the listed species.


In late August, NMFS announced a final rule listing 20 species of coral as threatened under the ESA, and the final rule was officially published on 10 September. The primary threats to the listed species were identified by NMFS as ocean warming, disease, and ocean acidification. Other threats, including collection and trade, were identified as medium to low threats. Unlike the U.S. Fish and Wildlife Service (USFWS), NMFS does not presumptively apply prohibitions outlined in ESA Section 9 to species listed as “threatened” under the ESA. As such, even though several aquarium coral species were listed as threatened in the final rule, trade and other commercial activity related to those species was not immediately affected.

In the case of species under NMFS jurisdiction that are listed as “threatened,” the Secretary of Commerce, under Section 4(d) of the ESA, is directed to “issue such regulations as she deems necessary and advisable to provide for the conservation of the species.” The regulations issued by the Secretary of Commerce may include so-called Section 9 “take” prohibitions. In ESA-speak, “take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.”

4(d) Rulemaking

The issuance of so-called 4(d) rules could end most, if not all, commercial activity related to the listed species, making it unlawful for any person subject to U.S. jurisdiction to:

(A) Import any such species into, or export any such species from the United States; (B) take any such species within the United States or the territorial sea of the United States; (C) take any such species upon the high seas; (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C); (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species; (F) sell or offer for sale in interstate or foreign commerce any such species; or (G) violate any regulation pertaining to such species or to any
threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter.

According to NMFS, the decision to extend Section 9 prohibitions to threatened species is based on “the biological status of the species, the potential impacts of various activities on the species, and on factors such as the existence and efficacy of other conservation activities.”

Exemptions and Flexibility

While 4(d) rulemaking could end all commercial activity related to the species in question, there is also the opportunity for NMFS to issue “limited specified exemptions.” While NMFS is now considering whether protective regulations are necessary for the conservation of the 20 species, they also emphasize that they have “flexibility under section 4(d) to tailor protective regulations based on the contributions of other existing conservation measures.” Even if they apply certain “take” prohibitions, NMFS points out they can “provide exceptions for certain circumstances in which extending the take prohibitions is not necessary and advisable.”

In today’s publication, NMFS acknowledges that only some of the recently listed coral species occur in waters under U.S. jurisdiction but that others are commonly imported into the U.S. for the marine aquarium trade. “One of the section 9(a)(1) prohibitions that may be applied pursuant to section 4(d),” NMFS states, “is the prohibition on the take of species on the high seas. We are therefore requesting information for all 20 newly listed threatened species, wherever they may occur, to help inform our determination of which take prohibitions may be necessary and advisable for their conservation.” Prohibitions could also affect cultured corals in addition to those harvested in the wild.

Public Comment Solicited

Specifically, NMFS is requesting public comment and information from other agencies that will assist them in better understanding and analyzing impacts of various activities related to the listed species. NMFS is also looking to better understand the “existence and
efficacy of ongoing conservation activities” related to the corals in question. In addition to public comment regarding prohibitions, NMFS is requesting comment concerning “specific activities that should be excepted from any prohibitions that may be applied because they either provide a conservation benefit or do not detract from the conservation of these species.” They are also interested in learning about the economic costs and benefits likely to result from any protective regulations and prohibitions resulting from 4(d) rulemaking.

Those wishing to submit public comment have until 16 March 2015.

Comments, information, or data may be submitted as follows:

Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal www.regulations.gov. Go to


Click the ‘‘Comment Now’’ icon, complete the required fields, and enter or attach your comments.

Mail: To submit written comments regarding Indo-Pacific species, contact the Pacific Islands Region: Lance Smith, Protected Resources Division, National Marine Fisheries Service, Pacific Islands Regional Office, NOAA Inouye Regional Center, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818. To submit written comments regarding the Caribbean species, contact the Southeast Region: Stephania Bolden, Protected Resources Division, National Marine Fisheries Service, Southeast Regional Office, 263 13th Avenue South, Saint Petersburg, FL 33701.


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About the author

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Ret Talbot

Ret Talbot is an award-winning writer and photojournalist who writes frequently on sustainability issues. He lives with his wife, artist Karen Talbot, in Rockland, Maine.


  1. January 14, 2015

    The link does not allow comments…

  2. January 16, 2015

    Why would you prohibit aquacultured corals? Many reef clubs have programs in place to propagate coral species by what is known a fragging a colony and passing the frags on. The people receiving the frags are then required to frag theirs a couple of times and pass on. We do this so as to not take from the wild. Many of the corals now are aquacultured or even maricultured. This new rule seems to be an over reaction by emotion and not backed by scientific research and reasoning. Its bending to the enviromentalist attitude. Those of us in the hobby support protecting the reefs but our hobby is but a drop in the ocean compared to the dumping of garbage and wastes into our oceans by big corp and countries that have no controls. Lets look at that first those are things that are destroying our reefs ond oceans

  3. January 17, 2015

    I believe that much of this is spurned by misinformation and people on legislative panels that have a knee jerk reaction to what some environmentalists say without consulting the real experts. A friend of mine sent me the Julian Sprung talk from MACNA 2014 in Colorado this past week; and the 4 other people on the roundtable panel at the end of the talk had some surprising things to say about how biased and uninformed the listing process is for corals.

    The only way to work through this and have the trade and hobby left intact is to solidify the numbers that contact legislators. The marine aquatic part of the pet trade is a half billion dollar industry and for that kind of hit to the US Economy, not to mention all the advances we have made over the past decade let alone since the hobby began would lose any forward momentum.

    The legislation of this issues in my opinion is just as reckless as some of the collectors in areas using cyanide to collect fish. So instead of recklessly passing legislation, a combined effort to address the causes of decline by government and trade as well as re-poplation efforts from privately aquacultured stock is essential not just for the hobby but for the planet.

    Also- with that said, studies need to be done establishing the basis that some things may just naturally become extinct and others are being influenced by man- and as Ray Baker points out in his last sentence in his reply “Lets look at first those things that are destroying reefs and oceans.” is and should be the first step.

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