80 FR 42088 - Addition of Species to the Annexes of the Protocol Concerning Specially Protected Areas and Wildlife in the Wider Caribbean Region

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 80, Issue 136 (July 16, 2015)

During a meeting of the Parties to the Specially Protected Areas and Wildlife (SPAW Protocol), held in Cartagena, Colombia in December 2014, ten species of flora and fauna were added to the Annexes of the SPAW Protocol. The United States voted against these amendments to the Annexes because a failure by the Parties to follow the procedures for adding species to the Annexes prevented the United States from following the domestic procedures that are a prerequisite for acceptance by the United States of such amendments to the SPAW Protocol Annexes. In particular, when granting its advice and consent to ratify the SPAW Protocol, the Senate Foreign Relations Committee expressed its intent that before the Executive Branch decides to accept amendments to the Protocol Annexes, it is to consult with the Senate and solicit public comment through notice in the Federal Register (Senate Executive Report 107-8). The United States has entered a reservation as to the ten newly added species in order to complete an interagency review, to solicit public comment on the addition of those species to the SPAW Protocol Annexes, and to complete consultation with the Senate. The Department of State, U.S. Fish and Wildlife Service, and National Marine Fisheries Service solicit comment on the addition of these ten species to the Annexes, to consider whether or not to withdraw the reservation with respect to some or all of those species.

[Federal Register Volume 80, Number 136 (Thursday, July 16, 2015)]
[Notices]
[Pages 42088-42091]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-17408]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD982


Addition of Species to the Annexes of the Protocol Concerning 
Specially Protected Areas and Wildlife in the Wider Caribbean Region

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; request for public comments.

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SUMMARY: During a meeting of the Parties to the Specially Protected 
Areas and Wildlife (SPAW Protocol), held in Cartagena, Colombia in 
December 2014, ten species of flora and fauna were added to the Annexes 
of the SPAW Protocol. The United States voted against these amendments 
to the Annexes because a failure by the Parties to follow the 
procedures for adding species to the Annexes prevented the United 
States from following the domestic procedures that are a prerequisite 
for acceptance by the United States of such amendments to the SPAW 
Protocol Annexes. In particular, when granting its advice and consent 
to ratify the SPAW Protocol, the Senate Foreign Relations Committee 
expressed its intent that before the Executive Branch decides to accept 
amendments to the Protocol Annexes, it is to consult with the Senate 
and solicit public comment through notice in the Federal Register 
(Senate Executive Report 107-8).
    The United States has entered a reservation as to the ten newly 
added species in order to complete an interagency review, to solicit 
public comment on the addition of those species to the SPAW Protocol 
Annexes, and to complete consultation with the Senate. The Department 
of State, U.S. Fish and Wildlife Service, and National Marine Fisheries 
Service solicit comment on the addition of these ten species to the 
Annexes, to consider whether or not to withdraw the reservation with 
respect to some or all of those species.

DATES: Comments must be received by September 14, 2015.

ADDRESSES: You may submit comments on the addition of the ten species 
to the Annexes of the SPAW Protocol, identified by NOAA-NMFS-2015-0087, 
by the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0087.
    2. Click the ``Comment Now!'' icon, complete the required fields.
    3. Enter or attach your comments.

OR

     Mail: Submit written comments to Addition of Species to 
the Annexes of the SPAW Protocol, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Room 13535, 
Silver Spring, MD 20910.
    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. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov 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.

FOR FURTHER INFORMATION CONTACT: For further information, contact 
Angela Somma, NOAA (301-427-8401; [email protected]); and Melida 
Tajbakhsh, U.S. Fish and Wildlife Service (703-358-1766; 
[email protected]). Persons who use a Telecommunications Device 
for the Deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 1-800-877-8339, 24 hours a day, and 7 days a week.

SUPPLEMENTARY INFORMATION: The SPAW Protocol is a protocol to the 
Convention for the Protection and Development of the Marine Environment 
of the Wider Caribbean Region (Cartagena Convention or Convention). The 
Convention also has a Protocol addressing land-based sources of 
pollution and a Protocol addressing regional cooperation on oil 
pollution preparedness and response. The SPAW Protocol was adopted in 
1990 and entered into force in 2000. The United States ratified the 
SPAW Protocol in 2003. There are currently 16 State Parties to the SPAW 
Protocol from throughout the Wider Caribbean Region.
    Participants at the December 2014 meeting of the Parties to the 
SPAW Protocol included representatives from: Bahamas, Barbados, 
Colombia, Dominican Republic, France, Guyana, the Netherlands, Panama, 
Saint Lucia, Trinidad and Tobago, and the United States of America. 
Representatives of several non-governmental organizations also attended 
as observers.
    The U.S. delegation included representatives from the U.S. 
Department of State; the National Oceanic and Atmospheric 
Administration, National Marine Fisheries Service; and the U.S. Virgin 
Islands. Copies of the official ``Report of the Meeting'' (including a 
complete list of the attendees) and the text of the Convention and SPAW 
Protocol can be obtained at http://www.cep.unep.org/meetings/2014/spaw-cop8.

Convention and Convention Area

    The Cartagena Convention is a regional agreement for the protection 
and development of the marine environment of the wider Caribbean. The 
Convention was adopted in 1983 and entered into force in 1986. The 
United States ratified the Convention in 1986. The Convention area 
includes the marine environment of the Gulf of

[[Page 42089]]

Mexico, the Caribbean Sea and the adjacent areas of the Atlantic Ocean 
south of 30 degrees north latitude and within 200 nautical miles of the 
Atlantic Coasts of the signatory countries. The United States' 
responsibility within this Convention area includes: U.S. waters off of 
Puerto Rico, the Virgin Islands, and peninsular Florida, including the 
Atlantic coast; the waters off of a number of islands including coastal 
barrier islands and the Florida Keys; and the Gulf of Mexico waters 
under U.S. jurisdiction.
    The SPAW Protocol authorizes each Party to designate related 
terrestrial areas over which they have sovereignty and jurisdiction 
(including watersheds) to be covered by the SPAW Protocol. The United 
States has not designated any terrestrial areas under the SPAW Protocol 
and ``does not intend to designate a terrestrial area under the 
Protocol unless requested to do so by an interested state or territory 
. . .'' (Senate Executive Report 107-8).

The Annexes and U.S. Obligations Under Each Annex

    The SPAW Protocol includes three Annexes listing species that the 
Parties believe require international cooperation to provide adequate 
protection. Plant species requiring the highest levels of protection 
are listed in Annex I, and animal species requiring the highest levels 
of protection are listed in Annex II. Plants and animals requiring some 
management, but lesser protections than those afforded to species 
listed in Annexes I or II, are listed in Annex III.
    The Annexes were adopted in 1991. It was envisioned that, once the 
SPAW Protocol entered into force, species would be added to or deleted 
from the initial Annexes. However, until the December 2014 meeting of 
the SPAW Protocol Parties, there had been no changes made to the 
Annexes.
    The SPAW Protocol additionally states that ``a Party may, in the 
exercise of its sovereignty or sovereign rights, enter a reservation to 
the listing of a particular species in an annex by notifying the 
Depositary [Colombia] in writing within 90 days of the vote of the 
Parties.'' By entering a reservation, the Party is declaring itself to 
not be bound by the SPAW Protocol's obligations vis-[agrave]-vis the 
particular species.
    Annexes I (flora) and II (fauna) are to include endangered and 
threatened species, subspecies, and their populations as well as rare 
species. The SPAW Protocol refers to rare species as those ``that are 
rare because they are usually localized within restricted geographical 
areas or habitats or are thinly scattered over a more extensive range 
and which are potentially or actually subject to decline and possible 
endangerment or extinction.''
    For fauna listed in Annex II, Parties ``shall ensure total 
protection and recovery to the species . . . by prohibiting: (i) ``the 
taking, possession or killing (including, to the extent possible, the 
incidental taking, possession or killing) or commercial trade in such 
species, their eggs, parts or products;'' and (ii) ``to the extent 
possible, the disturbance of such species, particularly during periods 
of breeding, incubation, estivation or migration, as well as other 
periods of biological stress.''
    Annex III may include species that are endangered or threatened, or 
species that have endangered or threatened populations, or species that 
are essential to the maintenance of fragile and vulnerable communities 
and require some protection to ensure the survival and/or function of 
the community as a significant part of the ecosystem. 56 FR 12026, 
12028 (March 21, 1991). The SPAW Protocol states that ``Each Party 
shall adopt appropriate measures to ensure the protection and recovery 
of the species of flora and fauna listed in Annex III and may regulate 
the use of such species in order to ensure and maintain their 
populations at the highest possible levels.'' Therefore, some regulated 
harvest may be permitted for species on Annex III. The protective 
provisions of this Annex are not intended to be more restrictive than 
the provisions included in Annexes I and II.
    The United States ratified the SPAW Protocol, including Annexes, 
subject to certain reservations, including the following with respect 
to Article 11(1): ``The United States does not consider itself bound by 
Article 11(1) of the [SPAW] Protocol to the extent that United States 
law permits the limited taking of flora and fauna listed in Annexes I 
and II [ ] which is incidental, or [ ] for the purpose of public 
display, scientific research, photography for educational or commercial 
purposes, or rescue and rehabilitation.''
    The United States has not designated any terrestrial area under the 
SPAW Protocol. The United States explained at the time the SPAW 
Protocol was ratified that the obligations under the SPAW Protocol do 
not apply in the United States with respect to terrestrial species: 
``The United States does not plan to designate terrestrial area under 
the Protocol since no state or territory has identified a need or 
desire to designate terrestrial area. . . .'' (Senate Treaty Document 
103-5). In addition, ``Several terrestrial species, e.g. bats (Tadarida 
brasiliensis and Brachyphylla cavernarum) and falcons (Falco 
peregrinus), are listed in the Annexes. The listing of these species, 
however, is not intended to describe the relevant terrestrial scope of 
the Protocol. As the United States has not designated any terrestrial 
area, the Protocol obligations will not apply with respect to such 
species.'' Id.

 Summary of Annexes

    Annex I contains a total of 57 plant species. At the time of U.S. 
ratification of the SPAW Protocol, all plant species on Annex I were 
either: (1) Listed under the U.S. Endangered Species Act; (2) endemic 
to Florida and protected under Florida law; (3) occur only on Federal 
land and are fully protected where they occur; (4) are not native to 
the United States, and are listed in the Appendices of the Convention 
on International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) where primarily commercial trade would be prohibited; or (5) 
are not native to, nor believed to be commercially imported into the 
United States. 56 FR 12026, 12028 (March 21, 1991). There have been no 
additions to Annex I since the adoption of the SPAW Protocol.
    Annex II includes all sea turtles and all marine mammals in the 
region. Before the December 2014 meetings, Annex II contained one 
hundred nine (109) other species. Most of these animal species are 
either: (1) Listed under the U.S. Endangered Species Act or the Marine 
Mammal Protection Act; (2) are not native to the United States and are 
listed in Appendix I of CITES; or (3) are offered complete protection 
by domestic legislation in all range States (whereby the Lacey Act, 
among other things, prohibits commercial trade in specimens taken, 
possessed, transported or sold in violation of foreign law); or (4) are 
endemic to foreign countries and are not commercially imported into the 
United States. Six new species were added to Annex II by the SPAW 
Parties in December 2014. Id. Prior to the December 2014 meeting, Annex 
III included 40 species of plants and 30 species of animals in addition 
to species of corals, mangroves, and sea-grasses that occur in the 
region. Four new species of birds and plants were added to Annex III by 
the SPAW Parties in December 2015.

Composition of the Annexes

    The plant and animal species present on each Annex can be found 
here: http://www.car-spaw-rac.org/?Annexes-of-the-SPAW-Protocol,83.

[[Page 42090]]

Species Added to the SPAW Annexes in December 2014

Annex II

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                  Species                            Common name
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                                 CORALS
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Acropora cervicornis......................  Staghorn coral.
Acropora palmata..........................  Elkhorn coral.
Orbicella (Montastraea) annularis.........  Boulderstar coral.
Orbicella (Montastraea) faveolata.........  Mountain star coral.
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                                  BIRDS
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Catharus bicknelli........................  Bicknell's Thrush.
Pterodroma hasitata.......................  Black-capped Petrel.
------------------------------------------------------------------------

Annex III

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                  Species                            Common name
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                                  BIRDS
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Patagioenas (Columba) leucocephala........  White-crowned pigeon.
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                                 PLANTS
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Guaiacum sanctum..........................  Lignum vitae, Holywood.
Ekmanianthe longifora.....................  Roble Real.
Bombacopsis emarginata....................  Seibon de Arroyo.
------------------------------------------------------------------------

    Pending the results of an interagency review and this public 
comment period and internal and external consultations, including with 
the Senate, the United States has entered a reservation as to each of 
these newly added species.

Circumstances of Addition of Species to SPAW Annexes and U.S. 
Reservation

    Article 11(4) of the SPAW Protocol details the requirements for 
amending the Annexes and states, in part, that a Party may submit a 
nomination to add a species to an Annex; that the nomination must be 
accompanied by supporting documentation; and that the SPAW Scientific, 
Technical and Advisory Committee (STAC) shall review the nomination. At 
the December 2014 meeting of the SPAW Parties, the Parties decided by 
majority vote to add these ten species to the SPAW Annexes even though 
no Party had formally submitted a nomination and no supporting 
documentation had been made available to Parties. The decision left no 
time for a full scientific review, a public comment period in the 
United States, or consultation with the Senate. The United States voted 
against the decision. Nevertheless, the decision was adopted and the 
Annexes were amended.
    The United States has entered a reservation as to these ten species 
pending (1) the results of interagency consideration of the added 
species and the obligations associated with the addition of these 
species to the Annexes; (2) the solicitation of public comment on the 
added species; and (3) consultation with the Senate.

Species Under the Jurisdiction of the National Marine Fisheries Service

    Four of the ten species added to the Annexes at the December 2014 
Cartagena meeting fall under the jurisdiction of the National Marine 
Fisheries Service (NMFS). As presented earlier in this Notice, four 
coral species, staghorn coral, Acropora cervicornis; elkhorn coral, 
Acropora palmata; boulderstar coral Orbicella (Montastraea) annularis; 
and mountain star coral, Orbicella (Montastraea) faveolata, were added 
to Annex II. All four of these species are listed as threatened species 
under the U.S. Endangered Species Act (ESA). Staghorn (A. cervicornis) 
and elkhorn coral (A. palmata) were listed under the ESA in 2006. 
Boulderstar (O. annularis) and mountain star (O. faveolata) coral were 
listed under the ESA in 2014.
    The Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et 
seq., (ESA) provides substantial protections for endangered and 
threatened species. An endangered species is in danger of extinction 
throughout all or a significant portion of its range (ESA section 3(6), 
16 U.S.C. 1532(6)). A threatened species is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range (ESA section 3(20), 16 U.S.C. 
1532(20)). The statute prohibits certain acts for endangered species of 
fish or wildlife, including import, export, and ``take'' of endangered 
species unless an exemption applies (ESA section 9(a)(1), 16 U.S.C. 
1538(a)(1)). ``Take'' is defined broadly to include harassment, harm, 
pursuit, hunt, shooting, wounding, killing, trapping, capturing, or 
collecting, or attempting to engage in any such conduct (ESA section 
3(19), 16 U.S.C. 1532(19)). Violation of these prohibitions can result 
in criminal as well as civil penalties (ESA section 11, 16 U.S.C. 
1540).
    Congress allows the Secretary of Commerce or Interior to issue 
regulations deemed necessary and advisable to provide for the 
conservation of threatened species (ESA section 4(d), 16 U.S.C. 
1533(d)). In such regulations, the Secretary of Commerce or Interior 
may, but is not obligated, to apply the prohibitions in section 
9(a)(1). The ESA prohibits any activities with respect to threatened 
species in violation of any regulation promulgated under section 4(d). 
Congress' legal regime for threatened species provides NMFS the 
discretion to prohibit or regulate activities of concern, while 
avoiding the use of limited resources to regulate activities that do 
not cause problems for conservation of the species.
    In 2008, NMFS promulgated protective regulations for staghorn and 
elkhorn coral (73 FR 64264, October 29, 2008). When NMFS issued the 
regulations, it determined that import and export of these species was 
already adequately regulated by CITES. NMFS also exempted certain 
research and restoration activities from the take prohibitions and the 
need to receive a permit for such activities from NMFS under Section 10 
of the ESA.
    As explained earlier in this Notice, the addition of a marine 
species to one of the SPAW Annexes requires the United States to 
implement protections under Article 11(1) f the SPAW Protocol. If the 
United States withdraws the reservation to the listing of the four 
coral species in Annex II, NMFS may need to amend these exemptions to 
the ESA take prohibitions. Pursuant to the reservation taken by the 
United States at the time of ratification of the SPAW Protocol, 
scientific research and restoration activities could continue. However, 
NMFS may have to authorize such research through individual permits 
rather than regulations, in order to satisfy reporting requirements. 
The process of issuing individual permits may slow research and 
restoration activities, and may result in the redirection of resources 
from on the ground recovery activities to permitting activities.
    In addition, NMFS would no longer be able to allow any commercial 
trade in these species, even though such trade may be permitted under 
CITES.
    In September 2014, NMFS listed boulder star and mountain star 
corals as threatened species under the ESA but has not yet enacted 
protective regulations that impose any of the prohibitions of take that 
apply to endangered species. NMFS has initiated a process to determine 
what, if any, take prohibitions should be applied, but that process 
will take some time and may ultimately allow activities that would be 
prohibited by the SPAW Protocol. On January 13, 2105, (80 FR 1616) NMFS 
published an Advanced Notice of Proposed Rulemaking, seeking the 
public's input into which, if any, of the take prohibitions should be 
applied to boulder star and mountain star corals. NMFS is carefully 
examining the public

[[Page 42091]]

input it received regarding which of the take prohibitions should be 
applied.

Species Under the Jurisdiction of the U.S. Fish and Wildlife Service

    Six of the ten species added to the Annexes at the December 2014 
Cartagena meeting fall under the jurisdiction of the U.S. Fish and 
Wildlife Service (FWS). As explained earlier in this Notice, two bird 
species, Zorzal/Tordo de Bicknell (``Bicknell's thrush''), Catharus 
bicknelli; and Petrel de Coronilla negra (``Black-capped petrel''), 
Pterodroma hasitata were added to Annex II. One bird and three plant 
species, White-crowned pigeon, Patagioenas (Columba) leucocephala; 
Lignum vitae, Holywood, Guaiacum sanctum; Roble Real, Ekmanianthe 
longifora; and Seibon de Arroyo, Bombacopsis emarginata were added to 
Annex III. FWS is recommending that the reservations for the six 
species that traditionally fall within FWS jurisdiction be withdrawn.
    If reservations are withdrawn regarding the addition of the species 
under FWS jurisdiction to the SPAW Annexes, FWS believes that existing 
federal legislation provides sufficient legal authority to implement 
United States obligations under the SPAW Protocol with respect to these 
newly added species.
    One bird species, the Black-capped petrel, is a marine species and 
the obligations of the SPAW Protocol will apply in the United States 
with respect to this species if the reservation regarding its addition 
to SPAW Annex II is withdrawn. As explained earlier in this Notice, the 
addition of a marine species to one of the SPAW Annexes requires the 
United States to implement protections under Article 11(1) of the SPAW 
Protocol. The Black-capped petrel is included in the list of migratory 
birds protected under the Migratory Bird Treaty Act (16 U.S.C. 703 et 
seq. (MBTA)). The MBTA's protections include prohibitions on taking, 
possession, killing, and commercial trade. While the MBTA does allow 
the Secretary of the Interior to authorize hunting of migratory birds, 
hunting of Black-capped petrel is not authorized. FWS believes that the 
MBTA provides sufficient authority and provides the protection 
necessary to meet the United States obligations that would arise upon 
withdrawing the United States' reservation to the addition of the 
Black-capped petrel to SPAW Annex II.
    Five of the species under the jurisdiction of the FWS, two species 
of birds (Bicknell's thrush and White-crowned pigeon) and all three 
species of plants (Lignum vitae, Roble Real, and Seibon de Arroyo), are 
terrestrial species. As explained earlier in this Notice, the United 
States has not designated any terrestrial area under the SPAW Protocol 
and the obligations under the SPAW Protocol do not apply in the United 
States with respect to terrestrial species. Accordingly, no obligations 
under the SPAW Protocol would apply to these five terrestrial species 
if the United States' reservations are withdrawn regarding the addition 
of these species to the SPAW Annexes.

Comments Solicited

    The Agencies solicit comments regarding: (1) The extent to which 
existing U.S. laws and regulations offer protections for these ten 
species; and (2) information that informs the United States' 
consideration of whether or not to withdraw the reservation with 
respect to some or all of these ten species.

    Authority:  16 U.S.C. 1531 et seq.


    Dated: July 10, 2015.
Perry F. Gayaldo,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2015-17408 Filed 7-15-15; 8:45 am]
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