Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 101993 

Issued under authority delegated in 49 CFR 

1.95 and 501.5. 

Sophie Shulman, 

Deputy Administrator. 

[FR Doc. 2024–29268 Filed 12–16–24; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 224 

[Docket No. 241112–0291; RTID 0648– 

XR126] 

Endangered and Threatened Wildlife 

and Plants: Reclassification of Pillar 

Coral (Dendrogyra cylindrus) From 

Threatened to Endangered 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is changing the status 

of pillar coral (Dendrogyra cylindrus) 

from threatened to endangered on the 

Federal List of Threatened and 

Endangered Species. We have 

considered the 5-year review of the 

status of D. cylindrus, expert reviewer 

comments, and public comments 

submitted on the proposed rule. Based 

on this information, we have 

determined that D. cylindrus is in 

danger of extinction throughout all or a 

significant portion of its range. Thus, we 

are changing the status of D. cylindrus 

from threatened to endangered under 

the Endangered Species Act (ESA) of 

1973. 

DATES: This final rule is effective on 

February 18, 2025. 

ADDRESSES: Public comments that were 

submitted on the proposed rule to 

change the status of D. cylindrus are 

available at: https://

www.regulations.gov identified by 

docket number NOAA–NMFS–2023– 

0002. A list of references cited in the 

final rule and other supporting materials 

are available at: https://

www.fisheries.noaa.gov/species/pillarcoral/conservation-management, or by 

submitting a request to the National 

Marine Fisheries Service, Southeast 

Regional Office, Protected Resources 

Division, 263 13th Avenue South, St. 

Petersburg, Florida 33701. 

FOR FURTHER INFORMATION CONTACT: 

Alison Moulding, 727–551–5607, 

alison.moulding@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On September 10, 2014, we published 

a final rule listing D. cylindrus, along 

with 4 other Caribbean coral species and 

15 Indo-Pacific coral species, as 

threatened under the ESA (79 FR 53851, 

September 10, 2014). In early 2021, we 

announced a 5-year review of 7 

threatened Caribbean coral species, 

including D. cylindrus (86 FR 1091, 

January 7, 2021) to determine whether 

the listing classification of these species 

was still accurate. Based on the findings 

of the 5-year review (NMFS, 2022), we 

published a proposed rule to change the 

status of D. cylindrus from threatened to 

endangered (88 FR 59494, August 29, 

2023). We solicited peer review of the 

scientific information contained in the 

proposed rule from three independent 

experts from the scientific community 

who have expertise in D. cylindrus 

biology, ecology, conservation, and 

threats to the species, and we 

incorporated their comments prior to 

publication of the proposed rule. We 

requested comments on the proposed 

rule from the public during a 60-day 

comment period and held a virtual 

public hearing on September 26, 2023, 

at which we also accepted public 

comments. 

In this final rule, we are reclassifying 

D. cylindrus from a threatened species 

to an endangered species under the 

ESA. We have determined that D. 

cylindrus is in danger of extinction 

throughout all or a significant portion of 

its range. This final determination is 

based on the information in the 5-year 

review, from expert peer reviewers, and 

from public comments, which together 

comprise the best scientific and 

commercial data available. 

Listing Determinations Under the ESA 

Section 3 of the ESA defines an 

endangered species as any species that 

is in danger of extinction throughout all 

or a significant portion of its range and 

a threatened species as one that is likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range (16 

U.S.C. 1532(6) and (20)). Thus, an 

‘‘endangered species’’ is one that is 

presently in danger of extinction. A 

‘‘threatened species,’’ on the other hand, 

is not presently in danger of extinction 

but is likely to become so within the 

foreseeable future (i.e., at a later time). 

So, the primary statutory difference 

between a threatened and endangered 

species is the timing of when a species 

is in danger of extinction, either 

presently (endangered) or not presently 

but within the foreseeable future 

(threatened). 


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believe you voluntarily provided NHTSA with original information that led to the successful 

resolution of a covered action. Provide any information that you think may be relevant in light of 

the criteria for determining the amount of an award set forth in 49 U.S.C. 30172 and 49 CFR Part 

513. 

49 U.S.C. 30172(c) provides that in determining an award made under 49 U.S.C. 30172(b), the 

Secretary shall take into consideration: (i) if appropriate, whether a whistleblower reported or 

attempted to report the information internally to an applicable motor vehicle manufacturer, part 

supplier, or dealership; (ii) the significance of the original information provided by the 

whistle blower to the successful resolution of the covered action; (iii) the degree of assistance 

provided by the whistle blower and any legal representative of the whistle blower in the covered 

action; and (iv) such additional factors as the Secretary considers relevant. 

Section G: Claimant's Declaration 

This section must be completed and signed by the claimant. 
101994 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

The statute requires us to determine 

whether a species is threatened or 

endangered as a result of any of the 

factors listed in section 4(a)(1) of the 

ESA: (A) the present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. Changes to a listed species’ 

status must be determined on the basis 

of these factors using solely the best 

scientific and commercial data available 

(16 U.S.C. 1533(c)(2)(B)). Implementing 

regulations in 50 CFR 424.11(b) reiterate 

the requirement that changes in a 

species’ classifications must be based 

solely on the best available scientific 

and commercial information regarding a 

species’ status. 

Public Comments and Our Responses 

Public comments were accepted by 

standard mail, email, during the public 

hearing, and through the Federal 

eRulemaking portal. We received 17 

public comments on the proposed rule 

from individuals, government agencies, 

and conservation organizations. Of 

these, 14 comments were supportive of 

the proposed reclassification of D. 

cylindrus, 1 comment was against 

reclassification, and 2 comments were 

neutral and asked for clarification on 

the effects of the reclassification. Most 

of the supportive comments expressed 

general support for the proposed rule 

but did not include substantive content. 

Several comments presented general 

information on threats or information 

that was already considered in the 

proposed rule. We received 3 comments 

that provided documentation that 

reinforced the information on 

demographic factors and threats 

considered in the proposed rule, 

including population declines and 

susceptibility to climate-induced ocean 

warming, ocean acidification, nutrients, 

sedimentation, and disease. We also 

received 1 comment that is outside the 

scope of the proposed rule that stated 

that we need to provide support for the 

increased administrative burden on 

state and Federal agencies that results 

from listing and changing the status of 

species under the ESA, and that we 

need to increase the Federal funds 

designated for the management and 

recovery of ESA-listed species. All 

substantive public comments on the 

proposed rule to reclassify D. cylindrus 

as endangered are addressed in the 

following summary. We have 

categorized comments by topic, and, 

where appropriate, we have combined 

similar comments from multiple people 

or groups and addressed them together. 

Demographics and Threats 

Comment 1: Three commenters 

provided additional references (Jones et 

al., 2021, Alvarez-Filip et al., 2022) that 

addressed population decline of D. 

cylindrus from disease and were not 

included in the proposed rule or 5-year 

review (NMFS, 2022). 

Response: We thank these 

commenters for the submission of 

additional data to inform the status of 

the species and this final rule. Jones et 

al. (2021) suggests that thermal stress in 

2014 and 2015 exacerbated underlying 

disease and resulted in a disease 

outbreak that led to the extirpation of D. 

cylindrus in southeast Florida. AlvarezFilip et al. (2022), reported that greater 

than 80 percent of D. cylindrus surveyed 

in Mexico suffered mortality or were 

infected by disease between 2018 and 

2020. Population declines in Florida 

and Mexico and the threats of disease 

and ocean warming were considered in 

the proposed rule as factors leading to 

the extinction risk of D. cylindrus. The 

additional references are consistent with 

the information we considered in the 

proposed rule. Thus, these comments 

support our conclusions regarding the 

threats of ocean warming and disease 

and provide additional support for our 

conclusion that D. cylindrus meets the 

definition of an endangered species. 

These references were incorporated into 

the final rule. 

Comment 2: We received several 

comments and references about the 

threat of climate change and its negative 

effects on corals that increase the 

extinction risk for D. cylindrus. 

Response: We agree that the effects of 

climate change are contributing to the 

risk of extinction of D. cylindrus. In the 

original listing rule (79 FR 53851, 

September 10, 2014), we identified 

factors acting directly as stressors on D. 

cylindrus (e.g., elevated ocean 

temperature and sedimentation) as 

distinct from the sources responsible for 

those factors (e.g., climate change and 

land management practices) and 

evaluated the impact each threat has on 

the species’ extinction risk. The 

susceptibility of D. cylindrus to ocean 

warming and ocean acidification was 

addressed in the 5-year review (NMFS, 

2022) and in the proposed 

reclassification rule (88 FR 59494, 

August 29, 2023). The additional 

references are consistent with the 

information we considered in the 

proposed rule. Thus, these comments 

support our conclusions regarding the 

threats of ocean warming and ocean 

acidification and provide additional 

support for our conclusion that D. 

cylindrus meets the definition of an 

endangered species. Because stressors 

stemming from climate change are 

already identified as threats 

contributing to the extinction risk for D. 

cylindrus, no changes were made to the 

final rule in response to these 

comments. 

Comment 3: We received a comment 

that human activities such as coastal 

development, dredging, wastewater 

disposal, and shipping have contributed 

to the susceptibility of D. cylindrus to 

stony coral tissue loss disease (SCTLD). 

Response: In the original listing rule 

(79 FR 53851, September 10, 2014), we 

identified factors acting directly as 

stressors on D. cylindrus (e.g., elevated 

ocean temperature and sedimentation) 

as distinct from the sources responsible 

for those factors (e.g., climate change 

and land management practices) and 

evaluated the impact each threat has on 

the species’ extinction risk. Although 

causative factors of coral disease remain 

poorly understood, we agree that the 

presence of stressors such as 

sedimentation and nutrient enrichment 

from human activities like coastal 

development and wastewater disposal 

can increase the susceptibility of corals 

to disease. A diseased state results from 

a complex interplay of factors including 

the cause or agent (e.g., pathogen, 

environmental toxicant), the host, and 

the environment. The interaction of 

disease and other stressors was 

discussed in the original listing rule (79 

FR 53851, September 10, 2014), and the 

susceptibility of D. cylindrus to disease, 

sedimentation, and nutrients was 

considered in the 5-year review (NMFS, 

2022) and in the proposed 

reclassification rule (88 FR 59494, 

August 29, 2023). The public comments 

are consistent with the information we 

considered in the proposed rule. Thus, 

these comments support our 

conclusions regarding the threats of 

disease, nutrient enrichment, and 

sedimentation and provide additional 

support for our conclusion that D. 

cylindrus meets the definition of an 

endangered species. 

Analyses 

Comment 4: We received a comment 

that there is no benefit to changing the 

status of D. cylindrus to endangered 

since the ESA has no mechanism of 

protecting against the major threats of 

climate change and disease. 

Response: Under section 4(b) of the 

ESA, we are required to base listing 

decisions solely on the best scientific 

and commercial data available after 

conducting a review of the status of the 


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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 101995 

species and after taking into account 

efforts to protect the species (16 U.S.C. 

1533(b)(1)(A)). We may determine a 

species is threatened or endangered 

because of any of the following factors: 

(A) the present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. When making a listing or 

reclassification determination, we 

cannot consider impacts that may stem 

from the listing determination itself, and 

we cannot ignore threats for which there 

are no existing mitigation mechanisms 

(16 U.S.C. 1533(b), 50 CFR 424.11(b)). 

After considering the best scientific and 

commercial information available on 

status of the species and taking into 

account efforts being made to protect 

the species, we conclude that D. 

cylindrus is in danger of extinction and 

should be listed as endangered under 

the ESA. 

Comment 5: We received a comment 

stating that there is a need for expanded 

and purposeful opportunities for states 

and territories with coral reefs in their 

jurisdiction to comment on, participate 

in, and lead efforts before the Federal 

government makes any decisions under 

the ESA, such as listing or reclassifying 

a species, and requesting that states and 

territories be consulted on which data 

are used as the best available science for 

informing decisions. 

Response: The ESA and the 

implementing regulations describe the 

process NMFS must use when listing 

species under the ESA (16 U.S.C. 1533; 

50 CFR part 424). This process includes 

giving actual notice of the proposed 

listing regulation to the state agency in 

each state in which the species is 

believed to occur and to each county or 

equivalent jurisdiction in which the 

species is believed to occur and inviting 

them to comment on the proposal (16 

U.S.C. 1533(b)(5)(A)(ii); 50 CFR 

424.16(c)(1)(ii)). In accordance with this 

requirement, we notified the states, 

counties, and territories where D. 

cylindrus is known to occur when we 

published the proposed rule to 

reclassify D. cylindrus as endangered. 

We accepted comments by standard 

mail, email, during the public hearing 

on September 26, 2023, and through the 

Federal eRulemaking portal. This 

allowed those government agencies the 

opportunity to participate in the 

decision to reclassify D. cylindrus as 

endangered, including providing input 

on the best scientific and commercial 

data available. We considered all 

relevant comments within the scope of 

this rulemaking received during the 

comment period when making this final 

determination to reclassify D. cylindrus 

from threatened to endangered. 

We also note that we worked 

cooperatively with states and territories 

to obtain unpublished coral monitoring 

data to inform the 5-year review of ESAlisted Caribbean coral species. We 

considered the information in the 5-year 

review, including the population data 

obtained from the states and territories, 

when making the determination that D. 

cylindrus met the definition of an 

endangered species. By seeking 

unpublished monitoring data from 

states and territories, giving notice of 

the proposed listing regulation to states 

and territories in which the species 

occurs, and considering comments from 

states and territories, we provided 

opportunities for these groups to 

participate in the decision to change the 

status of D. cylindrus from threatened to 

endangered. 

Comment 6: We received a comment 

that we should incorporate data from 

mesophotic reefs, which may serve as 

thermal refugia for shallow water 

species, into factors considered for 

listing and reclassifying species under 

the ESA. 

Response: For the proposed rule to 

reclassify D. cylindrus to endangered, 

we evaluated the best scientific and 

commercial data available. As stated in 

the proposed rule, D. cylindrus inhabits 

most reef environments in depths 

between 1 and 25 meters (m) and is 

most common in reef environments in 

water depths between 5 and 15 m. We 

have found no evidence that D. 

cylindrus occurs at mesophotic depths 

(30–150 m), and the commenter did not 

provide any information to the contrary. 

Therefore, we did not consider the role 

of mesophotic reefs as a factor in the 

decision to change the status of D. 

cylindrus from threatened to 

endangered. 

Effects of the Reclassification 

Comment 7: We received a comment 

asking if exporting dead samples of D. 

cylindrus for scientific research would 

require an ESA section 10(a)(1)(A) 

permit if they were collected prior to 

reclassification. 

Response: If samples of D. cylindrus 

(alive, dead, or preserved) were 

collected prior to reclassification, an 

ESA section 10(a)(1)(A) permit is not 

needed to import or export them; rather, 

NMFS can issue a Letter of 

Determination to authorize import and 

export, provided certain criteria are met. 

In addition, D. cylindrus is listed on 

Appendix II of the Convention on 

International Trade in Endangered 

Species (CITES), and, therefore, a CITES 

export permit issued by the exporting 

country would be required. For more 

information on Letters of Determination, 

see https://www.fisheries.noaa.gov/ 

permit/letter-determination-protectedspecies-parts-and-products. For more 

information on CITES, see https://

www.fws.gov/international-affairs/cites. 

Comment 8: We received a comment 

that it was unclear whether transport 

and transfer of captive D. cylindrus to 

another holding facility within the 

United States was a violation of the ESA 

section 9(a)(1) prohibitions and would 

require an ESA section 10(a)(1)(A) 

permit. 

Response: Transportation of D. 

cylindrus or D. cylindrus parts within 

the United States is not a violation of 

the ESA section 9 prohibitions, 

provided that the corals were legally 

obtained and that the transport is not in 

the course of a commercial activity. 

Transfer of D. cylindrus between U.S. 

facilities is, therefore, allowable without 

the need for a NMFS ESA section 

10(a)(1)(A) permit. Documentation of 

the transfer to a different holding 

facility should be maintained. 

Comment 9: We received 2 comments 

that reclassification of D. cylindrus to 

endangered would have negative 

impacts on conservation efforts like 

restoration and rescue and cause delays, 

obstacles, and a greater administrative 

burden on restoration practitioners and 

state and territorial jurisdictions who 

would need to apply for an ESA section 

10(a)(1)(A) permit. One of the 

commenters asked that NMFS minimize 

and streamline ESA section 10(a)(1)(A) 

permitting as much as possible to 

eliminate barriers to restoration and 

recovery. They recommended issuing a 

single permit to a state agency to 

authorize multiple practitioners to carry 

out restoration activities and developing 

a centralized database with online 

reporting that provides data access to all 

managing agencies. 

Response: As explained in the 

response to Comment 4, listing and 

reclassification determinations must be 

made solely on the basis of the best 

available scientific and commercial 

information regarding a species’ status 

and without reference to possible 

economic or other impacts of such 

determinations (16 U.S.C. 1533(b)(1)(A) 

and 50 CFR 424.11(b)). Thus, when 

making a listing or reclassification 

determination, we cannot consider 

whether the listing or reclassification 

will increase the administrative burden 

associated with applying for ESA 

permits for conservation activities. 


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101996 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

NMFS is committed to making ESA 

section 10(a)(1)(A) permitting as clear 

and streamlined as possible within the 

bounds of the law. We will streamline 

the permitting process through several 

mechanisms, including issuing permits 

valid for up to 10 years, conducting 

programmatic consultation under 

section 7 of the ESA to eliminate the 

need for individual consultation on 

each permit application, and 

reprogramming the online application 

system, Authorizations and Permits for 

Protected Species (APPS) (see https://

apps.nmfs.noaa.gov) to accept 

applications for D. cylindrus. ESA 

section 10 Permit Holders can submit 

annual reports of their permitted 

activities in APPS. While these 

currently are not publically accessible 

in APPS, copies of submitted reports 

may be requested from the NMFS Office 

of Protected Resources, Permits and 

Conservation Division under the 

Freedom of Information Act. We are 

further recommending that individuals 

and groups that are working on the same 

project, at the same institution, or under 

the same funding to consider applying 

together to work under a single permit. 

These options allow for less frequent 

and reduced numbers of permit 

applications and can reduce processing 

times. 

In anticipation of a final 

determination to reclassify D. cylindrus 

to endangered, we held webinars on 

April 16 and 19, 2024, to present 

information on the effects of a 

reclassification and the ESA section 

10(a)(1)(A) permitting process. We 

announced the webinars to researchers 

and restoration practitioners known to 

work with D. cylindrus and agencies 

that issue research and restoration 

permits. We also announced these 

webinars on a coral listserv (i.e., Coral 

List) to reach a broader audience. 

During the webinars, we included 

information on what activities would 

need an ESA permit should D. cylindrus 

be reclassified as endangered and how 

and when to submit an ESA permit 

application. We encouraged attendees to 

apply for an ESA permit before a final 

determination was made so that 

conservation activities could continue 

uninterrupted if a final rule went into 

effect. Additional permitting guidance 

can be found on our website at: https:// 

www.fisheries.noaa.gov/species/pillarcoral/conservation-management. 

Summary of Changes From the 

Proposed Listing Rule 

We did not receive, nor did we find, 

data or references that presented 

substantial new information that would 

cause us to change our proposed listing 

determination. We received several 

sources of new information (see 

Comment 1), which provided 

population data that supported the 

information considered in the 5-year 

review report (NMFS, 2022) and 

proposed rule. We also received 

additional information related to threats 

(e.g., ocean warming, ocean 

acidification, disease, sedimentation, 

and nutrient enrichment) which was 

consistent with or reinforced 

information in the 5-year review and 

proposed rule (see Comments 2 and 3). 

Therefore, while the new information 

contributed to our overall 

understanding of population dynamics 

and threats, it did not alter the outcome 

of the extinction risk analysis nor our 

interpretation of risk factors across the 

range of the species. Therefore, in this 

rule, we are finalizing the change in the 

classification of D. cylindrus from a 

threatened species to an endangered 

species under the ESA. 

In response to questions received 

about ESA permits, we have added 

additional information to the Effects of 

Listing section of this final rule to 

clarify that a Letter of Determination is 

needed for import or export of D. 

cylindrus or D. cylindrus parts in 

possession before the reclassification 

takes effect. In consultation with our 

ESA permitting division, we also 

provide further clarification in the 

Effects of Listing section with respect to 

prohibited and non-prohibited 

activities. These clarifications include 

rephrasing some of the descriptions to 

focus on the activity rather than the 

impact to the species, rearranging or 

splitting the activities in the list to 

differentiate prohibited activities that 

would need an ESA section 10(a)(1)(A) 

permit from non-prohibited activities, 

and adding more detail to describe the 

particular prohibited and nonprohibited activities. 

Assessment of Species Status 

In the proposed rule to reclassify D. 

cylindrus from threatened to 

endangered under the ESA, we outlined 

the rationale for our determination. 

Below, we summarize our evaluation 

and final determination. We relied on 

the best scientific and commercial data 

available including the information in 

the 5-year review and the public 

comments received. Please refer to the 

proposed rule for additional information 

(88 FR 59494, August 29, 2023). 

Species Abundance, Trends, and 

Distribution 

Dendrogyra cylindrus is a colonial 

coral that can form large pillars (up to 

3 m) upon an encrusting base. It is a 

gonochoric (i.e., separate sexes), 

broadcast spawning coral species, but 

some hermaphroditic colonies have 

been observed (Kabay, 2016; Neely et 

al., 2018; Neely et al., 2020a; O’Neil et 

al., 2021). Spawning observations have 

also suggested that eggs may be 

fertilized within female colonies prior to 

release (Marhaver et al., 2015). It has a 

relatively low annual egg production 

and low sexual recruitment, with no 

reports of observed sexual recruitment 

in the wild. Dendrogyra cylindrus can 

also reproduce asexually through 

fragmentation and reattachment to the 

substrate. 

Dendrogyra cylindrus is present in the 

western Atlantic and throughout the 

greater Caribbean. It is absent in the 

Flower Garden Banks National Marine 

Sanctuary in the Gulf of Mexico and 

from the southwest Gulf of Mexico. It 

inhabits most reef environments in 

water depths ranging from 1 to 25 m and 

is most common in reef environments in 

water depths between 5 and 15 m. It has 

a naturally uncommon to rare 

occurrence, appearing as scattered, 

isolated colonies. It is sometimes found 

in highly clonal aggregations, likely 

resulting from fragmentation events 

(Chan et al., 2019). 

Population trend information 

indicates the species has continued to 

decline since being listed in 2014. 

Surveys of D. cylindrus conducted in 

Colombia in 2012 show a reduced 

spatial extent, loss of colonies, and 

higher prevalence and amount of partial 

mortality 10 years after initial surveys 

(Bernal-Sotelo et al., 2019). Multiple 

thermal bleaching events in 2014 and 

2015 and ongoing and emerging disease 

events (SCTLD) since 2014 have caused 

near extirpation of D. cylindrus in 

Florida (Jones et al., 2021; Lewis, 2018; 

Lewis et al., 2017; Neely et al., 2021a; 

Neely, 2024), and D. cylindrus is now 

considered functionally extinct (i.e., the 

population is no longer viable and will 

not be able to sustain itself) along the 

Florida reef tract (Neely et al., 2021a). 

Although quantitative population 

trend data are only available from 

Florida and Colombia, we assumed the 

species is in decline throughout most of 

its range based on the evidence from 

these regions (northern and 

southwestern portions of its range) and 

the more widespread evidence of severe 

disease impacts from SCTLD, which has 

spread from Florida to the eastern, 

western, and southern Caribbean (see 

https://www.agrra.org/coral-diseaseoutbreak/ for a map of confirmed 

sightings of SCTLD in the greater 

Caribbean). Dendrogyra cylindrus is 

highly susceptible to SCTLD (Florida 

Coral Disease Response Research & 


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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 101997 

Epidemiology Team, 2018) and has been 

reported with high prevalence and 

confirmed or presumed mortality in 

multiple islands and countries across 

the Caribbean including the Bahamas 

(Dahlgren et al., 2021), Mexico (AlvarezFilip et al., 2019; Alvarez-Filip et al., 

2022; Estrada-Saldivar et al., 2021), and 

the U.S. Virgin Islands (Brandt et al., 

2021; Costa et al., 2021). We assumed 

SCTLD will eventually reach all areas of 

the range of D. cylindrus based on its 

previous spread and the fact that it is 

waterborne (Aeby et al., 2019). 

Summary of Factors Affecting the 

Species 

Dendrogyra cylindrus was listed as 

threatened in 2014 because of its 

susceptibility to and impacts from 

multiple threats, including ocean 

warming (ESA Factor E), disease (C), 

acidification (E), nutrient enrichment (A 

and E), sedimentation (A and E), trophic 

effects of fishing (A), and inadequate 

existing regulatory mechanisms to 

address global threats (D). As indicated 

in the proposed rule to reclassify D. 

cylindrus as endangered, these threats 

continue to contribute to the species’ 

extinction risk. Several commenters 

provided additional information related 

to these threats, including ocean 

warming, ocean acidification, nutrient 

enrichment, sedimentation, and disease, 

which was consistent with the proposed 

rule and did not change our conclusions 

about any of these threats. Since its 

listing as threatened, D. cylindrus has 

declined in abundance and distribution 

in multiple locations with the most 

severe decline in the northern portions 

of its range. These declines are 

predominantly due to the effects of 

SCTLD, which emerged as a devastating 

and deadly new disease since the listing 

(Precht et al., 2016). Though the 

occurrence of D. cylindrus has 

historically been uncommon to rare, the 

species has become even rarer as a 

result of SCTLD. Furthermore, no 

observed sexual recruitment has been 

reported in the wild, and we concluded 

that reductions in population size and 

local extirpations will further inhibit the 

species’ ability to persist and replenish 

diminished populations through asexual 

and sexual reproduction. 

Conservation Measures 

We evaluated conservation measures 

used to protect D. cylindrus, including 

treatment of individual colonies for 

SCTLD (Miller et al., 2020; Neely et al., 

2020b; Neely et al., 2021c; O’Neil et al., 

2018; Shilling et al., 2021; Walker et al. 

2021), ex situ banking (Kabay, 2016; 

Neely et al., 2021b; Neely, 2024; O’Neil 

et al., 2021), and propagation of D. 

cylindrus for future restoration 

(Marhaver et al., 2015; Neely, 2019; 

Neely et al., 2020a; O’Neil et al., 2021; 

Villalpando et al., 2021). We concluded 

that the conservation actions would 

benefit the species but would not affect 

the status of D. cylindrus to the point at 

which listing as an endangered species 

is not warranted. Further, because 

current conservation actions do not 

directly address the root causes of 

threats such as disease, we concluded 

that they are insufficient to protect the 

species from the risk of extinction. See 

the proposed rule for additional 

discussion of conservation measures (88 

FR 59497, August 29, 2023). 

Final Listing Determination 

We reviewed the best scientific and 

commercial information available on the 

status of D. cylindrus, threats to the 

species, and conservation measures. 

Based on consideration of this 

information and public comments, we 

determine that D. cylindrus meets the 

definition of an endangered species. We 

find that D. cylindrus is in danger of 

extinction throughout all or a significant 

portion of its range. Dendrogyra 

cylindrus is susceptible to multiple 

threats including ocean warming (ESA 

Factor E), disease (C), acidification (E), 

nutrient enrichment (A and E), 

sedimentation (A and E), trophic effects 

of fishing (A), and inadequate existing 

regulatory mechanisms to address global 

threats (D). In addition, the following 

characteristics contribute to its risk of 

extinction: 

(1) It is geographically located in the 

highly disturbed Caribbean where 

localized human impacts are high and 

threats are predicted to increase. A 

range constrained to this particular 

geographic area that is likely to 

experience severe and increasing threats 

indicates that a high proportion of the 

population of this species is likely to be 

exposed to those threats; 

(2) It has an uncommon to rare 

occurrence throughout its range, which 

heightens the potential effect of 

localized mortality events and leaves 

the species vulnerable to becoming of 

such low abundance that it may be at 

risk from depensatory processes, 

environmental stochasticity, or 

catastrophic events; 

(3) Its low sexual recruitment limits 

its capacity for recovery from threatinduced mortality events throughout its 

range; and 

(4) It has experienced population 

declines, primarily due to SCTLD, in 

multiple locations throughout its range, 

including severe declines in the 

northern portion of its range, which has 

resulted in diminished distribution and 

local extirpation. 

The combination of these 

characteristics indicates that D. 

cylindrus is in danger of extinction 

throughout its range and warrants 

listing as an endangered species due to 

factors A, C, D, and E. 

Effects of Listing 

Conservation measures provided for 

species listed as endangered or 

threatened under the ESA include 

recovery plans (16 U.S.C. 1553(f)), 

critical habitat designations, Federal 

agency consultation requirements (16 

U.S.C. 1536), and prohibitions of certain 

acts under the ESA (16 U.S.C. 1538). 

Because D. cylindrus was previously 

listed as threatened, Federal agency 

consultation requirements are already in 

effect, and a recovery outline has been 

developed to guide recovery until a full 

recovery plan has been finalized. 

Critical habitat has also been designated 

for D. cylindrus (88 FR 54026, August 9, 

2023). 

All of the prohibitions in section 

9(a)(1) of the ESA automatically apply 

to fish and wildlife listed as endangered 

species. Section 9(a)(1) includes 

prohibitions on importing, exporting, 

engaging in foreign or interstate 

commerce, or ‘‘taking’’ of the species. 

‘‘Take’’ is defined under the ESA as ‘‘to 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect, or 

an attempt to engage in any such 

conduct’’ (16 U.S.C. 1532(19)). These 

prohibitions apply to all persons subject 

to the jurisdiction of the United States, 

including in the United States, its 

territorial sea, or on the high seas. Upon 

the effective date of this rule to 

reclassify D. cylindrus as endangered, 

section 9 of the ESA would expressly 

prohibit the following: 

(1) Taking of D. cylindrus within the 

United States or its territorial sea, or 

upon the high seas; 

(2) Possessing, selling, delivering, 

carrying, transporting, or shipping any 

D. cylindrus that was illegally taken; 

(3) Delivering, receiving, carrying, 

transporting, or shipping in interstate or 

foreign commerce any D. cylindrus in 

the course of a commercial activity; 

(4) Selling or offering D. cylindrus for 

sale in interstate or foreign commerce; 

or 

(5) Importing D. cylindrus into, or 

exporting D. cylindrus from, the United 

States. 

On July 1, 1994, NMFS and the U.S. 

Fish and Wildlife Service (FWS) 

published a policy statement (59 FR 

34272) that requires the agencies to 

identify, to the extent known at the time 

a species is listed, those activities that 


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would or would not constitute a 

violation of section 9 of the ESA. The 

intent of this policy is to increase public 

awareness of the effect of a listing on 

proposed and ongoing activities within 

a species’ range. Based on available 

information, we conclude the following 

categories of activities are likely to meet 

the ESA’s definition of ‘‘take’’ and, 

therefore, result in a violation of the 

ESA section 9 prohibitions. We 

emphasize that whether a violation 

results from a particular activity is 

entirely dependent upon the facts and 

circumstances of each incident. The 

mere fact that an activity may fall 

within one of these categories does not 

mean that the specific activity will 

cause a violation. Further, an activity 

not listed may in fact result in a 

violation. Activities that are likely to 

result in a violation of section 9 

prohibitions include, but are not limited 

to, the following: 

(1) Collection of D. cylindrus, 

including colonies, fragments, tissue 

samples, and gametes, from the wild; 

(2) Research outside the bounds of 

normal animal husbandry that results in 

harm (e.g., injuring or killing) to captive 

D. cylindrus; 

(3) Removing, relocating, or 

reattaching D. cylindrus in the wild; 

(4) Damaging, poisoning, 

contaminating, or killing D. cylindrus; 

(5) Scientific research activities on 

wild D. cylindrus involving the 

manipulation of the coral or its 

environment; 

(6) Release of captive D. cylindrus into 

the wild. Release of a captive coral 

could have the potential to injure or kill 

the coral or to affect wild populations of 

D. cylindrus through introduction of 

disease; 

(7) Habitat alternation, such as 

removal of substrate or alteration of 

water quality, resulting in injury or 

death of D. cylindrus; 

(8) Discharging pollutants (e.g., toxic 

chemicals, radioactive matter, 

carcinogens, mutagens, teratogens) or 

organic nutrient-laden water, including 

sewage water, into D. cylindrus habitat 

to an extent that harms or kills D. 

cylindrus; 

(9) Shoreline and riparian 

disturbances (whether in the riverine, 

estuarine, marine, or floodplain 

environment) that may harm or kill D. 

cylindrus, for instance, by disrupting or 

preventing the reproduction, settlement, 

reattachment, development, or normal 

physiology of D. cylindrus. Such 

disturbances could include land 

development, run-off, dredging, and 

disposal activities that result in direct 

deposition of sediment on D. cylindrus, 

shading, or covering of substrate for 

fragment reattachment or larval 

settlement; and 

(10) Activities that modify water 

chemistry in D. cylindrus habitat to an 

extent that disrupts or prevents the 

reproduction, development, or normal 

physiology of D. cylindrus. 

Some categories of activities are 

unlikely to constitute a violation of the 

section 9 prohibitions. Again, we 

emphasize that whether a violation 

results from a particular activity is 

entirely dependent upon the facts and 

circumstances of each incident. The 

mere fact that an activity may fall 

within one of these categories does not 

mean that the specific activity will not 

cause a violation. We consider the 

following activities to be ones that are 

unlikely to violate the ESA section 9 

prohibitions: 

(1) Taking of wild D. cylindrus, 

including collection of colonies, 

fragments, tissue samples, and gametes, 

authorized by an ESA section 

10(a)(1)(A) permit issued by NMFS for 

the purposes of scientific research or the 

enhancement of propagation or survival 

of the species and carried out in 

accordance with the terms and 

conditions of the permit; 

(2) Incidental taking of D. cylindrus 

resulting from federally authorized, 

funded, or conducted projects for which 

consultation under section 7 of the ESA 

has been completed and when the 

project is conducted in accordance with 

any terms and conditions set forth by 

NMFS in an incidental take statement in 

a biological opinion pursuant to section 

7 of the ESA; 

(3) Import or export of D. cylindrus or 

D. cylindrus parts authorized by a 

CITES permit and an ESA section 

10(a)(1)(A) permit (or Letter of 

Determination for D. cylindrus or D. 

cylindrus parts in possession before the 

reclassification takes effect) issued by 

NMFS; 

(4) Continued possession of D. 

cylindrus parts or live D. cylindrus that 

were in captivity at the time of uplisting to an endangered species, 

including any progeny produced from 

captive corals after the rule is finalized, 

so long as the prohibitions of ESA 

section 9(a)(1) are not violated. Corals 

are considered to be in captivity if they 

are maintained in a controlled 

environment or under human care in 

ocean-based coral nurseries. Individuals 

or organizations should be able to 

provide evidence that D. cylindrus or D. 

cylindrus parts were in captivity prior to 

its listing as an endangered species. We 

suggest such individuals or 

organizations submit information to us 

on the D. cylindrus in their possession 

(e.g., type, number, size, source, date of 

acquisition), to establish their claim of 

possession (see FOR FURTHER

INFORMATION CONTACT); 

(5) Providing normal care for captive 

D. cylindrus. Captive corals are still 

protected under the ESA and may not be 

killed or injured or otherwise harmed 

and must receive proper care. Normal 

husbandry care of captive corals 

includes handling, cleaning, 

maintaining water quality within an 

acceptable range, extracting tissue 

samples for the purposes of diagnosis of 

condition or genetics, treating or 

preventing spread of maladies such as 

disease or parasites using established 

methods proven to be effective, 

propagating corals by sexual or asexual 

means (i.e., fragmenting larger coral 

colonies into smaller colonies to 

increase the number of corals, maintain 

corals of manageable size, or accelerate 

their growth rate) within the bounds of 

normal husbandry practices, attaching 

to artificial surfaces, and removing dead 

skeleton. Scientific studies that are 

intended to improve the husbandry 

practices of caring for captive D. 

cylindrus, where there is a reasonable 

expectation that they would not cause 

harm to D. cylindrus (e.g., trialing new 

food supplements, comparing different 

lighting systems, testing different 

attachment substrates), would not 

require an ESA permit; 

(6) Interstate and intrastate 

transportation of legally obtained 

captive D. cylindrus and D. cylindrus 

parts provided it is not in the course of 

a commercial activity. If captive corals 

or D. cylindrus parts are to be moved to 

a different holding location, records 

documenting transfer of corals should 

be maintained; 

(7) Stabilization of loose or 

unattached D. cylindrus, including 

fragments, in the wild by experienced 

individuals and as authorized by an 

ESA section 10(a)(1)(A) permit issued 

by NMFS; 

(8) Relocation of wild D. cylindrus 

from one site to another under the 

authorization of an ESA section 

10(a)(1)(A) permit issued by NMFS; 

(9) Use of captive D. cylindrus for 

scientific studies under the 

authorization of an ESA Section 

10(a)(1)(A) permit issued by NMFS. 

Scientific studies that have the potential 

to injure or harm captive D. cylindrus 

(e.g., altered temperature outside of 

ideal range, exposure to contaminants, 

potentially harmful chemicals, or 

disease, introduction of coral predators) 

require an ESA section 10(a)(1)(A) 

permit; 

(10) Research activities that involve 

collection or manipulation of D. 

cylindrus in the wild under the 


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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 101999 

authorization of an ESA section 

10(a)(1)(A) permit; 

(11) Observational studies on D. 

cylindrus in the wild that do not involve 

collection or manipulation of D. 

cylindrus such as benthic surveys, 

photographs, and videos; 

(12) Release of captive D. cylindrus 

into the wild, as authorized by an ESA 

section 10(a)(1)(A) permit issued by 

NMFS; and 

(13) Treatment of wild D. cylindrus 

for disease by experienced individuals 

using non-experimental methods proven 

to be effective and as authorized by state 

and territorial permits. 

Information Quality Act and Peer 

Review 

In December 2004, the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review establishing minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation. The OMB Peer Review 

Bulletin (the Bulletin), implemented 

under the Information Quality Act (Pub. 

L. 106–554), is intended to enhance the 

quality and credibility of the Federal 

Government’s scientific information and 

applies to influential or highly 

influential scientific information 

disseminated on or after June 16, 2005. 

To satisfy our requirements under the 

Bulletin, the proposed rule was subject 

to peer review. A peer review plan was 

posted on the NOAA peer review 

agenda and can be found at: https://

www.noaa.gov/information-technology/ 

endangered-species-act-proposed-rulefor-pillar-coral-dendrogyra-cylindrusid432. Our synthesis and assessment of 

scientific information supporting the 

proposed action was peer reviewed via 

individual letters soliciting the expert 

opinions of three qualified specialists 

selected from the academic and 

scientific community. The charge to the 

peer reviewers and the peer review 

report have been placed in the 

administrative record and posted on the 

agency’s peer review agenda. In meeting 

the OMB Peer Review Bulletin 

requirements, we have also satisfied the 

requirements of the 1994 joint U.S. Fish 

and Wildlife Service/NMFS peer review 

policy (59 FR 34270; July 1, 1994). 

References 

A complete list of the references used 

in this rule is available online (see 

www.fisheries.noaa.gov/species/pillarcoral#conservation-management) and 

upon request (see FOR FURTHER

INFORMATION CONTACT). 

Classification 

National Environmental Policy Act 

The 1982 amendments to the ESA, in 

section 4(b)(1)(A), restrict the 

information that may be considered 

when assessing species for listing. Based 

on this limitation of criteria for a listing 

decision and the opinion in Pacific 

Legal Foundation v. Andrus, 675 F. 2d 

825 (6th Cir. 1981), NMFS has 

concluded that ESA listing actions are 

not subject to the environmental 

assessment requirements of the National 

Environmental Policy Act (NEPA). 

Regulatory Flexibility Act 

As noted in the Conference Report on 

the 1982 amendments to the ESA, 

economic impacts cannot be considered 

when assessing the status of a species. 

Therefore, the economic analysis 

requirements of the Regulatory 

Flexibility Act are not applicable to the 

listing process. 

Executive Order 12866 

This final rule is exempt from review 

under Executive Order 12866. 

Paperwork Reduction Act 

This final rule does not contain a 

collection-of-information requirement 

for the purposes of the Paperwork 

Reduction Act. 

Executive Order 13132 

In accordance with Executive Order 

13132, agencies are required to take into 

account any federalism impacts of 

regulations under development. This 

Executive order includes specific 

consultation directives for situations 

where a regulation will preempt state 

law or impose substantial direct 

compliance costs on state and local 

governments (unless required by 

statute). Neither of those circumstances 

is applicable to this final listing 

determination. In keeping with the 

intent of the Administration and 

Congress to provide continuing and 

meaningful dialogue on issues of mutual 

state and Federal interest, the proposed 

rule was provided to the relevant 

agencies in each state in which the 

subject species occurs, and these 

agencies were invited to comment. 

Their comments were addressed with 

other comments in the Public 

Comments and Our Responses section. 

Executive Order 12898 

Executive Order 12898 requires that 

Federal actions address environmental 

justice in the decision-making process. 

In particular, the environmental effects 

of the actions should not have a 

disproportionately high and adverse 

effect on the health or environment of 

minority and low-income populations. 

The purpose of this rule is to update the 

classification of a coral species that is 

already protected under the ESA. This 

rule will serve to continue the 

protection and conservation of this coral 

species and is expected to promote a 

healthy ecosystem. Therefore, this rule 

is not expected to have a 

disproportionately high or adverse effect 

on the health or the environment of 

minority populations or low-income 

populations. 

List of Subjects 

50 CFR Part 223 

Endangered and threatened species, 

Exports, Imports, Transportation. 

50 CFR Part 224 

Administrative practice and 

procedure, Endangered and threatened 

species, Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Dated: November 12, 2024. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reason set out in the preamble, 

we amend 50 CFR parts 223 and 224 as 

follows: 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 223 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543; subpart 

B, § 223.201–202 also issued under 16 U.S.C. 

1361 et seq.; 16 U.S.C. 5503(d) for 

§ 223.206(d)(9). 

§ 223.102 [Amended] 

■ 2. In § 223.102, amend the table in 

paragraph (e), under the subheading 

‘‘Corals,’’ by removing the entry for 

‘‘Coral, pillar.’’ 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

■ 3. The authority citation of part 224 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543 and 16 

U.S.C. 1361 et seq. 

■ 4. In § 224.101, amend the table in 

paragraph (h), under the subheading 

‘‘Corals,’’ by adding an entry for ‘‘Coral, 

pillar’’ in alphabetical order by common 

name to read as follows: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(h) * * * 


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102000 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

Species 1

Citation(s) for listing determination(s) Critical 

habitat ESA rules 

Common name Scientific name Description of listed 

entity 

*******

Corals 

* * * * * * * 

Coral, pillar ............... Dendrogyra cylindrus Entire species ........... [INSERT FEDERAL REGISTER CITATION], December 17, 2024.226.230 NA 

1Species 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). 

* * * * * 

[FR Doc. 2024–29082 Filed 12–16–24; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 600 

[Docket No. 241209–0318] 

RIN 0648–BM26 

Confidentiality of Information 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is issuing this final 

rule to revise existing regulations 

pertaining to confidentiality of 

information requirements under the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act or MSA). This 

rule updates the regulations consistent 

with the 2006 Magnuson-Stevens 

Fishery Conservation and Management 

Reauthorization Act (MSRA) and 1996 

Sustainable Fisheries Act (SFA) and 

amendments to the High Seas Driftnet 

Fishing Moratorium Protection Act 

(FMPA) under the 2015 Illegal, 

Unreported and Unregulated Fishing 

Enforcement Act (IUU Fishing Act). The 

final rule provides other revisions to 

address issues that concern NMFS’ 

internal control procedures (ICPs) for 

management of MSA confidentiality of 

information. 

DATES: Effective January 16, 2025. 

ADDRESSES: A plain language summary 

of this rule is available at: https://

www.regulations.gov/docket/NOAA-HQ2023-0146. 

Electronic Access: Information 

relevant to this proposed rule, which 

includes a final regulatory impact 

review and a Regulatory Flexibility Act 

certification, is accessible via the 

internet at: https://www.regulations.gov/ 

docket/NOAA-HQ-2023-0146/. 

FOR FURTHER INFORMATION CONTACT: Karl 

Moline, 301–427–8225, or at NMFS, 

Operations, Management, & Information 

Division F/ST3, Ste. 12300, 1315 East 

West Highway, Silver Spring, MD 

20910. 

SUPPLEMENTARY INFORMATION: Section 

402(b) of the MSA provides that ‘‘any 

information submitted to the Secretary, 

a State fishery management agency, or a 

marine fisheries commission by any 

person in compliance with the 

requirements of this Act,’’ 16 U.S.C. 

1881a(b)(1), and ‘‘[a]ny observer 

information,’’ id. 1881a(b)(2), ‘‘shall be 

confidential and shall not be disclosed’’ 

except pursuant to certain exceptions. 

Section 402(b)(3) requires that the 

Secretary ‘‘shall, by regulation, 

prescribe such procedures as may be 

necessary to preserve the confidentiality 

of information submitted in compliance 

with any requirement or regulation 

under [the MSA],’’ but the Secretary 

may release confidential information 

‘‘in any aggregate or summary form 

which does not directly or indirectly 

disclose the identity or business of any 

person who submits such information.’’ 

Id. 1881a(b)(3). NMFS regulations 

implementing MSA section 402(b) are at 

50 CFR part 600, subpart E, and there 

are confidentiality related definitions 

and references at 50 CFR 600.10 and 

600.130. NMFS published a proposed 

rule in the Federal Register on March 

11, 2024 (89 FR 17358). Comments were 

invited and accepted through April 25, 

2024. NMFS received 36 individual 

comments, including 1 letter that 

contained 5,040 signatures. NMFS 

responses are addressed in the Response 

to Comments section below. After 

considering public comments submitted 

for the proposed rule, NMFS is 

implementing the final rule with some 

changes. 

Background 

The agency last revised the 

confidentiality regulations in February 

1998 (63 FR 7075, February 12, 1998). 

A number of statutory changes have 

been enacted since 1998, and this rule 

provides important updates and 

clarifications to the confidentiality 

regulations to reflect those statutory 

changes. The 2006 MSRA (Pub. L. 109– 

479) made three major changes to the 

confidentiality provisions at MSA 

section 402(b). First, the MSRA added a 

provision specifying that observer 

information (defined at 16 U.S.C. 

1802(32)) shall be confidential and shall 

not be disclosed except pursuant to 

specified exceptions. 16 U.S.C. 

1881a(b)(2). One such exception at MSA 

section 402(b)(1)(F) authorizes release of 

confidential information based on 

written authorization from the person 

submitting such information. Id. 

1881a(b)(1)(F). The proposed rule 

distinguished between observer 

information that is collected onboard a 

vessel for scientific and management 

purposes and information collected for 

administration of the observer program 

and allowed a vessel permit holder to 

execute a written authorization only for 

the first category of information. See 89 

FR 17358, 17364 (March 11, 2024) 

(explaining basis for proposed rule 

approach, which retains current agency 

practice). 

Second, the MSRA added a new 

exception that authorizes the Secretary 

to disclose confidential information 

when such information is required to be 

submitted to the Secretary for any 

determination under a limited access 

program (LAP). 16 U.S.C. 

1881a(b)(1)(G). The proposed rule 

included a definition of 

‘‘determination’’ and defines ‘‘limited 

access program’’ consistent with how 

‘‘catch share’’ is defined under NOAA’s 

Catch Share Policy (available at http:// 

www.nmfs.noaa.gov/sfa/management/ 

catch_shares/about/documents/noaa_

cs_policy.pdf). The proposed rule 

explained that the exception could 


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