As I reported earlier, USFWS wildlife inspectors at the Port of Los Angeles began notifying aquarium trade import and wholesale businesses today that it would be illegal to import any of the 20 species of corals recently listed as threatened under the Endangered Species Act (ESA). This information appeared to contradict earlier statements by the National Oceanic and Atmospheric Administration‘s (NOAA) National Marine Fisheries Service (NMFS), saying there were no prohibitions on any of the listed coral species at this time. After speaking with sources at both USFWS and NMFS, it appears USFWS was, in fact, in error, but the situation has nonetheless elevated fears amongst aquarium trade advocates about the real ramifications of the listings on trade.

“Can’t Import for Commercial Use”

USFWS Supervisory Wildlife Inspector Mike Osborn at the Port of Los Angeles confirmed in a phone interview at around 10:30 this morning Pacific Standard Time that USFWS was notifying aquarium trade importers in Los Angeles that importing any ESA-listed species of coral was illegal and must cease immediately. Two importers confirmed receiving the notification.

“Once a species has been listed as threatened,” Osborn said in the interview, “you can no longer import them for commercial purposes.” Osborn specifically cited 50CFR 17.8. Section 17.8, titled “Import exemption for threatened, CITES Appendix-II

wildlife,” states:

(a) Except as provided in a special rule in Secs. 17.40 through 17.48 or in paragraph (b) of this section, all provisions of Secs. 17.31 and 17.32 apply to any specimen of a threatened

species of wildlife that is listed in Appendix II of the Convention.

(b) Import. Except as provided in a special rule in Secs. 17.40 through 17.48, any live or dead specimen of a fish and wildlife species listed as threatened under this part may be imported without a threatened species permit under Sec. 17.32 provided all of the following conditions are met:

(1) The specimen was not acquired in foreign commerce or imported in the course of a commercial activity;

(2) The species is listed in Appendix II of the Convention.

(3) The specimen is imported and subsequently used in accordance with the requirements of part 23 of this subchapter, except as provided in paragraph (b)(4) of this section.

(4) Personal and household effects (see Sec. 23.5) must be

accompanied by a CITES document.

(5) At the time of import, the importer must provide to the FWS

documentation that shows the specimen was not acquired in foreign commerce in the course of a commercial activity.

(6) All applicable requirements of part 14 of this subchapter are

satisfied.

“So commercially,” Osborn concluded, pointing out there are no exemptions as provided by Section 17.8, “you can no longer import threatened species–you can’t import these particular corals.”

Different Agencies – Different Rules

Marta Nammack, NMFS’ National ESA Listing Coordinator, disagrees with Osborn.

“50 CFR 17.8 authorizes import for FWS’ threatened species without a permit issued under 17.32,” she says, “But, our threatened species are not subject to 50 CFR 17.32.”

Why? Because 50 CFR 17.32 is a USFWS regulation. NMFS regulations are in 50 CFR 223, 224, and 226.

“Many years ago FWS issued 50 CFR 17.31, which automatically extends all section 9 prohibitions to all threatened species,” Nammack explains, “but we did not issue such a rule.” NMFS must issue a so-called section 4(d) rule in order to extend any of these prohibitions to threatened species under NMFS jurisdiction. “The only protection our threatened species receive without a section 4(d) rule is under section 7,” says Nammack. Under Section 7, federal agencies must ensure that their actions are not likely to jeopardize any listed species.

Recently Listed Coral Species Still Legal to Trade

Nammack reiterates that the recent listing of the 20 species of coral under the ESA includes no additional prohibitions placed on conduct related to coral or coral reefs at this time. “We did not issue any protective regulations with our coral listings,” Nammack says. “It appears that this FWS enforcement officer is misinformed, thinking that 50 CFR 17.31 applies to threatened species listed under NMFS jurisdiction. However, it doesn’t. We must issue a section 4(d) rule before any such prohibitions are put in place.”

As of this afternoon, both Inspector Osborn and Nammack said they had spoken and understood each other. Osborn says he is still waiting for confirmation from USFWS Washington office.

While it appears this incident was a case of a straightforward misunderstanding, the news that USFWS was planning to begin confiscating imports of some very popular aquarium corals leaves many in the saltwater aquarium hobby spooked. Trade leaders and advocates have stated in off-the-record discussions that this incident further proves the need for an immediate and concreted response to the ESA listings, which they contend are not supported by the best available science. “For doubting Thomases,” one industry leader told me today, “much of what was predicted by the trade is falling into place now.”

For its part, NMFS has said it is committed to working with all stakeholders to protect these species they believe are in need of protection, while at the same time not unnecessarily harming the trade and aquaculture activities that may have real conservation value. One way NMFS could accomplish this would be by issuing a special rule that extends some prohibitions but allows for continued commercial activity involving aquacultured corals. According to statute, all special rules must be consistent with the conservation of the species, but precedent for this kind of collaborative approach insofar as “take” is concerned does exist.

There will be much more to come on the story, so please stay tuned.