Frequently Asked Questions: Proposed Rule for 10 Species of Giant Clams

Image

CHamoru translation

Samoan translation

Proposed Rule: General Questions

What actions is NOAA Fisheries proposing?

NOAA Fisheries is proposing to list five species of giant clams as endangered (Hippopus porcellanus, Tridacna derasa, T. gigas, T. mbalavuana, and T. squamosina) and one species of giant clam as threatened (H. hippopus) under the Endangered Species Act (ESA) because they are in danger of extinction now or in the foreseeable future. We are also proposing to extend all of the prohibitions of section 9 of the ESA to H. hippopus. Section 9 of the ESA prohibits certain activities, such as importing, exporting, taking, and selling the species. While these prohibitions automatically apply to any species listed as endangered, a regulation under section 4(d) of the ESA must be published in the Federal Register and become effective before any of these prohibitions can be applied to species that are listed as threatened.

In addition, we are proposing to treat four other species of giant clams (T. crocea, T. maxima, T. noae, and T. squamosa) as threatened species due to their similarity of appearance to the giant clams that we are proposing to list under the ESA. Specifically, we are proposing to prohibit the import and export of derivative parts and products of these species, such as meat and shell carvings, of T. crocea, T. maxima, T. noae, and T. squamosa into and from the United States and its territories.

What is a “giant clam”?

The name “giant clam” refers to 12 closely related species of clams that are grouped within the taxonomic subfamily Tridacninae. As their name suggests, some of these species are truly giant. T. gigas, for example, can grow to over a meter wide and up to 500 pounds. Other species are considerably smaller, with maximum sizes around 15-30 cm wide. In fact, the common name for T. maxima is quite confusingly the “small giant clam.” In addition to their size, several features of their life history make giant clams unique from other clam species. In particular, they orient themselves with the hinge of their shell facing downwards and their enlarged, brightly colored mantle (i.e., tissue) pointed upwards toward the sunlight. This is because they have symbiotic algae living within their tissue that use the sunlight to perform photosynthesis, which provides supplemental nutrition to the clam. 

Why is NOAA Fisheries proposing to list six species of giant clams under the ESA?

We are taking this action in response to a petition we received requesting the listing of 10 species of giant clams under the ESA. We reviewed the petition and found that it provided substantial scientific or commercial information indicating that listing may be warranted for 7 of the 10 species and then initiated a status review for those 7 species, as required by the ESA (see  82 FR 28946, 06/26/2017). After reviewing the best available scientific and commercial information regarding the status and threats to these species, we found that five of the seven species are in danger of extinction (H. porcellanus, T. derasa, T. gigas, T. mbalavuana, and T. squamosina) and one of the seven species is likely to become in danger of extinction within the foreseeable future (H. hippopus). Therefore, we are proposing to list five species as endangered and one species as threatened under section 4(a) of the ESA. We also found that one of the seven species (T. squamosa) is not currently in danger of extinction nor is likely to become so in the foreseeable future, and therefore does not warrant listing under the ESA.

What information did NOAA Fisheries use to evaluate the extinction risk for the species proposed for listing as an endangered or threatened species?

In order to assess the extinction risk of the seven species we considered for listing under the ESA (i.e., H. hippopus, H. porcellanus, T. derasa, T. gigas, T. mbalavuana, T. squamosa, and T. squamosina), we considered the best scientific and commercial data available regarding the status and threats to these species - which we are required to do under section 4 of the ESA. The ESA does not require, nor is it always possible, to conduct new research in order to complete a status review. The best available information we considered includes peer-reviewed articles; trade and survey reports from various governmental agencies and non-governmental organizations; relevant information on public websites, such as the International Union for Conservation of Nature Red List website; trade records compiled by the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES); data from the U.S. Fish and Wildlife Service Office of Law Enforcement database; foreign statutes and regulations; and public comments received in response to the published 90-day finding (82 FR 28946). We also consulted members of academia and NOAA Fisheries staff with expert knowledge of these species. A complete list of references is available in our draft Status Review Report and online at https://www.regulations.gov/document/NOAA-NMFS-2017-0029-0029.

During the public comment period, we are seeking any additional, relevant data that could inform our final rule.  

Why is NOAA Fisheries proposing additional regulations for four other species of giant clams (i.e., T. crocea, T. maxima, T. noae, and T. squamosa)?

We are proposing additional regulations for four other species of giant clams to help ensure effective enforcement of the proposed listings. The giant clam species we are proposing to list as endangered or threatened species under the ESA face several threats, the most significant of which is harvest for their meat and shells. Meat and shell products from different species of giant clams look very similar, and enforcement personnel would have substantial difficulty in attempting to differentiate between products of the listed and non-listed species. The effect of this substantial difficulty would pose an additional threat to the species we are proposing to list as endangered or threatened. To facilitate effective enforcement, we are therefore proposing to treat four additional species of giant clams as threatened under the ESA and prohibit only the import and export of parts and products of these species into and from the United States and its territories.

What happens now that a proposed rule has been published?

The proposed rule is now undergoing public review and comment. A 60-day public comment period was opened on July 25, 2024, and, in response to requests, has since been extended for an additional 120 days. Comments must be received by February 19, 2025. Comments on the proposed rule were also solicited during a series of six public hearings. During the comment period, we are soliciting relevant information and data from the public, other governmental agencies, the scientific community, cultural practitioners, indigenous communities, and any other interested parties, to inform a final rule. Prior to developing and issuing any final rule, we will consider all relevant public comments received and any relevant new information that may become available. Under section 4(b) of the ESA, we must base a final listing determination on the best scientific and commercial data available.

Is critical habitat being proposed for the six species proposed for listing under section 4(a) of the ESA (H. hippopus, H. porcellanus, T. derasa, T. gigas, T. mbalavuana, and T. squamosina)?

No. Because critical habitat is not yet determinable for these species, we are not proposing to designate critical habitat at this time. To inform our consideration of potential critical habitat, we are soliciting scientific information regarding the habitats of these species, including any essential physical and biological features of their habitats, as well as information on potential impacts of designating any particular area as critical habitat for these species in U.S. waters. Note that critical habitat cannot be designated in areas outside U.S. jurisdiction.

Can critical habitat be designated for the four species proposed to be treated as threatened due to their similarity of appearance (T. crocea, T. maxima, T. noae, and T. squamosa)?

No. Critical habitat cannot be designated for species that are regulated under section 4(e) of the ESA due to their similarity of appearance to a listed species. Critical habitat can only be designated for threatened and endangered species listed under section 4(a) of the ESA. Therefore, critical habitat will not be designated for T. crocea, T. maxima, T. noae, and T. squamosa. 

Numerous aquaculture facilities are producing giant clams throughout the Indo-Pacific. How did NOAA Fisheries account for these operations in the extinction risk assessments for H. hippopus, H. porcellanus, T. derasa, T. gigas, T. mbalavuana, T. squamosa, and T. squamosina?

We considered the best scientific and commercial data available regarding giant clam aquaculture (or “mariculture”) at the time we published the proposed rule. Specifically, we considered the more than 20 facilities in the Pacific Islands and South Asia that are breeding and raising giant clams or have done so in the past. According to the best available data, most of these facilities were established with the primary goal of generating food and income for local communities. Some facilities have explored the possibility of replenishing natural stocks with culture-raised clams. However, we were unable to find evidence that these operations have reduced pressure on wild populations or enhanced the abundance or productivity of wild giant clam populations. Common challenges with giant clam aquaculture include the low survival rate of giant clam larvae post-fertilization, insufficient resources to protect juveniles once they have been out-planted, illegal poaching, and storm damage. Thus, although we considered these operations and initiatives, they did not alter our conclusions regarding extinction risk of the seven giant clam species we reviewed.

Species Information

Where do the six species proposed for listing as endangered or threatened live?

H. porcellanus, T. mbalavuana, and T. squamosina have highly restricted ranges that comprise small areas of the Indo-Malay Archipelago, western Pacific, and the Red Sea, respectively. H. hippopus, T. derasa, and T. gigas occupy overlapping ranges centered in the Indo-Malay and western Pacific regions. H. hippopus, H. porcellanus, T. gigas, and T. squamosina prefer shallow coastal habitats, typically within or adjacent to coral reefs or nearshore seagrass beds. T. derasa prefers the clear waters of offshore oceanic environments (i.e., small islands and atolls) more than fringing reefs adjacent to large land masses, and it can be found as deep as 25 m. T. mbalavuana is adapted to deepwater environments and is typically found on reef slopes at depths greater than 20 m.

With respect to U.S. waters, fossil evidence indicates that two of these species historically lived in waters of the U.S. Pacific Territories – H. hippopus in American Samoa, Guam, and CNMI; and T. gigas in Guam and CNMI. However, based on the best available information, both species disappeared from these areas likely before humans settled the region. Certain giant clam species, including H. hippopus, T. derasa, and T. gigas, have been introduced or re-introduced to the U.S. Pacific Territories via aquaculture; however, based on the best available information, very few, if any, individuals of these species are believed to have survived in the wild.

Where do the four “similarity of appearance” species live?

T. maxima and T. squamosa have the broadest distributions, which span from the western Indian Ocean and the Red Sea in the west to the central Pacific Islands in the east. T. crocea is distributed from the Andaman Islands in the west to Palau and Vanuatu in the east, and from the Great Barrier Reef in the south to Japan in the north. T. noae was only recently described as a species, and therefore its full geographic range is not known. To date, it has been observed throughout the Indo-Malay and western Pacific region, as far east as Kiribati and the Cook Islands, and from western Australia in the south to Japan in the north. All four species can be found in shallow coastal waters (less than 15 m depth), typically on or adjacent to coral reefs, although T. squamosa can also be found along deeper reef slopes (up to 40 m depth).

With respect to U.S. waters, T. squamosa has been observed in American Samoa and Guam, T. crocea and T. noae have been observed in CNMI and Guam, and T. maxima occurs in all three of these territories.

Are any giant clams listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)?

Yes. In fact, all species of giant clams have been listed under Appendix II of CITES since 1985. This means that, while trade in these species is not prohibited, it is supposed to be closely monitored to ensure that the trade is not detrimental to the survival of the species. Countries that are a party to CITES and that are engaging in the export of giant clams or their products must make such a non-detriment finding and issue accompanying CITES export or re-export permits. We note that Palau has taken a reservation to the Appendix II listings of giant clams. This means that, although Palau is a party to CITES, it is effectively not bound by the provisions of CITES with respect to these species. If finalized as proposed, the rule is more stringent in its application than the current CITES requirements by generally prohibiting import into and export from the United States of the five species proposed to be listed under section 4(a) of the ESA.

Effects of the Rule if it is Finalized as Proposed

What activities would not be allowed for the species proposed for listing as a threatened species under the ESA (H. hippopus)?

If the protective regulation for H. hippopus under section 4(d) of the ESA is finalized as proposed, all of the acts prohibited by section 9(a)(1) of the ESA would apply to this species. Under section 4(d) of the ESA, we may prohibit any of the acts listed in section 9(a)(1) that automatically apply to endangered species. 

The section 9(a)(1) prohibitions that would apply to H. hippopus (and its parts or products) include: 

• importing it into, or exporting it from, the United States; 
• possessing, selling, delivering, carrying, transporting, or shipping any H. hippopus that was illegally taken; 
• delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any H. hippopus in the course of a commercial activity; 
• selling or offering H. hippopus for sale in interstate or foreign commerce; and 
• “taking” H. hippopus within the United States or its territorial sea, or upon the high seas. 

“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.” These prohibitions would 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.

What activities would not be allowed for the species included in the proposed rule due to similarity of appearance (i.e., T. crocea, T. maxima, T. noae, and T. squamosa)?

If the rule is finalized as proposed, the import and export of derivative parts and products of T. crocea, T. maxima, T. noae, and T. squamosa into and from the United States and its territories would be prohibited. No other prohibitions are proposed for these four species. This means that, for these four species, activities like aquaculture, consumption, collection from the wild, as well as possession of live clams or their parts and products would be allowed. Import and export of live specimens or intact shells of these four species would also be allowed. This also means that while domestic travel with shell carvings derived from these species would be allowed, international travel with shell carvings would not be allowed, as that is considered to be export from the United States. 

What is proposed to be regulated as “derivative parts and products” for the similarity of appearance species?

“Derivative parts and products” are proposed to include (a) any tissue part that has been removed from the shell, including mantle tissue, adductor muscle, portions thereof, or the whole flesh of the animal comprising both the mantle and adductor muscle; (b) any worked shell product, including handicrafts, sculptures, jewelry, tableware, decorative ornaments, and other carvings, but not raw, unworked shells; and (c) pearls or any product derived from a pearl.

If the Listings of H. hippopus, H. porcellanus, T. derasa, T. gigas, T. mbalavuana, and T. squamosina are Finalized as Proposed

Could I keep shells or jewelry of these species that I currently own?

Yes. Parts and products of these species that are held in possession at the time of listing can be kept in possession. Individuals should be able to provide evidence demonstrating that the listed species that makes up the part or product was taken prior to the date the species was listed under the ESA and that the item has not been involved in commerce since the listing.

Could I keep the live clams that I currently have in captivity?

Yes. Continuing to hold and provide normal care for captive specimens of listed species that were legally obtained prior to listing would be allowed. Normal care includes activities such as handling, cleaning, maintaining water quality within an acceptable range, and treating of maladies such as disease or parasites using established methods proven to be effective. Individuals or organizations should be able to provide evidence that specimens of listed species were in captivity prior to their listing.

Could I outplant giant clams that I am currently maintaining in captivity?

Releasing captive or cultured specimens of these species into the wild would not be allowed. However, depending on the circumstances of the case, NOAA Fisheries may authorize the release of a captive animal through an ESA section 10(a)(1)(A) permit.

Are giant clams that are held in open-water nurseries or grow-out facilities considered to be in captivity?

Specimens are considered to be in captivity if they are maintained in a controlled environment (e.g., land-based aquaria) or under human care in open-water nurseries (i.e., protected nearshore enclosures under the active management of humans). Specimens are not considered to be in captivity if they have been outplanted to a natural habitat or restoration site.

Could I harvest and eat wild clams from these six species?

No, harvest and consumption of these species would not be allowed. According to the best available information, these six species are currently very rare or absent in the wild in American Samoa, Guam, and CNMI. Certain species, such as H. hippopus, T. derasa, and T. gigas, have been introduced or re-introduced to the U.S. Pacific Territories; however, very few, if any, individuals of these species are believed to have survived in the wild. When alive, these six species are distinguishable from T. crocea, T. maxima, T. noae, and T. squamosa, the four species proposed to be regulated based on similarity of appearance.

Could I collect the shells from these species if they washed onto the beach?

No, shells (or any other parts) of listed species cannot be collected without a permit or other authorization under the ESA.

Could I collect giant clam shells that have been excavated from the land (e.g., during construction activities)?

It would depend. Parts (including shells) of species that are listed under the ESA may not be collected without a permit or other authorization. However, if the excavated parts are fossilized, no ESA permit is required, because fossils of listed species are not protected under the ESA. It is important to note that not all old shells are fossils.

Could I travel with my giant clam shell jewelry domestically or internationally?

Domestic and international travel with shell carvings made from the listed species would be allowed, provided the carvings were obtained legally and the carvings are not involved in inter-state or foreign commerce. A Letter of Determination would be required for evidence of legal possession of the item while travelling. More information about Letters of Determination is available here. 

Could I sell shell carvings of these species domestically?

Offering for sale or selling shell carvings made from these species within a Territory or within a State would be allowed, provided the shell was legally obtained. Selling or offering for sale shell carvings made from these species in interstate or foreign commerce, however, would not be allowed.

Could I sell shell carvings of these species internationally?

No. Exporting, selling, or offering for sale shell carvings made from these species in foreign commerce would not be allowed.

Could I import live specimens, parts, or products of these six species from another country?

Importation of live specimens, parts, or products could potentially be authorized under an ESA section 10(a)(1)(A) permit issued by NOAA Fisheries. Such permits are issued only for scientific research or to propagate and enhance the survival of the species in the wild. Importation of live specimens or parts or products of these species would not be allowed for commercial purposes. 

Importation of live specimens, parts, or products of these species may also be authorized if they are held in possession at the time of listing; the importation is not occurring in the course of a commercial activity; and, for live specimens, the possession or holding was not related to commercial activity. A Letter of Determination would be required to import these animals, parts, or products into the United States or its territories. There are also certain exceptions for antique articles that are at least 100 years old (see here for more information).