Endangered and Threatened Species: Proposed Regulations for the Designation of Experimental Populations Under the Endangered Species Act, 45924-45931 [2015-18894]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 222
[Docket No. 140725620–4620–01]
RIN 0648–BE43
Endangered and Threatened Species:
Proposed Regulations for the
Designation of Experimental
Populations Under the Endangered
Species Act
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration,
Commerce.
ACTION: Proposed rule and request for
comments.
AGENCY:
We, the National Marine
Fisheries Service (NMFS), propose
regulations to amend the Code of
Federal Regulations (CFR) to implement
the Endangered Species Act (ESA)
regarding experimental populations.
The CFR would be amended to establish
definitions and procedures for:
establishing and/or designating certain
populations of species otherwise listed
as endangered or threatened as
experimental populations; determining
whether experimental populations are
‘‘essential’’ or ‘‘nonessential;’’ and
promulgating appropriate protective
measures for experimental populations.
We seek public comment on this
proposal.
SUMMARY:
To allow us adequate time to
consider your comments on this
proposed rule, they must be received no
later than October 2, 2015.
ADDRESSES: You may submit comments
on this proposed rule, identified by
NOAA–NMFS–2014–0104, by any of the
following methods:
• Electronic submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal.
1. Go to https://www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20140104.
2. Click the ‘‘Comment Now!’’ icon,
complete the required fields.
3. Enter or attach your comments.
—or—
• Mail: Submit written comments to
Dwayne Meadows, Endangered Species
Division F/PR3, Office of Protected
Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver
Spring, MD 20910.
• Fax: (301) 713–4060.
Instructions: Comments sent by any
other method, to any other address or
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DATES:
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individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are part of the public record
and will generally be posted to https://
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. NMFS will accept
anonymous comments (enter ‘‘N/A’’ in
the required fields if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word, Excel, or Adobe PDF file formats
only.
FOR FURTHER INFORMATION CONTACT:
Dwayne Meadows, NMFS, 1315 EastWest Highway, Silver Spring, MD
20910, (301) 427–8403.
SUPPLEMENTARY INFORMATION:
Background
Congress amended the ESA in 1982
(Pub. L. 97–304). Among the changes
made to the law at that time was the
addition of a new section, 10(j), which
established procedures for designating a
specific population of a listed species as
an ‘‘experimental population.’’ Prior to
the 1982 amendments we, and the U.S.
Fish and Wildlife Service (USFWS),
which implements the ESA for
terrestrial, freshwater, and some other
species of wildlife and plants, were
authorized to translocate a listed species
into unoccupied portions of its range in
order to aid in the recovery of the
species. Significant opposition to
translocation efforts often occurred,
however, usually due to concerns over
the rigid protections and prohibitions
applicable to these translocated
populations. ESA section 10(j) was
designed to resolve these conflicts by
providing new administrative flexibility
for selectively applying the prohibitions
of the ESA to experimental populations
of listed species (see, e.g., H.R. Rep. No.
567, 97th Cong. 2d Sess. 34 (1982)).
Section 10(j)(1) of the ESA (16 U.S.C.
1539(j)(1)) defines an experimental
population as a population that has
been authorized for release by the
Secretary of Commerce (Secretary) or
Secretary of Interior, but only when, and
at such times as, the population is
wholly separate geographically from
nonexperimental populations of the
same species. The Secretary may
authorize the release (and related
transportation) of any experimental
population (including eggs, propagules,
or individuals) of a listed species
outside of the species’ current range if
the Secretary determines that the release
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would ‘‘further the conservation of’’ the
listed species (16 U.S.C. 1539(j)(2)(A)).
Section 10(j)(2)(B) also requires that,
before authorizing the release of an
experimental population, the Secretary
‘‘identify’’ the experimental population
by regulation and determine, based on
the best available information, whether
the experimental population is
‘‘essential to the continued existence’’ of
the listed species (16 U.S.C.
1539(j)(2)(B)).
Section 10(j) of the ESA further
establishes that an experimental
population shall be treated as a
threatened species under the ESA, with
two exceptions that apply if an
experimental population is determined
to be not essential to the listed species’
continued existence (i.e., is
nonessential): (1) A nonessential
experimental population (NEP) shall be
treated as a species proposed for listing
for purposes of section 7 of the ESA,
except when the NEP occurs in an area
within the National Wildlife Refuge
System or the National Park System;
and (2) critical habitat shall not be
designated for a NEP. Treatment of an
experimental population as
‘‘threatened’’ under the ESA enables the
Secretary to issue regulations under the
authority of section 4(d) of the ESA that
he or she deems necessary and
advisable to provide for the
conservation of the species, which may
be less restrictive than taking
prohibitions applicable to endangered
species under ESA section 9. For
essential experimental populations,
treatment as a threatened species also
means ESA section 7(a)(2) applies,
requiring each Federal agency to consult
with us to insure that any action
authorized, funded, or carried out by the
agency is not likely to jeopardize the
continued existence of the experimental
population or result in the destruction
or adverse modification of the
experimental population’s critical
habitat. When a NEP occurs within the
National Wildlife Refuge System or
National Park System, it also must be
treated as a threatened species for the
purposes of ESA section 7, and section
7(a)(2) consultations are required. Under
the first exception described above,
however, the only provisions of section
7 that apply to a NEP outside of a
National Wildlife Refuge or National
Park are sections 7(a)(1) and 7(a)(4).
Section 7(a)(1) requires that Federal
agencies use their authorities in
furtherance of the purposes of the ESA
by carrying out programs for the
conservation of threatened and
endangered species. Section 7(a)(4)
requires Federal agencies to confer,
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rather than consult, with us on actions
that are likely to jeopardize the
continued existence of a species
proposed to be listed. The results of a
conference are advisory in nature.
The provisions of section 10(j) of the
ESA, as summarized above, introduce
some terminology and concepts that are
not otherwise used or defined in the
ESA or in our current implementing
regulations. These terms and concepts
include: ‘‘further the conservation of,’’
‘‘experimental population,’’ identifying
an experimental population, and
determining whether an experimental
population is essential to the continued
existence of the species. The USFWS
promulgated regulations in 1984 (49 FR
33885, August 27, 1984) to guide their
implementation of ESA section 10(j) (50
CFR 17.80 through 17.83), including
provisions related to the terms and
concepts noted above. The USFWS has
designated dozens of experimental
populations using those regulations (see
50 CFR 17.84 through 17.85). Although
the USFWS regulations do not govern
regulatory actions by NMFS, we have
explicitly considered those regulations
recently in the only three experimental
population designations we have made:
Middle Columbia River steelhead trout
in the Deschutes River Basin (78 FR
2893, January 15, 2013); Central Valley
spring-run Chinook Salmon in the San
Joaquin River (78 FR 79622, December
31, 2013); and upper Columbia River
spring-run Chinook Salmon in the
Okanogan River Subbasin (79 FR 40004,
July 11, 2014).
We believe that there is a need for us
to have regulations laying out NMFS’s
interpretation of and procedures for
implementing ESA section 10(j), beyond
what Congress has specifically directed,
just as USFWS did in their section 10(j)
implementing regulations. Now that we
have gained some experience in
designating experimental populations,
we are in a position to develop our own
implementing regulations for ESA
section 10(j) that will help provide
clarity and reduce uncertainty for the
public about our future practices. In
developing this proposal, we reviewed
the ESA, legislative history of the 1982
ESA amendments, existing USFWS ESA
section 10(j) regulations, public
comments from the USFWS rulemaking
to develop their ESA section 10(j)
regulations, and relevant public
comments from our own recent
experimental population designations,
and we consulted with USFWS staff. We
then convened a group of NMFS staff
with experience in ESA section 10(j)
designations to help develop this
proposal. In the following sections, we
discuss our proposed regulations
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section by section. We compare our
proposal to the existing USFWS
regulations to make clear the areas
where our regulations will differ from
the USFWS regulations. We strove to
maintain consistency between our
proposed regulations and the existing
USFWS regulations as much as possible
to provide for consistent
implementation of ESA section 10(j)
between the agencies, but we are
proposing changes we believe are
necessary to implement the statutory
requirements in a manner appropriate
for species under NMFS’ jurisdiction.
NMFS’ intent when designating an
experimental population under ESA
section 10(j) is that the population will
retain that designation until the donor
species is delisted, or until, for some
unforeseen reason, the experimental
population fails, for example, due to
lack of donor stock or problems with
implementation.
Definitions
Section 10(j) of the ESA states that an
‘‘experimental population’’ means ‘‘any
population (including any offspring
arising solely there from) authorized by
the Secretary for release under [section
10(j)(2)], but only when, and at such
times as, the population is wholly
separate geographically from
nonexperimental populations of the
same species.’’ Where members of an
experimental population overlap with
natural populations of the same species,
they are not deemed to be an
experimental population. In its ESA
section 10(j) regulations at 50 CFR
17.80, USFWS added that a population
shall be treated as experimental only
when the times of geographic separation
are ‘‘reasonably predictable’’, for
example, with ‘‘fixed migration
patterns, natural or man-made barriers.’’
They further stated that ‘‘[a] population
is not treated as experimental if total
separation will occur solely as a result
of random and unpredictable events.’’
USFWS full definition of ‘‘experimental
population’’ is:
‘‘The term experimental population means
an introduced and/or designated population
(including any off-spring arising solely
therefrom) that has been so designated in
accordance with the procedures of this
subpart but only when, and at such times as
the population is wholly separate
geographically from nonexperimental
populations of the same species. Where part
of an experimental population overlaps with
natural populations of the same species on a
particular occasion, but is wholly separate at
other times, specimens of the experimental
population will not be recognized as such
while in the area of overlap. That is,
experimental status will only be recognized
outside the areas of overlap. Thus, such a
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population shall be treated as experimental
only when the times of geographic separation
are reasonably predictable; e.g., fixed
migration patterns, natural or man-made
barriers. A population is not treated as
experimental if total separation will occur
solely as a result of random and
unpredictable events.’’
We believe USFWS’s interpretation is
applicable for situations in which
complete temporal or physical barriers
exist that ensure the geographic
isolation of an experimental population
for at least part of the year or life cycle
of the individuals in the experimental
population. Thus, we propose to adopt
the same definition as USFWS for
‘‘experimental population,’’ with two
small changes. First, we propose to
substitute ‘‘any’’ for the word ‘‘an’’ in
the first sentence of USFWS’s
definition, to match the statutory
language. Second, in the second
sentence of their definition, USFWS
uses the word ‘‘natural’’ to distinguish
populations not designated as
experimental from experimental
populations. In our experience with our
species, the term natural can be
confusing when dealing with situations
where some nonexperimental animals
or populations derive from hatchery,
aquaculture, or other captive breeding
programs (e.g., such programs for
salmonids). Therefore, we propose to
substitute the word ‘‘nonexperimental’’
for ‘‘natural’’ in the definition to
improve clarity for species under
NMFS’s jurisdiction.
Therefore, we propose that an
‘‘experimental population’’ means ‘‘any
introduced and/or designated
population (including any off-spring
arising solely therefrom) that has been
so designated in accordance with the
procedures of this subpart [of the
regulations] but only when, and at such
times as, the population is wholly
separate geographically from
nonexperimental populations of the
same species. Where part of an
experimental population overlaps with
nonexperimental populations of the
same species on a particular occasion,
but is wholly separate at other times,
specimens of the experimental
population will not be recognized as
such while in the area of overlap. That
is, experimental status will only be
recognized outside the areas of overlap.
Thus, such a population shall be treated
as experimental only when the times of
geographic separation are reasonably
predictable; e.g., fixed migration
patterns, natural or man-made barriers.
A population is not treated as
experimental if total separation will
occur solely as a result of random and
unpredictable events.’’
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In order to implement ESA section
10(j) for any new experimental
population, the ESA requires a
determination as to whether or not the
experimental population is essential to
the continued existence of the species.
ESA section 10(j), however, does not
provide a definition of an ‘‘essential
experimental population.’’ The USFWS
defined an ‘‘essential experimental
population’’ as an experimental
population ‘‘whose loss would be likely
to appreciably reduce the likelihood of
the survival of the species in the wild,’’
and stated that ‘‘[a]ll other experimental
populations are to be classified as
nonessential.’’ This definition closely
follows language in the report of the
Congressional Conference Committee
when the 1982 ESA amendments were
passed (see Joint Explanatory Statement
of the Committee of Conference, H.R.
Conf. Rep. No. 97–835 (1982), at 15).
Here again we believe the definition
used by USFWS is helpful, is consistent
with congressional intent and has
worked well to date; and we recognize
that adopting an identical definition for
this fundamental term will provide
consistency between NMFS and USFWS
in the implementation of ESA section
10(j). We therefore propose to adopt the
same definition as USFWS.
Listing
The beginning of the ‘‘Listing’’ section
of the USFWS section 10(j) regulations
(50 CFR 17.81(a)) describes the
experimental population designation
process and specifies that it is the
Secretary of the Interior who has the
authority to designate and release an
experimental population of a listed
species under USFWS jurisdiction into
suitable habitat outside of the species’
current natural range. In our proposed
regulations, we similarly specify that it
is the Secretary of Commerce who has
the authority to designate and release an
experimental population for species
under our jurisdiction.
Consistent with the general intent of
Congress with regard to the adoption of
regulations and the specific requirement
in ESA section 10(j)(2)(B) that an
experimental population be identified
by regulation, USFWS included a
requirement that regulations designating
experimental populations be adopted in
accordance with 5 U.S.C. 553 (see 50
CFR 17.81(a)), which contains the
informal rulemaking provisions of the
Administrative Procedure Act.
Therefore, we propose to adopt this
provision as well.
Current Range
The USFWS regulations at 50 CFR
17.81(a) provide for the designation of
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an experimental population that has
been or will be released into suitable
habitat ‘‘outside the current natural
range’’ of the species. However, ESA
section 10(j)(2)(A) only uses the phrase
‘‘outside the current range’’ rather than
‘‘outside the current natural range’’ to
identify the geographic area in which an
experimental population is authorized
for release. Further, there is no
definition of ‘‘range’’, ‘‘current range,’’
or ‘‘current natural range’’ in the ESA or
50 CFR parts 222 (NMFS ESA
implementing regulations) or 424 (Joint
NMFS/USFWS ESA implementing
regulations). The USFWS ESA section
10(j) regulations at 50 CFR 17.80
through 17.83 also do not define
‘‘natural’’. Based on our experience with
our species, we do not believe addition
of the word ‘‘natural’’ in the phrase
‘‘outside the current range’’ is necessary
for our species. Therefore, we do not
propose to include the word ‘‘natural’’
as a qualifier for the current range of a
species.
The USFWS regulations at 50 CFR
17.81(a) also establish a limitation that
release of an experimental population
outside of the probable historic range of
a species is allowed only if the Director
of the USFWS makes a finding that ‘‘the
primary habitat of the species has been
unsuitably and irreversibly altered or
destroyed.’’ This provision is not
required under the ESA, and we believe
it unnecessarily limits our ability to
implement section 10(j) of the ESA in a
manner that conserves our listed
species. Therefore, we do not include
this language in our proposed rule.
Furthering the Conservation of the
Species
As noted above, ESA section 10(j)
requires that before authorizing the
release of an experimental population
outside the current range of the species,
the Secretary must determine that such
release will further the conservation of
the species. The ESA provides little
guidance on how to make such a
determination. The ESA does define
‘‘conservation’’ as ‘‘the use of all
methods and procedures which are
necessary to bring any endangered
species or threatened species to the
point at which the measures provided
pursuant to this [Act] are no longer
necessary.’’ In their ESA section 10(j)
regulations, USFWS identified four
factors that, using the best scientific and
commercial data available, they
consider in making a finding that the
experimental population release will
further the conservation of the species:
(1) Any possible adverse effects on
extant populations of a species as a
result of removal of individuals, eggs, or
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propagules for introduction elsewhere;
(2) The likelihood that any such
experimental population will become
established and survive in the
foreseeable future; (3) The relative
effects that establishment of an
experimental population will have on
the recovery of the species; and (4) The
extent to which the introduced
population may be affected by existing
or anticipated Federal or State actions or
private activities within or adjacent to
the experimental population area (50
CFR 17.81(b)).
The first factor USFWS considers is
related to effects on the source
populations of the organisms used to
establish or enhance an experimental
population. The remaining three factors
they consider relate to the likelihood or
extent the experimental population will
survive, thrive, and contribute to the
recovery and conservation of the
species. These three factors focus on key
steps in the implementation of an
experimental population: (1) initial
establishment, (2) the contribution of an
established experimental population to
the recovery of the listed species, and
(3) the effect any nearby human
activities might have on the
experimental population and its
potential contribution to the species
recovery.
We have found that using the list of
factors developed by USFWS gives the
public adequate general information
about how we plan to interpret the
provision for ‘‘furthering the
conservation of the species,’’ without
introducing needless complexity. In
rulemakings we have already completed
to designate experimental populations
(see above), we have provided detailed
discussions of relevant species-specific
information that we considered in order
to make the ‘‘further the conservation
of’’ finding based on these four factors,
and we intend to continue this practice
in future rulemakings. We also note the
desirability of maintaining consistency
between our regulations and those of
USFWS. Therefore, we propose to adopt
the same language and four factors as
the USFWS regulations for making the
determination that release of an
experimental population will further the
conservation of the species, with two
small editorial revisions. First, we
added a comma in the second sentence
of paragraph (b) because it is
appropriate grammatically. Second, the
third factor in USFWS’s regulations says
USFWS will consider the ‘‘relative
effects’’ the experimental population
will have on recovery of the species. In
our experience with our species, we
have found the term ‘‘relative’’ in this
factor is superfluous, and we therefore
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do not include it in our proposal.
Neither of these changes is intended to
make our proposed regulation
functionally different than USFWS’s
corresponding regulation.
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Identification of the Experimental
Population
In their ESA section 10(j)
implementing regulations, USFWS
requires that any regulation designating
an experimental population shall
provide, among other things,
‘‘[a]ppropriate means to identify the
experimental population, including, but
not limited to, its actual or proposed
location, actual or anticipated
migration, number of specimens
released or to be released, and other
criteria appropriate to identify the
experimental population(s)’’ (50 CFR
17.81(c)(1)). We believe these examples
of means of identifying an experimental
population are relevant and helpful, and
we propose to include them in our
regulations. However, we add the
qualifier ‘‘if appropriate’’ to our
proposal to make it clear that not all of
the listed means will be relevant to each
experimental population designation for
our species. With the addition of the ‘‘if
appropriate’’ qualifier, we also change
the commas separating the examples to
semicolons to more clearly separate
them.
Finding Whether the Experimental
Population Is or Is Not Essential
The USFWS ESA section 10(j)
regulations at 50 CFR 17.81(c)(2)
incorporate the requirement of the ESA
that the designation of an experimental
population include a determination as
to whether the experimental population
is essential to the continued existence of
the listed species. The language is as
follows: ‘‘(c) Any regulation
promulgated under paragraph (a) of this
section shall provide: . . . (2) A finding,
based solely on the best scientific and
commercial data available, and the
supporting factual basis, on whether the
experimental population is, or is not,
essential to the continued existence of
the species in the wild[.]’’ Based on our
experience, this language is adequate to
describe the statutory requirement, and
we propose to adopt identical language.
We have already discussed above that
we will adopt the same definition as the
USFWS regulations for ‘‘essential
experimental population.’’
Protective Measures
In 50 CFR 17.81(c)(3) of their ESA
section 10(j) regulations, USFWS
establishes that their rulemakings for
designating experimental populations
will also provide: ‘‘Management
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restrictions, protective measures, or
other special management concerns of
that population, which may include, but
are not limited to, measures to isolate
and/or contain the experimental
population designated in the regulation
from natural populations[.]’’ This
provision addresses the linkage between
designating experimental populations
under section 10(j) of the ESA and
implementing companion protective
regulations under ESA section 4(d). The
language also specifies actions needed
to successfully implement an
experimental population release. We
agree that it is helpful to clarify the
relationship between sections 4(d) and
10(j) of the ESA and the intent of
Congress and the agency in
implementing ESA section 10(j). Based
on our experience with our species,
however, we believe additional
clarifying language in this section is
appropriate for our species.
We believe this section should make
it clear that management restrictions,
protective measures, and other special
management concerns would be applied
to an experimental population as
appropriate to the specific situation as
not all of these measures would be
applicable for all of our species. We
therefore add this clarification to our
proposed regulatory language. Second,
we again propose using the word
‘‘nonexperimental,’’ instead of the word
‘‘natural,’’ to describe nonexperimental
populations, as discussed above. Third,
we add language to further clarify the
distinction between regulations adopted
under the provisions of ESA section 4(d)
and those adopted under ESA section
10(j). Finally, we add a comma after
‘‘include,’’ because it is appropriate
grammatically to separate the ‘‘but are
not limited to’’ clause. These
clarifications are not intended to make
our proposed regulations functionally
differ from those of USFWS. Therefore,
our proposed regulatory language is:
‘‘Management restrictions, protective
measures, or other special management
concerns of that population, as
appropriate, which may include, but are
not limited to, measures to isolate and/
or contain the experimental population
designated in the regulation from
nonexperimental populations and
protective regulations established
pursuant to section 4(d) of the Act.’’
Periodic Review
50 CFR 17.81(c)(4) of the USFWS
section 10(j) regulations requires that
any regulation designating an
experimental population shall provide a
process for periodic review and
evaluation of the success or failure of
the release and the effect of the release
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on the conservation and recovery of the
species. We agree with this provision to
help ensure the success of experimental
population designations and to formally
and publicly review these designations.
We note that the ESA requires that we
conduct a status review every 5 years for
each listed species under our
jurisdiction. We intend to use the 5 year
review process for tracking the status of
experimental populations and ensuring
that experimental population
designations further the conservation of
the species as expected.
Permits To Allow Establishment and
Maintenance of an Experimental
Population
In their ESA section 10(j) regulations,
USFWS notes that they may issue a
permit under section 10(a)(1)(A) of the
ESA, if appropriate under the standards
set out in subsections 10(d) and (j) of the
ESA, to allow acts necessary for the
establishment and maintenance of an
experimental population. This provision
highlights the intent of Congress that
experimental populations be
implemented through provisions of the
ESA and provides the relevant
mechanism by which this would
normally occur. Our implementing
practices are similar to those of USFWS,
and we therefore propose to include this
provision in our regulations, with some
edits solely to improve clarity and
streamline the provision. In the USFWS
regulations at 50 CFR 17.81, this
provision is an un-numbered sentence
as part of paragraph (4) under
subparagraph (b), which otherwise deals
with the factors to consider in making
a determination that an experimental
population will further the conservation
of the species. In order to emphasize the
provision as a stand-alone provision and
to make it easier to directly cite, in our
proposed rule we place this provision in
its own numbered subparagraph (d). We
also propose to not include the
following phrase from the USFWS
regulations: ‘‘under the standards set
out in subsections 10(d) and (j) of the
ESA,’’ because the phrase is
unnecessary. Under the provisions of
the statute, any permit for an
experimental population issued under
ESA section 10(a)(1)(A) would have to
meet the standards set out in those
subsections, so it is not necessary to
explicitly list the subsections in the
regulations. Our proposed regulations
will thus read, ‘‘The Secretary may issue
a permit under section 10(a)(1)(A) of the
Act, if appropriate, to allow acts
necessary for the establishment and
maintenance of an experimental
population.’’
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Stakeholder Consultations
In their regulations implementing
ESA section 10(j), USFWS establishes
that, in the process of developing and
implementing experimental population
rules, they will consult with appropriate
State fish and wildlife agencies, local
governmental entities, affected Federal
agencies, and affected private
landowners, including through public
meetings, when appropriate (50 CFR
17.81(d)). USFWS further establishes in
this paragraph that, to the maximum
extent practicable, any regulation
promulgated pursuant to this section
shall represent an agreement between
USFWS, the affected State and Federal
agencies, and persons holding any
interest in land which may be affected
by the establishment of an experimental
population. We strongly believe that
consultations with affected parties are
critical to the success of experimental
population designations and propose to
adopt this language in our regulations.
We believe that our trust responsibilities
with regard to tribal governments
warrant explicitly including
consultation with tribes in our ESA
section 10(j) regulations. We have
therefore listed tribal governments in
our proposal. This addition is not
intended to suggest that USFWS’s
regulations do not allow for
consultation with tribal governments,
and, in fact, USFWS has consulted with
tribal governments on ESA section 10(j)
designations. Therefore, listing tribal
governments in our regulations would
not make our provision functionally
differ from the corresponding provision
in USFWS’s regulations. We would just
like to explicitly list tribal governments
in our regulations based on our
experience with our species. In fact,
tribal governments have been integral in
the development of experimental
populations we have already designated
(see above).
We propose one other addition in this
section of our regulations. The USFWS
regulations at 50 CR 17.81(d) identify
persons holding an interest in land
which may be affected by an
experimental population designation as
a stakeholder group to be consulted.
Based on our experience and work in
aquatic habitat and the fact that all of
our species are aquatic species, we
believe the addition of persons holding
interests in water (i.e., aquatic habitat),
which may be affected by an
experimental population designation, as
an additional stakeholder group is
warranted and have included that
addition in this proposed rule.
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Location of Experimental Population
Regulations in the Code of Federal
Regulations
In their ESA section 10(j) regulations,
USFWS provides that special rules
relating to a designation of an
experimental population will be
published in specific sections of the
CFR as appropriate, and that
experimental populations will be
separately listed in the lists of
threatened and endangered plants and
animals in the CFR as appropriate. In
our proposed regulations, we similarly
state that our regulations relating to
specific experimental populations will
continue to be published in Title 50,
part 223 of the CFR, with our
regulations related to threatened
species, and that our designated
experimental populations also will be
separately listed in the lists of
threatened and endangered plants and
animals in the CFR as appropriate. We
note that the regulations relating to
listing and designation of an
experimental population that are being
proposed in this rulemaking would be
published in Title 50, part 222 of the
CFR, with our other ESA implementing
regulations.
Critical Habitat for Experimental
Populations Determined To Be Essential
The Secretary may designate critical
habitat, as defined in section (3)(5)(A) of
the ESA, for an experimental population
determined to be essential (but not for
populations determined to be
nonessential). In their ESA section 10(j)
regulations, USFWS emphasizes that the
designation of critical habitat for an
essential experimental population will
be made in accordance with section 4 of
the ESA (50 CFR 17.81(f)). We agree that
emphasizing the provisions of ESA
section 4 in the ESA section 10(j)
regulations is useful, and we therefore
propose to include the same language in
our regulations. In our proposed
regulations, we made two changes from
the language in 50 CFR 17.81(f),
however. First, the USFWS regulations
say: ‘‘No designation of critical habitat
will be made for nonessential
populations.’’ We add the word
‘‘experimental’’ after ‘‘nonessential,’’ to
emphasize that the nonessential
populations are, in fact, ESA section
10(j) experimental populations.
Second, in their regulations, USFWS
adds additional language regarding
critical habitat for experimental
populations (50 CFR 17.81(f)). The
language USFWS uses is: ‘‘In those
situations where a portion or all of an
essential experimental population
overlaps with a natural population of
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the species during certain periods of the
year, no critical habitat will be
designated for the area of overlap,
unless implemented as a revision to
critical habitat of the natural population
for reasons unrelated to the overlap
itself.’’ This language is not included in
the ESA, and in our experience with our
species this language has been
unnecessary to understand and
implement the relevant provisions of
the ESA. We therefore do not include
this language in our proposed rule.
Prohibitions
The USFWS ESA section 10(j)
regulations at 50 CFR 17.82 reiterate the
ESA section 10(j) provision that each
member of an experimental population
shall be treated as if it were listed as a
threatened species and add that this
applies for purposes of establishing
protective regulations under section 4(d)
of the ESA. Based on our experience
with our species, even with the
language in 50 CFR 17.82, stakeholders
still have questions regarding the
relationship between ESA sections 10(j)
and 4(d). Therefore, we propose
modified language for our regulations to
clarify and explain in more detail the
relationship between these two sections.
This modified language is not intended
to function differently or lead to
different outcomes than the USFWS
language, but is only intended to
provide greater explanation about the
relationship between ESA sections 10(j)
and 4(d). The first sentence would read
the same as 50 CFR 17.82: ‘‘Any
population determined by the Secretary
to be an experimental population shall
be treated as if it were listed as a
threatened species for purposes of
establishing protective regulations
under section 4(d) of the Act with
respect to such population.’’ However,
we propose to replace the second
sentence of the USFWS regulations at 50
CFR 17.82 (‘‘The Special rules
(protective regulations) adopted for an
experimental population under § 17.81
will contain applicable prohibitions, as
appropriate, and exceptions for that
population.’’) with the following text in
our regulations: ‘‘Accordingly, when
designating, or revising, an
experimental population under section
10(j) of the Act, the Secretary may also
exercise his or her authority under
section 4(d) of the Act to include
protective regulations necessary and
advisable to provide for the
conservation of such species as part of
the special rule for the experimental
population. Any protective regulations
applicable to the species from which the
experimental population was sourced
do not apply to the experimental
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population unless specifically included
in the special rule for the experimental
population.’’
Interagency Cooperation
In their regulations implementing
ESA section 10(j), USFWS includes a
section on provisions related to
interagency cooperation under section 7
of the ESA (50 CFR 17.83) that describes
what types of analyses are conducted
under ESA section 7 with respect to
experimental populations. Much of this
section reiterates language in section
10(j) of the ESA itself (see ESA section
10(j)(2)(C)). However, USFWS does
include an additional provision that any
biological opinion prepared pursuant to
section 7(b) of the ESA and any agency
determination made pursuant to section
7(a) of the ESA ‘‘shall consider any
experimental and nonexperimental
populations to constitute a single listed
species for the purposes of conducting
the analyses under such sections.’’
We propose to adopt the language
used by USFWS in 50 CFR 17.83(a) and
(b) in our own regulations, with the
addition of citations to the relevant
parts of ESA section 7 that are
referenced in each subparagraph (i.e.,
section 7(a)(4) in subparagraph (a) and
section 7(a)(1) in subparagraph (b)) for
ease of reference, to direct the reader to
the applicable part of the ESA, and with
the addition of the phrase ‘‘of the Act’’
in paragraph (a) to explicitly specify
that the regulation refers to section 7 of
the statute. However, we do not propose
to include the additional USFWS
provision quoted above related to ESA
section 7, as section 10(j) of the ESA and
our proposed regulations already
describe how ESA section 7 is to be
implemented with respect to
experimental populations, and based on
our experience, this additional language
is unnecessary for our species. None of
these differences are intended to cause
our regulation to functionally differ
from USFWS’s corresponding
regulation.
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Relationship to Existing Experimental
Populations
We have already designated three
experimental populations of salmonids
(see above). We do not intend the
proposed implementing regulations
herein to require us to review or revise
those designations. We do not believe
the implementing regulations we are
proposing in this proposed rule would
meaningfully alter the findings we came
to in our prior designations and
rulemakings.
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Request for Information
We intend that any rule finally
adopted be as effective as possible in
implementing the ESA. Any final
regulation based on this proposal will
consider information and
recommendations timely submitted
from all interested parties. Therefore,
we solicit comments, information, and
recommendations on this proposed
regulation from governmental agencies,
Native American tribes, the scientific
community, industry groups,
environmental interest groups, and any
other interested parties. Comments
should be as specific as possible and
refer to sections and paragraphs
involved. Specifically we request
information and comments on:
(1) The terms we define above and in
the proposed regulations, and
(2) The proposed listing and
experimental population designation
process and considerations.
This rulemaking does not materially
modify our current methods and
procedures for designating experimental
populations.
You may submit your information
concerning this proposed rule by one of
the methods listed in ADDRESSES. If you
submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the Web site. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this personal
identifying information from public
review. However, we cannot guarantee
that we will be able to do so. We will
post all hardcopy submissions on https://
www.regulations.gov.
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 pursuant to the Information
Quality Act (Section 515 of Pub. L. 106–
554), which was published in the
Federal Register on January 14, 2005
(70 FR 2664). The Bulletin established
minimum peer review standards, a
transparent process for public
disclosure of peer review planning, and
opportunities for public participation
with regard to certain types of
information disseminated by the Federal
Government. The peer review
requirements of the OMB Bulletin apply
to influential or highly influential
scientific information disseminated on
or after June 16, 2005. There are no
documents supporting this proposed
rule that meet this criteria.
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45929
Classification
Executive Order 12866
This proposed rule has been
determined to be not significant under
E.O. 12866.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(as amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996; 5 U.S.C. 801 et seq.),
whenever a Federal agency is required
to publish a notification of rulemaking
for any proposed or final rule, it must
prepare, and make available for public
comment, a regulatory flexibility
analysis that describes the effect of the
rule on small entities (i.e., small
businesses, small organizations, and
small government jurisdictions).
However, no regulatory flexibility
analysis is required if the head of an
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities.
The SBREFA amended the Regulatory
Flexibility Act to require Federal
agencies to provide a statement of the
factual basis for certifying that a rule
will not have a significant economic
impact on a substantial number of small
entities.
The Chief Counsel for Regulation,
Department of Commerce, will certify to
the Chief Counsel for Advocacy at the
Small Business Administration that this
proposed rule will not have a significant
economic effect on a substantial number
of small entities. The following
discussion explains our rationale.
The proposed regulations clarify how
we implement the provisions of section
10(j) of the ESA. The proposed
regulations do not materially alter our
current practices. The proposed
regulations do not expand our reach. We
are the only entity that is directly
affected by this proposed rule because
we are the only entity that can designate
experimental populations of threatened
or endangered species under NMFS
jurisdiction. No external entities,
including any small businesses, small
organizations, or small governments,
will experience any economic impacts
from this proposed rule. Therefore, the
only potential effect on any external
entities large or small would likely be
positive, through reducing any
uncertainty on the part of the public
about our process for designating
experimental populations by
formalizing our practices and
procedures.
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Executive Order 12630
In accordance with E.O. 12630, this
proposed rule does not have significant
takings implications. A takings
implication assessment is not required
because this rulemaking: (1) Would not
effectively compel a property owner to
have the government physically invade
property, and (2) would not deny all
economically beneficial or productive
use of the land or aquatic resources.
This rulemaking would substantially
advance a legitimate government
interest (conservation and recovery of
listed species) and would not present a
barrier to all reasonable and expected
beneficial use of private property.
Executive Order 13132
In accordance with E.O. 13132, we
have determined that this rule does not
have federalism implications as that
term is defined in E.O. 13132.
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Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
The Office of Management and Budget
(OMB) regulations at 5 CFR part 1320,
which implement provisions of the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.), require that Federal
agencies obtain approval from OMB
before collecting information from the
public. A Federal agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
This proposed rule does not include any
new collections of information that
require approval by OMB under the
Paperwork Reduction Act.
National Environmental Policy Act
We have analyzed this proposed rule
in accordance with the criteria of the
National Environmental Policy Act
(NEPA) (42 U.S.C. 4332(c)), the Council
on Environmental Quality’s Regulations
for Implementing the Procedural
Provisions of NEPA (40 CFR parts 1500–
1508), and NOAA’s Administrative
Order regarding NEPA compliance
(NAO 216–6 (May 20, 1999)).
We have determined that this
proposed rule is categorically excluded
from NEPA documentation
requirements, consistent with 40 CFR
1508.4. We have determined that this
action satisfies the standards for
reliance upon a categorical exclusion
under NOAA Administrative Order
(NAO) 216–6. Specifically, this action
fits within the categorical exclusion for
‘‘policy directives, regulations and
guidelines of an administrative,
financial, legal, technical or procedural
nature.’’ NAO 216–6, section 6.03c.3(i).
This action would not trigger an
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exception precluding reliance on the
categorical exclusion because it does not
involve a geographic area with unique
characteristics, is not the subject of
public controversy based on potential
environmental consequences, will not
result in uncertain environmental
impacts or unique or unknown risks,
does not establish a precedent or
decision in principle about future
proposals, will not have significant
cumulative impacts, and will not have
any adverse effects upon endangered or
threatened species or their habitats (Id.
sec. 5.05c). As such, it is categorically
excluded from the need to prepare an
Environmental Assessment. In addition,
we find that because this proposed rule
will not result in any effects to the
physical environment, much less any
adverse effects, there would be no need
to prepare an Environmental
Assessment even aside from
consideration of the categorical
exclusion. See, e.g., Oceana, Inc. v.
Bryson, 940 F. Supp. 2d 1029 (N.D. Cal.
April 12, 2013). Issuance of this
proposed rule does not alter the legal
and regulatory status quo in such a way
as to create any environmental effects.
See, e.g., Humane Soc. of U.S. v.
Johanns, 520 F. Supp. 2d. 8 (D.D.C.
2007).
Government-to-Government
Relationship With Tribes (E.O. 13175)
E.O. 13175, Consultation and
Coordination with Indian Tribal
Governments, outlines the
responsibilities of the Federal
Government in matters affecting tribal
interests. If we issue a regulation with
tribal implications (defined as having a
substantial direct effect on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes),
we must consult with those
governments or the Federal Government
must provide funds necessary to pay
direct compliance costs incurred by
tribal governments.
We invite all interested tribes to
discuss the proposed rule with us at
their convenience should they choose to
have a government-to-government
consultation.
Energy Supply, Distribution, or Use
(E.O. 13211)
On May 18, 2001, the President issued
E.O. 13211 on regulations that
significantly affect energy supply,
distribution, and use. Executive Order
13211 requires agencies to prepare
Statements of Energy Effects when
undertaking any action that promulgates
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or is expected to lead to the
promulgation of a final rule or
regulation that (1) is a significant
regulatory action under E.O. 12866 and
(2) is likely to have a significant adverse
effect on the supply, distribution, or use
of energy.
This proposed rule has been
determined not to be a significant
regulatory action under E.O. 12866 and
is not expected to significantly affect
energy supplies, distribution, and use.
Therefore, this action is not a significant
energy action and no Statement of
Energy Effects is required.
References Cited
A complete list of all references cited
in this rule is available upon request
(see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 222
Endangered and threatened species.
Dated: July 24, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs,
National Marine Fisheries Service.
For the reasons set out in the
preamble, part 222, of chapter II, title 50
of the Code of Federal Regulations, is
proposed to be amended as follows:
PART 222—GENERAL ENDANGERED
AND THREATENED MARINE SPECIES
1. The authority citation for part 222
continues to read as follows:
■
Authority: 16 U.S.C. 1531 et seq.; 16
U.S.C. 742a et seq.
2. Add subpart E to part 222 to read
as follows:
■
Subpart E—Experimental Populations
Sec.
222.501 Definitions.
222.502 Listing.
222.503 Prohibitions.
222.504 Interagency cooperation.
Subpart E—Experimental Populations
§ 222.501
Definitions.
(a) The term experimental population
means any introduced and/or
designated population (including any
off-spring arising solely therefrom) that
has been so designated in accordance
with the procedures of this subpart but
only when, and at such times as, the
population is wholly separate
geographically from nonexperimental
populations of the same species. Where
part of an experimental population
overlaps with nonexperimental
populations of the same species on a
particular occasion, but is wholly
separate at other times, specimens of the
experimental population will not be
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recognized as such while in the area of
overlap. That is, experimental status
will only be recognized outside the
areas of overlap. Thus, such a
population shall be treated as
experimental only when the times of
geographic separation are reasonably
predictable; e.g., fixed migration
patterns, natural or man-made barriers.
A population is not treated as
experimental if total separation will
occur solely as a result of random and
unpredictable events.
(b) The term essential experimental
population means an experimental
population whose loss would be likely
to appreciably reduce the likelihood of
the survival of the species in the wild.
All other experimental populations are
to be classified as nonessential.
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§ 222.502
Listing.
(a) The Secretary may designate as an
experimental population a population of
endangered or threatened species that
has been or will be released into
suitable habitat outside the species’
current range, subject to the further
conditions specified in this section,
provided, that all designations of
experimental populations must proceed
by regulation adopted in accordance
with 5 U.S.C. 553 and the requirements
of this subpart.
(b) Before authorizing the release as
an experimental population of any
population (including eggs, propagules,
or individuals) of an endangered or
threatened species, and before
authorizing any necessary
transportation to conduct the release,
the Secretary must find by regulation
that such release will further the
conservation of the species. In making
such a finding, the Secretary shall
utilize the best scientific and
commercial data available to consider:
(1) Any possible adverse effects on
extant populations of a species as a
result of removal of individuals, eggs, or
propagules for introduction elsewhere;
(2) The likelihood that any such
experimental population will become
established and survive in the
foreseeable future;
(3) The effects that establishment of
an experimental population will have
on the recovery of the species; and
(4) The extent to which the
introduced population may be affected
by existing or anticipated Federal or
State actions or private activities within
or adjacent to the experimental
population area.
(c) Any regulation promulgated under
paragraph (a) of this section shall
provide:
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(1) Appropriate means to identify the
experimental population, including, but
not limited to, its actual or proposed
location; actual or anticipated
migration; number of specimens
released or to be released, if appropriate;
and other criteria appropriate to identify
the experimental population(s);
(2) A finding, based solely on the best
scientific and commercial data
available, and the supporting factual
basis, on whether the experimental
population is, or is not, essential to the
continued existence of the species in the
wild;
(3) Management restrictions,
protective measures, or other special
management concerns of that
population, as appropriate, which may
include, but are not limited to, measures
to isolate and/or contain the
experimental population designated in
the regulation from nonexperimental
populations and protective regulations
established pursuant to section 4(d) of
the Act; and
(4) A process for periodic review and
evaluation of the success or failure of
the release and the effect of the release
on the conservation and recovery of the
species.
(d) The Secretary may issue a permit
under section 10(a)(1)(A) of the Act, if
appropriate, to allow acts necessary for
the establishment and maintenance of
an experimental population.
(e) The National Marine Fisheries
Service shall consult with appropriate
State fish and wildlife agencies, affected
tribal governments, local governmental
entities, affected Federal agencies, and
affected private landowners in
developing and implementing
experimental population rules. When
appropriate, a public meeting will be
conducted with interested members of
the public. Any regulation promulgated
pursuant to this section shall, to the
maximum extent practicable, represent
an agreement between the National
Marine Fisheries Service, the affected
State and Federal agencies and tribal
governments, and persons holding any
interest in land or water which may be
affected by the establishment of an
experimental population.
(f) Any population of an endangered
species or a threatened species
determined by the Secretary to be an
experimental population in accordance
with this subpart shall be identified by
special rule in part 223 as appropriate
and separately listed in 50 CFR 17.11(h)
(wildlife) or 50 CFR 17.12(h) (plants) as
appropriate.
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45931
(g) The Secretary may designate
critical habitat as defined in section
(3)(5)(A) of the Act for an essential
experimental population as determined
pursuant to paragraph (c)(2) of this
section. Any designation of critical
habitat for an essential experimental
population will be made in accordance
with section 4 of the Act. No
designation of critical habitat will be
made for nonessential experimental
populations.
§ 222.503
Prohibitions.
(a) Any population determined by the
Secretary to be an experimental
population shall be treated as if it were
listed as a threatened species for
purposes of establishing protective
regulations under section 4(d) of the Act
with respect to such population.
(b) Accordingly, when designating, or
revising, an experimental population
under section 10(j) of the Act, the
Secretary may also exercise his or her
authority under section 4(d) of the Act
to include protective regulations
necessary and advisable to provide for
the conservation of such species as part
of the special rule for the experimental
population. Any protective regulations
applicable to the species from which the
experimental population was sourced
do not apply to the experimental
population unless specifically included
in the special rule for the experimental
population.
§ 222.504
Interagency cooperation.
(a) Any experimental population
designated for a listed species
determined pursuant to § 222.502(c)(2)
not to be essential to the survival of that
species and not occurring within the
National Park System or the National
Wildlife Refuge System, shall be treated
for purposes of section 7 of the Act
(other than this paragraph (a) thereof) as
a species proposed to be listed under
the Act as a threatened species, and the
provisions of section 7(a)(4) of the Act
shall apply.
(b) Any experimental population
designated for a listed species that
either has been determined pursuant to
§ 222.502(c)(2) to be essential to the
survival of that species, or occurs within
the National Park System or the
National Wildlife Refuge System as now
or hereafter constituted, shall be treated
for purposes of section 7 of the Act as
a threatened species, and the provisions
of section 7(a)(2) of the Act shall apply.
[FR Doc. 2015–18894 Filed 7–31–15; 8:45 am]
BILLING CODE 3510–22–P
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Agencies
[Federal Register Volume 80, Number 148 (Monday, August 3, 2015)]
[Proposed Rules]
[Pages 45924-45931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18894]
[[Page 45924]]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
[Docket No. 140725620-4620-01]
RIN 0648-BE43
Endangered and Threatened Species: Proposed Regulations for the
Designation of Experimental Populations Under the Endangered Species
Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Proposed rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: We, the National Marine Fisheries Service (NMFS), propose
regulations to amend the Code of Federal Regulations (CFR) to implement
the Endangered Species Act (ESA) regarding experimental populations.
The CFR would be amended to establish definitions and procedures for:
establishing and/or designating certain populations of species
otherwise listed as endangered or threatened as experimental
populations; determining whether experimental populations are
``essential'' or ``nonessential;'' and promulgating appropriate
protective measures for experimental populations. We seek public
comment on this proposal.
DATES: To allow us adequate time to consider your comments on this
proposed rule, they must be received no later than October 2, 2015.
ADDRESSES: You may submit comments on this proposed rule, identified by
NOAA-NMFS-2014-0104, by any of the following methods:
Electronic submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal.
1. Go to https://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-
2014-0104.
2. Click the ``Comment Now!'' icon, complete the required fields.
3. Enter or attach your comments.
--or--
Mail: Submit written comments to Dwayne Meadows,
Endangered Species Division F/PR3, Office of Protected Resources,
National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910.
Fax: (301) 713-4060.
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 by NMFS. All comments received are part of the
public record and will generally be posted to https://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. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, NMFS, 1315 East-West
Highway, Silver Spring, MD 20910, (301) 427-8403.
SUPPLEMENTARY INFORMATION:
Background
Congress amended the ESA in 1982 (Pub. L. 97-304). Among the
changes made to the law at that time was the addition of a new section,
10(j), which established procedures for designating a specific
population of a listed species as an ``experimental population.'' Prior
to the 1982 amendments we, and the U.S. Fish and Wildlife Service
(USFWS), which implements the ESA for terrestrial, freshwater, and some
other species of wildlife and plants, were authorized to translocate a
listed species into unoccupied portions of its range in order to aid in
the recovery of the species. Significant opposition to translocation
efforts often occurred, however, usually due to concerns over the rigid
protections and prohibitions applicable to these translocated
populations. ESA section 10(j) was designed to resolve these conflicts
by providing new administrative flexibility for selectively applying
the prohibitions of the ESA to experimental populations of listed
species (see, e.g., H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982)).
Section 10(j)(1) of the ESA (16 U.S.C. 1539(j)(1)) defines an
experimental population as a population that has been authorized for
release by the Secretary of Commerce (Secretary) or Secretary of
Interior, but only when, and at such times as, the population is wholly
separate geographically from nonexperimental populations of the same
species. The Secretary may authorize the release (and related
transportation) of any experimental population (including eggs,
propagules, or individuals) of a listed species outside of the species'
current range if the Secretary determines that the release would
``further the conservation of'' the listed species (16 U.S.C.
1539(j)(2)(A)). Section 10(j)(2)(B) also requires that, before
authorizing the release of an experimental population, the Secretary
``identify'' the experimental population by regulation and determine,
based on the best available information, whether the experimental
population is ``essential to the continued existence'' of the listed
species (16 U.S.C. 1539(j)(2)(B)).
Section 10(j) of the ESA further establishes that an experimental
population shall be treated as a threatened species under the ESA, with
two exceptions that apply if an experimental population is determined
to be not essential to the listed species' continued existence (i.e.,
is nonessential): (1) A nonessential experimental population (NEP)
shall be treated as a species proposed for listing for purposes of
section 7 of the ESA, except when the NEP occurs in an area within the
National Wildlife Refuge System or the National Park System; and (2)
critical habitat shall not be designated for a NEP. Treatment of an
experimental population as ``threatened'' under the ESA enables the
Secretary to issue regulations under the authority of section 4(d) of
the ESA that he or she deems necessary and advisable to provide for the
conservation of the species, which may be less restrictive than taking
prohibitions applicable to endangered species under ESA section 9. For
essential experimental populations, treatment as a threatened species
also means ESA section 7(a)(2) applies, requiring each Federal agency
to consult with us to insure that any action authorized, funded, or
carried out by the agency is not likely to jeopardize the continued
existence of the experimental population or result in the destruction
or adverse modification of the experimental population's critical
habitat. When a NEP occurs within the National Wildlife Refuge System
or National Park System, it also must be treated as a threatened
species for the purposes of ESA section 7, and section 7(a)(2)
consultations are required. Under the first exception described above,
however, the only provisions of section 7 that apply to a NEP outside
of a National Wildlife Refuge or National Park are sections 7(a)(1) and
7(a)(4). Section 7(a)(1) requires that Federal agencies use their
authorities in furtherance of the purposes of the ESA by carrying out
programs for the conservation of threatened and endangered species.
Section 7(a)(4) requires Federal agencies to confer,
[[Page 45925]]
rather than consult, with us on actions that are likely to jeopardize
the continued existence of a species proposed to be listed. The results
of a conference are advisory in nature.
The provisions of section 10(j) of the ESA, as summarized above,
introduce some terminology and concepts that are not otherwise used or
defined in the ESA or in our current implementing regulations. These
terms and concepts include: ``further the conservation of,''
``experimental population,'' identifying an experimental population,
and determining whether an experimental population is essential to the
continued existence of the species. The USFWS promulgated regulations
in 1984 (49 FR 33885, August 27, 1984) to guide their implementation of
ESA section 10(j) (50 CFR 17.80 through 17.83), including provisions
related to the terms and concepts noted above. The USFWS has designated
dozens of experimental populations using those regulations (see 50 CFR
17.84 through 17.85). Although the USFWS regulations do not govern
regulatory actions by NMFS, we have explicitly considered those
regulations recently in the only three experimental population
designations we have made: Middle Columbia River steelhead trout in the
Deschutes River Basin (78 FR 2893, January 15, 2013); Central Valley
spring-run Chinook Salmon in the San Joaquin River (78 FR 79622,
December 31, 2013); and upper Columbia River spring-run Chinook Salmon
in the Okanogan River Subbasin (79 FR 40004, July 11, 2014).
We believe that there is a need for us to have regulations laying
out NMFS's interpretation of and procedures for implementing ESA
section 10(j), beyond what Congress has specifically directed, just as
USFWS did in their section 10(j) implementing regulations. Now that we
have gained some experience in designating experimental populations, we
are in a position to develop our own implementing regulations for ESA
section 10(j) that will help provide clarity and reduce uncertainty for
the public about our future practices. In developing this proposal, we
reviewed the ESA, legislative history of the 1982 ESA amendments,
existing USFWS ESA section 10(j) regulations, public comments from the
USFWS rulemaking to develop their ESA section 10(j) regulations, and
relevant public comments from our own recent experimental population
designations, and we consulted with USFWS staff. We then convened a
group of NMFS staff with experience in ESA section 10(j) designations
to help develop this proposal. In the following sections, we discuss
our proposed regulations section by section. We compare our proposal to
the existing USFWS regulations to make clear the areas where our
regulations will differ from the USFWS regulations. We strove to
maintain consistency between our proposed regulations and the existing
USFWS regulations as much as possible to provide for consistent
implementation of ESA section 10(j) between the agencies, but we are
proposing changes we believe are necessary to implement the statutory
requirements in a manner appropriate for species under NMFS'
jurisdiction. NMFS' intent when designating an experimental population
under ESA section 10(j) is that the population will retain that
designation until the donor species is delisted, or until, for some
unforeseen reason, the experimental population fails, for example, due
to lack of donor stock or problems with implementation.
Definitions
Section 10(j) of the ESA states that an ``experimental population''
means ``any population (including any offspring arising solely there
from) authorized by the Secretary for release under [section 10(j)(2)],
but only when, and at such times as, the population is wholly separate
geographically from nonexperimental populations of the same species.''
Where members of an experimental population overlap with natural
populations of the same species, they are not deemed to be an
experimental population. In its ESA section 10(j) regulations at 50 CFR
17.80, USFWS added that a population shall be treated as experimental
only when the times of geographic separation are ``reasonably
predictable'', for example, with ``fixed migration patterns, natural or
man-made barriers.'' They further stated that ``[a] population is not
treated as experimental if total separation will occur solely as a
result of random and unpredictable events.'' USFWS full definition of
``experimental population'' is:
``The term experimental population means an introduced and/or
designated population (including any off-spring arising solely
therefrom) that has been so designated in accordance with the
procedures of this subpart but only when, and at such times as the
population is wholly separate geographically from nonexperimental
populations of the same species. Where part of an experimental
population overlaps with natural populations of the same species on
a particular occasion, but is wholly separate at other times,
specimens of the experimental population will not be recognized as
such while in the area of overlap. That is, experimental status will
only be recognized outside the areas of overlap. Thus, such a
population shall be treated as experimental only when the times of
geographic separation are reasonably predictable; e.g., fixed
migration patterns, natural or man-made barriers. A population is
not treated as experimental if total separation will occur solely as
a result of random and unpredictable events.''
We believe USFWS's interpretation is applicable for situations in
which complete temporal or physical barriers exist that ensure the
geographic isolation of an experimental population for at least part of
the year or life cycle of the individuals in the experimental
population. Thus, we propose to adopt the same definition as USFWS for
``experimental population,'' with two small changes. First, we propose
to substitute ``any'' for the word ``an'' in the first sentence of
USFWS's definition, to match the statutory language. Second, in the
second sentence of their definition, USFWS uses the word ``natural'' to
distinguish populations not designated as experimental from
experimental populations. In our experience with our species, the term
natural can be confusing when dealing with situations where some
nonexperimental animals or populations derive from hatchery,
aquaculture, or other captive breeding programs (e.g., such programs
for salmonids). Therefore, we propose to substitute the word
``nonexperimental'' for ``natural'' in the definition to improve
clarity for species under NMFS's jurisdiction.
Therefore, we propose that an ``experimental population'' means
``any introduced and/or designated population (including any off-spring
arising solely therefrom) that has been so designated in accordance
with the procedures of this subpart [of the regulations] but only when,
and at such times as, the population is wholly separate geographically
from nonexperimental populations of the same species. Where part of an
experimental population overlaps with nonexperimental populations of
the same species on a particular occasion, but is wholly separate at
other times, specimens of the experimental population will not be
recognized as such while in the area of overlap. That is, experimental
status will only be recognized outside the areas of overlap. Thus, such
a population shall be treated as experimental only when the times of
geographic separation are reasonably predictable; e.g., fixed migration
patterns, natural or man-made barriers. A population is not treated as
experimental if total separation will occur solely as a result of
random and unpredictable events.''
[[Page 45926]]
In order to implement ESA section 10(j) for any new experimental
population, the ESA requires a determination as to whether or not the
experimental population is essential to the continued existence of the
species. ESA section 10(j), however, does not provide a definition of
an ``essential experimental population.'' The USFWS defined an
``essential experimental population'' as an experimental population
``whose loss would be likely to appreciably reduce the likelihood of
the survival of the species in the wild,'' and stated that ``[a]ll
other experimental populations are to be classified as nonessential.''
This definition closely follows language in the report of the
Congressional Conference Committee when the 1982 ESA amendments were
passed (see Joint Explanatory Statement of the Committee of Conference,
H.R. Conf. Rep. No. 97-835 (1982), at 15). Here again we believe the
definition used by USFWS is helpful, is consistent with congressional
intent and has worked well to date; and we recognize that adopting an
identical definition for this fundamental term will provide consistency
between NMFS and USFWS in the implementation of ESA section 10(j). We
therefore propose to adopt the same definition as USFWS.
Listing
The beginning of the ``Listing'' section of the USFWS section 10(j)
regulations (50 CFR 17.81(a)) describes the experimental population
designation process and specifies that it is the Secretary of the
Interior who has the authority to designate and release an experimental
population of a listed species under USFWS jurisdiction into suitable
habitat outside of the species' current natural range. In our proposed
regulations, we similarly specify that it is the Secretary of Commerce
who has the authority to designate and release an experimental
population for species under our jurisdiction.
Consistent with the general intent of Congress with regard to the
adoption of regulations and the specific requirement in ESA section
10(j)(2)(B) that an experimental population be identified by
regulation, USFWS included a requirement that regulations designating
experimental populations be adopted in accordance with 5 U.S.C. 553
(see 50 CFR 17.81(a)), which contains the informal rulemaking
provisions of the Administrative Procedure Act. Therefore, we propose
to adopt this provision as well.
Current Range
The USFWS regulations at 50 CFR 17.81(a) provide for the
designation of an experimental population that has been or will be
released into suitable habitat ``outside the current natural range'' of
the species. However, ESA section 10(j)(2)(A) only uses the phrase
``outside the current range'' rather than ``outside the current natural
range'' to identify the geographic area in which an experimental
population is authorized for release. Further, there is no definition
of ``range'', ``current range,'' or ``current natural range'' in the
ESA or 50 CFR parts 222 (NMFS ESA implementing regulations) or 424
(Joint NMFS/USFWS ESA implementing regulations). The USFWS ESA section
10(j) regulations at 50 CFR 17.80 through 17.83 also do not define
``natural''. Based on our experience with our species, we do not
believe addition of the word ``natural'' in the phrase ``outside the
current range'' is necessary for our species. Therefore, we do not
propose to include the word ``natural'' as a qualifier for the current
range of a species.
The USFWS regulations at 50 CFR 17.81(a) also establish a
limitation that release of an experimental population outside of the
probable historic range of a species is allowed only if the Director of
the USFWS makes a finding that ``the primary habitat of the species has
been unsuitably and irreversibly altered or destroyed.'' This provision
is not required under the ESA, and we believe it unnecessarily limits
our ability to implement section 10(j) of the ESA in a manner that
conserves our listed species. Therefore, we do not include this
language in our proposed rule.
Furthering the Conservation of the Species
As noted above, ESA section 10(j) requires that before authorizing
the release of an experimental population outside the current range of
the species, the Secretary must determine that such release will
further the conservation of the species. The ESA provides little
guidance on how to make such a determination. The ESA does define
``conservation'' as ``the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to this [Act] are no
longer necessary.'' In their ESA section 10(j) regulations, USFWS
identified four factors that, using the best scientific and commercial
data available, they consider in making a finding that the experimental
population release will further the conservation of the species: (1)
Any possible adverse effects on extant populations of a species as a
result of removal of individuals, eggs, or propagules for introduction
elsewhere; (2) The likelihood that any such experimental population
will become established and survive in the foreseeable future; (3) The
relative effects that establishment of an experimental population will
have on the recovery of the species; and (4) The extent to which the
introduced population may be affected by existing or anticipated
Federal or State actions or private activities within or adjacent to
the experimental population area (50 CFR 17.81(b)).
The first factor USFWS considers is related to effects on the
source populations of the organisms used to establish or enhance an
experimental population. The remaining three factors they consider
relate to the likelihood or extent the experimental population will
survive, thrive, and contribute to the recovery and conservation of the
species. These three factors focus on key steps in the implementation
of an experimental population: (1) initial establishment, (2) the
contribution of an established experimental population to the recovery
of the listed species, and (3) the effect any nearby human activities
might have on the experimental population and its potential
contribution to the species recovery.
We have found that using the list of factors developed by USFWS
gives the public adequate general information about how we plan to
interpret the provision for ``furthering the conservation of the
species,'' without introducing needless complexity. In rulemakings we
have already completed to designate experimental populations (see
above), we have provided detailed discussions of relevant species-
specific information that we considered in order to make the ``further
the conservation of'' finding based on these four factors, and we
intend to continue this practice in future rulemakings. We also note
the desirability of maintaining consistency between our regulations and
those of USFWS. Therefore, we propose to adopt the same language and
four factors as the USFWS regulations for making the determination that
release of an experimental population will further the conservation of
the species, with two small editorial revisions. First, we added a
comma in the second sentence of paragraph (b) because it is appropriate
grammatically. Second, the third factor in USFWS's regulations says
USFWS will consider the ``relative effects'' the experimental
population will have on recovery of the species. In our experience with
our species, we have found the term ``relative'' in this factor is
superfluous, and we therefore
[[Page 45927]]
do not include it in our proposal. Neither of these changes is intended
to make our proposed regulation functionally different than USFWS's
corresponding regulation.
Identification of the Experimental Population
In their ESA section 10(j) implementing regulations, USFWS requires
that any regulation designating an experimental population shall
provide, among other things, ``[a]ppropriate means to identify the
experimental population, including, but not limited to, its actual or
proposed location, actual or anticipated migration, number of specimens
released or to be released, and other criteria appropriate to identify
the experimental population(s)'' (50 CFR 17.81(c)(1)). We believe these
examples of means of identifying an experimental population are
relevant and helpful, and we propose to include them in our
regulations. However, we add the qualifier ``if appropriate'' to our
proposal to make it clear that not all of the listed means will be
relevant to each experimental population designation for our species.
With the addition of the ``if appropriate'' qualifier, we also change
the commas separating the examples to semicolons to more clearly
separate them.
Finding Whether the Experimental Population Is or Is Not Essential
The USFWS ESA section 10(j) regulations at 50 CFR 17.81(c)(2)
incorporate the requirement of the ESA that the designation of an
experimental population include a determination as to whether the
experimental population is essential to the continued existence of the
listed species. The language is as follows: ``(c) Any regulation
promulgated under paragraph (a) of this section shall provide: . . .
(2) A finding, based solely on the best scientific and commercial data
available, and the supporting factual basis, on whether the
experimental population is, or is not, essential to the continued
existence of the species in the wild[.]'' Based on our experience, this
language is adequate to describe the statutory requirement, and we
propose to adopt identical language. We have already discussed above
that we will adopt the same definition as the USFWS regulations for
``essential experimental population.''
Protective Measures
In 50 CFR 17.81(c)(3) of their ESA section 10(j) regulations, USFWS
establishes that their rulemakings for designating experimental
populations will also provide: ``Management restrictions, protective
measures, or other special management concerns of that population,
which may include, but are not limited to, measures to isolate and/or
contain the experimental population designated in the regulation from
natural populations[.]'' This provision addresses the linkage between
designating experimental populations under section 10(j) of the ESA and
implementing companion protective regulations under ESA section 4(d).
The language also specifies actions needed to successfully implement an
experimental population release. We agree that it is helpful to clarify
the relationship between sections 4(d) and 10(j) of the ESA and the
intent of Congress and the agency in implementing ESA section 10(j).
Based on our experience with our species, however, we believe
additional clarifying language in this section is appropriate for our
species.
We believe this section should make it clear that management
restrictions, protective measures, and other special management
concerns would be applied to an experimental population as appropriate
to the specific situation as not all of these measures would be
applicable for all of our species. We therefore add this clarification
to our proposed regulatory language. Second, we again propose using the
word ``nonexperimental,'' instead of the word ``natural,'' to describe
nonexperimental populations, as discussed above. Third, we add language
to further clarify the distinction between regulations adopted under
the provisions of ESA section 4(d) and those adopted under ESA section
10(j). Finally, we add a comma after ``include,'' because it is
appropriate grammatically to separate the ``but are not limited to''
clause. These clarifications are not intended to make our proposed
regulations functionally differ from those of USFWS. Therefore, our
proposed regulatory language is: ``Management restrictions, protective
measures, or other special management concerns of that population, as
appropriate, which may include, but are not limited to, measures to
isolate and/or contain the experimental population designated in the
regulation from nonexperimental populations and protective regulations
established pursuant to section 4(d) of the Act.''
Periodic Review
50 CFR 17.81(c)(4) of the USFWS section 10(j) regulations requires
that any regulation designating an experimental population shall
provide a process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species. We agree with this provision
to help ensure the success of experimental population designations and
to formally and publicly review these designations. We note that the
ESA requires that we conduct a status review every 5 years for each
listed species under our jurisdiction. We intend to use the 5 year
review process for tracking the status of experimental populations and
ensuring that experimental population designations further the
conservation of the species as expected.
Permits To Allow Establishment and Maintenance of an Experimental
Population
In their ESA section 10(j) regulations, USFWS notes that they may
issue a permit under section 10(a)(1)(A) of the ESA, if appropriate
under the standards set out in subsections 10(d) and (j) of the ESA, to
allow acts necessary for the establishment and maintenance of an
experimental population. This provision highlights the intent of
Congress that experimental populations be implemented through
provisions of the ESA and provides the relevant mechanism by which this
would normally occur. Our implementing practices are similar to those
of USFWS, and we therefore propose to include this provision in our
regulations, with some edits solely to improve clarity and streamline
the provision. In the USFWS regulations at 50 CFR 17.81, this provision
is an un-numbered sentence as part of paragraph (4) under subparagraph
(b), which otherwise deals with the factors to consider in making a
determination that an experimental population will further the
conservation of the species. In order to emphasize the provision as a
stand-alone provision and to make it easier to directly cite, in our
proposed rule we place this provision in its own numbered subparagraph
(d). We also propose to not include the following phrase from the USFWS
regulations: ``under the standards set out in subsections 10(d) and (j)
of the ESA,'' because the phrase is unnecessary. Under the provisions
of the statute, any permit for an experimental population issued under
ESA section 10(a)(1)(A) would have to meet the standards set out in
those subsections, so it is not necessary to explicitly list the
subsections in the regulations. Our proposed regulations will thus
read, ``The Secretary may issue a permit under section 10(a)(1)(A) of
the Act, if appropriate, to allow acts necessary for the establishment
and maintenance of an experimental population.''
[[Page 45928]]
Stakeholder Consultations
In their regulations implementing ESA section 10(j), USFWS
establishes that, in the process of developing and implementing
experimental population rules, they will consult with appropriate State
fish and wildlife agencies, local governmental entities, affected
Federal agencies, and affected private landowners, including through
public meetings, when appropriate (50 CFR 17.81(d)). USFWS further
establishes in this paragraph that, to the maximum extent practicable,
any regulation promulgated pursuant to this section shall represent an
agreement between USFWS, the affected State and Federal agencies, and
persons holding any interest in land which may be affected by the
establishment of an experimental population. We strongly believe that
consultations with affected parties are critical to the success of
experimental population designations and propose to adopt this language
in our regulations. We believe that our trust responsibilities with
regard to tribal governments warrant explicitly including consultation
with tribes in our ESA section 10(j) regulations. We have therefore
listed tribal governments in our proposal. This addition is not
intended to suggest that USFWS's regulations do not allow for
consultation with tribal governments, and, in fact, USFWS has consulted
with tribal governments on ESA section 10(j) designations. Therefore,
listing tribal governments in our regulations would not make our
provision functionally differ from the corresponding provision in
USFWS's regulations. We would just like to explicitly list tribal
governments in our regulations based on our experience with our
species. In fact, tribal governments have been integral in the
development of experimental populations we have already designated (see
above).
We propose one other addition in this section of our regulations.
The USFWS regulations at 50 CR 17.81(d) identify persons holding an
interest in land which may be affected by an experimental population
designation as a stakeholder group to be consulted. Based on our
experience and work in aquatic habitat and the fact that all of our
species are aquatic species, we believe the addition of persons holding
interests in water (i.e., aquatic habitat), which may be affected by an
experimental population designation, as an additional stakeholder group
is warranted and have included that addition in this proposed rule.
Location of Experimental Population Regulations in the Code of Federal
Regulations
In their ESA section 10(j) regulations, USFWS provides that special
rules relating to a designation of an experimental population will be
published in specific sections of the CFR as appropriate, and that
experimental populations will be separately listed in the lists of
threatened and endangered plants and animals in the CFR as appropriate.
In our proposed regulations, we similarly state that our regulations
relating to specific experimental populations will continue to be
published in Title 50, part 223 of the CFR, with our regulations
related to threatened species, and that our designated experimental
populations also will be separately listed in the lists of threatened
and endangered plants and animals in the CFR as appropriate. We note
that the regulations relating to listing and designation of an
experimental population that are being proposed in this rulemaking
would be published in Title 50, part 222 of the CFR, with our other ESA
implementing regulations.
Critical Habitat for Experimental Populations Determined To Be
Essential
The Secretary may designate critical habitat, as defined in section
(3)(5)(A) of the ESA, for an experimental population determined to be
essential (but not for populations determined to be nonessential). In
their ESA section 10(j) regulations, USFWS emphasizes that the
designation of critical habitat for an essential experimental
population will be made in accordance with section 4 of the ESA (50 CFR
17.81(f)). We agree that emphasizing the provisions of ESA section 4 in
the ESA section 10(j) regulations is useful, and we therefore propose
to include the same language in our regulations. In our proposed
regulations, we made two changes from the language in 50 CFR 17.81(f),
however. First, the USFWS regulations say: ``No designation of critical
habitat will be made for nonessential populations.'' We add the word
``experimental'' after ``nonessential,'' to emphasize that the
nonessential populations are, in fact, ESA section 10(j) experimental
populations.
Second, in their regulations, USFWS adds additional language
regarding critical habitat for experimental populations (50 CFR
17.81(f)). The language USFWS uses is: ``In those situations where a
portion or all of an essential experimental population overlaps with a
natural population of the species during certain periods of the year,
no critical habitat will be designated for the area of overlap, unless
implemented as a revision to critical habitat of the natural population
for reasons unrelated to the overlap itself.'' This language is not
included in the ESA, and in our experience with our species this
language has been unnecessary to understand and implement the relevant
provisions of the ESA. We therefore do not include this language in our
proposed rule.
Prohibitions
The USFWS ESA section 10(j) regulations at 50 CFR 17.82 reiterate
the ESA section 10(j) provision that each member of an experimental
population shall be treated as if it were listed as a threatened
species and add that this applies for purposes of establishing
protective regulations under section 4(d) of the ESA. Based on our
experience with our species, even with the language in 50 CFR 17.82,
stakeholders still have questions regarding the relationship between
ESA sections 10(j) and 4(d). Therefore, we propose modified language
for our regulations to clarify and explain in more detail the
relationship between these two sections. This modified language is not
intended to function differently or lead to different outcomes than the
USFWS language, but is only intended to provide greater explanation
about the relationship between ESA sections 10(j) and 4(d). The first
sentence would read the same as 50 CFR 17.82: ``Any population
determined by the Secretary to be an experimental population shall be
treated as if it were listed as a threatened species for purposes of
establishing protective regulations under section 4(d) of the Act with
respect to such population.'' However, we propose to replace the second
sentence of the USFWS regulations at 50 CFR 17.82 (``The Special rules
(protective regulations) adopted for an experimental population under
Sec. 17.81 will contain applicable prohibitions, as appropriate, and
exceptions for that population.'') with the following text in our
regulations: ``Accordingly, when designating, or revising, an
experimental population under section 10(j) of the Act, the Secretary
may also exercise his or her authority under section 4(d) of the Act to
include protective regulations necessary and advisable to provide for
the conservation of such species as part of the special rule for the
experimental population. Any protective regulations applicable to the
species from which the experimental population was sourced do not apply
to the experimental
[[Page 45929]]
population unless specifically included in the special rule for the
experimental population.''
Interagency Cooperation
In their regulations implementing ESA section 10(j), USFWS includes
a section on provisions related to interagency cooperation under
section 7 of the ESA (50 CFR 17.83) that describes what types of
analyses are conducted under ESA section 7 with respect to experimental
populations. Much of this section reiterates language in section 10(j)
of the ESA itself (see ESA section 10(j)(2)(C)). However, USFWS does
include an additional provision that any biological opinion prepared
pursuant to section 7(b) of the ESA and any agency determination made
pursuant to section 7(a) of the ESA ``shall consider any experimental
and nonexperimental populations to constitute a single listed species
for the purposes of conducting the analyses under such sections.''
We propose to adopt the language used by USFWS in 50 CFR 17.83(a)
and (b) in our own regulations, with the addition of citations to the
relevant parts of ESA section 7 that are referenced in each
subparagraph (i.e., section 7(a)(4) in subparagraph (a) and section
7(a)(1) in subparagraph (b)) for ease of reference, to direct the
reader to the applicable part of the ESA, and with the addition of the
phrase ``of the Act'' in paragraph (a) to explicitly specify that the
regulation refers to section 7 of the statute. However, we do not
propose to include the additional USFWS provision quoted above related
to ESA section 7, as section 10(j) of the ESA and our proposed
regulations already describe how ESA section 7 is to be implemented
with respect to experimental populations, and based on our experience,
this additional language is unnecessary for our species. None of these
differences are intended to cause our regulation to functionally differ
from USFWS's corresponding regulation.
Relationship to Existing Experimental Populations
We have already designated three experimental populations of
salmonids (see above). We do not intend the proposed implementing
regulations herein to require us to review or revise those
designations. We do not believe the implementing regulations we are
proposing in this proposed rule would meaningfully alter the findings
we came to in our prior designations and rulemakings.
Request for Information
We intend that any rule finally adopted be as effective as possible
in implementing the ESA. Any final regulation based on this proposal
will consider information and recommendations timely submitted from all
interested parties. Therefore, we solicit comments, information, and
recommendations on this proposed regulation from governmental agencies,
Native American tribes, the scientific community, industry groups,
environmental interest groups, and any other interested parties.
Comments should be as specific as possible and refer to sections and
paragraphs involved. Specifically we request information and comments
on:
(1) The terms we define above and in the proposed regulations, and
(2) The proposed listing and experimental population designation
process and considerations.
This rulemaking does not materially modify our current methods and
procedures for designating experimental populations.
You may submit your information concerning this proposed rule by
one of the methods listed in ADDRESSES. If you submit information via
https://www.regulations.gov, your entire submission--including any
personal identifying information--will be posted on the Web site. If
your submission is made via a hardcopy that includes personal
identifying information, you may request at the top of your document
that we withhold this personal identifying information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
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 pursuant to the
Information Quality Act (Section 515 of Pub. L. 106-554), which was
published in the Federal Register on January 14, 2005 (70 FR 2664). The
Bulletin established minimum peer review standards, a transparent
process for public disclosure of peer review planning, and
opportunities for public participation with regard to certain types of
information disseminated by the Federal Government. The peer review
requirements of the OMB Bulletin apply to influential or highly
influential scientific information disseminated on or after June 16,
2005. There are no documents supporting this proposed rule that meet
this criteria.
Classification
Executive Order 12866
This proposed rule has been determined to be not significant under
E.O. 12866.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
801 et seq.), whenever a Federal agency is required to publish a
notification of rulemaking for any proposed or final rule, it must
prepare, and make available for public comment, a regulatory
flexibility analysis that describes the effect of the rule on small
entities (i.e., small businesses, small organizations, and small
government jurisdictions). However, no regulatory flexibility analysis
is required if the head of an agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. The SBREFA amended the Regulatory Flexibility Act to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities.
The Chief Counsel for Regulation, Department of Commerce, will
certify to the Chief Counsel for Advocacy at the Small Business
Administration that this proposed rule will not have a significant
economic effect on a substantial number of small entities. The
following discussion explains our rationale.
The proposed regulations clarify how we implement the provisions of
section 10(j) of the ESA. The proposed regulations do not materially
alter our current practices. The proposed regulations do not expand our
reach. We are the only entity that is directly affected by this
proposed rule because we are the only entity that can designate
experimental populations of threatened or endangered species under NMFS
jurisdiction. No external entities, including any small businesses,
small organizations, or small governments, will experience any economic
impacts from this proposed rule. Therefore, the only potential effect
on any external entities large or small would likely be positive,
through reducing any uncertainty on the part of the public about our
process for designating experimental populations by formalizing our
practices and procedures.
[[Page 45930]]
Executive Order 12630
In accordance with E.O. 12630, this proposed rule does not have
significant takings implications. A takings implication assessment is
not required because this rulemaking: (1) Would not effectively compel
a property owner to have the government physically invade property, and
(2) would not deny all economically beneficial or productive use of the
land or aquatic resources. This rulemaking would substantially advance
a legitimate government interest (conservation and recovery of listed
species) and would not present a barrier to all reasonable and expected
beneficial use of private property.
Executive Order 13132
In accordance with E.O. 13132, we have determined that this rule
does not have federalism implications as that term is defined in E.O.
13132.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
The Office of Management and Budget (OMB) regulations at 5 CFR part
1320, which implement provisions of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), require that Federal agencies obtain approval
from OMB before collecting information from the public. A Federal
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number. This proposed rule does not include any new
collections of information that require approval by OMB under the
Paperwork Reduction Act.
National Environmental Policy Act
We have analyzed this proposed rule in accordance with the criteria
of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(c)),
the Council on Environmental Quality's Regulations for Implementing the
Procedural Provisions of NEPA (40 CFR parts 1500-1508), and NOAA's
Administrative Order regarding NEPA compliance (NAO 216-6 (May 20,
1999)).
We have determined that this proposed rule is categorically
excluded from NEPA documentation requirements, consistent with 40 CFR
1508.4. We have determined that this action satisfies the standards for
reliance upon a categorical exclusion under NOAA Administrative Order
(NAO) 216-6. Specifically, this action fits within the categorical
exclusion for ``policy directives, regulations and guidelines of an
administrative, financial, legal, technical or procedural nature.'' NAO
216-6, section 6.03c.3(i). This action would not trigger an exception
precluding reliance on the categorical exclusion because it does not
involve a geographic area with unique characteristics, is not the
subject of public controversy based on potential environmental
consequences, will not result in uncertain environmental impacts or
unique or unknown risks, does not establish a precedent or decision in
principle about future proposals, will not have significant cumulative
impacts, and will not have any adverse effects upon endangered or
threatened species or their habitats (Id. sec. 5.05c). As such, it is
categorically excluded from the need to prepare an Environmental
Assessment. In addition, we find that because this proposed rule will
not result in any effects to the physical environment, much less any
adverse effects, there would be no need to prepare an Environmental
Assessment even aside from consideration of the categorical exclusion.
See, e.g., Oceana, Inc. v. Bryson, 940 F. Supp. 2d 1029 (N.D. Cal.
April 12, 2013). Issuance of this proposed rule does not alter the
legal and regulatory status quo in such a way as to create any
environmental effects. See, e.g., Humane Soc. of U.S. v. Johanns, 520
F. Supp. 2d. 8 (D.D.C. 2007).
Government-to-Government Relationship With Tribes (E.O. 13175)
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, outlines the responsibilities of the Federal Government in
matters affecting tribal interests. If we issue a regulation with
tribal implications (defined as having a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes), we
must consult with those governments or the Federal Government must
provide funds necessary to pay direct compliance costs incurred by
tribal governments.
We invite all interested tribes to discuss the proposed rule with
us at their convenience should they choose to have a government-to-
government consultation.
Energy Supply, Distribution, or Use (E.O. 13211)
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use.
Executive Order 13211 requires agencies to prepare Statements of Energy
Effects when undertaking any action that promulgates or is expected to
lead to the promulgation of a final rule or regulation that (1) is a
significant regulatory action under E.O. 12866 and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy.
This proposed rule has been determined not to be a significant
regulatory action under E.O. 12866 and is not expected to significantly
affect energy supplies, distribution, and use. Therefore, this action
is not a significant energy action and no Statement of Energy Effects
is required.
References Cited
A complete list of all references cited in this rule is available
upon request (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 222
Endangered and threatened species.
Dated: July 24, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
For the reasons set out in the preamble, part 222, of chapter II,
title 50 of the Code of Federal Regulations, is proposed to be amended
as follows:
PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES
0
1. The authority citation for part 222 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.
0
2. Add subpart E to part 222 to read as follows:
Subpart E--Experimental Populations
Sec.
222.501 Definitions.
222.502 Listing.
222.503 Prohibitions.
222.504 Interagency cooperation.
Subpart E--Experimental Populations
Sec. 222.501 Definitions.
(a) The term experimental population means any introduced and/or
designated population (including any off-spring arising solely
therefrom) that has been so designated in accordance with the
procedures of this subpart but only when, and at such times as, the
population is wholly separate geographically from nonexperimental
populations of the same species. Where part of an experimental
population overlaps with nonexperimental populations of the same
species on a particular occasion, but is wholly separate at other
times, specimens of the experimental population will not be
[[Page 45931]]
recognized as such while in the area of overlap. That is, experimental
status will only be recognized outside the areas of overlap. Thus, such
a population shall be treated as experimental only when the times of
geographic separation are reasonably predictable; e.g., fixed migration
patterns, natural or man-made barriers. A population is not treated as
experimental if total separation will occur solely as a result of
random and unpredictable events.
(b) The term essential experimental population means an
experimental population whose loss would be likely to appreciably
reduce the likelihood of the survival of the species in the wild. All
other experimental populations are to be classified as nonessential.
Sec. 222.502 Listing.
(a) The Secretary may designate as an experimental population a
population of endangered or threatened species that has been or will be
released into suitable habitat outside the species' current range,
subject to the further conditions specified in this section, provided,
that all designations of experimental populations must proceed by
regulation adopted in accordance with 5 U.S.C. 553 and the requirements
of this subpart.
(b) Before authorizing the release as an experimental population of
any population (including eggs, propagules, or individuals) of an
endangered or threatened species, and before authorizing any necessary
transportation to conduct the release, the Secretary must find by
regulation that such release will further the conservation of the
species. In making such a finding, the Secretary shall utilize the best
scientific and commercial data available to consider:
(1) Any possible adverse effects on extant populations of a species
as a result of removal of individuals, eggs, or propagules for
introduction elsewhere;
(2) The likelihood that any such experimental population will
become established and survive in the foreseeable future;
(3) The effects that establishment of an experimental population
will have on the recovery of the species; and
(4) The extent to which the introduced population may be affected
by existing or anticipated Federal or State actions or private
activities within or adjacent to the experimental population area.
(c) Any regulation promulgated under paragraph (a) of this section
shall provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location; actual
or anticipated migration; number of specimens released or to be
released, if appropriate; and other criteria appropriate to identify
the experimental population(s);
(2) A finding, based solely on the best scientific and commercial
data available, and the supporting factual basis, on whether the
experimental population is, or is not, essential to the continued
existence of the species in the wild;
(3) Management restrictions, protective measures, or other special
management concerns of that population, as appropriate, which may
include, but are not limited to, measures to isolate and/or contain the
experimental population designated in the regulation from
nonexperimental populations and protective regulations established
pursuant to section 4(d) of the Act; and
(4) A process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species.
(d) The Secretary may issue a permit under section 10(a)(1)(A) of
the Act, if appropriate, to allow acts necessary for the establishment
and maintenance of an experimental population.
(e) The National Marine Fisheries Service shall consult with
appropriate State fish and wildlife agencies, affected tribal
governments, local governmental entities, affected Federal agencies,
and affected private landowners in developing and implementing
experimental population rules. When appropriate, a public meeting will
be conducted with interested members of the public. Any regulation
promulgated pursuant to this section shall, to the maximum extent
practicable, represent an agreement between the National Marine
Fisheries Service, the affected State and Federal agencies and tribal
governments, and persons holding any interest in land or water which
may be affected by the establishment of an experimental population.
(f) Any population of an endangered species or a threatened species
determined by the Secretary to be an experimental population in
accordance with this subpart shall be identified by special rule in
part 223 as appropriate and separately listed in 50 CFR 17.11(h)
(wildlife) or 50 CFR 17.12(h) (plants) as appropriate.
(g) The Secretary may designate critical habitat as defined in
section (3)(5)(A) of the Act for an essential experimental population
as determined pursuant to paragraph (c)(2) of this section. Any
designation of critical habitat for an essential experimental
population will be made in accordance with section 4 of the Act. No
designation of critical habitat will be made for nonessential
experimental populations.
Sec. 222.503 Prohibitions.
(a) Any population determined by the Secretary to be an
experimental population shall be treated as if it were listed as a
threatened species for purposes of establishing protective regulations
under section 4(d) of the Act with respect to such population.
(b) Accordingly, when designating, or revising, an experimental
population under section 10(j) of the Act, the Secretary may also
exercise his or her authority under section 4(d) of the Act to include
protective regulations necessary and advisable to provide for the
conservation of such species as part of the special rule for the
experimental population. Any protective regulations applicable to the
species from which the experimental population was sourced do not apply
to the experimental population unless specifically included in the
special rule for the experimental population.
Sec. 222.504 Interagency cooperation.
(a) Any experimental population designated for a listed species
determined pursuant to Sec. 222.502(c)(2) not to be essential to the
survival of that species and not occurring within the National Park
System or the National Wildlife Refuge System, shall be treated for
purposes of section 7 of the Act (other than this paragraph (a)
thereof) as a species proposed to be listed under the Act as a
threatened species, and the provisions of section 7(a)(4) of the Act
shall apply.
(b) Any experimental population designated for a listed species
that either has been determined pursuant to Sec. 222.502(c)(2) to be
essential to the survival of that species, or occurs within the
National Park System or the National Wildlife Refuge System as now or
hereafter constituted, shall be treated for purposes of section 7 of
the Act as a threatened species, and the provisions of section 7(a)(2)
of the Act shall apply.
[FR Doc. 2015-18894 Filed 7-31-15; 8:45 am]
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