National Environmental Policy Act: Implementing Procedures; Addition to Categorical Exclusions for U.S. Fish and Wildlife Service (516 DM 8), 66554-66566 [2015-27360]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 80, Number 209 (Thursday, October 29, 2015)]
[Notices]
[Pages 66554-66566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27360]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

[Docket No. FWS-HQ-FAC-2013-0118; FXFR13360900000-156-FF09F14000]


National Environmental Policy Act: Implementing Procedures; 
Addition to Categorical Exclusions for U.S. Fish and Wildlife Service 
(516 DM 8)

AGENCY: Department of the Interior.

ACTION: Notice of Final National Environmental Policy Act Implementing 
Procedures.

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SUMMARY: This notice announces the addition of a new categorical 
exclusion under the National Environmental Policy Act to be included in 
the Department of the Interior's Departmental Manual for the U.S. Fish 
and Wildlife Service. The categorical exclusion pertains to adding 
species to the injurious wildlife list under the Lacey Act. This action 
will improve the process of listing species by regulation as injurious 
wildlife and thereby help to prevent their introduction into and spread 
within the United States.

DATES: The categorical exclusion is effective October 29, 2015.

ADDRESSES: To obtain a copy of the new categorical exclusion, contact 
Susan Jewell, U.S. Fish and Wildlife Service, MS FAC, 5275 Leesburg 
Pike, VA 22041; telephone 703-358-2416. You may review the comments 
received on the proposed categorical exclusion and other supporting 
materials online at https://www.regulations.gov in Docket No. FWS-HQ-
FAC-2013-0118.

FOR FURTHER INFORMATION CONTACT: Susan Jewell, U.S. Fish and Wildlife 
Service, MS FAC, 5275 Leesburg Pike, VA 22041; telephone 703-358-2416. 
If you use a telecommunications device for the deaf, please call the 
Federal Information Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Under the National Environmental Policy Act (42 U.S.C. 4321 et 
seq., NEPA), Federal agencies are required to consider the potential 
environmental impact of agency actions. Agencies are generally required 
to prepare an Environmental Assessment (EA) or an Environmental Impact 
Statement (EIS) or both. However, when a Federal agency identifies 
categories of actions that under normal circumstances do not have a 
significant environmental impact, either individually or cumulatively, 
Council on Environmental Quality (CEQ)

[[Page 66555]]

regulations allow the agency to establish a categorical exclusion and 
not complete an EA or an EIS when undertaking those actions (40 CFR 
1507.3(b); 40 CFR 1508.4. See also Department of the Interior 
(Department) NEPA regulations at 43 CFR 46.205). When appropriately 
established and applied, categorical exclusions serve a beneficial 
purpose. They allow Federal agencies to expedite the environmental 
review process for proposals that typically do not require more 
resource-intensive EAs or EISs (CEQ 2010).
    The U.S. Fish and Wildlife Service (Service or we) has determined 
that it is appropriate to provide for a categorical exclusion for the 
Federal action of adding species to the list of injurious wildlife 
under the Lacey Act (18 U.S.C. 42, as amended; the Act). The Act 
authorizes the Secretary of the Interior, as delegated to the Service, 
to prescribe by regulation those wild mammals, wild birds, fish, 
mollusks, crustaceans, amphibians, and reptiles, and the offspring or 
eggs of any of the aforementioned, that are injurious to human beings, 
or to the interests of agriculture, horticulture, or forestry, or to 
the wildlife or wildlife resources of the United States. The provisions 
of the Act regarding injurious species protect human health and welfare 
and the human and natural environments of the United States by 
identifying and reducing the threat posed by certain wildlife species. 
Listing these species as injurious under the Act subsequently prohibits 
individuals of the species from being imported into the United States 
or transported across State (including U.S. territories) lines. The Act 
does not restrict export from the United States (provided transport 
across State lines is not involved), transport within a State or 
territory, or possession of an animal already imported.
    The lists of injurious species are codified in title 50 of the Code 
of Federal Regulations (CFR) in part 16. The listing of species as 
injurious is, as an agency action, subject to environmental review 
under NEPA procedures. The Service has generally prepared EAs for 
rulemaking actions to add species to the injurious species lists at 50 
CFR part 16. In each case, the agency has determined that adding a 
species to the list of injurious wildlife has no significant effect on 
the environment. A categorical exclusion would allow the Service to 
exercise its authority to protect human health and welfare, certain 
human and natural environments, and wildlife resources from harm caused 
by injurious species more effectively and efficiently by precluding the 
need to conduct unnecessary and redundant environmental analyses.
    In 2002, in promulgating two listing rules, the Service used an 
existing departmental categorical exclusion for policies, directives, 
regulations, and guidelines of an administrative, financial, legal, 
technical, or procedural nature, or that have environmental effects too 
broad, speculative, or conjectural to lend themselves to meaningful 
analysis and will later be subject to the NEPA process (43 CFR 
46.210(i)). Upon further review, the Service believes that this 
description is not the best representation of why injurious species 
listings do not have a significant effect on the human environment. 
Therefore, the Service is adding a new categorical exclusion for the 
listing of injurious species under the Act. The categorical exclusion 
will be included in the Departmental Manual in Part 516: National 
Environmental Policy Act of 1969 in Chapter 8: Managing the NEPA 
Process--U.S. Fish and Wildlife Service (516 DM 8).

Comments on the Proposal

    The Service solicited comments from the public on the proposed new 
categorical exclusion through three comment periods totaling 120 days. 
The original notice was published in the Federal Register on July 1, 
2013 (78 FR 39307) and provided for a 30-day public comment period. 
Following requests to extend the public comment period, the Department 
published a notice on August 16, 2013, reopening the public comment 
period for an additional 60 days (78 FR 50079). The Department 
published another notice on January 22, 2014 (79 FR 3612), reopening 
public comment for an additional 30-days. All comments sent to either 
prevent_invasives@fws.gov or to https://www.regulations.gov have been 
considered.
    Congressional interest led to an oversight hearing on September 20, 
2013, by the House Committee on Natural Resources, Subcommittee on 
Fisheries, Wildlife, Oceans, and Insular Affairs. The Service's 
Assistant Director for Fish and Aquatic Conservation testified.
    The Service received more than 5,000 public comments, including a 
citizen petition of approximately 600 duplicate comments but excluding 
comments that were inadvertently posted multiple times. The range of 
comments varied from those that provided general supporting or opposing 
statements with no additional explanatory information to those that 
provided extensive comments and information supporting or opposing the 
proposed designation. The majority of comments were related to the 
listing of specific species as injurious (whether the Service should 
list or not), but not about the subject of this notice, which is about 
the NEPA process relative to a listing as injurious. The Service 
received comments from three Federal entities, five State governments, 
commercial and trade organizations, conservation organizations, other 
nongovernmental organizations, and private citizens. A summary of the 
comments follows.

Federal Agency Comments

    Comment 1: The U.S. Department of Agriculture (USDA) believes that 
the proposed categorical exclusion will result in better prevention by 
the Service of entry of more invasive species into the United States by 
precluding the need to conduct redundant and costly environmental 
analyses and that it serves a beneficial purpose. USDA is particularly 
concerned about injurious species that can negatively affect human 
beings, agriculture, horticulture, and forestry. USDA agrees with the 
three justifications for the categorical exclusion submitted by the 
Department of the Interior and the Service in the July 1, 2013, notice 
(78 FR 39307).
    Response: The Service agrees that the categorical exclusion will 
make adding species under the Lacey Act more efficient by eliminating 
the need to develop unnecessary and redundant EAs under NEPA. A more 
efficient listing process should allow the Service to better prevent 
the introduction of species that are injurious to the interests listed 
in the Act.
    Comment 2: The Small Business Administration expressed concern that 
the categorical exclusion would remove transparency to the public. 
Furthermore, it was unclear why the Department of the Interior would 
propose a categorical exclusion for the Service's listings under the 
Lacey Act based upon the premise that those listings will have no 
environmental impact when, by statute, all wildlife that is proposed to 
be listed under the Lacey Act must be shown to have an injurious 
environmental impact.
    Response: The Service spoke with the commenter after this comment 
was submitted and explained that all other aspects of the listing 
process under the Lacey Act, including the injurious species analysis, 
economic analysis, and Regulatory Flexibility Act analysis (for small 
businesses), would still be prepared, and the public would have an 
opportunity to comment under these various laws and Executive Orders. 
The Service also explained that species that

[[Page 66556]]

are injurious would have a negative environmental impact if they were 
not listed, not if they were listed. The commenter requested that the 
Service post that information so that the commenter could refer future 
questioners to that clarifying information. The Service subsequently 
posted clarifying information on its Web site.
    Comment 3: The National Park Service supports a new categorical 
exclusion for the listing of species as injurious in the interest of 
expediting the listing process and addressing nonnative species threats 
as early as possible to minimize the scale and scope of adverse 
impacts. Nonnative species represent one of the greatest emerging 
threats to the integrity of National Park Service ecosystems. Listing 
under the Lacey Act provides Federal and State agencies with legal and 
regulatory tools to prevent the import, spread, and introduction of 
some of the most harmful species.
    Response: The Service agrees that conducting NEPA review through 
the categorical exclusion process should make listing species under the 
Lacey Act more efficient by eliminating the need to produce unnecessary 
EAs. This in turn should help protect wildlife and wildlife resources, 
such as those in the National Park system.
Comments From States
    Comment 4: The Association of Fish and Wildlife Agencies (AFWA), 
which represents North American fish and wildlife agencies, received 
comments from their Invasive Species Committee and other members of 
AFWA. All comments from the Committee indicated some level of support 
for measures to make the listing process more efficient. However, AFWA 
members were also concerned about the unintended consequences of the 
categorical exclusion on economic impacts to States, industries, and 
others. AFWA did not take a formal stance on the categorical exclusion. 
Instead, they stated their concerns related to the Federal listing of 
species as injurious, which they believe erodes the States' authorities 
to manage fish and wildlife. Their recommendations for the Service 
include: Working with the State fish and wildlife agencies to identify 
the States' priorities for injurious wildlife concerns; implementing 
methods outside of NEPA to reduce the time required to complete 
listings; and ensuring that NEPA analyses include the human 
environment, specifically the economic impact that the States would 
incur with respect to eradications and restoration following 
introductions of injurious wildlife, including impacts due to 
unintended consequences as a result of listing.
    Response: The Service signed a memorandum of understanding in June 
2013 with AFWA and the Pet Industry Joint Advisory Council to help 
identify high-risk species more rapidly and to provide the States and 
pet industry with scientific information needed for them to help 
prevent importations of high-risk species under their own regulations 
and voluntary measures. The Service has already made summaries of this 
scientific information for some high-risk species available to the 
public on its Web site and is working on hundreds of more summaries, 
which the Service will also post publicly when completed. Therefore, 
the Service is working with AFWA to address priority species by 
providing States with the information they can use for their own 
injurious prevention methods and to streamline the listing process by 
using new methods to rapidly screen and prioritize species for listing 
or other risk management actions, either by the Service or any State.
    The Service interprets AFWA's concern about ensuring through NEPA 
that the economic impact of not listing (thus incurring need by the 
States to expend funds for eradication and restoration) or of listing 
(with unintended consequences) to mean that economic effects of 
injurious species listings should be clear. Under other laws and 
Executive Orders not related to NEPA, the Service will continue to 
provide required analysis on the economic effects of listing a species 
under the Lacey Act, including effects on small businesses and 
governments if appropriate, and any other required determinations. To 
the extent AFWA is concerned about losing NEPA analysis on economic 
impacts to States, industries, and others, the purpose of an EA is to 
determine whether to prepare a finding of no significant impact or an 
EIS (see 43 CFR 46.300). The Service has always found and foresees that 
it would generally find that listing a species as injurious would have 
no significant impact on the environment and therefore no EIS is 
required. CEQ regulations clarify that economic and social effects of 
an agency action by themselves cannot require preparation of an EIS 
(see 40 CFR 1508.14), and therefore NEPA is not the appropriate means 
of considering purely economic impacts of an agency's proposed action. 
Finally, the comment regarding whether Federal listing of injurious 
species erodes States' authority to manage resident fish and wildlife 
is beyond the scope of this action, which addresses the appropriateness 
of a categorical exclusion under NEPA.
    Comment 5: Florida Department of Agriculture and Consumer Services 
(FDACS) opposes the categorical exclusion because of unintended 
consequences of not considering alternatives. FDACS gives, as an 
example, its potential interest in undertaking research on control of 
schistosomiasis, a devastating disease of tropical countries, using 
triploid sterile black carp. FDACS states that the current process 
listing ``injurious species'' precludes the development and use of 
these black carp as a tool to improve human health. FDACS recommends 
that the Service reassess the application of NEPA relative to listing 
injurious species from the perspective that certain nonnative species 
are utilized or can be utilized to the benefit of humans and human and 
natural environments.
    Response: The Service recognizes that even some injurious species 
may provide benefits to humans and human environments. The Lacey Act 
provides that species listed as injurious wildlife may be imported and 
transported by permit for scientific, medical, educational, or 
zoological purposes. Research such as the commenter describes may be 
eligible for such a permit. The addition of the categorical exclusion 
will not affect the permitting process. In addition, the existence of a 
categorical exclusion is not the end of NEPA review. The Service will 
still have to determine, on a case-by-case basis, whether the listing 
of any species as injurious would trigger one of the ``extraordinary 
circumstances'' found at 43 CFR 46.215, in which case a normally 
excluded action would require additional analysis through an EA or EIS. 
One of the extraordinary circumstances is when an action may have 
significant impacts on public health or safety.
    Comment 6: FDACS recommends that the ``agency implement 
Environmental Assessments or Environmental Impact Analysis processes to 
determine alternative courses of action and not for the sole purpose of 
supporting a species listing decision.''
    Response: As explained above, even with the categorical exclusion 
in place, the Service will consider each potential listing on a case-
by-case basis to determine whether the listing of that particular 
species would trigger one of the extraordinary circumstances found at 
43 CFR 46.215, in which case a normally excluded action would require 
additional NEPA analysis through an EA or EIS, which would include 
reasonable alternatives. In other cases, a

[[Page 66557]]

categorical exclusion is appropriate and necessary to reduce delays in 
the Lacey Act listing process for listings that do not have significant 
individual or cumulative effects on the environment.
    Comment 7: FDACS provides citations for guidance on risk 
assessments for listings.
    Response: The Service appreciates FDACS's contributions.
    Comment 8: The Indiana Department of Natural Resources supports the 
categorical exclusion. The agency states that the proposed categorical 
exclusion serves to make the listing process under the Act more 
efficient and will limit undesirable environmental and economic effects 
associated with the injurious species.
    Response: We appreciate the Indiana Department of Natural 
Resources' support.
    Comment 9: The Kentucky Department of Fish and Wildlife Resources 
supports the categorical exclusion. The agency gave an example of a 
species it wishes to have federally listed as injurious.
    Response: We appreciate the Kentucky Department of Fish and 
Wildlife Resources' support.
    Comment 10: Arizona Game and Fish Commission supports this 
categorical exclusion and the effect it will have on protecting native 
wildlife from the harmful impacts of invasive exotic species. Their 
only concern is that, in rare and currently unknown circumstances, this 
action (obtaining a categorical exclusion) may inhibit their ability to 
manage fish and wildlife resources.
    Response: We appreciate the Arizona Game and Fish Commission's 
support. The Service hopes to work with States on priorities for 
listing, especially those species' listings that would assist with the 
protection of a State's resources. Although the comment did not give an 
example of a case where using the categorical exclusion may inhibit 
their ability to manage fish and wildlife resources, we will review 
each proposed listing on a case-by-case basis when deciding whether the 
categorical exclusion is applicable.
    Comment 11: Mississippi Department of Agriculture and Commerce 
expressed concern that listing species as injurious has the unintended 
consequence of eliminating jobs and of economic loss. The commenter 
provided an example of the black carp, which caused a loss of jobs in 
the State when the species was listed.
    Response: Comments regarding the economic effects of listing 
species as injurious under the Lacey Act are beyond the scope of this 
action, which addresses the appropriateness of a categorical exclusion 
under NEPA. Nonetheless, as it did with the black carp listing, the 
Service will continue to provide analysis on the economic effects of 
listing a species, including effects on small businesses and 
governments if appropriate and any other required determinations, as 
required under other laws and Executive Orders not related to NEPA.

Public Comments

    Comment 12: Several commenters asserted that without completion of 
an EA or EIS, there will be less public participation in the listing 
process, and parties that may be affected by a listing will be left 
without a chance for significant input. One commenter stated that these 
same persons would be without legal recourse and that the categorical 
exclusion bypasses due process of law. Another commenter stated that 
public comment opportunities would be diminished without NEPA analysis.
    Response: The Service disagrees. Development and application of a 
categorical exclusion is one type of NEPA review and does not bypass 
due process. Along with the opportunity to comment on the proposed 
categorical exclusion, the public will be able to comment on the 
appropriateness of applying the categorical exclusion whenever a 
proposed rule to list a new species is published. The Service will also 
continue to consider each potential listing on a case-by-case basis to 
determine whether the listing of that particular species would trigger 
one of the extraordinary circumstances found at 43 CFR 46.215, in which 
case a normally excluded action would require additional NEPA analysis 
through an EA or EIS, which would include public involvement. The 
Service will also continue to follow all applicable statutes, Executive 
Orders, and regulations, including the Administrative Procedure Act 
(APA) and Regulatory Flexibility Act of 1980 (Public Law 96-354), when 
making listing decisions. Under the APA and other law (separate from 
NEPA), the public will still be provided with the opportunity to review 
and comment on proposed rules and accompanying documents. The 
categorical exclusion will not eliminate the opportunity for legal 
recourse. Please also see the responses to Comments 15 and 23.
    Comment 13: A commenter supports the control of invasive species. 
The commenter believes that full analysis of all environmental, 
scientific, and economic impacts (including cost-benefit 
determinations) associated with any injurious wildlife listing is 
essential.
    Response: The Service appreciates the commenter's support of 
invasive species control. However, the Service is striving to be one 
step ahead and preclude the need to control invasive species by 
preventing their introduction to new areas, an approach that is 
significantly more effective and less obtrusive to the public. By 
conducting NEPA review through application of the categorical exclusion 
process, the Service can reduce delays in the Lacey Act listing process 
while continuing to consider situations where analysis of environmental 
effects through development of an EA or EIS may be appropriate. In 
addition, the Service will still complete all required determinations 
that involve analysis of other environmental and economic impacts.
    Comment 14: A commenter referred to their comments submitted for 
the Service's proposed rule to list nine species of large constrictor 
snakes as injurious (75 FR 11808; March 12, 2010).
    Response: The Service addressed these comments related to the large 
constrictor snake proposed rule in the final rule to list the Burmese 
python and three other species (75 FR 3330; January 23, 2012). They 
involved the Risk Assessment (Reed and Rodda 2009), cold tolerance of 
the species, use of boas and pythons by zoological institutions, 
informal education using reptiles, and coordination for management of 
invasive species. In addition, these comments relate to the Service's 
process for listing species under the Lacey Act and its consideration 
of the constrictor snakes in particular, which is outside the scope of 
this action that addresses the appropriateness of a categorical 
exclusion under NEPA.
    Comment 15: The proposal gives the Service too much authority to 
list species that may not warrant listing. The careful consideration of 
economic impacts is especially important in Lacey Act decisions because 
the Act, on its own, does not explicitly require the Service to 
consider economic impacts in listing or permitting decisions. Under the 
Endangered Species Act, the Service must consider the economic impacts 
of designating critical habitat. The Lacey Act is different and does 
not specifically require this action. Granting an exclusion would allow 
the Service to bypass economic considerations when listing species. The 
only meaningful opportunity to consider economic and social impacts is 
through NEPA analysis because NEPA requires agencies to weigh competing 
factors and explain the

[[Page 66558]]

decision to select their preferred alternative.
    Response: The listing process remains the same under the Lacey Act, 
and the Service must still prepare a thorough evaluation consistent 
with standards under the APA and all other applicable laws and 
Executive Orders. The commenter is incorrect that conducting NEPA 
review through the categorical exclusion process would allow the 
Service to bypass economic considerations. The Service must still 
comply with all determinations required by the statutes and Executive 
orders that govern the Federal rulemaking process, which includes a 
separate economic analysis prepared under the Office of Management and 
Budget's guidelines.
    Comment 16: An environmental coalition favors the proposed 
categorical exclusion. Generally, their component groups disfavor NEPA 
categorical exclusions, but in this case, it makes sense. The United 
States has one of the developed world's slowest and costliest known 
systems for regulating imports of nonnative injurious animals. The 
organization also points out that, contrary to the opposing position 
that the categorical exclusion might weaken the economic analyses that 
the Service conducts for listings, the environmental assessments under 
NEPA analyze only the effects that flow from environmental impacts.
    Response: The Service agrees with the commenter's appraisal of the 
United States' inefficient system for protecting the country against 
invasion and disease risks. The Service also agrees with the assessment 
that the economic analysis it prepares under Executive Order (E.O.) 
12866, separately from NEPA analysis, is the more informative analysis 
of the effects of listing. The Service will continue to prepare this 
analysis when appropriate.
    Comment 17: In rare circumstances, such as this Service proposal, 
review under NEPA may be redundant. The commenter supports the 
Service's categorical exclusion. The commenter also notes that recent 
debates surrounding listings have focused on the effects of such 
listings on small businesses that buy and sell wildlife. However, the 
commenter notes that a categorical exclusion would not negate the 
Service's requirement to consider the economic impact to small 
businesses.
    Response: The Service agrees with the commenter's appraisal of the 
situation regarding economic analyses for small businesses. Those 
impacts are addressed under separate economic analysis required by E.O. 
12866 (Regulatory Planning and Review), the Regulatory Flexibility Act, 
and the Small Business Regulatory Enforcement Fairness Act.
    Comment 18: The Service has not published its listing criteria, 
other than in recent listing rules. The commenter believes that the 
Service should have published its listing criteria before seeking the 
categorical exclusion.
    Response: How the Service determines whether a species qualifies as 
injurious under the Lacey Act is not related to the environmental 
effects analysis under NEPA and therefore is beyond the scope of this 
notice. Nonetheless, the Service notes that while it has not published 
the factors it considers to determine injuriousness in a stand-alone 
document, the agency has published them with its proposed and final 
rules for many years. In addition, the Service has posted the process 
for preparing proposed and final rules (``Injurious Wildlife Evaluation 
Process Flow Chart'') on its publicly accessible Web site for more than 
5 years (https://www.fws.gov/injuriouswildlife/pdf_files/InjuriousWildlifeEvaluationProcessFlowChart.pdf).
    Comment 19: An EA is a critical and essential component of any 
evaluation of a nonnative species as a potential injurious species, and 
the Service is sidestepping this process. The Service cannot evaluate a 
species for injuriousness without an EA.
    Response: The commenter is confusing two actions involved with 
listing a species as injurious. The first action is that the Service 
must determine if the species is injurious under the Lacey Act. This 
evaluation is presented in the preamble of each proposed and final 
listing rule. Nothing about this evaluation is changing. Separate from 
the evaluation of injuriousness, the Service conducts its NEPA review, 
which in the past had been through development of an EA that evaluated 
environmental effects of a listing along with alternatives to listing--
not whether the species is injurious. This fundamental difference has 
confused many commenters.
    Since the enactment of NEPA, the Service has conducted formal NEPA 
analyses for injurious species listings spanning 33 years for the 
following taxa: Raccoon dog (1982), three species of Chinese mitten 
crabs (1989), brown tree snake (1990), three species of Asian carps 
(2007), and eight species of large constrictor snakes (2012, 2015). 
These assessments all resulted in findings of no significant impact 
(FONSIs) without requiring mitigation measures, and, therefore, did not 
require further analysis and preparation of an EIS.
    Comment 20: A commenter disagrees with the Service's justification 
that keeping species out of the country and preventing their spread 
across State lines justifies what they characterize as noncompliance 
with NEPA and disagrees that listing species under the Lacey Act has no 
significant effect on the human and natural environment.
    Response: Application of a categorical exclusion is one type of 
NEPA review and not an attempt to sidestep it. The Service will still 
evaluate, on a case-by-case basis, whether any of the extraordinary 
circumstances under 43 CFR 46.215 apply before utilizing the 
categorical exclusion as its means of complying with NEPA. In addition, 
the purpose of listing a species as injurious is to maintain the 
baseline condition of that species' presence in a State or U.S. 
territory or in the United States. This means that no new individuals 
of a listed species would be imported into the United States or 
transported across State lines unless authorized under a permit, which 
sets strict conditions to control and prevent release or escape of the 
animal. The Lacey Act prohibits import and interstate transport, but 
does not prohibit possession or intrastate transport. Therefore, if a 
species has not yet been imported into the United States, it will 
continue not to be introduced into the United States and continue to 
have no effect on the U.S. environment. If a species has been imported 
into the United States, it may remain in the States and U.S. 
territories where it already occurs at the time of listing (as allowed 
by State or territorial law), but will not be transported to other 
States and territories where it does not yet occur. Thus, the 
environmental effects likewise remain the same upon listing, both for 
those States and territories where the species already occurs, and for 
those States and territories where it does not and will not occur. 
Furthermore, the standard for a categorical exclusion is that there is 
no ``significant'' effect, not that there is no effect. The Service 
believes it has made its case that, because adding a species as 
injurious merely maintains the environmental status quo, these listings 
qualify for a categorical exclusion as actions that do not have a 
potentially significant environmental impact, either individually or 
cumulatively. We have expanded and clarified the discussion for why 
adding species to the list of injurious species qualifies for a 
categorical exclusion in this final notice.
    Comment 21: An EIS is an essential tool for decisionmaking in 
evaluating the positive and negative effects of a proposed action.
    Response: An EIS is not required if the action agency finds there 
will be no significant effect on the environment

[[Page 66559]]

from the action. In evaluating whether adding species as injurious 
under the Lacey Act is appropriate for a categorical exclusion, the 
Service has found that such listings qualify as a category of actions 
that has no significant individual or cumulative effect on the quality 
of the human environment.
    Comment 22: The Service relies on different criteria for listing an 
unintentionally introduced species versus intentionally imported 
species and also different criteria for species not yet in the United 
States versus those already here.
    Response: The Service does not use different criteria to evaluate 
intentionally versus unintentionally introduced species or for those 
species already imported into the United States versus those not yet 
imported into the United States. Each species is evaluated on a case-
by-case basis using factors that are explained in each proposed and 
final rule. The results of considering these factors will vary, 
however, depending on the species' situation. For example, for species 
that have already been introduced into the United States and are 
invasive, the Service has more supporting evidence that additional 
animals of the same species can escape or be released into the wild. 
This type of information is not available for species that have never 
been imported into the United States. The Service has listed one 
unintentionally introduced species, the brown tree snake (55 FR 174390; 
April 25, 1990). That rule used an earlier, simplified version of 
criteria to determine injuriousness.
    Comment 23: Without an EA, all nonnative species would be ``guilty 
until proven innocent,'' an apparent reference to the Service's 
initiative in 1973 to create a list of species that are approved for 
import, with any other species of Service-listable wildlife prohibited 
from import. The commenter further states that, if an EA or EIS is no 
longer required, the Service will categorically indulge in listing 
species ``with great abandon.'' Another commenter noted that if the 
Service is planning to substitute some process in lieu of an EA or EIS 
to add injurious species, no such mechanism is provided in the notice.
    Response: These comments reflect an incorrect understanding of the 
role of the EA or EIS in the listing process. An EA or EIS does not 
determine a species' injuriousness (see response to Comment 19 for the 
discussion on the role of the listing analysis under the Lacey Act as 
compared to environmental review under NEPA). For its evaluations for 
injuriousness, the Service uses risk assessments, evaluation criteria, 
and peer review. The Service makes the scientific sources it uses 
available to the public. The Service prepares separate economic 
analyses to explain what the economic effect of such a listing could 
have on the U.S. economy (including small businesses). In addition, as 
explained above (see response to Comment 12), application of the 
categorical exclusion process will still involve consideration of any 
applicable extraordinary circumstances under NEPA. Even with a 
categorical exclusion, the listing process will still be intensive and 
time-consuming.
    Comment 24: The Service should differentiate between first-time 
introductions and species already in international trade or present in 
the United States. For species in trade or already in the United 
States, the Service should automatically conduct a NEPA-styled EA as 
well as an EIS as a matter of course.
    Response: The commenter does not express disapproval of the Service 
using a categorical exclusion for first-time introductions (species not 
yet present in the United States). Rather, the commenter states that a 
categorical exclusion would be inappropriate for species that are 
already present in the United States. As explained earlier, the Service 
stands by its reasoning for why adding species as injurious qualifies 
for a categorical exclusion under NEPA, regardless of whether the 
species has already been imported into the United States or not (see 
response to Comment 20). Nonetheless, the Service will determine on a 
case-by-case basis whether extraordinary circumstances apply before 
utilizing the categorical exclusion to comply with NEPA.
    Comment 25: A commenter describes their issues with the Service's 
final environmental assessment for four species of large constrictors 
snakes (January 2012). For example, the Service failed to acknowledge 
any adverse environmental impacts in the EA.
    Response: The Service's analysis contained in any particular 
previous EA is beyond the scope of this action, which addresses the 
appropriateness of a categorical exclusion under NEPA for adding 
species under the Lacey Act. Nonetheless, the Service notes that, in 
the final environmental assessment for the four species referenced by 
the commenter (January 2012), the Service stated this potential adverse 
environmental impact: ``It is plausible that owners of large 
constrictor snakes may intentionally release their snakes in reaction 
to Federal regulation. This outcome would be contrary to the agency's 
intent of stopping spread through interstate movement and importation 
for approved purposes. * * * Alternative 1, the no action alternative, 
would minimize the unintended consequence of pet owners unlawfully 
releasing snakes in reaction to Federal regulation.''
    Comment 26: The commenter doubts that a Federal action under a law 
that is explicitly intended to protect the environment can ever qualify 
for a categorical exclusion. This is especially so given that the Lacey 
Act is both an environmental and criminal statute.
    Response: CEQ regulations (see 40 CFR 1508.4) and CEQ guidance (CEQ 
2010) specifically allow for development and use of categorical 
exclusions for Federal agencies as one type of NEPA review, with no 
qualification that actions under certain types of laws, whether 
environmental or criminal, are not appropriate for categorical 
exclusions. The Service has explained why adding species as injurious 
species under the Lacey Act meets the standards for a categorical 
exclusion (see response to Comment 20). The extraordinary circumstances 
were developed to accommodate situations that are not appropriate for a 
particular categorical exclusion when a typically excluded action may 
have a significant environmental effect and therefore require 
additional analysis and action. In addition, the needs raised by the 
commenter for ``careful scientific scrutiny'' and rigorous 
justification of findings will continue to be provided through the 
Service's Lacey Act analysis. Regarding the issue of the Lacey Act 
being a criminal statute, see the response to Comment 28.
    Comment 27: It is inappropriate and unlawful to apply a categorical 
exclusion to listings like those for the constrictor snakes (referring 
to 75 FR 11808; March 12, 2010), if they are controversial, based on 
uncertain science, entail potential adverse environmental effects, and 
impact large numbers of individuals and businesses.
    Response: The Department's NEPA procedures at 43 CFR 46.215 
identify extraordinary circumstances under which applying a categorical 
exclusion would be inappropriate and further NEPA review is needed. 
These circumstances include where there is a high level of controversy 
over the environmental effects of a proposal and where effects on the 
environment are highly uncertain and potentially significant or involve 
unique or unknown environmental risks. In these situations, an EA or 
EIS would be prepared. Regardless of the level of NEPA review, the 
Service will prepare an impact analysis on potential impacts

[[Page 66560]]

to small business under the Small Business Regulatory Enforcement 
Fairness Act of 1996 (SBREFA; Public Law 104-121) and comply with the 
Regulatory Flexibility Act. In addition, the Lacey Act listings 
referenced by the commenter were finalized before finalization of this 
categorical exclusion, so no determination was made whether the 
categorical exclusion would have been appropriate in that situation. 
Furthermore, EAs were prepared for both constrictor snake injurious 
listing rules (75 FR 11808, March 12, 2010; 80 FR 12702, March 10, 
2015), both of which resulted in FONSIs.
    Comment 28: Several commenters who oppose the categorical exclusion 
focused on the Service's comparison between the proposed categorical 
exclusion and the existing categorical exclusion for certain research, 
inventory, and information collection activities. They noted that 
injurious wildlife listings are significantly different in their effect 
from research, inventory, and information collection activities. A few 
commenters used this as a basis to argue that the justifications 
presented with the proposed categorical exclusion did not adequately 
support the exclusion. Some commenters raising this concern noted that 
injurious species listings involve the threat of criminal sanctions and 
environmental and economic effects.
    Response: The Service agrees that research, inventory, and 
information collection activities are substantively different from 
listing species as injurious under the Lacey Act and used the 
categorical exclusion referred to by the commenters only as an example 
of consistency with existing approved categorical exclusions because it 
is directly related to the conservation of fish and wildlife resources 
``as long as they do not involve, among other things `introduction of 
organisms not indigenous to the affected ecosystem' ''. Under that 
categorical exclusion, activities that may result in the introduction 
of a nonindigenous species prevents application of the categorical 
exclusion, thereby recognizing the environmental impact that such 
introductions may have. Here, adding a species as injurious under the 
Lacey Act prevents the introduction of nonindigenous species not 
already present (either in particular States and territories or, for 
species not yet imported, in the United States overall), thereby 
avoiding the environmental effects that would be caused by the species. 
In addition, other categorical exclusions have been approved that may 
involve the potential for criminal penalties or economic effects 
because they involve public use (see 516 DM 8.5 C)
     ``(1) The issuance * * * of permits for activities 
involving fish, wildlife, or plants regulated under [Service 
regulations] when such permits cause no or negligible environmental 
disturbance. These permits involve endangered and threatened species, 
species listed under the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES), marine mammals, 
exotic birds, migratory birds, eagles, and injurious wildlife.''
     ``(3) The issuance of special regulations for public use 
of Service-managed land, which maintain essentially the permitted level 
of use and do not continue a level of use that has resulted in adverse 
environmental effects.''
     ``(5) The issuance or reissuance of special use permits 
for the administration of specialized uses, including agricultural 
uses, or other economic uses for management purposes, when such uses 
are compatible, contribute to the purposes of the refuge system unit, 
and result in no or negligible environmental effects.''
    Comment 29: The Service justifies the categorical exclusion because 
the listing action is taken under an environmental law. The commenter 
states that a categorical exclusion is even less justified under the 
Lacey Act than it is for actions under other conservation laws, such as 
the Endangered Species Act (ESA), which the commenter states provides 
for detailed NEPA-like analysis.
    Response: The Service does not justify the categorical exclusion 
simply on the basis that it is an action taken under an environmental 
law. Rather, the notice (78 FR 39307; July 1, 2013) explained that 
adding species to the list of injurious wildlife preserves the 
environmental status quo as one of the justifications for qualifying 
for the categorical exclusion. See the response to Comment 20 for more 
details. In addition, the cases cited by the commenter are not 
applicable. Those cases involved designation of critical habitat under 
the ESA where the Service argued that NEPA did not apply. Here the 
Service does not argue that NEPA does not apply to the listing of 
species under the Lacey Act. Rather the Service has shown how adding 
species under the Lacey Act meets the NEPA standard for having no 
significant individual or cumulative effect on the quality of the human 
environment. As such, the Service will be conducting NEPA review when 
it lists injurious species in the future, using the process of applying 
the categorical exclusion and considering potentially applicable 
extraordinary circumstances.
    Comment 30: A commenter states that the public raised comments on 
the proposed constrictor snake rule and draft EA about the listing's 
adverse impact on captive-breeding programs and associated research for 
threatened and endangered species. Other comments included that listing 
the constrictor snakes could delay necessary interstate and 
international animal transfers necessary for rare species survival 
programs and that the Service gave inadequate attention to the concern 
that listing the snakes would provide owners with an incentive to 
release their animals to the wild. The commenter uses these as examples 
to argue that NEPA is the only applicable law in the injurious-species 
listing process that provides for evaluation of environmental benefits 
and adverse impacts.
    Response: Comments received on any particular past EA and the 
Service's response to those comments is beyond the scope of this 
action, which addresses the appropriateness of a categorical exclusion 
under NEPA for adding species under the Lacey Act. Nonetheless, the 
Service notes that it responded to those comments in its final rule for 
the large constrictor snakes (75 FR 3350; January 23, 2012;). To the 
extent the commenter relies on these as examples of alleged impacts 
that would receive no analysis under the categorical exclusion process, 
as noted earlier, application of a categorical exclusion also includes 
consideration of the extraordinary circumstances listed at 43 CFR 
46.215. These include when the action may ``have significant impacts on 
public health or safety,'' ``have significant impacts on species 
listed, or proposed to be listed, [under the ESA] or have significant 
impacts on designated critical habitat for these species,'' ``have 
significant impacts on such natural resources and unique geographic 
characteristics as [park lands, refuges, wilderness areas, prime 
farmlands, wetlands] and other ecologically significant or critical 
areas,'' and ``have highly uncertain and potentially significant 
environmental effects or involve unique or unknown environmental 
risks.'' The commenter and others will have the opportunity to raise 
these or similar alleged effects to assert why the Service should not 
rely on the categorical exclusion in future listing decisions and 
should instead conduct additional NEPA review through preparation of an 
EA or EIS.
    Comment 31: The existence of an exclusion to add injurious species 
under

[[Page 66561]]

the Lacey Act will lead the Service to default to a no-analysis mode, 
even in circumstances that do not justify its use.
    Response: As noted previously, the existence of a categorical 
exclusion is not the end of an agency's NEPA review. CEQ and Department 
regulations are clear that an agency must also consider whether any 
extraordinary circumstances apply, in which case further NEPA analysis 
and documents must be prepared for the action. The Service will 
consider each future listing decision on a case-by-case basis to assess 
whether any of the extraordinary circumstances apply to the listing of 
that particular species. In addition, final NEPA decisions, including 
invocation of a categorical exclusion, is legally reviewable, so 
persons who believe that the Service has defaulted to a ``no-analysis 
mode'' have legal recourse.
    Comment 32: The [constrictor snake] listing has economic impacts 
that are orders of magnitude greater than any previous listing. The 
commenter notes that while such impacts are not environmental, they are 
relevant to the ``human environment.''
    Response: A category of actions is appropriate for a categorical 
exclusion if they ``do not individually or cumulatively have a 
significant effect on the human environment'' See 40 CFR 1508.4. The 
``human environment'' includes ``the natural and physical environment 
and the relationship of people with that environment.'' 40 CFR 1508.14. 
But CEQ NEPA regulations further indicate in this same section that 
purely ``economic or social effects are not intended by themselves to 
require preparation of an [EIS].'' Therefore, while it is possible that 
adding certain species to the list of injurious species under the Lacey 
Act could have significant economic effects, an EA or EIS is not 
necessarily the appropriate means to evaluate such effects. In this 
case, the economic impacts that the commenter refers to are on the 
reptile industry. The Service's economic analysis for the constrictor 
snakes, conducted under E.O. 12866, was separate from NEPA analysis and 
fully analyzed the effects that the commenter raised.
    Comment 33: Two species of fish important to U.S. aquaculture have 
been listed as injurious, and, if environmental assessments were 
completed, no alternatives were offered for public comment.
    Response: The Service's analysis contained in any particular past 
EA is beyond the scope of this action, which addresses the 
appropriateness of a categorical exclusion under NEPA for adding 
species under the Lacey Act. Nonetheless, the Service cannot clarify 
information for the commenter because the comment does not specify 
which two species of fish are being referred to. Of the species listed 
as injurious, the only fish for which the Service did not prepare an 
environmental assessment and instead relied upon a categorical 
exclusion are in the snakehead (Channidae) family, which is generally 
not considered important to U.S. aquaculture.
    Comment 34: Multiple commenters request that the Service advance 
its decision making by adopting a risk analysis process that embraces 
the concepts and approaches described in the National Research Council 
report Science and Decisions: Advancing Risk Assessment (National 
Research Council 2009) to utilize in the decision making process for 
nonindigenous species valuable to the public as game, food, bait, or 
ornamental fish, which would be expected to be commercially valuable to 
U.S. farmers.
    Response: The cited report was commissioned by the Environmental 
Protection Agency (EPA), which was struggling to keep up with the 
demands for hazard and dose-response information with limited 
resources. The report states that the regulatory risk assessment 
process is bogged down. Many of their risk assessments took decades and 
led to uncertainty in risk assessments and the need for unevaluated 
chemicals in the marketplace. The goal was to identify practical 
improvements that EPA could make. Thus, most of the report's 
conclusions and recommendations were geared toward EPA and their 
mission.
    The Service uses risk assessments in its evaluation of species as 
injurious as part of the information used for preparing listing rules 
(for example, the risk assessments for the black carp (Nico et al. 
2005) and the large constrictor snakes (Reed and Rodda 2009)), and we 
will continue to do so. The Service is working on ways to improve its 
risk assessments and is adapting current modeling techniques 
specifically for use under the Service's mission. In addition, the 
Service uses expert opinions (peer review) and stakeholder involvement 
(through notice and comment) as recommended in the report. Therefore, 
the Service's process for assessing risk should be in line with the 
report's goals of reducing the length of time it takes to prepare risk 
assessments, while also improving them.
    Comment 35: Several commenters state their view that the 
categorical exclusion would diminish industry and public input and 
would rely only on internal staff or contractors. Similarly, several 
commenters state their view that consultation with scientists in the 
academic community, the private sector, and the public sector would 
provide a more comprehensive perspective than relying only on internal 
staff or a select group of individuals with a more narrow focus.
    Response: The categorical exclusion would not replace the 
rulemaking process. If a rule is appropriate for a categorical 
exclusion, the difference in the rulemaking process is that a proposed 
or final rule would not have an EA or EIS as one of the supplemental 
documents, nor would it have a finding that corresponds to the EA 
(either a Finding of No Significant Impact (``FONSI'') or the need for 
an EIS). Instead, the proposed and final rules would include a brief 
discussion on why the particular listing is appropriate for the 
categorical exclusion and that none of the extraordinary circumstances 
applies. All other aspects of the rulemaking process under the Lacey 
Act and APA would still be required. The rules would still document the 
Service's injurious evaluation, the Service would continue to complete 
all of the required determinations (including under E.O. 12866), and 
proposed rules would still provide for scientific peer review and a 
public comment period. The Service would still address environmental 
and economic aspects in its rules. Proposed and final rules will be 
published in the Federal Register, and supplemental documents, such as 
those under the Regulatory Flexibility Act, will be made available to 
the public.
    Comment 36: The Service should seek authorization for efficiency 
improvements for listing species as injurious through Congressional 
authorization rather than pursuing the categorical exclusion.
    Response: As explained in CEQ and Department regulations, complying 
with environmental review requirements through the categorical 
exclusion process is a valid form of NEPA review. The Service believes 
that it has justified why adding species to the list of injurious 
species under the Lacey Act qualifies for a categorical exclusion.
    Comment 37: An organization that advocates on behalf of captive 
wildlife and works at the state and local level to restrict and ban the 
private possession of dangerous exotic animals (those that pose 
significant risk to human health and safety and the environment) 
strongly supports the allowance of a categorical exclusion in reference 
to listing injurious species and prohibiting certain species from being 
imported into the United States and from interstate travel.

[[Page 66562]]

    Response: The Service appreciates support for its development of 
the categorical exclusion.
    Comment 38: An organization dedicated to amphibian conservation 
fully supports the Service's efforts to reduce the number of invasive 
species entering the United States and being transported across State 
lines. The organization supports placing all amphibians under the Lacey 
Act so that the Service can prevent amphibian diseases and predatory 
nonnative species from entering the United States.
    Response: The organization is referring to a petition that the 
Service received regarding amphibians carrying a harmful pathogen. What 
action, if any, the Service will take in response to this petition is 
beyond the scope of this action.
    Comment 39: Several commenters opposed the categorical exclusion 
and stated that any use of it should be accompanied by the Service's 
recognition of the extraordinary circumstances associated with existing 
and future managed water supply transfers across State lines and 
hydroelectric operations in the Western United States. Several 
commenters focused on the essential function of water transfers to a 
sustainable water supply, how such water supplies are essential to 
large regions of the United States, and the large number of people 
served by such projects. Therefore, these commenters asserted that the 
Service should apply an extraordinary circumstance to aquatic species 
listings that may affect existing and future interstate managed water 
supply transfers, especially for species that already exist in the 
United States.
    Response: As discussed earlier, the Service will consider the 
applicability of all of the extraordinary circumstances found at 43 CFR 
46.215 on a case-by-case basis whenever it is considering listing a 
species as injurious under the Lacey Act. This would include, but not 
be limited to, if listing the species may ``have significant impacts on 
public health or safety,'' ``have highly uncertain and potentially 
significant environmental effects or involve unique or unknown 
environmental risks,'' or ``have highly controversial environmental 
effects or involve unresolved conflicts concerning alternative uses of 
available resources.'' Whether potential effects on existing or future 
managed water supply transfers or hydroelectric operations would 
trigger these or any of the other extraordinary circumstances will need 
to be assessed at the time of the listing.
    Comment 40: If a water supply project involves transporting water 
over a State line, and if a listed invasive species is already well 
established on both sides of the State line, then the Service should 
issue an ``extraordinary circumstances'' designation that allows the 
cross-border water transfer to proceed unimpeded.
    Response: A new extraordinary circumstance would not allow an 
interstate water transfer to proceed, contrary to the commenter's 
interpretation. An extraordinary circumstance would trigger further 
analysis in an EA or EIS for an otherwise categorically excludable 
action. Thus, if an extraordinary circumstance were applicable, the 
result is that the Service would complete an EA or EIS as part of the 
species' listing process under the Lacey Act. The results of the EA or 
EIS might or might not affect the Service's decision whether to list 
the species.
    Comment 41: A commenter does not believe that the Lacey Act applies 
to the water management activities of its members, such as the flow of 
water during interstate water supply operations and water transfers 
through conduits, and encourages the Service to include an exemption of 
these activities in its Departmental Manual from regulation under the 
Lacey Act.
    Response: The scope of the prohibitions under the Lacey Act and 
specifically whether the transport prohibition applies to injurious 
species transported in the course of water management activities is 
beyond the scope of this action, which addresses the appropriateness of 
a categorical exclusion under NEPA for adding species to the injurious 
species list. Nonetheless, the Service notes that it cannot simply 
exempt these or other types of activities from regulation through the 
Departmental Manual or otherwise.
    Comment 42: Some commenters opposed the categorical exclusion and 
stated that the Department of the Interior manual should recognize 
interstate water transfers with a new extraordinary circumstance that 
would trigger further NEPA review through an EA or EIS. Other 
commenters requested that the extraordinary circumstances under 43 CFR 
46.215 be clarified and expanded to specifically address and include 
water transport. Some commenters noted that the extraordinary 
circumstance could be restricted to apply only to adding species that 
already exist in U.S. waters.
    Response: The Service believes the existing extraordinary 
circumstances are sufficient, and we will still have to determine, on a 
case-by-case basis, whether the listing of any species as injurious 
would trigger one of the extraordinary circumstances found at 43 CFR 
46.215, in which case a normally excluded action would require 
additional analysis through an EA or EIS.
    Comment 43: Unless an extraordinary circumstance is applied to 
cross-border water supply transfers, the categorical exclusion may be 
inconsistent with the Bureau of Reclamation (BOR) operations or 
policies.
    Response: A new extraordinary circumstance would not allow an 
interstate water transfer to proceed, contrary to the commenter's 
interpretation. An extraordinary circumstance would trigger further 
analysis in an EA or EIS for an otherwise categorically excludable 
action. Thus, if an extraordinary circumstance were applicable, the 
result is that the Service would complete an EA or EIS as part of the 
species' listing process under the Lacey Act. The results of the EA or 
EIS might or might not affect the Service's decision whether to list 
the species.
    Comment 44: Western water agencies are working actively to control 
the spread of invasive species. One agency employs scuba divers 24 
hours a day, 7 days a week to scrape quagga mussels from its intake and 
pumping structures. Other expensive control measures are mentioned. 
However, the commenter opposed the categorical exclusion and requests 
that the Service complete an EA and an EIS during the listing process 
that recognize the social and economic associated with cross-border 
water transfers.
    Response: The Service has explained why adding a species to the 
list of injurious species under the Lacey Act qualifies for a 
categorical exclusion (see response to Comment 20). Provided none of 
the extraordinary circumstances applies, no EA or EIS is therefore 
required under NEPA. The Service will consider each listing situation 
on a case-by-case basis (see response to Comment 12). If an 
extraordinary circumstance is applicable, the Service will prepare, as 
appropriate, an EA or EIS that will contain all appropriate NEPA 
analysis for such documents. The Service evaluates certain effects of 
Lacey Act listings, including economic effects, under other laws and 
Executive Orders independent of the NEPA process. These include E.O. 
12866 (Regulatory Planning and Review), the Regulatory Flexibility Act, 
and the Small Business Regulatory Enforcement Fairness Act. None of 
these is affected by this categorical exclusion.
    Comment 45: A number of commenters opposed the categorical 
exclusion and expressed concern that

[[Page 66563]]

the Lacey Act prohibits transport of injurious species across State 
lines during the course of water management activities. In this regard, 
they discussed their views of the consequences on water management 
projects. These commenters talked about what they see as possible 
effects, including prohibiting all water transfers across State lines, 
future Lacey Act listings making water transfers ``all but 
impossible,'' and interrupting or suspending water transfers.
    Response: The scope of the prohibitions under the Lacey Act, 
including whether the transport prohibition applies to injurious 
species transported in the course of water management activities, is 
beyond the scope of this action, which addresses only the 
appropriateness of a categorical exclusion under NEPA. Thus, this 
action addresses what level of NEPA review should be applied when the 
agency is considering listing a species as injurious. If the listing of 
a particular species were to trigger one of the extraordinary 
circumstances under 43 CFR 46.215, the Service would conduct further 
analysis and prepare the appropriate documents under NEPA. An EA would 
discuss the need for the proposal, alternatives to the proposal, and 
the environmental impacts of the proposed action and alternatives. But 
it would neither require nor preclude listing the species as injurious 
or have any effect on what activities are prohibited under the Act. It 
is also not reasonably foreseeable what actions any particular entity 
may take in response to a listing under the Lacey Act.
    Comment 46: A water agency supports the Service's proposal to 
create a categorical exclusion for listing species under the Lacey Act, 
because such an action will promote the Service's goal of protecting 
the environment from injurious wildlife while ensuring compliance with 
NEPA. As part of its mission, the water agency monitors and protects 
reservoirs and streams under its management from invasive species. The 
Lacey Act is an important element of protection against invasive 
species. For example, the water agency is acutely aware of the threat 
quagga mussels and other injurious, invasive Dreissena mussel species 
pose to the waterways under its care. Because of this continuing 
threat, the water agency continues to work toward the designation of 
the quagga mussel as an injurious species under the Lacey Act.
    Response: The Service agrees that certain aquatic invasive species 
pose a serious threat to U.S. waterways and water deliveries and 
strives when appropriate, through listing species as injurious, to 
prevent that threat, including to water management agencies, throughout 
the country.
    Comment 47: One commenter opposed the categorical exclusion, noting 
its concern that strict prohibitions on interstate transport of 
injurious species have been applied to the diversion of water for 
public supply purposes.
    Response: The Lacey Act prohibits the transport of injurious 
species between States and territories of the United States. The 
Service has never brought a law enforcement action against a water 
supply and management entity on a charge that it caused the interstate 
transport of injurious species as a result of its water management 
activities.
    Comment 48: One commenter asserted that water supply operations and 
water transfers across State lines do not constitute actions that are 
prohibited by the Lacey Act. In support of their position, they argue 
that it is not within the purpose of the Lacey Act when the species is 
transported due to movement of the medium in which the animals exist, 
that water management does not constitute transport of a species under 
16 U.S.C. 3372, and that water management does not constitute shipment 
of a species under the Lacey Act (they reference the Nonindigenous 
Aquatic Nuisance Prevention and Control Act or NANPCA as an example of 
how Congress does intend to regulate injurious species that are moved 
in water).
    Response: The scope of the prohibitions under the Lacey Act, 
including whether the transport prohibition applies to injurious 
species transported in the course of water management activities, is 
beyond the scope of this action, which addresses only the 
appropriateness of a categorical exclusion under NEPA (see response to 
Comment 45). Nonetheless, as explained earlier, the Lacey Act prohibits 
the transport of injurious species between States and territories of 
the United States. There is nothing on the face of the statute to 
indicate that transport of injurious species is exempt when that 
transport occurs as part of interstate water management operations. The 
statute does not include limits on the means by which such species 
could be transported in violation of the law. The commenter is correct 
that Congress enacted NANPCA to address the unintentional introduction 
of aquatic species through ballast water. However, there is nothing to 
suggest that Congress intended NANPCA to be the sole means of 
restricting the unintentional transport of aquatic injurious species. 
The commenter indicates that a contrary conclusion would lead to absurd 
results and disrupt commerce, but does not indicate what would be 
absurd about a commercial entity exercising due care to ensure that its 
operations do not result in the transport of injurious species. The 
commenter's references to the prohibitions under 16 U.S.C. 3372 and the 
case Michigan v. U.S. Army Corps of Engineers, 911 F. Supp. 2d 739 
(N.D. Ill. 2012) are beside the point. That law and the court's holding 
regarding the movement of Asian carp do not address the scope of the 
Lacey Act's transport prohibition. The commenter's argument about 
interpretation of the statutory term ``shipment'' also relies, in part, 
on the holding in the Michigan case. But just because that court held 
that activities affecting the dispersal of Asian carp in the Chicago 
Area Waterway System was not an unlawful transport under 16 U.S.C. 3372 
in that case does not mean that a court would find that interstate 
movement of injurious aquatic species by water management entities is 
not a violation of the Lacey Act. How the rule of lenity would 
influence a court's reasoning in a Lacey Act case involving transport 
of injurious species by a water management entity is also unknown. 
Finally, the commenter is incorrect that there is no indication 
whatsoever that Congress intended the Lacey Act to address the 
interstate transport of aquatic injurious species related to water 
management activities. In 2010, when Congress amended the Lacey Act to 
add the bighead carp, one of the bill's sponsors noted that addition of 
the species would ``help deter further intentional or accidental 
introduction of the species into our waterways'' (see 156 Cong. Record 
7821).
    Comment 49: A few commenters oppose the categorical exclusion on 
the argument that the justifications in the proposed categorical 
exclusion did not adequately support the exclusion. They first point to 
the Service's statement that listings ``ensure that certain potential 
effects associated with introduction of species that have been found to 
be injurious do not occur'' and note that the zebra mussel has 
continued to spread despite being listed as injurious by Congress in 
1990. They also argue that indirect and incidental environmental 
effects of listing decisions, such as construction required to avoid a 
violation of the law, need to be considered in an EA or EIS. This is 
especially true where the species has no commercial value but may be 
transferred inadvertently through movement of other goods or resources 
or the shipping of other things. It may have unintended consequences of 
causing

[[Page 66564]]

construction of entirely new infrastructure projects that has its own 
set of environmental issues. One commenter noted that the Lacey Act 
does not require a showing that the transport presents a risk of harm 
before the prohibition applies.
    Response: It is true that certain injurious species have spread to 
additional States following their listing under the Lacey Act. That 
does not mean, however, that subsequent movement across State lines was 
consistent with the statute. Regarding consideration of indirect and 
incidental environmental effects of actions taken by entities to avoid 
a potential violation of law, the Service cannot reasonably foresee 
what actions, if any, an entity might take to avoid potentially 
transporting an injurious species in the course of its water management 
or similar activities, let alone what environmental effect would occur 
from these possible actions. There are an almost infinite number of 
possible responses that various entities might take to avoid 
transporting a particular injurious species. Several commenters noted 
the efforts undertaken by the North Texas Municipal Water District to 
avoid transporting zebra mussels between Texas and Oklahoma, but also 
noted that similar efforts by other water managers would not be 
feasible. Another commenter stated only that some listings might 
require the construction of ``new infrastructure.'' Thus, the 
commenters themselves demonstrate that, while the North Texas Municipal 
Water District undertook one type of actions, other water managers are 
likely to take other (unidentified) actions-or none at all. The Service 
cannot analyze under NEPA indirect effects that are not reasonably 
foreseeable.
    Comment 50: Some commenters who oppose the categorical exclusion 
and argue that the justifications did not adequately support the 
exclusion also stated that previous listings that resulted in a FONSI 
did not involve the legal and practical complexities presented by an 
aquatic species impacting interstate water supply operations and water 
transfers. Another commenter asserted that listings of future injurious 
aquatic species that move through multiple pathways and affect multiple 
aspects of the environment, such as water supply and quality, along 
with having economic impacts on industry and recreation, should include 
consideration of all these effects under NEPA.
    Response: The Service disagrees. The agency listed the silver, 
black, and largescale silver carps (collectively called Asian carps) as 
injurious in 2007. These aquatic species have the potential to be 
transported across State lines through water management activities. The 
EAs for these three species analyzed all reasonably foreseeable direct, 
indirect, and cumulative effects of the listings and found that adding 
the species to the list of injurious species would have no significant 
environmental impact. In addition, as noted earlier (see response to 
Comment 12), the Service will consider each potential listing on a 
case-by-case basis to determine whether the listing of that particular 
species would trigger one of the ``extraordinary circumstances'' found 
at 43 CFR 46.215, in which case a normally excluded action would 
require additional NEPA analysis through an EA or EIS.
    Comment 51: The categorical exclusion will not make the injurious 
species listing process more effective and efficient. On the contrary, 
environmental review of listing effects on otherwise lawful activities 
will actually be postponed and become more complicated.
    Response: We disagree. The Service will evaluate early in the 
listing process whether any of the extraordinary circumstances at 43 
CFR 46.215 apply and thereby determine early in the rulemaking process 
whether an EA or EIS should be completed. This step is not expected to 
slow down the listing process, even if the Service determines that an 
EA or EIS is needed.
    Comment 52: Enforcement under the Lacey Act could conflict with 
interstate agreements and undermine authorized purposes of the Federal 
Government's water storage and distribution facilities throughout the 
West.
    Response: Possible enforcement actions under the Lacey Act are 
beyond the scope of this action, which addresses only the 
appropriateness of a categorical exclusion under NEPA for adding 
species to the list of injurious species.
    Comment 53: The Service says it would use a separate NEPA review 
for any control measures needed to deal with an injurious species, yet 
the Service does not have regulatory authority over such control 
measures.
    Response: Control measures can be conducted under the Service's or 
another Federal, State, tribal, or territorial agency's legal 
authority. For example, any injurious species control measures on 
national wildlife refuges would be conducted under the Service's refuge 
management authorities.
    Comment 54: Some commenters expressed concern that the zebra mussel 
listing incurred tremendous costs in the North Texas Municipal Water 
District. One commenter argued that this serves as an example of how 
Lacey Act listings can disrupt water supply operations. Other 
commenters noted that for water management agencies to similarly 
prevent the occurrence of zebra mussels, quagga mussels, or other 
aquatic invasive species in public water systems would be 
impracticable, and listing the species would make it impossible to 
operate public water supplies without untenable exposure to criminal 
liability, threatening their viability and cost-effective operations.
    Response: The Service recognizes the extent to which the North 
Texas Municipal Water District has gone to prevent the interstate 
transport of zebra mussels. This extensive cost is what the Service 
hopes to preclude by listing species before they become introduced or 
established. Please also see our response to Comment 45.
    Comment 55: A city mayor was concerned that the ``fast-track'' of 
listing where water supplies are concerned would incur significant 
costs for them in fines.
    Response: As noted earlier, the prohibitions under the Lacey Act 
and possible enforcement actions are beyond the scope of this action, 
which addresses only the appropriateness of a categorical exclusion 
under NEPA for adding species to the list of injurious species.
    Comment 56: If the Service is concerned about efficiency in the 
injurious listing process, the Service should more thoroughly examine 
the other elements required for the listing process. One commenter 
noted that an EA or EIS could be developed concurrently with other 
analyses required to list a species.
    Response: The Service is reviewing all elements of the listing 
process to make it more efficient within its authorities. But the 
Service has made its case that adding species as injurious meets the 
standards for a categorical exclusion (see response to Comment 20). 
Conducting NEPA review through the categorical exclusion process is 
expected to result in a more efficient listing process.
    Comment 57: The categorical exclusion might restrict the ability of 
circuses, zoos, and other licensed exhibitors to transport animals 
across State lines.
    Response: It is unclear how the categorical exclusion might 
restrict certain entities from transporting animals across State lines 
when the categorical exclusion is related only to the type of NEPA 
review conducted when the Service is considering a

[[Page 66565]]

species for listing. In addition, the Lacey Act allows for the issuance 
of permits authorizing interstate transport or import for, among other 
things, zoological purposes. Licensed exhibitors and zoos may apply for 
a permit.

Categorical Exclusion

    The Department and the Service find that the category of actions 
described in the categorical exclusion at the end of this notice does 
not individually or cumulatively have a significant effect on the human 
environment. This finding is based on the analysis that the listing 
action preserves the environmental status quo: It maintains the 
baseline population of the species and any environmental effects 
related to the presence or absence of the species. All previous NEPA 
reviews of species listings have consistently resulted in Findings of 
No Significant Impact. Finally, the categorical exclusion is consistent 
with existing approved Service categorical exclusions involving 
introduction of nonindigenous species.
    Adding species to the list of injurious wildlife meets the standard 
for a category of actions that does not individually or cumulatively 
have a significant effect on the human environment because it merely 
preserves the environmental status quo within the United States. The 
Lacey Act prohibits importation into the United States and interstate 
transport of any animals already located within the United States. 
Therefore, the Lacey Act has two regulatory and environmental effects. 
For species not yet imported into the United States, it prevents them 
from entering the country and thereby avoids any environmental impact--
positive or negative--that otherwise would be caused by the species. 
For injurious animals that were imported into the United States prior 
to the species' listing, it prevents the species spread to additional 
States and U.S. territories where it does not yet occur and thereby 
avoids any environmental impact--positive or negative--from the species 
in these other areas. But the Lacey Act does not prohibit possession or 
transport within a State or U.S. territory where the species already 
occurs. Therefore, a Lacey Act listing may do little to prevent 
environmental effects in States and territories where injurious animals 
already occur. Federal, State, territorial, and tribal agencies; 
environmental groups and associations; and individuals may undertake 
control measures to reduce or eliminate the species already in their 
State or territory, but these actions are not taken under the authority 
of the Lacey Act. Likewise, State, territorial, or tribal governments 
may enact laws that prohibit possession or other activities with the 
species within their State or territory, but these also are not under 
the authority of the Lacey Act. In the absence of such additional 
actions, people can continue to own, breed, and sell injurious animals 
already located within their State or territory, as allowed under 
State, territorial, or tribal law.
    Therefore, listing species under the Lacey Act ensures that certain 
adverse effects associated with the introduction of injurious species 
will not occur. The injurious species listings maintain the state of 
the affected environment into the future--the state of the environment 
prior to listing and prior to potential introduction in the absence of 
a listing. Thus, preventing a nonindigenous injurious species from 
being introduced into an area in which it does not naturally occur 
cannot have a significant effect on the human environment.
    Because the categorical exclusion also serves to make the listing 
process under the Act more efficient and adding species to the 
injurious species list has the sole purpose of limiting undesirable 
environmental effects in the future, the categorical exclusion itself 
supports maintenance of the environmental status quo.
    This categorical exclusion also is consistent with the conclusions 
of every NEPA review conducted in conjunction with adding a species as 
injurious under the Lacey Act. Every EA prepared as part of an 
injurious species listing since 1982 (the first rule promulgated after 
environmental-assessment guidance was established under NEPA) has 
resulted in a finding that adding the species as injurious would have 
no significant environmental impact (a FONSI) without requiring 
mitigation measures and, therefore, did not require preparation of an 
EIS. See our July 1, 2013, notice proposing the categorical exclusion 
(78 FR 39307) for a list of past EAs and the environmental effects 
analyzed in those EAs. While these species, when present in an U.S. 
ecosystem, may have a significant effect on the environment, the 
regulatory action of adding them to the list of injurious species has 
no significant effect for the reasons explained above. That each EA has 
resulted in a FONSI strongly suggests that subsequent listings will 
also have no significant environmental impacts.
    Finally, this categorical exclusion is consistent with existing 
Service categorical exclusions. For example, the Departmental Manual 
already includes a categorical exclusion for research, inventory, and 
information collection activities directly related to the conservation 
of fish and wildlife resources as long as they do not involve, among 
other things, ``introduction of organisms not indigenous to the 
affected ecosystem'' (see 516 DM 8.5 B (1)). Thus, research, inventory, 
and information collection activities related to conservation of fish 
and wildlife resources that would involve the introduction of 
nonindigenous species would require additional NEPA review, while the 
absence of that effect, among other things, does not. This categorical 
exclusion therefore recognizes the potential environmental impact from 
nonindigenous species introductions that should be analyzed through an 
EA or EIS. Here, adding a species as injurious under the Lacey Act 
prevents the introduction of a nonindigenous species not already 
present (either in particular States and territories or, for species 
not yet imported, in the United States overall), thereby avoiding any 
environmental effect that would be caused by the species.
    CEQ has reviewed the Service's summary of the substantive comments 
it received and its responses to those comments. CEQ approved the 
Department of the Interior's categorical exclusion in a letter dated 
September 25, 2015. Therefore, the Department is adding a categorical 
exclusion to the Department Manual at 516 DM 8.5 C, which covers 
``Permit and Regulatory Functions.'' This section includes approved 
categorical exclusions that address, among other things, the issuance 
of regulations pertaining to wildlife. This addition would provide for 
a categorical exclusion for only the regulatory action of listing 
species as injurious (that is, adding a species to one of the lists in 
50 CFR part 16). The regulatory listing action places the species on a 
list that prohibits their importation into the United States and 
interstate transportation.
    The Service recognizes that certain potential species listings, 
when reviewed on a case-by-case basis, could trigger one of the 
extraordinary circumstances for which it is not appropriate to utilize 
the categorical exclusion. In such cases, the potential listing could 
have a significant environmental effect and would require additional 
NEPA analysis. These extraordinary circumstances include, but are not 
be limited to, listings that may have highly controversial 
environmental effects, involve unresolved conflicts concerning 
alternative uses of available resources, have highly uncertain and 
potentially significant environmental effects, or

[[Page 66566]]

involve unique or unknown environmental risks (43 CFR 46.215). Thus, 
prior to applying the categorical exclusion when considering adding a 
species as injurious under the Act, the Service will review all of the 
extraordinary circumstances in the Department's NEPA regulations. If 
any extraordinary circumstance does apply, the Service will conduct 
additional NEPA analysis and prepare an EA or EIS.
    The categorical exclusion does not cover all Service activities 
related to injurious species. For example, the categorical exclusion 
does not cover control actions (such as constructing barriers) or 
eradication actions (such as applying pesticides). Any such injurious 
species management measures conducted by the Service will undergo 
appropriate NEPA analysis and documentation prior to implementation of 
the action. The categorical exclusion also does not cover the issuance 
of permits (available for individual specimens imported or transported 
for zoological, educational, medical, or scientific use), which is 
already covered under an existing categorical exclusion (516 DM 8.5 
C(1)). The categorical exclusion also does not cover the removal of 
species from the injurious wildlife lists under the Act.

Amended Text for the Departmental Manual

    The text that will be added to 516 DM (see ADDRESSES) is set forth 
below:

Part 516: National Environmental Policy Act of 1969
Chapter 8: Managing the NEPA Process--U.S. Fish and Wildlife Service
* * * * *
8.5 Categorical Exclusions.
* * * * *
    C. Permit and Regulatory Functions.
* * * * *
    (9) The adding of species to the list of injurious wildlife 
regulated under the Lacey Act (18 U.S.C. 42, as amended) as implemented 
under 50 CFR subchapter B, part 16, which prohibits the importation 
into the United States and interstate transportation of wildlife found 
to be injurious.

    Dated: September 30, 2015.
Willie R. Taylor,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2015-27360 Filed 10-28-15; 8:45 am]
 BILLING CODE 4333-15-P