Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Guam Kingfisher, or Sihek, on Palmyra Atoll, USA, 53429-53440 [2022-18571]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Proposed Rules]
[Pages 53429-53440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18571]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2022-0061; FXES1113090FEDR-223-FF09E22000]
RIN 1018-BF61


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of the Guam Kingfisher, or Sihek, 
on Palmyra Atoll, USA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
propose to release (meaning introduce) the Guam kingfisher (Todiramphus 
cinnamominus), known locally as the sihek, on Palmyra Atoll as an 
experimental population under the Endangered Species Act of 1973, as 
amended (Act). Currently, the sihek exists only in captivity and has 
been extinct in the wild for more than 30 years. The proposed 
introduction on Palmyra Atoll is outside the sihek's historical range 
because its primary habitat within its native range on Guam has been 
indefinitely altered by the accidental introduction of the predatory 
brown treesnake (Boiga irregularis) in the mid-twentieth century. Tools 
to manage brown treesnakes at a landscape level are under development, 
but these tools are unlikely to be available for broad use within the 
foreseeable future. The introduction of sihek to Palmyra Atoll is not 
intended to be a permanent introduction that would support a self-
sustaining population; rather, it is intended to facilitate the 
gathering of information and analysis to optimize efforts for 
reestablishment of the species on Guam once brown treesnakes can be 
sufficiently controlled at a landscape scale. The introduction of sihek 
to Palmyra Atoll is also likely to help increase the global population 
of this extinct-in-the-wild species in advance of a reintroduction 
effort on Guam. We propose to classify the population as a nonessential 
experimental population (NEP) under the Act and propose regulations for 
the take of sihek within the NEP area. The best available data indicate 
the introduction of sihek to Palmyra Atoll is biologically feasible and 
will promote the conservation of the species. We are seeking comments 
on this proposal.

DATES: We will accept comments received or postmarked on or before 
September 30, 2022. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES), the deadline for submitting an 
electronic comment is 11:59 p.m. eastern time on this date.

ADDRESSES: Written Comments: You may submit comments on this proposed 
rule by one of the following methods:
     Electronically: Go to the Federal eRulemaking Portal: 
https://www.regulations.gov. In the Search box, enter FWS-R1-ES-2022-
0061, which is the docket number for this rulemaking. Then, click the 
Search button. In the Search panel on the left side of the screen, 
under the Document Type heading, click on the box next to Proposed 
Rules to locate this document. You may submit a comment by clicking on 
``Comment.''
     By hard copy: Submit by U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-R1-ES-2022-0061; U.S. Fish and 
Wildlife Service; MS: PRB (JAO/3W); 5275 Leesburg Pike, Falls Church, 
VA 22041-3803. We will post all comments on https://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see Public Comments, below, for 
more information).
    Copies of Documents: The proposed rule is available on https://www.regulations.gov under Docket No. FWS-R1-ES-2022-0061.

FOR FURTHER INFORMATION CONTACT: Megan Laut, Pacific Islands Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 300 Ala Moana Blvd., 
Rm 3-122, Honolulu, HI 96850; telephone 808-779-9939. Individuals in 
the United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and effective as possible. Therefore, we invite 
governmental agencies, the scientific community, the CHamoru community, 
industry, and other interested parties to submit comments or 
recommendations concerning any aspect of this proposed rule. Comments 
should be as specific as possible.
    To issue a final rule to implement this proposed action, we will 
take into consideration all comments and any additional information we 
receive. Such communications may lead to a final rule that differs from 
this proposal. All comments, including commenters' names and addresses, 
if provided to us, will become part of the supporting record.
    You may submit your comments and materials concerning the proposed 
rule by one of these methods listed in ADDRESSES. Comments must be 
submitted to https://www.regulations.gov before 11:59 p.m. (eastern 
time) on the date specified in DATES. We will not consider hand-
delivered comments that we do not receive, or mailed comments that are 
not postmarked, by the date specified in DATES.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as some of the 
supporting documentation we used in preparing this proposed rule, will 
be available for public inspection on https://www.regulations.gov, or 
by appointment during normal business hours at the U.S. Fish and 
Wildlife Service, Pacific Islands Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).
    We are specifically seeking comments concerning:
     Information pertaining to the sihek as it relates to the 
proposed introduction;
     Effects of the proposed introduction on native species and 
the ecosystem on Palmyra Atoll; and

[[Page 53430]]

     Adequacy of the proposed regulations for the sihek NEP.
    We are accepting comments for 30 days as indicated above in DATES. 
A 30-day comment period is consistent with the rulemaking action that 
established the regulations for establishing NEPs (49 FR 33886, August 
27, 1984; p. 33885), which stated that a rulemaking under section 10(j) 
of the Act will provide a minimum 30-day comment period. We believe 
that a 30-day public comment period is sufficient for this rulemaking 
action because the introduction will occur on a remote atoll with very 
little access. As a result, this rulemaking action will have little 
public effect, and we expect to receive few if any public comments. 
More importantly, however, the need to remove the birds from captivity 
and introduce them into the wild is urgent. Streamlining the rulemaking 
process as much as possible is necessary to best ensure the welfare of 
the birds and subsequent success of the introduction.

Peer Review

    In accordance with our Interagency Cooperative Policy for Peer 
Review in Endangered Species Act Activities, which was published on 
July 1, 1994 (59 FR 34270), and the internal memorandum clarifying the 
Service's interpretation and implementation of that policy (USFWS in 
litt. 2016), we will seek the expert opinion of at least three 
appropriate and independent specialists regarding scientific data and 
interpretations contained in this proposed rule. We will send copies of 
this proposed rule to the peer reviewers immediately following 
publication in the Federal Register. The purpose of such review is to 
ensure that our decisions are based on scientifically sound data, 
assumptions, and analysis. Accordingly, the final decision may differ 
from this proposal.

Background

Statutory and Regulatory Framework for Experimental Populations

    Species listed as endangered or threatened are afforded protection 
primarily through the prohibitions in section 9 of the Act. Section 9 
of the Act, among other things, prohibits take of endangered wildlife. 
``Take'' is defined by the Act as harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or attempt to engage in any 
such conduct. Section 7 of the Act outlines the procedures for Federal 
interagency cooperation to conserve federally listed species and 
protect designated critical habitat. It mandates that all Federal 
agencies use their existing authorities to further the purposes of the 
Act by carrying out programs for the conservation of listed species. It 
also requires that Federal agencies, in consultation with the Service, 
ensure that any action they authorize, fund, or carry out is not likely 
to jeopardize the continued existence of a listed species or result in 
the destruction or adverse modification of designated critical habitat. 
Section 7 of the Act does not affect activities undertaken on private 
land unless they are authorized, funded, or carried out by a Federal 
agency.
    The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included 
the addition of section 10(j), which allows for the designation of 
reintroduced populations of listed species as ``experimental 
populations.'' The provisions of section 10(j) were enacted to 
ameliorate concerns that reintroduced populations will negatively 
impact landowners and other private parties, by giving the Secretary 
greater regulatory flexibility and discretion in managing the 
reintroduced species to encourage recovery in collaboration with 
partners, especially private landowners. Under section 10(j) of the 
Act, and our regulations in title 50 of the Code of Federal Regulations 
at 50 CFR 17.81, the Service may designate an endangered or threatened 
species that has been or will be released within its probable 
historical range as an experimental population. The Service may also 
designate an experimental population for an endangered or threatened 
species outside of the species' probable historical range in extreme 
cases when the Director of the Service finds that the primary habitat 
of the species within its historical range has been unsuitably and 
irreversibly altered or destroyed. All experimental populations are 
classified as ``nonessential'' unless we determine that the loss of the 
experimental population would be likely to appreciably reduce the 
likelihood of the survival of the species in the wild. We propose to 
classify the sihek released to Palmyra Atoll as nonessential.
    The NEP designation allows us to develop tailored ``take'' 
prohibitions that are necessary and advisable to provide for the 
conservation of the species. The protective regulations adopted for an 
experimental population in a section 10(j) rule contain the applicable 
prohibitions and exceptions for that population and apply to all areas 
described for the nonessential population.
    Section 7(a)(2) of the Act requires that Federal agencies, in 
consultation with the Service, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or adversely modify its critical habitat. For the 
purposes of section 7 of the Act, we treat an NEP as a threatened 
species when the population is located within a National Wildlife 
Refuge or unit of the National Park Service. When NEPs are located 
outside of a National Wildlife Refuge or National Park Service unit, 
for the purposes of section 7, we treat the population as proposed for 
listing and only sections 7(a)(1) and 7(a)(4) of the Act apply. In 
these instances, NEPs provide additional flexibility in managing the 
nonessential population because Federal agencies are not required to 
consult with us under section 7(a)(2). Section 7(a)(1) requires all 
Federal agencies to use their authorities to carry out programs for the 
conservation of listed species. Section 7(a)(4) requires Federal 
agencies to confer (rather than consult) with the Service on actions 
that are likely to jeopardize the continued existence of a species 
proposed to be listed.
    Section 10(j)(2)(C)(ii) of the Act states that critical habitat 
shall not be designated for any experimental population that is 
determined to be nonessential. Accordingly, we cannot designate 
critical habitat in areas where we establish an NEP.
    Before authorizing the release as an experimental population of an 
endangered or threatened species, and before authorizing any necessary 
transportation to conduct the release, the Service must find, by 
regulation, that the release will further the conservation of the 
species. In making such a finding, the Service uses the best scientific 
and commercial data available to consider the following factors (see 50 
CFR 17.81(b)):
    (1) Any possible adverse effects on extant populations of a species 
as a result of removal of individuals, eggs, or propagules for 
introduction elsewhere (see Donor Stock Assessment and Effects on Donor 
Population, below);
    (2) the likelihood that any such experimental population will 
become established and survive in the foreseeable future (see 
Likelihood of Population Establishment and Survival, below);
    (3) the relative effects that establishment of an experimental 
population will have on the recovery of the species (see Importance of 
the NEP to Recovery Efforts, below); 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 (see 
Management, below).

[[Page 53431]]

    Furthermore, as set forth at 50 CFR 17.81(c), all regulations 
designating experimental populations under section 10(j) of the Act 
must 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, and other criteria appropriate to identify the experimental 
population (see Location and Boundaries of the Proposed NEP Area, 
below);
    (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 (see Is the Proposed Experimental 
Population Essential or Nonessential?, below);
    (3) management restrictions, protective measures, or other special 
management concerns for 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 (see 
Management, below; 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 (see Monitoring and 
Evaluation, below).
    Under 50 CFR 17.81(d), the Service must consult with appropriate 
State fish and wildlife agencies, local governmental entities, affected 
Federal agencies, and affected private landowners in developing and 
implementing experimental population rules. To the maximum extent 
practicable, section 10(j) rules represent an agreement between the 
Service, the affected State and Federal agencies, and persons holding 
any interest in land that may be affected by the establishment of an 
experimental population.

Legal Status of the Species and Previous Federal Actions

    We listed the sihek as an endangered species under the Act on 
August 27, 1984 (49 FR 33881). At the time of listing, the sihek was 
known as the Guam Micronesian kingfisher (Halcyon cinnamomina 
cinnamomina). We designated critical habitat for the sihek on October 
28, 2004 (69 FR 62944), consisting of 376 ac (153 ha) on northern Guam. 
We finalized the Native Forest Birds of Guam and Rota of the 
Commonwealth of the Northern Mariana Islands Recovery Plan in 1990 and 
the Revised Recovery Plan for the Sihek or Guam Micronesian Kingfisher 
(Halcyon cinnamomina cinnamomina) in 2008 (73 FR 67541, November 14, 
2008). In 2015, we attempted to revise the taxonomy for sihek under the 
Act through a direct final rule (see 80 FR 35860, June 23, 2015), but 
due to a minor administrative error in that rule the sihek's corrected 
taxonomy is not yet reflected on our List of Endangered and Threatened 
Wildlife (List; 50 CFR 17.11). We are currently in the process of 
updating 50 CFR 17.11 to reflect that the Guam Micronesian Kingfisher 
(Halcyon cinnamomina cinnamomina) should be the Guam kingfisher 
(Todiramphus cinnamominus) on the List. Throughout this document, we 
refer to the species as the sihek because that is the locally used 
common name on Guam.

Biological Information

Species Description

    The sihek is a sexually dimorphic (the sexes are outwardly 
different in appearance) forest kingfisher (Baker 1951, p. 229). The 
adult male has a brown head, neck, upper back, and underparts. A black 
line extends around the nape (back of the neck), and the eye ring is 
black. The lower back, lesser and underwing coverts, and shoulder 
feathers are greenish-blue, and the tail is blue. The bill is black. 
The female's markings are similar to the adult male, but the upper 
breast, chin, and throat are paler, and the remaining underparts are 
white instead of cinnamon. Sihek are relatively small, about 8 inches 
(in) (20 centimeters (cm)) in length (Del Hoyo et al. 2001, p. 220). 
Adult sihek range in weight from 53 to 85 grams (g) (1.7-3.0 ounces 
(oz)) (Baker 1951, p. 228; Jenkins 1983, p. 21).

Historical and Current Range

    The sihek is a nonmigratory species endemic to Guam and 
historically occurred in all habitats throughout Guam except pure 
savanna and wetlands (Marshall 1949, p. 210, Baker 1951 p. 229; Jenkins 
1983, pp. 22-23). They were described as ``fairly common'' by Baker 
(1951, p. 229). However, the population declined rapidly in the mid-
twentieth century due primarily to predation by the brown treesnake. 
The last remaining wild sihek were taken into captivity between 1984 
and 1986, and sihek were considered extinct in the wild by 1988 (Wiles 
et al. 2003, p. 1357). For more than 30 years, the species has existed 
only in captivity, as discussed further in the Recovery Efforts to Date 
section, below.

Life Cycle

    Sihek are socially monogamous, and breeding activity appears to be 
concentrated from December to July (Marshall 1949, p. 210; Baker 1951, 
p. 228; Jenkins 1983, p. 23). They nest in cavities, with nests 
documented in a variety of trees, including Ficus spp. (banyan), Cocos 
nucifera (coconut), Artocarpus spp. (breadfruit), Pisonia grandis 
(umumu), and Tristiropsis obtusangula (faniok) (Baker 1951, p. 228; 
Jenkins 1983, p. 24; Marshall 1989, p. 473). Both male and female sihek 
incubate eggs and brood and feed nestlings (Jenkins 1983, p. 24). Eggs 
are white and reported clutch sizes from wild populations (n = 3) were 
either one or two eggs (Baker 1951, p. 228; Jenkins 1983, p. 24; 
Marshall 1989, p. 474). Incubation, nestling, and fledgling periods for 
sihek in the wild are unknown. However, incubation and nestling periods 
of captive birds averaged 22 and 33 days, respectively (Bahner et al. 
in litt. 1998, p. 21).
    Sihek feed entirely on animal matter including skinks (Scincidae), 
geckos (Gekkonidae), various insects, segmented worms (Annelida), and 
hermit crabs (Coenobita spp.) (Marshall 1949, p. 210; Baker 1951, pp. 
228-229; Jenkins 1983, pp. 23-24). Seale (1901, p. 45) also reported 
that sihek were known to prey on the chicks of domestic fowl, and 
Marshall (1949, p. 210) noted fish scales in the stomach contents of 
collected sihek. They typically forage by perching motionless on 
exposed branches or telephone lines and swooping down to capture prey 
off the ground with their bill (Jenkins 1983, pp. 23-34). They will 
also capture prey off nearby foliage and have been observed gleaning 
insects from bark (Maben 1982, p. 78).

Habitat Use

    Relatively little is known about the habitat use of sihek. Mature 
forests with appropriate nest sites were probably an important 
component for successful reproduction and survival. The sihek is a 
cavity nester and apparently requires large, standing dead trees. Nest 
trees were reported as averaging 43 centimeters (17 inches) in diameter 
(Marshall 1989, p. 475). Sihek also appear to require diverse 
vegetative structure capable of providing a wide range of both 
invertebrate and vertebrate prey as well as exposed perches and areas 
of open ground for foraging (USFWS 2002, p. 63739). Good-quality sihek 
habitat would therefore provide a combination of closed canopy forest 
with large, standing dead trees for nesting, and areas of open 
understory or

[[Page 53432]]

forest edges for foraging (Jenkins 1983, pp. 22-23; Marshall 1989, pp. 
475-476; USFWS 2002, p. 63739).

Movement Ecology

    Records of distributions and intraspecific territorial behaviors 
for sihek suggest they maintained exclusive year-round territories 
(Jenkins 1983, pp. 24-25). Little else is known about their movement 
ecology. On the island of Pohnpei, Micronesian kingfishers (Todiramphus 
reichenbachii), a species from the same genus as sihek, demonstrated an 
average territory size of 8.1 hectares (ha) (20 acres (ac)) and showed 
stable boundaries within and between years (Kesler and Haig 2007, p. 
387); birds dispersing from their home territory were observed to 
establish new territories a maximum distance of 4,501 feet (1,372 
meters) from the original site (Kesler and Haig 2007, p. 389). The 
sihek is an island endemic and has not been observed flying over open 
ocean.

Causes of Decline and Threats

    The primary cause of the sihek's extinction in the wild was due to 
predation by the introduced brown treesnake (USFWS 2008, p. 21). This 
invasive species probably arrived on Guam prior to 1950 as stowaways on 
shipping materials (Savidge 1987, p. 662). Brown treesnakes were likely 
introduced in southern Guam and expanded their range, reaching the 
northernmost point of the island by 1968 (Savidge 1987, p. 663). Sihek 
were last recorded from southern Guam in the 1970s (Drahos 1977, pp. 
153-154), and by 1985, Marshall (1989, p. 476) reported only 30 sihek 
in the northern part of the island. Sihek were considered extinct in 
the wild by 1988 (Wiles et al. 2003, p. 1357). The continued islandwide 
presence of brown treesnakes on Guam precludes consideration of Guam as 
a viable reintroduction site for sihek for the foreseeable future.
    Other factors that likely impacted sihek on Guam include predation 
by feral cats (Felis catus), rats (Rattus spp.), and monitor lizards 
(Varanus tsukamotoi), habitat degradation from development and 
typhoons, human persecution, contaminants, and competition with and 
harassment by black drongos (Dicrurus macrocercus) (USFWS 2008, pp. 16-
17). Our Revised Recovery Plan for the Sihek or Guam Micronesian 
Kingfisher (USFWS 2008, pp. 16-26) provides further description of 
these threats.

Recovery Efforts to Date

    Criteria for reclassifying the sihek from an endangered to 
threatened species (``downlisting'') include establishing two 
subpopulations on Guam (one in the north and one in the south) of at 
least 500 individuals each that are stable to increasing over at least 
5 consecutive years; sufficient habitat is protected and managed to 
achieve the population criteria; and brown treesnakes and other 
introduced predators are managed at levels sufficient to meet the 
population criteria. The criteria to delist (remove protections of the 
Act for) the sihek include two subpopulations on Guam of at least 1,000 
individuals each (one in the north and one in the south) that are 
stable or increasing, with sufficient habitat and predator control to 
support the population criteria (USFWS 2008, pp. 40-43). Our recovery 
plan acknowledged that the interim step of introducing sihek outside of 
its historical range may be necessary before we are able to reestablish 
sihek populations on Guam (USFWS 2008, p. 40).

Habitat Protection

    Over the past 30 years, the Service has worked with a number of 
stakeholders to provide habitat protection in support of recovering 
Guam's native species. The habitat protections described below were 
intended for federally listed species on Guam in anticipation of our 
eventual ability to control brown treesnakes and allow the 
reintroduction of sihek and other locally extinct species. In 1993, the 
U.S. Air Force, U.S. Navy, and Service entered into a memorandum of 
understanding to create the Guam National Wildlife Refuge. As per the 
terms of the memorandum of understanding, the two military branches 
entered into cooperative agreements with the Service in 1994 to 
designate Department of Defense lands as overlay units in the Guam 
National Wildlife Refuge (i.e., these overlay units of Refuge lands are 
under the jurisdiction of the Department of Defense but managed by the 
Service as part of the Refuge). Currently the Guam National Wildlife 
Refuge includes 152 ha (376 ac) of lands under the jurisdiction of the 
Service and 9,300 ha (22,980 ac) of overlay lands under the 
jurisdiction of the U.S. Navy and U.S. Air Force, and all are managed 
by the Service as the Refuge.
    Additionally, the Government of Guam established four reserves for 
habitat protection. These lands are under the jurisdiction of the 
CHamoru Land Trust Commission of the Government of Guam. The Commission 
has the authority to change the status of these lands to non-
conservation areas as they deem appropriate. Please see the Revised 
Recovery Plan for the Sihek or Guam Micronesian Kingfisher (USFWS 2008, 
pp. 33-37) for further description and maps of the Department of 
Defense and Government of Guam protected areas.
    More recently, the Department of Defense and the Service entered 
into two agreements to protect or manage habitat for sihek and other 
federally listed species on Guam. A 2020 memorandum of understanding 
between Joint Region Marianas and the Service outlined a mutual 
understanding regarding the intentions and future considerations of a 
Department of Defense readiness and environmental protection 
integration initiative to address conservation of upland vegetation 
communities for the sihek as well as other federally listed species on 
Guam. In 2015 a memorandum of agreement between the Department of the 
Navy and the Service designated 2,118 ha (5,234 ac) of habitat for the 
recovery and survival of the sihek in Northern Guam in response to loss 
of habitat described in the Service's 2015 Marine Corps Relocation 
Biological Opinion (USFWS 2015, entire).

Brown Treesnake Control

    We currently lack tools to eradicate brown treesnakes from Guam, 
and the continued presence of brown treesnakes throughout the landscape 
prevents the successful reestablishment of sihek on Guam in the 
foreseeable future. However, we have made some incremental progress in 
addressing this threat. Since 2010, the interagency Brown Treesnake 
Technical Working Group has advanced landscape-scale brown treesnake 
suppression capabilities with the development and refinement of an 
aerial delivery system for toxicant baiting, comprising an automated 
bait manufacturing system and an automated dispensing module for 
applying baits from aircraft. Aerial toxicant baiting has recently been 
evaluated in both fenced and non-fenced 55 ha (136 ac) sites; brown 
treesnake suppression, but not eradication, has been validated using 
this technique (Siers et al. in litt. 2020, p. 4). Further, simulated 
aerial baiting for brown treesnake eradication within a 5 ha (12 ac) 
brown treesnake exclusion area indicates that some brown treesnake size 
classes do not consume baits and additional control tools are needed to 
achieve suppression objectives and/or eradication (Siers et al. in 
litt. 2020, p. 4).

[[Page 53433]]

    Island-wide eradication of invasive vertebrates has been achieved 
on 965 islands for various taxonomic groups (see Keitt et al. 2011, 
https://diise.islandconservation.org/); however, snake eradication 
efforts are rare, and there is only one other documented ongoing effort 
to eradicate snakes from an island (https://diise.islandconservation.org/). Additional technological and 
methodological advancements along with community engagement are still 
needed to achieve landscape-scale eradication of brown treesnakes on 
Guam. The aerial delivery system tools are operational, but full 
operational implementation of the aerial suppression program will 
require further understanding of site-specific effects of the 
technology and development of efficient monitoring protocols. 
Therefore, while technological advances to control brown treesnakes 
show promise as a tool, they currently do not control snakes to a level 
sufficient to allow the return of sihek to Guam in the foreseeable 
future (i.e., before significant declines in the ex situ population of 
sihek are likely to occur). Thus, interim conservation measures for 
sihek are necessary to reduce its extinction risk while brown treesnake 
suppression and eradication methods are perfected and implemented.

Captive Breeding Efforts

    In 1983, the Association of Zoos & Aquariums (AZA) initiated the 
Guam Bird Rescue Project in response to the widespread decline of 
Guam's native birds. The sihek was one of the Guam birds selected under 
this program for captive (ex situ) conservation efforts (Hutchins et 
al. in litt. 1996, p. 4). Between 1984 and 1986, 29 sihek were 
translocated from Guam to several zoos in the mainland United States. 
The program was established with the intent of being a short-term 
rescue but ultimately led to a breeding program due to the continued 
presence of brown treesnakes on Guam, which have prevented the 
reestablishment of sihek within their native range. By 1990, the ex 
situ population increased to 61 sihek in 12 mainland zoos. Currently, 
an estimated 152 sihek are held at 24 AZA institutions and in a 
facility at the Guam Department of Agriculture's Division of Aquatic 
and Wildlife Resources (DAWR) (Newland, S., in litt. 2021a).
    A Species Survival Plan Program for sihek, developed by the AZA, 
has been in place since 1986. In general, Species Survival Plan 
Programs are established to oversee the population management of 
species within AZA-accredited facilities. The plans typically include a 
population studbook and an annual breeding and transfer plan to ensure 
the genetic and demographic health of the population. The donor 
population is carefully managed through the Species Survival Plan 
Program to ensure the population's long-term viability.
    Sihek are relatively difficult to manage in zoos because of their 
aggressive territorial behavior and moderately expensive diet. In 
addition, little forward progress toward a recovery program in the wild 
has led to few new institutions willing to hold or breed the species, 
which ultimately limits population growth. The small founding 
population, as well as the limited ability to increase the population 
beyond its current size, has serious implications for long-term 
survival of sihek.
    Two separate population viability analyses (PVAs) demonstrated 
rapid declines in the population under current conditions (Johnson et 
al. in litt. 2015, p. 8; Trask et al. 2021, p. 6). Without changes to 
management practices that increase reproduction (i.e., reproductive 
output stays the same), the sihek population is predicted to decline to 
below 100 individuals by the year 2040 (Johnson et al. 2015, p. 8); and 
with a slight decrease in reproductive output of just 7 percent, the 
population is projected to decrease to 25 individuals by 2040 (Johnson 
et al. 2015, p. 9). The PVA developed by Trask et al. (2021, entire) 
incorporated an inbreeding coefficient into their models and 
demonstrated, among other things, a rapid decline in the population 
without an increase in reproductive output such that in 50 years the 
mean population size is projected to decline to approximately 30 
individuals. The ex situ population of sihek is therefore sensitive to 
even slight reductions in reproductive output and is at a heightened 
risk of extinction due to small population dynamics in their existing 
limited breeding and holding space. However, a small increase in 
average annual reproductive output (from 2.54 hatchlings per female per 
year to 2.70 hatchlings per female per year) could support long-term 
(50-year) sihek population viability as well as a release program 
(Trask et al. 2021, p. 6).
    Breeding facilities for sihek are currently at capacity. Without 
the ability to release sihek, the species' population growth is 
constrained. The sihek's current small population size puts the species 
at risk from stochastic environmental events (e.g., disease outbreaks 
in the ex situ population or changes in the ability of facilities to 
house and breed sihek) and demographic threats (e.g., sex-ratio biases, 
as well as from genetic threats from increasing rates of loss of 
genetic diversity and accumulation of inbreeding). Further, maintaining 
the species entirely under captive environmental conditions puts the 
species at risk from genetic adaptations to captivity (Frankham 2008, 
entire). This situation could result in individuals having reduced 
fitness under wild conditions and could negatively impact the success 
of efforts to ultimately recover the species on Guam.

Reintroduction

    No efforts have been made to reintroduce the sihek to its native 
range on Guam due to the continued presence of brown treesnakes, the 
primary threat that caused its extinction in the wild. Further, until 
recently, the ex situ population of sihek was not large enough to 
sustain a release program. Analyses by Trask et al. 2021 (p. 7) have 
shown that, with captive management aimed at increasing reproductive 
output, the ex situ population can support the releases proposed for an 
experimental population on Palmyra Atoll.

Location and Boundaries of the Proposed NEP Area

    The proposed NEP area for sihek occurs outside the species' 
historical range and encompasses the 250 ha (618 ac) of emergent land 
distributed among the 25 islands that make up Palmyra Atoll (Collen et 
al. 2009, p. 712), and inclusive of the lagoons surrounding those 
islands. The islands vary in size from approximately 0.1 to 97.9 ha 
(0.24 to 242 ac). Palmyra Atoll is located in the Northern Line 
Islands, approximately 1,000 miles (1,609 km) south of Honolulu, 
Hawaii, and 3,647 miles (5,869 km) east of Guam (5[deg]53' N latitude, 
162[deg]05' W longitude). Palmyra Atoll is considered a wet atoll with 
high humidity, typically greater than 90 percent, and temperatures 
between 75 and 81 [deg]F (24-27 [deg]C) and rainfall averages 175 
inches (in) (444.5 centimeters (cm)) per year (Hathaway et al. 2011, p. 
6), without a specific rainy season. Temperatures on Guam are slightly 
higher, ranging 75-90 [deg]F (24-32 [deg]C), with rainfall averaging 98 
in (249 cm), with the greatest rainfall occurring between July and 
November (https://www.weather-us.com/en/guam-usa-climate).
    The closest landmass is more than 232 km (144 mi) from Palmyra. 
Given this and the fact that sihek are an island endemic not known to 
undertake long-distance flights over open ocean, it is extremely 
unlikely that sihek would

[[Page 53434]]

move outside of the NEP area and survive. Also, no other kingfisher 
species occur on Palmyra Atoll, thus all kingfishers on the atoll will 
be members of the NEP.

Land Ownership

    Palmyra Atoll is currently owned and managed by the Service, The 
Nature Conservancy, and the Cooper family. The majority of the islands 
(158 ha (390 ac)), waters, and the coral reefs surrounding Palmyra 
Atoll, up to 12 nautical miles to sea, are owned by the United States 
and managed by the Service as a National Wildlife Refuge. Palmyra Atoll 
National Wildlife Refuge was established in 2001 to protect, restore, 
and enhance migratory birds, coral reefs, and threatened and endangered 
species in their natural setting. The Nature Conservancy owns two 
islands, Cooper and Menge (91.5 ha (226 ac)) and cooperatively manages 
the atoll with the Service. Home Island (0.71 ha (1.8 ac)) is under 
private fractional ownership by the Cooper family, and the Service 
provides stewardship for this island, providing it the same protections 
as Refuge property (Kropidlowski, in litt. 2021). Palmyra Atoll is also 
part of the Pacific Remote Islands Marine National Monument, which was 
established in 2009 and is co-managed by the Service and the National 
Ocean and Atmospheric Administration.

Likelihood of Population Establishment and Survival

    In late 2020, we established a recovery team for sihek whose 
purpose is to assist the Service in developing and implementing a 
conservation strategy for reestablishing sihek in the wild. Members of 
this team developed a phased approach whereby learning sites (sites 
used to test conservation translocation procedures as well as 
demographic and behavioral responses of target species) help achieve 
the overarching objectives of reducing global sihek extinction risk, 
while also refining techniques to establish viable wild populations on 
Guam. Based on habitat suitability, food resource availability, and 
willing partners, we have identified Palmyra Atoll as a proposed 
learning site.
    The best available scientific data indicate that the introduction 
of sihek into suitable habitat is biologically feasible and would 
promote the conservation of the species. Coarse-scale modeling 
indicated Palmyra could support up to 15 breeding pairs (Laws and 
Kesler in litt. 2011, p. 65). We evaluated the ecological suitability 
of Palmyra Atoll and concluded sufficient habitat conditions and food 
resources are available to support the small number of sihek needed for 
a temporary training site (USFWS unpub.). Further, we developed a 
proposed release and monitoring program that includes interventions 
such as supplemental feeding if needed to increase the chances of 
survival. To minimize risk associated with the introduction, we are 
assessing potential environmental impacts in the proposed NEP area in a 
draft environmental assessment (See National Environmental Policy Act 
section, below) and will monitor for these potential impacts as part of 
the release program.

Potential Effects of Activities on Palmyra Atoll on Introduced Sihek

    The effects of Federal, State, or private actions and activities on 
Palmyra Atoll that are ongoing and expected to continue are not likely 
to adversely affect the sihek within the proposed NEP area. Public 
access to Palmyra Atoll is extremely limited and available in only the 
following ways: (1) working for, contracting with, or volunteering for 
the Service or The Nature Conservancy; (2) conducting scientific 
research via Service special use permits; (3) invitation through the 
Service or The Nature Conservancy; or (4) by private recreational 
sailboat or motorboat. With prior approval by the Service, privately 
owned vessels are permitted to access the Palmyra Atoll National 
Wildlife Refuge. A maximum of two vessels are allowed at one time. 
Access to Cooper Island must be arranged and secured through The Nature 
Conservancy. Activities currently occurring in the proposed NEP area, 
and those likely to occur, are not likely to impede the introduction 
effort. Current activities on Palmyra Atoll include an ongoing 
rainforest restoration project, operation of a research station, and 
limited recreation. The rainforest restoration project includes control 
of nonnative coconut trees, and opportunistic planting and seeding of 
native tree species. The Nature Conservancy manages a research station, 
and visiting scientists are required to obtain a permit from the 
Service to ensure compatibility with the mission of the Refuge. The 
Nature Conservancy also provides guided recreational activities 
(fishing, kayaking) to a small number of visitors to the Atoll. No 
significant development is planned on the Atoll for the foreseeable 
future.

Importance of the NEP to Recovery Efforts

    We are proposing to introduce a nonessential experimental 
population of sihek on Palmyra Atoll to promote the conservation and 
recovery of the species. The International Union for the Conservation 
of Nature's Guidelines for Reintroduction and Other Conservation 
Translocations (2013, p. 4) identifies several criteria to consider 
prior to undertaking a reintroduction, including ``strong evidence that 
the threat(s) that caused any previous extinction have been correctly 
identified and removed or sufficiently reduced.'' Although the basic 
habitat components required by the sihek on Guam are still present, 
they have been made unavailable to the sihek in the foreseeable future 
due to the ongoing and pervasive threat of brown treesnakes (see 
Recovery Efforts to Date). Innovations in brown treesnake management 
show promise for controlling their populations at a landscape level but 
not within the time needed to prevent further deleterious impacts to 
the ex situ sihek population. Also the current captive-only sihek 
population is at high risk of extinction, and a moderate decline in 
reproductive output is likely to have long-term negative consequences 
on the survival probability for this species (see Captive Breeding 
Efforts and Reintroduction). The number of breeding institutions 
participating in sihek management is limited and declining (Newland in 
litt. 2021b), further increasing the risk of reduced breeding effort 
and its associated population decline. Advancements in brown treesnake 
control show promise for reintroducing sihek to its native range on 
Guam in the future, but current control methods are not likely to be 
able to eradicate this threat prior to substantial forecasted declines 
in the sihek population.
    We propose to release sihek onto Palmyra Atoll, which is outside 
its historical range, for the following purposes: (1) invigorate the ex 
situ conservation program to increase reproductive output by increasing 
breeding space at existing facilities and/or recruiting additional 
facilities to join the ex situ conservation program; and (2) develop 
and refine release and monitoring methods to be applied when 
reestablishing a population on Guam to recover the species. Release of 
sihek on Palmyra Atoll will improve the likelihood of successful 
reintroduction and recovery on Guam by: (1) providing the opportunity 
to develop and test release and monitoring techniques, (2) providing 
information on the sihek's ability to survive in the wild,

[[Page 53435]]

(3) assessing how much human intervention is required to support a wild 
population, (4) increasing the global population of sihek as an 
extension of the ex situ population as well as invigorating the 
breeding program, and (5) potentially serving as a source of wild-
hatched birds for future releases on Guam or other sites.

Is the proposed experimental population essential or nonessential?

    When we establish experimental populations under section 10(j) of 
the Act, we must determine whether that population is essential or 
nonessential to the continued existence of the species. This 
determination is based solely on the best scientific and commercial 
data available. Our regulations (50 CFR 17.80(b)) state that an 
experimental population is considered essential if its loss would be 
likely to appreciably reduce the likelihood of survival of that species 
in the wild. We are proposing to designate the population of sihek on 
Palmyra Atoll as nonessential for the following reasons:
    (1) No populations of sihek occur in the wild currently;
    (2) the proposed experimental population area is too small to 
support a self-sustaining wild population of sihek (Laws and Kesler 
2011, p. 63) and is intended only as a temporary training site (i.e., 
approximately 10 or more years) for us to improve release techniques, 
monitoring, and adaptive management for population establishment on 
Guam, when its habitat is available; and
    (3) loss of the experimental population would not preclude other 
recovery options, including future efforts to establish sihek 
populations elsewhere.
    In addition, we evaluated the potential impacts of the 
establishment of the experimental population on the ex situ population. 
Establishment of the proposed experimental population will not affect 
the potential to establish a future, self-sustaining, wild population 
of sihek on Guam for the following reasons:
    (1) The majority of the sihek population will remain in an ex situ 
population distributed among 25 facilities, where they are carefully 
managed according to the Species Survival Plan Program (Newland in 
litt. 2021a); and
    (2) only a small number of individuals will be removed from the ex 
situ population for release on Palmyra Atoll, and these removals are 
expected to have minimal impact on the survival of the ex situ 
population (see Donor Stock Assessment and Effects on Donor Population, 
below).
    As mentioned above in Importance of the NEP to Recovery Efforts, 
the proposed introduction on Palmyra Atoll will further the 
conservation of sihek both in terms of improving the status of the ex 
situ population and in increasing the likelihood of success in 
establishing wild populations. In the near term, we anticipate that the 
introduction of sihek to Palmyra Atoll will invigorate the ex situ 
breeding program and result in more breeding space at existing 
facilities, more institutions joining the program, or both, ultimately 
resulting in a larger population if additional institutions join. Space 
is a limiting factor for this extinct-in-the-wild species and 
demonstrating our intent to recover it in the wild will likely increase 
interest in the species (Newland in litt. 2022). In the longer term, 
the information gathered from observing the species under wild 
conditions, development of suitable release and monitoring methods, and 
assessment of how much human intervention might be needed to support a 
wild population will improve future release efforts. Lastly, wild-
hatched sihek could be a complementary source, alongside captive-bred 
birds, for translocation to Guam or other sites.

Release Procedures

    Late-stage nestlings or recent fledglings will be flown to Palmyra 
Atoll where they will be held in release aviaries for up to one month. 
Three sets of three flight aviaries will be established across Palmyra 
Atoll at, or close to, locations where habitat appears most suitable. 
During this time, they will undergo acclimation and training to respond 
to supplementary feeding signals. Prior to release, all sihek will be 
fitted with a radio transmitter consistent with the Bird Banding 
Laboratory of North America's guidelines that transmitters be no more 
than 3 percent of a bird's body weight (Gustafson et al. 1997).
    Releases from aviaries will be via opening of a panel in the aviary 
wall to allow individuals to come and go freely. We will monitor each 
sihek daily, immediately after release and throughout their first year 
of release. After the first year, we may reduce the intensity of 
monitoring if no problems are observed. Sihek monitoring will cover a 
range of components, including general behavior (maintenance, foraging, 
locomotion, conspecific interactions); health (weights collected 
remotely at feeding stations, fecal samples, semiannual capture and 
assessment); and breeding (pairing, territoriality, nest excavation, 
nest building, egg laying and clutch size, hatch date, nestling 
survival, and fledge success). Additional details of the release 
procedures are provided in the Sihek Management Plan (see Andrews et 
al. in litt. 2022).

Donor Stock Assessment and Effects on Donor Population

    The donor population for the proposed introduction of sihek to 
Palmyra Atoll is the ex situ population of sihek. This population is 
distributed among 25 breeding facilities in the U.S. mainland and on 
Guam (24 AZA institutions and 1 Guam Department of Agriculture (DAWR) 
facility), with the population being managed through the Sihek Species 
Survival Plan Program (see Captive Breeding Efforts). The most recent 
population count documented 152 birds (Newland in litt. 2021a). The 
population size remains below the target of 200 individuals identified 
in the 2020 Species Survival Plan Program (Newland et al. 2020, p. 2) 
in large part due to limited holding capacity across the breeding 
facilities. Recent funding for the construction of another facility at 
Brookfield Zoo, as well as for the transfer and maintenance of sihek to 
the facility, has expanded capacity to allow for growth of the 
population. The current Species Survival Plan Program coordinator is 
actively seeking additional AZA institutions to participate in the 
sihek breeding effort, and this solicitation will likely be aided by 
releases to Palmyra Atoll and the recent progress in recovery planning 
for the species.
    Population models indicate that an increase in breeding (i.e., 
production of hatchlings) is required to ensure the sustainable removal 
of individuals from the ex situ population for release to Palmyra 
(Johnson et al. 2015, p. 13, and Trask et al. 2021, p. 6). In the past, 
we have observed measurable population increases with focused 
management to increase productivity in the ex situ population. Between 
2004 and 2013, the sihek population increased from 61 birds to a peak 
of 157 birds as a result of increased reproductive output using 
multiple clutching (when a breeding pair is induced to produce more 
than one clutch of eggs per year by removing and artificially 
incubating the first clutch of eggs) (Newland et al. in litt 2020, pp. 
4-5). The best available information indicates that increasing ex situ 
reproductive output to rates seen between 2004 and 2013 is likely to 
support a release program on Palmyra without negatively impacting the 
long-term viability of the species (Trask et al. 2021, p. 6).

[[Page 53436]]

    Only a small number of sihek will be removed from the ex situ 
population for release on Palmyra Atoll. We plan to remove up to 9 in 
the first year, and fewer than 9 in subsequent years to ultimately 
achieve a target of 10 breeding pairs. The release cohort will consist 
of hatch-year sihek that will be reared under pathogen- and vector-free 
conditions. All individuals will be health-screened prior to release. 
Release cohorts will consist of sihek that are relatively unrelated to 
each other (i.e., sihek with low mean kinship), and that have a 
relatively low individual inbreeding coefficient. In addition to 
genetic considerations for released individuals, retaining maximum 
genetic diversity within the ex situ population is a priority; 
therefore, individuals identified as genetically valuable (i.e., with a 
low mean kinship coefficient, such that they are genetically 
underrepresented in the ex situ population) will be retained in the ex 
situ population. We will assess selection of individuals in release 
cohorts for follow up translocations based on both the sex ratio and 
genetics of the introduced population on Palmyra Atoll, as well as that 
of the donor population.
    Species Survival Plan Program annual reports (see Captive Breeding 
Efforts) will continue throughout the releases, and will be reviewed to 
ensure that removal of individuals for release will not be detrimental 
to the stability of the ex situ population. If negative impacts on the 
donor population are detected, we will pause releases while donor 
population health is improved. Given the careful management of the 
donor population, the ability to artificially increase its 
productivity, and the relatively small number of sihek that will be 
released annually, negative impacts to the donor population are 
expected to be minimal.

Management

    We will collaborate with Guam DAWR, Zoological Society of London, 
AZA, Calgary Zoo, Palmyra Atoll National Wildlife Refuge, and The 
Nature Conservancy on releases, monitoring, coordination, and other 
tasks as needed to ensure successful introduction of the species to 
Palmyra Atoll. A few specific management considerations are addressed 
below.
    Incidental Take: Experimental population rules contain specific 
prohibitions and exceptions regarding the taking of individual animals 
under the Act. These rules are compatible with most routine human 
activities in the proposed NEP area (e.g., resource monitoring, 
invasive species management, and research; see Importance of the NEP to 
Recovery Efforts, above). Section 3(19) of the Act defines ``take'' as 
``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct.'' ``Incidental 
take'' is further defined as take that is incidental to, and not the 
purpose of, the carrying out of an otherwise lawful activity. If we 
adopt the 10(j) rule as proposed, incidental take of sihek within the 
experimental population area would be allowed, provided that the take 
is unintentional and not due to negligent conduct.
    Special Handling/Intentional Take: If we adopt the 10(j) rule as 
proposed, employees of the Service, Guam DAWR, The Nature Conservancy, 
Zoological Society of London, the Calgary Zoo, AZA facilities holding 
sihek, and authorized agents acting on behalf of the Service or these 
other entities, may intentionally take sihek through handling sihek for 
scientific purposes; relocating individuals or bringing individuals 
into captivity for the purposes of increasing sihek survival or 
fecundity; aiding sick or injured sihek; salvaging dead sihek; 
disposing of a dead specimen; or aiding in law enforcement 
investigations involving the sihek. Any other person would need to 
acquire a permit from the Service for these activities.
    Interagency Consultation: For purposes of section 7(a)(2) of the 
Act, section 10(j) of the Act and our regulations (50 CFR 17.83) 
provide that nonessential experimental populations are treated as 
species proposed for listing under the Act except on National Park 
Service and National Wildlife Refuge System lands, where they are 
treated as threatened species for the purposes of section 7(a)(2) of 
the Act. We intend to address our section 7(a)(2) consultation 
obligations for sihek within the Palmyra National Wildlife Refuge 
through a programmatic intra-Service consultation prior to finalizing 
this rule. Any activities outside of those analyzed in our programmatic 
consultation that may affect sihek within the NEP area would be 
addressed through future individual intra-Service section 7 
consultations.
    Public Awareness and Cooperation: On November 18, 2021, in 
cooperation with Guam DAWR, we engaged the Governor of Guam and 
constituents to inform them of the proposed introduction of sihek to 
Palmyra Atoll. We have coordinated closely with the co-manager of 
Palmyra Atoll (The Nature Conservancy) throughout the planning process, 
and we expect our coordination with them will continue through the 
duration of the project. Public comments received on this proposed rule 
and our forthcoming draft environmental assessment will be considered 
in our final determinations.

Monitoring and Evaluation

    We will monitor the health, habitat use, behavior, foraging 
activity, movement, breeding, and survival of all sihek released and 
hatched at Palmyra Atoll. We will attempt to weigh sihek daily at 
supplementary feeding platforms with inbuilt scales. Passive collection 
of fecal material from these supplementary feeding platform visits will 
be screened for gastrointestinal parasite loads and examination of 
diet. We will attempt to capture individuals twice each year for a more 
thorough physical examination (weight, condition, ectoparasite load, 
feather fault bar analysis). During these captures, we will take a 
blood sample, which will be stored in ethanol for later diagnostics of 
blood parasites, and a blood smear made for visual examination of blood 
parasites and white blood cell count analysis. Further, we will collect 
a fecal sample opportunistically and a cloacal swab for later bacterial 
culture.
    Once each sihek is released, we will track it and attempt to log 
its location at least once daily to document post-release movement 
patterns and territory establishment. Individuals will be located via 
radio transmitter tracking or visual searches. During observations, we 
will record behaviors including maintenance, perching, ingestion, 
excretion, locomotion, vocalizations, and interactions. We will record 
food items whenever feeding is observed in free-flying sihek.
    We will attempt to closely monitor all breeding attempts to 
determine timing of pairing, nest building, egg laying and clutch size, 
hatch date, nestling survival, and fledge success. Unhatched eggs will 
be collected for analysis of fertility and embryo development. 
Recovered dead nestlings will be necropsied in the field and samples 
taken for later laboratory analysis for cause of death. Where possible, 
surviving nestlings will be weighed every third day throughout 
development until banding age. During banding, we will collect a range 
of samples as specified above for adult health sampling.
    We will create a resighting history for each sihek released or 
hatched into the population. We intend to monitor sihek and their prey 
species with the full-time presence of staff on Palmyra, at least until 
intensive monitoring shows: (1) sihek are foraging independently and

[[Page 53437]]

exhibiting behaviors typical of Todiramphus species; and (2) sihek are 
not having unacceptable impacts on prey species populations 
(unacceptable impacts are described further in the sections below). If 
the two situations described above occur, then we may reduce staffing 
to less than full time and monitor sihek and the environment less 
intensively.

Ecosystem Impacts

    As Palmyra Atoll is outside the native range of the sihek, 
introduction of sihek to Palmyra Atoll could have potential impacts on 
native species. The International Union for the Conservation of Nature, 
Species Specialist Commission, Invasive Species Specialist Group 
recognizes a number of different mechanisms of impact that introduced 
species (which others have sometimes called alien species) can have on 
native ecosystems (Pagad et al. 2015 pp. 130-132). These include 
impacts through predation, competition, hybridization, or transmission 
of disease-causing pathogens to native species (Blackburn et al. 2014, 
pp. 4-7).
    To assess the potential impacts that sihek may have on Palmyra 
Atoll and the mechanisms through which these impacts may occur, 
researchers on the recovery team conducted an environmental impact 
assessment, based on the Environmental Impact Classification for Alien 
Taxa (EICAT) (Blackburn et al. 2014, entire) and the Generic Impact 
Scoring System (Nentwig et al. 2010, entire). This process involved 
consulting with a range of relevant experts (n=19), who were asked to 
provide their judgment on the level of impact sihek may have through 
each potential impact mechanism. Impact levels were described in a 
range from the lowest level of ``minimal,'' where effects are 
negligible, to the highest level of ``massive,'' where impacts result 
in local extinction(s) and community-level changes are irreversible. We 
are evaluating the relative risk of competition, hybridization, 
predation impacts, and disease transmission, and the results will be 
summarized in our draft environmental assessment for this project.
    In the EICAT assessment, experts considered predation to be the 
most likely impact of sihek introduction to Palmyra (although the 
magnitude of this factor was judged to be moderate at most). No listed 
species occur on Palmyra Atoll, and the EICAT assessment experts' 
scoring generally assessed the introduction of a novel avian predator. 
Therefore, we will focus post-release environmental monitoring on 
potential sihek prey species that are native to Palmyra Atoll. We will 
obtain sihek diet information through behavioral observation and fecal 
samples, as described above (Release Procedures and Monitoring and 
Evaluation). This information will highlight major components of sihek 
post-release diet and help guide more focused monitoring.
    At a minimum, we will coordinate with The Nature Conservancy and 
Palmyra National Wildlife Refuge to carry out annual monitoring on a 
range of suitable prey items, as described above. We will use the most 
appropriate survey methods for different taxa. In the event that 
dietary and behavioral observations of released sihek suggest a 
particular prevalence and abundance of specific prey items that are of 
conservation concern, we will establish more frequent monitoring 
surveys. We will analyze post-release monitoring data to obtain 
estimates of abundance and density for reference taxa. These estimates 
will then be compared with pre-release monitoring data, collected in 
the weeks prior to release, with estimates from paired locations across 
the island in a before-after, control-impact experimental design. In 
the event we find estimated impacts to be unacceptably high, such as 
preferential prey selection for one species such that it has 
population-level effects, we will activate an appropriate response (see 
Exit Strategy, below). Annual reports that summarize monitoring and 
management activities will be developed by the Zoological Society of 
London in collaboration with the Service, The Nature Conservancy, and 
the Sihek Recovery Team.

Exit Strategy

    Depending on the circumstances, the Service may either terminate 
the release program, or temporarily pause the release program to 
address identified issues before resuming. These scenarios and the 
Service's expected response are detailed below.
    The Service will terminate the release program on Palmyra Atoll if:
    (1) Monitoring indicates the benefits from the Palmyra population 
(including learning and refining release and support strategies for 
eventual releases on Guam) no longer outweigh the risks to the species 
or the welfare of the NEP or ex situ population; or
    (2) monitoring shows unacceptable impacts on the ecosystem that can 
be clearly causally linked to the introduction of sihek.
    In addition to these ``must terminate'' scenarios, the Service may 
also terminate the release program:
    (3) When the purposes of the program have been realized (e.g., we 
have developed successful release and monitoring methodologies to apply 
to future release efforts or we have demonstrated sihek can survive and 
reproduce in the wild without human intervention, see Importance of the 
NEP to Recovery Efforts), although we do not anticipate this scenario 
until 10 or more years after the first release.
    The Service may also temporarily suspend the program to address 
issues that arise before program termination. The monitoring team will 
summarize information they collect on a regular basis and will share it 
with the recovery team and the managers of Palmyra Atoll (the Service 
and The Nature Conservancy). If results indicate the program is 
approaching scenario (1) or (2) above, then the Service, in 
consultation with the recovery team and The Nature Conservancy, will 
determine if terminating the program is the best way to avoid these 
outcomes, or whether the program should be paused and adaptive steps 
taken to address them before resuming the program.
    Regular monitoring and reporting will also inform progress toward 
achieving program goals and scenario (3) above: The Service will 
determine--in consultation with the recovery team and The Nature 
Conservancy--when the purpose of the NEP has been achieved such that 
the program can come to an end. When the Service terminates the 
program, the Service will also address what will happen with any 
remaining individuals in the NEP, i.e., whether they will be relocated 
to captivity, relocated to other suitable habitat, or remain on 
Palmyra, based on the circumstances at the time of termination.

Findings

    Based on the best scientific and commercial data available (in 
accordance with 50 CFR 17.81), we find that releasing sihek onto 
Palmyra Atoll with the regulatory provisions in this proposed 
rulemaking will further the conservation of the species. We find that 
the continued presence of the brown treesnake on Guam means that the 
sihek's native habitat has been unsuitably and irreversibly altered or 
destroyed for the foreseeable future such that the proposed 
introduction of the sihek to Palmyra Atoll outside of its probable 
historical range is warranted and consistent with our regulations at 50 
CFR 17.81. The nonessential experimental population status is 
appropriate for the introduced population; the potential loss of the 
experimental population would not

[[Page 53438]]

appreciably reduce the likelihood of the survival of the species in the 
wild because there are currently no sihek remaining in the wild.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this proposed 
rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed rule in a manner 
consistent with these requirements.

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. 
601 et seq.), whenever a Federal agency is required to publish a notice 
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. 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. We certify that, if finalized, this proposed rule would not 
have a significant economic effect on a substantial number of small 
entities. The following discussion explains our rationale.
    The areas that would be affected under this proposed rule are 
restricted to Palmyra Atoll. Because of the regulatory flexibility for 
Federal agency actions provided by the NEP designation and the 
exemption for incidental take in the rule, we do not expect this 
proposed rule to have significant effects on any activities within 
Federal, State, or private lands within the NEP area. In regard to 
section 7(a)(2) of the Act, the population would be treated as proposed 
for listing, and, therefore, Federal action agencies would not be 
required to consult on their activities, except on National Wildlife 
Refuge System lands, where the NEP would be treated as a threatened 
species for the purposes of section 7 of the Act.
    Section 7(a)(4) of the Act requires Federal agencies to confer 
(rather than consult) with the Service on actions that are likely to 
jeopardize the continued existence of a species proposed for listing. 
However, because the NEP is, by definition, not essential to the 
survival of the species, and there are no sihek in the wild outside of 
the NEP area that could be impacted, conferring will likely never be 
required for the sihek population within the NEP area. Furthermore, the 
results of a conference are advisory in nature and do not restrict 
agencies from carrying out, funding, or authorizing activities. Section 
7(a)(1) of the Act requires Federal agencies to use their authorities 
to carry out programs to further the conservation of listed species, 
which would apply on any lands within the NEP area. On National 
Wildlife Refuge System lands within the NEP area, the sihek would be 
treated as a threatened species for the purposes of section 7 of the 
Act. As a result, and in accordance with our regulations, some 
modifications to proposed Federal actions within National Wildlife 
Refuge System lands may occur to benefit the sihek, but we do not 
expect projects to be substantially modified because these lands are 
already administered in a manner that is compatible with sihek 
conservation.
    This proposed rule if finalized would broadly authorize incidental 
take of the sihek within the NEP area. The regulations implementing the 
Act define ``incidental take'' as take that is incidental to, and not 
the purpose of, the carrying out of an otherwise lawful activity, such 
as habitat management, infrastructure maintenance, and other activities 
in the NEP area that are in accordance with Federal, Tribal, State, and 
local laws and regulations. Intentional take for authorized data 
collection or recovery purposes by authorized personnel are also 
allowed under the NEP designation. Other forms of intentional take 
would require a section 10(a)(1)(A) recovery permit under the Act.
    The only private landowners on Palmyra Atoll are The Nature 
Conservancy and the Cooper family. The principal activities on private 
property near the proposed release site are associated with scientific 
field station operations, including the operation of a landing strip 
for aircraft, and some limited recreation. The presence of the sihek is 
not likely to significantly affect the use of lands for these purposes 
because there will be no new or additional economic or regulatory 
restrictions imposed upon private landowners due to the presence of the 
sihek. Therefore, this proposed rulemaking is not expected to have any 
significant adverse impacts to activities on private lands within the 
NEP area.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (1) This rule would not ``significantly or uniquely'' affect small 
governments. We have determined and certify pursuant to the Unfunded 
Mandates Reform Act, that, if adopted, this rulemaking would not impose 
a cost of $100 million or more in any given year on local or State 
governments or private entities. A small government agency plan is not 
required. Small governments would not be affected because the proposed 
NEP designation would not place additional requirements on any city, 
county, or other local municipalities.
    (2) This rule would not produce a Federal mandate of $100 million 
or greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This proposed NEP 
designation for the sihek would not impose any additional management or 
protection requirements on the States or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. When introduced populations 
of federally listed species are designated as nonessential experimental 
populations, the Act's regulatory requirements regarding the introduced 
population are significantly reduced. This proposed rule would allow 
for the taking of sihek when such take is incidental to an otherwise 
legal activity.

[[Page 53439]]

    A takings implication assessment is not required because this 
proposed rule: (1) Would not effectively compel a property owner to 
suffer a physical invasion of property and (2) would not deny all 
economically beneficial or productive use of the land or aquatic 
resources. This proposed rule would substantially advance a legitimate 
government interest (conservation and recovery of a listed species) and 
would not present a barrier to all reasonable and expected beneficial 
use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule has significant federalism effects and have 
determined that a federalism assessment is not required. This proposed 
rule would not have substantial direct effects on the States, on the 
relationship between the Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposed 
rule with the affected resource agencies in Guam. Achieving the 
recovery goals for this species will contribute to its eventual 
delisting. No intrusion on Territory policy or administration is 
expected, roles or responsibilities of Federal or Territory governments 
would not change, and fiscal capacity would not be substantially 
directly affected. The proposed rule operates to maintain the existing 
relationship between the Territory and the Federal Government and is 
being undertaken in coordination with the Territory of Guam. We have 
cooperated with the Guam Department of Agriculture in the preparation 
of this proposed rule. Therefore, this proposed rule does not have 
significant federalism effects or implications to warrant the 
preparation of a federalism assessment pursuant to the provisions of 
Executive Order 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988 (February 7, 1996, 61 FR 
4729), the Office of the Solicitor has determined that this proposed 
rule would not unduly burden the judicial system and would meet the 
requirements of sections (3)(a) and (3)(b)(2) of the Order.

Paperwork Reduction Act

    This proposed rule does not contain any new collection of 
information that requires approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). OMB has previously approved the information collection 
requirements associated with permitting and reporting requirements 
associated with native endangered and threatened species, and 
experimental populations, and assigned the following OMB Control 
Numbers:
     1018-0094, ``Federal Fish and Wildlife Permit Applications 
and Reports--Native Endangered and Threatened Species; 50 CFR parts 10, 
13, and 17'' (expires 01/31/2024), and
     1018-0095, ``Endangered and Threatened Wildlife, 
Experimental Populations, 50 CFR 17.84'' (expires 9/30/2023).
    An 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.

National Environmental Policy Act

    In compliance with all provisions of the National Environmental 
Policy Act of 1969 (NEPA), we are in the process of analyzing the 
impact of this proposed rule. Based on this analysis and any new 
information resulting from public comment on the proposed action and 
our impact analysis, we will determine if there are any significant 
impacts or effects that would be caused by this rule. In cooperation 
with The Nature Conservancy, we are preparing a draft environmental 
assessment, which will be made available for public inspection and 
comment when it is complete. All appropriate NEPA documents will be 
finalized before this rule is finalized.

Energy Supply, Distribution, or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare statements of 
energy effects when undertaking certain actions. This rule 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.

Clarity of This Regulation (E.O. 12866)

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSESS. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Pacific Islands Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT) or online at https://www.regulations.gov in Docket No. FWS-R1-ES-2022-0061.

Author

    The primary author of this proposed rule is Megan Laut of the 
Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

List of Subjects in 50 CFR 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. Amend Sec.  17.11 in paragraph (h) in the List of Endangered and 
Threatened Wildlife under BIRDS by removing the entry for ``Kingfisher, 
Guam Micronesian (Halcyon cinnamomina cinnamomina)'' and adding in its 
place two entries for ``Kingfisher, Guam (Todiramphus cinnamominus)'' 
to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 53440]]



----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
           Common name                Scientific name        Where listed         Status        and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                                      Birds
 
                                                  * * * * * * *
Kingfisher, Guam (sihek).........  Todiramphus           U.S.A. only, except   E             49 FR 33881, 8/27/
                                    cinnamominus.         where listed as an                  1984; 50 CFR
                                                          experimental                        17.95(b) \CH\.
                                                          population.
Kingfisher, Guam (sihek).........  Todiramphus           U.S.A. (Palmyra       XN            [Federal Register
                                    cinnamominus.         Atoll).                             citation of the
                                                                                              final rule]; 50
                                                                                              CFR 17.84(a)\10j\.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.84 by adding a new paragraph (a) to read as follows:


Sec.  17.84  Special rules--vertebrates.

    (a) Guam kingfisher, sihek (Todiramphus cinnamominus).
    (1) Where is the occurrence of sihek designated as a nonessential 
experimental population (NEP)? The nonessential experimental population 
(NEP) area for the sihek is Palmyra Atoll. Palmyra Atoll is located in 
the Northern Line Islands, approximately 1,000 miles (1,609 km) south 
of Honolulu, Hawaii (5[deg]53' N latitude, 162[deg]05' W longitude). 
The extent of the NEP area for sihek is the 250 ha (618 ac) of emergent 
land distributed among 25 islands, inclusive of the lagoons surrounding 
those islands.
    (2) What take of sihek is allowed in the NEP area? (i) Throughout 
the sihek NEP area, you will not be in violation of the Act if you take 
a sihek, provided such take is nonnegligent and incidental to a lawful 
activity, such as habitat management, invasive species management, or 
scientific research and monitoring, and you report the take as soon as 
possible as provided under paragraph (a)(2)(iii) of this section.
    (ii) Any person with a valid permit issued by the Service under 
Sec.  17.32 may take sihek in the NEP area, pursuant to the terms of 
the permit. Additionally, any employee or authorized agent of the 
Service, Guam Division of Aquatic and Wildlife Resources, The Nature 
Conservancy, Zoological Society of London, Association of Zoos and 
Aquariums, and Calgary Zoo who is designated and trained to capture, 
handle, band, attach transmitters, and collect biological samples, when 
acting in the course of official duties, may take a sihek within the 
NEP area if such action is necessary to:
    (A) Handle birds for scientific purposes such as banding, 
measuring, and sample collection;
    (B) Relocate individuals or bring individuals into captivity for 
the purposes of increasing sihek survival or fecundity;
    (C) Aid a sick, injured, or orphaned sihek;
    (D) Salvage a dead specimen that may be useful for scientific 
study;
    (E) Dispose of a dead specimen;
    (F) Aid in law enforcement investigations involving the sihek; or
    (G) Take sihek into captivity in accordance with the exit strategy 
of the program (see paragraph (i)(5) of this section).
    (iii) Any take pursuant to paragraphs (a)(2)(i) or (a)(2)(ii)(C) 
through (E) of this section must be reported as soon as possible to the 
Permits Coordinator, Pacific Islands Fish and Wildlife Office, 300 Ala 
Moana Boulevard, Room 3-122, Honolulu, Hawaii 96850 (808/792-9400), who 
will determine the disposition of any live or dead specimens.
    (3) What take of sihek is not allowed in the NEP area? (i) Except 
as expressly allowed in paragraph (a)(2) of this section, all of the 
provisions of Sec.  17.31(a) and (b) apply to the sihek in areas 
identified in paragraph (a)(1) of this section, and any manner of take 
of a member of the NEP not described under paragraph (a)(2) of this 
section is prohibited.
    (ii) You must not possess, sell, deliver, carry, transport, ship, 
import, or export, by any means whatsoever, any sihek or part thereof 
from the experimental population taken in violation of the regulations 
in this paragraph (a) or in violation of applicable Territorial laws or 
regulations or the Act.
    (iii) It is unlawful for you to attempt to commit, solicit another 
to commit, or cause to be committed, any take of sihek, except as 
expressly allowed in paragraph (a)(2) of this section.
    (4) How will the effectiveness of this introduction be monitored? 
The Service will evaluate the introduction on an annual basis. This 
evaluation will include, but will not be limited to, a review and 
assessment of management issues, sihek movements, and post-release 
behavior; food resources and dependence of sihek on supplemental food; 
fecundity of the population; causes and rates of mortality; program 
costs; impacts to the ex situ population; and information gathered to 
inform releases on Guam or other sites.
    (5) When will this introduction end? Depending on the 
circumstances, the Service may either terminate the release program or 
temporarily pause the release program to address identified issues 
before resuming. When the Service terminates the program, the Service 
will address the disposition of any remaining individuals in the NEP, 
i.e., whether they will be relocated to captivity or to other suitable 
habitat or whether they would remain on Palmyra, based on the 
circumstances at the time of termination.
    (i) The Service will terminate the release program on Palmyra Atoll 
if monitoring indicates that:
    (A) The benefits from the Palmyra population (including developing 
and refining release and support strategies for eventual releases on 
Guam) no longer outweigh the risks to the species or the welfare of the 
NEP or ex situ population; or
    (B) Unacceptable impacts on the ecosystem can be clearly causally 
linked to the introduction of sihek.
    (ii) The Service may also terminate the release program when one or 
more of the objectives of the program have been achieved (e.g., we have 
developed successful release and monitoring methodologies to apply to 
future release efforts or we have demonstrated that sihek can survive 
and reproduce in the wild without human intervention).
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-18571 Filed 8-30-22; 8:45 am]
BILLING CODE 4333-15-P