80 FR 45924 - Endangered and Threatened Species: Proposed Regulations for the Designation of Experimental Populations Under the Endangered Species Act

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 80, Issue 148 (August 3, 2015)

Page Range		45924-45931
FR Document		2015-18894

We, the National Marine Fisheries Service (NMFS), propose regulations to amend the Code of Federal Regulations (CFR) to implement the Endangered Species Act (ESA) regarding experimental populations. The CFR would be amended to establish definitions and procedures for: establishing and/or designating certain populations of species otherwise listed as endangered or threatened as experimental populations; determining whether experimental populations are ``essential'' or ``nonessential;'' and promulgating appropriate protective measures for experimental populations. We seek public comment on this proposal.

Federal Register, Volume 80 Issue 148 (Monday, August 3, 2015)

[Federal Register Volume 80, Number 148 (Monday, August 3, 2015)]
[Proposed Rules]
[Pages 45924-45931]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-18894]

[[Page 45924]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 140725620-4620-01]
RIN 0648-BE43

Endangered and Threatened Species: Proposed Regulations for the
Designation of Experimental Populations Under the Endangered Species
Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.

ACTION: Proposed rule and request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose
regulations to amend the Code of Federal Regulations (CFR) to implement
the Endangered Species Act (ESA) regarding experimental populations.
The CFR would be amended to establish definitions and procedures for:
establishing and/or designating certain populations of species
otherwise listed as endangered or threatened as experimental
populations; determining whether experimental populations are
``essential'' or ``nonessential;'' and promulgating appropriate
protective measures for experimental populations. We seek public
comment on this proposal.

DATES: To allow us adequate time to consider your comments on this
proposed rule, they must be received no later than October 2, 2015.

ADDRESSES: You may submit comments on this proposed rule, identified by
NOAA-NMFS-2014-0104, by any of the following methods:
Electronic submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal.
1. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-
2014-0104.
2. Click the ``Comment Now!'' icon, complete the required fields.
3. Enter or attach your comments.

--or--
Mail: Submit written comments to Dwayne Meadows,
Endangered Species Division F/PR3, Office of Protected Resources,
National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910.
Fax: (301) 713-4060.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are part of the
public record and will generally be posted to http://www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, NMFS, 1315 East-West
Highway, Silver Spring, MD 20910, (301) 427-8403.

SUPPLEMENTARY INFORMATION:

Background

Congress amended the ESA in 1982 (Pub. L. 97-304). Among the
changes made to the law at that time was the addition of a new section,
10(j), which established procedures for designating a specific
population of a listed species as an ``experimental population.'' Prior
to the 1982 amendments we, and the U.S. Fish and Wildlife Service
(USFWS), which implements the ESA for terrestrial, freshwater, and some
other species of wildlife and plants, were authorized to translocate a
listed species into unoccupied portions of its range in order to aid in
the recovery of the species. Significant opposition to translocation
efforts often occurred, however, usually due to concerns over the rigid
protections and prohibitions applicable to these translocated
populations. ESA section 10(j) was designed to resolve these conflicts
by providing new administrative flexibility for selectively applying
the prohibitions of the ESA to experimental populations of listed
species (see, e.g., H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982)).
Section 10(j)(1) of the ESA (16 U.S.C. 1539(j)(1)) defines an
experimental population as a population that has been authorized for
release by the Secretary of Commerce (Secretary) or Secretary of
Interior, but only when, and at such times as, the population is wholly
separate geographically from nonexperimental populations of the same
species. The Secretary may authorize the release (and related
transportation) of any experimental population (including eggs,
propagules, or individuals) of a listed species outside of the species'
current range if the Secretary determines that the release would
``further the conservation of'' the listed species (16 U.S.C.
1539(j)(2)(A)). Section 10(j)(2)(B) also requires that, before
authorizing the release of an experimental population, the Secretary
``identify'' the experimental population by regulation and determine,
based on the best available information, whether the experimental
population is ``essential to the continued existence'' of the listed
species (16 U.S.C. 1539(j)(2)(B)).
Section 10(j) of the ESA further establishes that an experimental
population shall be treated as a threatened species under the ESA, with
two exceptions that apply if an experimental population is determined
to be not essential to the listed species' continued existence (i.e.,
is nonessential): (1) A nonessential experimental population (NEP)
shall be treated as a species proposed for listing for purposes of
section 7 of the ESA, except when the NEP occurs in an area within the
National Wildlife Refuge System or the National Park System; and (2)
critical habitat shall not be designated for a NEP. Treatment of an
experimental population as ``threatened'' under the ESA enables the
Secretary to issue regulations under the authority of section 4(d) of
the ESA that he or she deems necessary and advisable to provide for the
conservation of the species, which may be less restrictive than taking
prohibitions applicable to endangered species under ESA section 9. For
essential experimental populations, treatment as a threatened species
also means ESA section 7(a)(2) applies, requiring each Federal agency
to consult with us to insure that any action authorized, funded, or
carried out by the agency is not likely to jeopardize the continued
existence of the experimental population or result in the destruction
or adverse modification of the experimental population's critical
habitat. When a NEP occurs within the National Wildlife Refuge System
or National Park System, it also must be treated as a threatened
species for the purposes of ESA section 7, and section 7(a)(2)
consultations are required. Under the first exception described above,
however, the only provisions of section 7 that apply to a NEP outside
of a National Wildlife Refuge or National Park are sections 7(a)(1) and
7(a)(4). Section 7(a)(1) requires that Federal agencies use their
authorities in furtherance of the purposes of the ESA by carrying out
programs for the conservation of threatened and endangered species.
Section 7(a)(4) requires Federal agencies to confer,

[[Page 45925]]

rather than consult, with us on actions that are likely to jeopardize
the continued existence of a species proposed to be listed. The results
of a conference are advisory in nature.
The provisions of section 10(j) of the ESA, as summarized above,
introduce some terminology and concepts that are not otherwise used or
defined in the ESA or in our current implementing regulations. These
terms and concepts include: ``further the conservation of,''
``experimental population,'' identifying an experimental population,
and determining whether an experimental population is essential to the
continued existence of the species. The USFWS promulgated regulations
in 1984 (49 FR 33885, August 27, 1984) to guide their implementation of
ESA section 10(j) (50 CFR 17.80 through 17.83), including provisions
related to the terms and concepts noted above. The USFWS has designated
dozens of experimental populations using those regulations (see 50 CFR
17.84 through 17.85). Although the USFWS regulations do not govern
regulatory actions by NMFS, we have explicitly considered those
regulations recently in the only three experimental population
designations we have made: Middle Columbia River steelhead trout in the
Deschutes River Basin (78 FR 2893, January 15, 2013); Central Valley
spring-run Chinook Salmon in the San Joaquin River (78 FR 79622,
December 31, 2013); and upper Columbia River spring-run Chinook Salmon
in the Okanogan River Subbasin (79 FR 40004, July 11, 2014).
We believe that there is a need for us to have regulations laying
out NMFS's interpretation of and procedures for implementing ESA
section 10(j), beyond what Congress has specifically directed, just as
USFWS did in their section 10(j) implementing regulations. Now that we
have gained some experience in designating experimental populations, we
are in a position to develop our own implementing regulations for ESA
section 10(j) that will help provide clarity and reduce uncertainty for
the public about our future practices. In developing this proposal, we
reviewed the ESA, legislative history of the 1982 ESA amendments,
existing USFWS ESA section 10(j) regulations, public comments from the
USFWS rulemaking to develop their ESA section 10(j) regulations, and
relevant public comments from our own recent experimental population
designations, and we consulted with USFWS staff. We then convened a
group of NMFS staff with experience in ESA section 10(j) designations
to help develop this proposal. In the following sections, we discuss
our proposed regulations section by section. We compare our proposal to
the existing USFWS regulations to make clear the areas where our
regulations will differ from the USFWS regulations. We strove to
maintain consistency between our proposed regulations and the existing
USFWS regulations as much as possible to provide for consistent
implementation of ESA section 10(j) between the agencies, but we are
proposing changes we believe are necessary to implement the statutory
requirements in a manner appropriate for species under NMFS'
jurisdiction. NMFS' intent when designating an experimental population
under ESA section 10(j) is that the population will retain that
designation until the donor species is delisted, or until, for some
unforeseen reason, the experimental population fails, for example, due
to lack of donor stock or problems with implementation.

Definitions

Section 10(j) of the ESA states that an ``experimental population''
means ``any population (including any offspring arising solely there
from) authorized by the Secretary for release under [section 10(j)(2)],
but only when, and at such times as, the population is wholly separate
geographically from nonexperimental populations of the same species.''
Where members of an experimental population overlap with natural
populations of the same species, they are not deemed to be an
experimental population. In its ESA section 10(j) regulations at 50 CFR
17.80, USFWS added that a population shall be treated as experimental
only when the times of geographic separation are ``reasonably
predictable'', for example, with ``fixed migration patterns, natural or
man-made barriers.'' They further stated that ``[a] population is not
treated as experimental if total separation will occur solely as a
result of random and unpredictable events.'' USFWS full definition of
``experimental population'' is:

``The term experimental population means an introduced and/or
designated population (including any off-spring arising solely
therefrom) that has been so designated in accordance with the
procedures of this subpart but only when, and at such times as the
population is wholly separate geographically from nonexperimental
populations of the same species. Where part of an experimental
population overlaps with natural populations of the same species on
a particular occasion, but is wholly separate at other times,
specimens of the experimental population will not be recognized as
such while in the area of overlap. That is, experimental status will
only be recognized outside the areas of overlap. Thus, such a
population shall be treated as experimental only when the times of
geographic separation are reasonably predictable; e.g., fixed
migration patterns, natural or man-made barriers. A population is
not treated as experimental if total separation will occur solely as
a result of random and unpredictable events.''

We believe USFWS's interpretation is applicable for situations in
which complete temporal or physical barriers exist that ensure the
geographic isolation of an experimental population for at least part of
the year or life cycle of the individuals in the experimental
population. Thus, we propose to adopt the same definition as USFWS for
``experimental population,'' with two small changes. First, we propose
to substitute ``any'' for the word ``an'' in the first sentence of
USFWS's definition, to match the statutory language. Second, in the
second sentence of their definition, USFWS uses the word ``natural'' to
distinguish populations not designated as experimental from
experimental populations. In our experience with our species, the term
natural can be confusing when dealing with situations where some
nonexperimental animals or populations derive from hatchery,
aquaculture, or other captive breeding programs (e.g., such programs
for salmonids). Therefore, we propose to substitute the word
``nonexperimental'' for ``natural'' in the definition to improve
clarity for species under NMFS's jurisdiction.
Therefore, we propose that an ``experimental population'' means
``any introduced and/or designated population (including any off-spring
arising solely therefrom) that has been so designated in accordance
with the procedures of this subpart [of the regulations] but only when,
and at such times as, the population is wholly separate geographically
from nonexperimental populations of the same species. Where part of an
experimental population overlaps with nonexperimental populations of
the same species on a particular occasion, but is wholly separate at
other times, specimens of the experimental population will not be
recognized as such while in the area of overlap. That is, experimental
status will only be recognized outside the areas of overlap. Thus, such
a population shall be treated as experimental only when the times of
geographic separation are reasonably predictable; e.g., fixed migration
patterns, natural or man-made barriers. A population is not treated as
experimental if total separation will occur solely as a result of
random and unpredictable events.''

[[Page 45926]]

In order to implement ESA section 10(j) for any new experimental
population, the ESA requires a determination as to whether or not the
experimental population is essential to the continued existence of the
species. ESA section 10(j), however, does not provide a definition of
an ``essential experimental population.'' The USFWS defined an
``essential experimental population'' as an experimental population
``whose loss would be likely to appreciably reduce the likelihood of
the survival of the species in the wild,'' and stated that ``[a]ll
other experimental populations are to be classified as nonessential.''
This definition closely follows language in the report of the
Congressional Conference Committee when the 1982 ESA amendments were
passed (see Joint Explanatory Statement of the Committee of Conference,
H.R. Conf. Rep. No. 97-835 (1982), at 15). Here again we believe the
definition used by USFWS is helpful, is consistent with congressional
intent and has worked well to date; and we recognize that adopting an
identical definition for this fundamental term will provide consistency
between NMFS and USFWS in the implementation of ESA section 10(j). We
therefore propose to adopt the same definition as USFWS.

Listing

The beginning of the ``Listing'' section of the USFWS section 10(j)
regulations (50 CFR 17.81(a)) describes the experimental population
designation process and specifies that it is the Secretary of the
Interior who has the authority to designate and release an experimental
population of a listed species under USFWS jurisdiction into suitable
habitat outside of the species' current natural range. In our proposed
regulations, we similarly specify that it is the Secretary of Commerce
who has the authority to designate and release an experimental
population for species under our jurisdiction.
Consistent with the general intent of Congress with regard to the
adoption of regulations and the specific requirement in ESA section
10(j)(2)(B) that an experimental population be identified by
regulation, USFWS included a requirement that regulations designating
experimental populations be adopted in accordance with 5 U.S.C. 553
(see 50 CFR 17.81(a)), which contains the informal rulemaking
provisions of the Administrative Procedure Act. Therefore, we propose
to adopt this provision as well.

Current Range

The USFWS regulations at 50 CFR 17.81(a) provide for the
designation of an experimental population that has been or will be
released into suitable habitat ``outside the current natural range'' of
the species. However, ESA section 10(j)(2)(A) only uses the phrase
``outside the current range'' rather than ``outside the current natural
range'' to identify the geographic area in which an experimental
population is authorized for release. Further, there is no definition
of ``range'', ``current range,'' or ``current natural range'' in the
ESA or 50 CFR parts 222 (NMFS ESA implementing regulations) or 424
(Joint NMFS/USFWS ESA implementing regulations). The USFWS ESA section
10(j) regulations at 50 CFR 17.80 through 17.83 also do not define
``natural''. Based on our experience with our species, we do not
believe addition of the word ``natural'' in the phrase ``outside the
current range'' is necessary for our species. Therefore, we do not
propose to include the word ``natural'' as a qualifier for the current
range of a species.
The USFWS regulations at 50 CFR 17.81(a) also establish a
limitation that release of an experimental population outside of the
probable historic range of a species is allowed only if the Director of
the USFWS makes a finding that ``the primary habitat of the species has
been unsuitably and irreversibly altered or destroyed.'' This provision
is not required under the ESA, and we believe it unnecessarily limits
our ability to implement section 10(j) of the ESA in a manner that
conserves our listed species. Therefore, we do not include this
language in our proposed rule.

Furthering the Conservation of the Species

As noted above, ESA section 10(j) requires that before authorizing
the release of an experimental population outside the current range of
the species, the Secretary must determine that such release will
further the conservation of the species. The ESA provides little
guidance on how to make such a determination. The ESA does define
``conservation'' as ``the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to this [Act] are no
longer necessary.'' In their ESA section 10(j) regulations, USFWS
identified four factors that, using the best scientific and commercial
data available, they consider in making a finding that the experimental
population release will further the conservation of the species: (1)
Any possible adverse effects on extant populations of a species as a
result of removal of individuals, eggs, or propagules for introduction
elsewhere; (2) The likelihood that any such experimental population
will become established and survive in the foreseeable future; (3) The
relative effects that establishment of an experimental population will
have on the recovery of the species; and (4) The extent to which the
introduced population may be affected by existing or anticipated
Federal or State actions or private activities within or adjacent to
the experimental population area (50 CFR 17.81(b)).
The first factor USFWS considers is related to effects on the
source populations of the organisms used to establish or enhance an
experimental population. The remaining three factors they consider
relate to the likelihood or extent the experimental population will
survive, thrive, and contribute to the recovery and conservation of the
species. These three factors focus on key steps in the implementation
of an experimental population: (1) initial establishment, (2) the
contribution of an established experimental population to the recovery
of the listed species, and (3) the effect any nearby human activities
might have on the experimental population and its potential
contribution to the species recovery.
We have found that using the list of factors developed by USFWS
gives the public adequate general information about how we plan to
interpret the provision for ``furthering the conservation of the
species,'' without introducing needless complexity. In rulemakings we
have already completed to designate experimental populations (see
above), we have provided detailed discussions of relevant species-
specific information that we considered in order to make the ``further
the conservation of'' finding based on these four factors, and we
intend to continue this practice in future rulemakings. We also note
the desirability of maintaining consistency between our regulations and
those of USFWS. Therefore, we propose to adopt the same language and
four factors as the USFWS regulations for making the determination that
release of an experimental population will further the conservation of
the species, with two small editorial revisions. First, we added a
comma in the second sentence of paragraph (b) because it is appropriate
grammatically. Second, the third factor in USFWS's regulations says
USFWS will consider the ``relative effects'' the experimental
population will have on recovery of the species. In our experience with
our species, we have found the term ``relative'' in this factor is
superfluous, and we therefore

[[Page 45927]]

do not include it in our proposal. Neither of these changes is intended
to make our proposed regulation functionally different than USFWS's
corresponding regulation.

Identification of the Experimental Population

In their ESA section 10(j) implementing regulations, USFWS requires
that any regulation designating an experimental population shall
provide, among other things, ``[a]ppropriate means to identify the
experimental population, including, but not limited to, its actual or
proposed location, actual or anticipated migration, number of specimens
released or to be released, and other criteria appropriate to identify
the experimental population(s)'' (50 CFR 17.81(c)(1)). We believe these
examples of means of identifying an experimental population are
relevant and helpful, and we propose to include them in our
regulations. However, we add the qualifier ``if appropriate'' to our
proposal to make it clear that not all of the listed means will be
relevant to each experimental population designation for our species.
With the addition of the ``if appropriate'' qualifier, we also change
the commas separating the examples to semicolons to more clearly
separate them.

Finding Whether the Experimental Population Is or Is Not Essential

The USFWS ESA section 10(j) regulations at 50 CFR 17.81(c)(2)
incorporate the requirement of the ESA that the designation of an
experimental population include a determination as to whether the
experimental population is essential to the continued existence of the
listed species. The language is as follows: ``(c) Any regulation
promulgated under paragraph (a) of this section shall provide: . . .
(2) A finding, based solely on the best scientific and commercial data
available, and the supporting factual basis, on whether the
experimental population is, or is not, essential to the continued
existence of the species in the wild[.]'' Based on our experience, this
language is adequate to describe the statutory requirement, and we
propose to adopt identical language. We have already discussed above
that we will adopt the same definition as the USFWS regulations for
``essential experimental population.''

Protective Measures

In 50 CFR 17.81(c)(3) of their ESA section 10(j) regulations, USFWS
establishes that their rulemakings for designating experimental
populations will also provide: ``Management restrictions, protective
measures, or other special management concerns of that population,
which may include, but are not limited to, measures to isolate and/or
contain the experimental population designated in the regulation from
natural populations[.]'' This provision addresses the linkage between
designating experimental populations under section 10(j) of the ESA and
implementing companion protective regulations under ESA section 4(d).
The language also specifies actions needed to successfully implement an
experimental population release. We agree that it is helpful to clarify
the relationship between sections 4(d) and 10(j) of the ESA and the
intent of Congress and the agency in implementing ESA section 10(j).
Based on our experience with our species, however, we believe
additional clarifying language in this section is appropriate for our
species.
We believe this section should make it clear that management
restrictions, protective measures, and other special management
concerns would be applied to an experimental population as appropriate
to the specific situation as not all of these measures would be
applicable for all of our species. We therefore add this clarification
to our proposed regulatory language. Second, we again propose using the
word ``nonexperimental,'' instead of the word ``natural,'' to describe
nonexperimental populations, as discussed above. Third, we add language
to further clarify the distinction between regulations adopted under
the provisions of ESA section 4(d) and those adopted under ESA section
10(j). Finally, we add a comma after ``include,'' because it is
appropriate grammatically to separate the ``but are not limited to''
clause. These clarifications are not intended to make our proposed
regulations functionally differ from those of USFWS. Therefore, our
proposed regulatory language is: ``Management restrictions, protective
measures, or other special management concerns of that population, as
appropriate, which may include, but are not limited to, measures to
isolate and/or contain the experimental population designated in the
regulation from nonexperimental populations and protective regulations
established pursuant to section 4(d) of the Act.''

Periodic Review

50 CFR 17.81(c)(4) of the USFWS section 10(j) regulations requires
that any regulation designating an experimental population shall
provide a process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species. We agree with this provision
to help ensure the success of experimental population designations and
to formally and publicly review these designations. We note that the
ESA requires that we conduct a status review every 5 years for each
listed species under our jurisdiction. We intend to use the 5 year
review process for tracking the status of experimental populations and
ensuring that experimental population designations further the
conservation of the species as expected.

Permits To Allow Establishment and Maintenance of an Experimental
Population

In their ESA section 10(j) regulations, USFWS notes that they may
issue a permit under section 10(a)(1)(A) of the ESA, if appropriate
under the standards set out in subsections 10(d) and (j) of the ESA, to
allow acts necessary for the establishment and maintenance of an
experimental population. This provision highlights the intent of
Congress that experimental populations be implemented through
provisions of the ESA and provides the relevant mechanism by which this
would normally occur. Our implementing practices are similar to those
of USFWS, and we therefore propose to include this provision in our
regulations, with some edits solely to improve clarity and streamline
the provision. In the USFWS regulations at 50 CFR 17.81, this provision
is an un-numbered sentence as part of paragraph (4) under subparagraph
(b), which otherwise deals with the factors to consider in making a
determination that an experimental population will further the
conservation of the species. In order to emphasize the provision as a
stand-alone provision and to make it easier to directly cite, in our
proposed rule we place this provision in its own numbered subparagraph
(d). We also propose to not include the following phrase from the USFWS
regulations: ``under the standards set out in subsections 10(d) and (j)
of the ESA,'' because the phrase is unnecessary. Under the provisions
of the statute, any permit for an experimental population issued under
ESA section 10(a)(1)(A) would have to meet the standards set out in
those subsections, so it is not necessary to explicitly list the
subsections in the regulations. Our proposed regulations will thus
read, ``The Secretary may issue a permit under section 10(a)(1)(A) of
the Act, if appropriate, to allow acts necessary for the establishment
and maintenance of an experimental population.''

[[Page 45928]]

Stakeholder Consultations

In their regulations implementing ESA section 10(j), USFWS
establishes that, in the process of developing and implementing
experimental population rules, they will consult with appropriate State
fish and wildlife agencies, local governmental entities, affected
Federal agencies, and affected private landowners, including through
public meetings, when appropriate (50 CFR 17.81(d)). USFWS further
establishes in this paragraph that, to the maximum extent practicable,
any regulation promulgated pursuant to this section shall represent an
agreement between USFWS, the affected State and Federal agencies, and
persons holding any interest in land which may be affected by the
establishment of an experimental population. We strongly believe that
consultations with affected parties are critical to the success of
experimental population designations and propose to adopt this language
in our regulations. We believe that our trust responsibilities with
regard to tribal governments warrant explicitly including consultation
with tribes in our ESA section 10(j) regulations. We have therefore
listed tribal governments in our proposal. This addition is not
intended to suggest that USFWS's regulations do not allow for
consultation with tribal governments, and, in fact, USFWS has consulted
with tribal governments on ESA section 10(j) designations. Therefore,
listing tribal governments in our regulations would not make our
provision functionally differ from the corresponding provision in
USFWS's regulations. We would just like to explicitly list tribal
governments in our regulations based on our experience with our
species. In fact, tribal governments have been integral in the
development of experimental populations we have already designated (see
above).
We propose one other addition in this section of our regulations.
The USFWS regulations at 50 CR 17.81(d) identify persons holding an
interest in land which may be affected by an experimental population
designation as a stakeholder group to be consulted. Based on our
experience and work in aquatic habitat and the fact that all of our
species are aquatic species, we believe the addition of persons holding
interests in water (i.e., aquatic habitat), which may be affected by an
experimental population designation, as an additional stakeholder group
is warranted and have included that addition in this proposed rule.

Location of Experimental Population Regulations in the Code of Federal
Regulations

In their ESA section 10(j) regulations, USFWS provides that special
rules relating to a designation of an experimental population will be
published in specific sections of the CFR as appropriate, and that
experimental populations will be separately listed in the lists of
threatened and endangered plants and animals in the CFR as appropriate.
In our proposed regulations, we similarly state that our regulations
relating to specific experimental populations will continue to be
published in Title 50, part 223 of the CFR, with our regulations
related to threatened species, and that our designated experimental
populations also will be separately listed in the lists of threatened
and endangered plants and animals in the CFR as appropriate. We note
that the regulations relating to listing and designation of an
experimental population that are being proposed in this rulemaking
would be published in Title 50, part 222 of the CFR, with our other ESA
implementing regulations.

Critical Habitat for Experimental Populations Determined To Be
Essential

The Secretary may designate critical habitat, as defined in section
(3)(5)(A) of the ESA, for an experimental population determined to be
essential (but not for populations determined to be nonessential). In
their ESA section 10(j) regulations, USFWS emphasizes that the
designation of critical habitat for an essential experimental
population will be made in accordance with section 4 of the ESA (50 CFR
17.81(f)). We agree that emphasizing the provisions of ESA section 4 in
the ESA section 10(j) regulations is useful, and we therefore propose
to include the same language in our regulations. In our proposed
regulations, we made two changes from the language in 50 CFR 17.81(f),
however. First, the USFWS regulations say: ``No designation of critical
habitat will be made for nonessential populations.'' We add the word
``experimental'' after ``nonessential,'' to emphasize that the
nonessential populations are, in fact, ESA section 10(j) experimental
populations.
Second, in their regulations, USFWS adds additional language
regarding critical habitat for experimental populations (50 CFR
17.81(f)). The language USFWS uses is: ``In those situations where a
portion or all of an essential experimental population overlaps with a
natural population of the species during certain periods of the year,
no critical habitat will be designated for the area of overlap, unless
implemented as a revision to critical habitat of the natural population
for reasons unrelated to the overlap itself.'' This language is not
included in the ESA, and in our experience with our species this
language has been unnecessary to understand and implement the relevant
provisions of the ESA. We therefore do not include this language in our
proposed rule.

Prohibitions

The USFWS ESA section 10(j) regulations at 50 CFR 17.82 reiterate
the ESA section 10(j) provision that each member of an experimental
population shall be treated as if it were listed as a threatened
species and add that this applies for purposes of establishing
protective regulations under section 4(d) of the ESA. Based on our
experience with our species, even with the language in 50 CFR 17.82,
stakeholders still have questions regarding the relationship between
ESA sections 10(j) and 4(d). Therefore, we propose modified language
for our regulations to clarify and explain in more detail the
relationship between these two sections. This modified language is not
intended to function differently or lead to different outcomes than the
USFWS language, but is only intended to provide greater explanation
about the relationship between ESA sections 10(j) and 4(d). The first
sentence would read the same as 50 CFR 17.82: ``Any population
determined by the Secretary to be an experimental population shall be
treated as if it were listed as a threatened species for purposes of
establishing protective regulations under section 4(d) of the Act with
respect to such population.'' However, we propose to replace the second
sentence of the USFWS regulations at 50 CFR 17.82 (``The Special rules
(protective regulations) adopted for an experimental population under
Sec. 17.81 will contain applicable prohibitions, as appropriate, and
exceptions for that population.'') with the following text in our
regulations: ``Accordingly, when designating, or revising, an
experimental population under section 10(j) of the Act, the Secretary
may also exercise his or her authority under section 4(d) of the Act to
include protective regulations necessary and advisable to provide for
the conservation of such species as part of the special rule for the
experimental population. Any protective regulations applicable to the
species from which the experimental population was sourced do not apply
to the experimental

[[Page 45929]]

population unless specifically included in the special rule for the
experimental population.''

Interagency Cooperation

In their regulations implementing ESA section 10(j), USFWS includes
a section on provisions related to interagency cooperation under
section 7 of the ESA (50 CFR 17.83) that describes what types of
analyses are conducted under ESA section 7 with respect to experimental
populations. Much of this section reiterates language in section 10(j)
of the ESA itself (see ESA section 10(j)(2)(C)). However, USFWS does
include an additional provision that any biological opinion prepared
pursuant to section 7(b) of the ESA and any agency determination made
pursuant to section 7(a) of the ESA ``shall consider any experimental
and nonexperimental populations to constitute a single listed species
for the purposes of conducting the analyses under such sections.''
We propose to adopt the language used by USFWS in 50 CFR 17.83(a)
and (b) in our own regulations, with the addition of citations to the
relevant parts of ESA section 7 that are referenced in each
subparagraph (i.e., section 7(a)(4) in subparagraph (a) and section
7(a)(1) in subparagraph (b)) for ease of reference, to direct the
reader to the applicable part of the ESA, and with the addition of the
phrase ``of the Act'' in paragraph (a) to explicitly specify that the
regulation refers to section 7 of the statute. However, we do not
propose to include the additional USFWS provision quoted above related
to ESA section 7, as section 10(j) of the ESA and our proposed
regulations already describe how ESA section 7 is to be implemented
with respect to experimental populations, and based on our experience,
this additional language is unnecessary for our species. None of these
differences are intended to cause our regulation to functionally differ
from USFWS's corresponding regulation.

Relationship to Existing Experimental Populations

We have already designated three experimental populations of
salmonids (see above). We do not intend the proposed implementing
regulations herein to require us to review or revise those
designations. We do not believe the implementing regulations we are
proposing in this proposed rule would meaningfully alter the findings
we came to in our prior designations and rulemakings.

Request for Information

We intend that any rule finally adopted be as effective as possible
in implementing the ESA. Any final regulation based on this proposal
will consider information and recommendations timely submitted from all
interested parties. Therefore, we solicit comments, information, and
recommendations on this proposed regulation from governmental agencies,
Native American tribes, the scientific community, industry groups,
environmental interest groups, and any other interested parties.
Comments should be as specific as possible and refer to sections and
paragraphs involved. Specifically we request information and comments
on:
(1) The terms we define above and in the proposed regulations, and
(2) The proposed listing and experimental population designation
process and considerations.
This rulemaking does not materially modify our current methods and
procedures for designating experimental populations.
You may submit your information concerning this proposed rule by
one of the methods listed in ADDRESSES. If you submit information via
http://www.regulations.gov, your entire submission--including any
personal identifying information--will be posted on the Web site. If
your submission is made via a hardcopy that includes personal
identifying information, you may request at the top of your document
that we withhold this personal identifying information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.

Information Quality Act and Peer Review

In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review pursuant to the
Information Quality Act (Section 515 of Pub. L. 106-554), which was
published in the Federal Register on January 14, 2005 (70 FR 2664). The
Bulletin established minimum peer review standards, a transparent
process for public disclosure of peer review planning, and
opportunities for public participation with regard to certain types of
information disseminated by the Federal Government. The peer review
requirements of the OMB Bulletin apply to influential or highly
influential scientific information disseminated on or after June 16,
2005. There are no documents supporting this proposed rule that meet
this criteria.

Classification

Executive Order 12866

This proposed rule has been determined to be not significant under
E.O. 12866.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
801 et seq.), whenever a Federal agency is required to publish a
notification of rulemaking for any proposed or final rule, it must
prepare, and make available for public comment, a regulatory
flexibility analysis that describes the effect of the rule on small
entities (i.e., small businesses, small organizations, and small
government jurisdictions). However, no regulatory flexibility analysis
is required if the head of an agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. The SBREFA amended the Regulatory Flexibility Act to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities.
The Chief Counsel for Regulation, Department of Commerce, will
certify to the Chief Counsel for Advocacy at the Small Business
Administration that this proposed rule will not have a significant
economic effect on a substantial number of small entities. The
following discussion explains our rationale.
The proposed regulations clarify how we implement the provisions of
section 10(j) of the ESA. The proposed regulations do not materially
alter our current practices. The proposed regulations do not expand our
reach. We are the only entity that is directly affected by this
proposed rule because we are the only entity that can designate
experimental populations of threatened or endangered species under NMFS
jurisdiction. No external entities, including any small businesses,
small organizations, or small governments, will experience any economic
impacts from this proposed rule. Therefore, the only potential effect
on any external entities large or small would likely be positive,
through reducing any uncertainty on the part of the public about our
process for designating experimental populations by formalizing our
practices and procedures.

[[Page 45930]]

Executive Order 12630

In accordance with E.O. 12630, this proposed rule does not have
significant takings implications. A takings implication assessment is
not required because this rulemaking: (1) Would not effectively compel
a property owner to have the government physically invade property, and
(2) would not deny all economically beneficial or productive use of the
land or aquatic resources. This rulemaking would substantially advance
a legitimate government interest (conservation and recovery of listed
species) and would not present a barrier to all reasonable and expected
beneficial use of private property.

Executive Order 13132

In accordance with E.O. 13132, we have determined that this rule
does not have federalism implications as that term is defined in E.O.
13132.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

The Office of Management and Budget (OMB) regulations at 5 CFR part
1320, which implement provisions of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), require that Federal agencies obtain approval
from OMB before collecting information from the public. A Federal
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number. This proposed rule does not include any new
collections of information that require approval by OMB under the
Paperwork Reduction Act.

National Environmental Policy Act

We have analyzed this proposed rule in accordance with the criteria
of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(c)),
the Council on Environmental Quality's Regulations for Implementing the
Procedural Provisions of NEPA (40 CFR parts 1500-1508), and NOAA's
Administrative Order regarding NEPA compliance (NAO 216-6 (May 20,
1999)).
We have determined that this proposed rule is categorically
excluded from NEPA documentation requirements, consistent with 40 CFR
1508.4. We have determined that this action satisfies the standards for
reliance upon a categorical exclusion under NOAA Administrative Order
(NAO) 216-6. Specifically, this action fits within the categorical
exclusion for ``policy directives, regulations and guidelines of an
administrative, financial, legal, technical or procedural nature.'' NAO
216-6, section 6.03c.3(i). This action would not trigger an exception
precluding reliance on the categorical exclusion because it does not
involve a geographic area with unique characteristics, is not the
subject of public controversy based on potential environmental
consequences, will not result in uncertain environmental impacts or
unique or unknown risks, does not establish a precedent or decision in
principle about future proposals, will not have significant cumulative
impacts, and will not have any adverse effects upon endangered or
threatened species or their habitats (Id. sec. 5.05c). As such, it is
categorically excluded from the need to prepare an Environmental
Assessment. In addition, we find that because this proposed rule will
not result in any effects to the physical environment, much less any
adverse effects, there would be no need to prepare an Environmental
Assessment even aside from consideration of the categorical exclusion.
See, e.g., Oceana, Inc. v. Bryson, 940 F. Supp. 2d 1029 (N.D. Cal.
April 12, 2013). Issuance of this proposed rule does not alter the
legal and regulatory status quo in such a way as to create any
environmental effects. See, e.g., Humane Soc. of U.S. v. Johanns, 520
F. Supp. 2d. 8 (D.D.C. 2007).

Government-to-Government Relationship With Tribes (E.O. 13175)

E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, outlines the responsibilities of the Federal Government in
matters affecting tribal interests. If we issue a regulation with
tribal implications (defined as having a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes), we
must consult with those governments or the Federal Government must
provide funds necessary to pay direct compliance costs incurred by
tribal governments.
We invite all interested tribes to discuss the proposed rule with
us at their convenience should they choose to have a government-to-
government consultation.

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

On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use.
Executive Order 13211 requires agencies to prepare Statements of Energy
Effects when undertaking any action that promulgates or is expected to
lead to the promulgation of a final rule or regulation that (1) is a
significant regulatory action under E.O. 12866 and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy.
This proposed rule has been determined not to be a significant
regulatory action under E.O. 12866 and is not expected to significantly
affect energy supplies, distribution, and use. Therefore, this action
is not a significant energy action and no Statement of Energy Effects
is required.

References Cited

A complete list of all references cited in this rule is available
upon request (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 222

Endangered and threatened species.

Dated: July 24, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.

For the reasons set out in the preamble, part 222, of chapter II,
title 50 of the Code of Federal Regulations, is proposed to be amended
as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

0
1. The authority citation for part 222 continues to read as follows:

Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.

0
2. Add subpart E to part 222 to read as follows:
Subpart E--Experimental Populations
Sec.
222.501 Definitions.
222.502 Listing.
222.503 Prohibitions.
222.504 Interagency cooperation.

Subpart E--Experimental Populations

Sec. 222.501 Definitions.

(a) The term experimental population means any introduced and/or
designated population (including any off-spring arising solely
therefrom) that has been so designated in accordance with the
procedures of this subpart but only when, and at such times as, the
population is wholly separate geographically from nonexperimental
populations of the same species. Where part of an experimental
population overlaps with nonexperimental populations of the same
species on a particular occasion, but is wholly separate at other
times, specimens of the experimental population will not be

[[Page 45931]]

recognized as such while in the area of overlap. That is, experimental
status will only be recognized outside the areas of overlap. Thus, such
a population shall be treated as experimental only when the times of
geographic separation are reasonably predictable; e.g., fixed migration
patterns, natural or man-made barriers. A population is not treated as
experimental if total separation will occur solely as a result of
random and unpredictable events.
(b) The term essential experimental population means an
experimental population whose loss would be likely to appreciably
reduce the likelihood of the survival of the species in the wild. All
other experimental populations are to be classified as nonessential.

Sec. 222.502 Listing.

(a) The Secretary may designate as an experimental population a
population of endangered or threatened species that has been or will be
released into suitable habitat outside the species' current range,
subject to the further conditions specified in this section, provided,
that all designations of experimental populations must proceed by
regulation adopted in accordance with 5 U.S.C. 553 and the requirements
of this subpart.
(b) Before authorizing the release as an experimental population of
any population (including eggs, propagules, or individuals) of an
endangered or threatened species, and before authorizing any necessary
transportation to conduct the release, the Secretary must find by
regulation that such release will further the conservation of the
species. In making such a finding, the Secretary shall utilize the best
scientific and commercial data available to consider:
(1) Any possible adverse effects on extant populations of a species
as a result of removal of individuals, eggs, or propagules for
introduction elsewhere;
(2) The likelihood that any such experimental population will
become established and survive in the foreseeable future;
(3) The effects that establishment of an experimental population
will have on the recovery of the species; and
(4) The extent to which the introduced population may be affected
by existing or anticipated Federal or State actions or private
activities within or adjacent to the experimental population area.
(c) Any regulation promulgated under paragraph (a) of this section
shall provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location; actual
or anticipated migration; number of specimens released or to be
released, if appropriate; and other criteria appropriate to identify
the experimental population(s);
(2) A finding, based solely on the best scientific and commercial
data available, and the supporting factual basis, on whether the
experimental population is, or is not, essential to the continued
existence of the species in the wild;
(3) Management restrictions, protective measures, or other special
management concerns of that population, as appropriate, which may
include, but are not limited to, measures to isolate and/or contain the
experimental population designated in the regulation from
nonexperimental populations and protective regulations established
pursuant to section 4(d) of the Act; and
(4) A process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species.
(d) The Secretary may issue a permit under section 10(a)(1)(A) of
the Act, if appropriate, to allow acts necessary for the establishment
and maintenance of an experimental population.
(e) The National Marine Fisheries Service shall consult with
appropriate State fish and wildlife agencies, affected tribal
governments, local governmental entities, affected Federal agencies,
and affected private landowners in developing and implementing
experimental population rules. When appropriate, a public meeting will
be conducted with interested members of the public. Any regulation
promulgated pursuant to this section shall, to the maximum extent
practicable, represent an agreement between the National Marine
Fisheries Service, the affected State and Federal agencies and tribal
governments, and persons holding any interest in land or water which
may be affected by the establishment of an experimental population.
(f) Any population of an endangered species or a threatened species
determined by the Secretary to be an experimental population in
accordance with this subpart shall be identified by special rule in
part 223 as appropriate and separately listed in 50 CFR 17.11(h)
(wildlife) or 50 CFR 17.12(h) (plants) as appropriate.
(g) The Secretary may designate critical habitat as defined in
section (3)(5)(A) of the Act for an essential experimental population
as determined pursuant to paragraph (c)(2) of this section. Any
designation of critical habitat for an essential experimental
population will be made in accordance with section 4 of the Act. No
designation of critical habitat will be made for nonessential
experimental populations.

Sec. 222.503 Prohibitions.

(a) Any population determined by the Secretary to be an
experimental population shall be treated as if it were listed as a
threatened species for purposes of establishing protective regulations
under section 4(d) of the Act with respect to such population.
(b) Accordingly, when designating, or revising, an experimental
population under section 10(j) of the Act, the Secretary may also
exercise his or her authority under section 4(d) of the Act to include
protective regulations necessary and advisable to provide for the
conservation of such species as part of the special rule for the
experimental population. Any protective regulations applicable to the
species from which the experimental population was sourced do not apply
to the experimental population unless specifically included in the
special rule for the experimental population.

Sec. 222.504 Interagency cooperation.

(a) Any experimental population designated for a listed species
determined pursuant to Sec. 222.502(c)(2) not to be essential to the
survival of that species and not occurring within the National Park
System or the National Wildlife Refuge System, shall be treated for
purposes of section 7 of the Act (other than this paragraph (a)
thereof) as a species proposed to be listed under the Act as a
threatened species, and the provisions of section 7(a)(4) of the Act
shall apply.
(b) Any experimental population designated for a listed species
that either has been determined pursuant to Sec. 222.502(c)(2) to be
essential to the survival of that species, or occurs within the
National Park System or the National Wildlife Refuge System as now or
hereafter constituted, shall be treated for purposes of section 7 of
the Act as a threatened species, and the provisions of section 7(a)(2)
of the Act shall apply.

[FR Doc. 2015-18894 Filed 7-31-15; 8:45 am]
BILLING CODE 3510-22-P

Federal Register / Vol. 80, No. 148 / Monday, August 3, 2015 / Proposed Rules 45925

rather than consult, with us on actions section by section. We compare our population shall be treated as experimental
that are likely to jeopardize the proposal to the existing USFWS only when the times of geographic separation
continued existence of a species regulations to make clear the areas are reasonably predictable; e.g., fixed
migration patterns, natural or man-made
proposed to be listed. The results of a where our regulations will differ from barriers. A population is not treated as
conference are advisory in nature. the USFWS regulations. We strove to experimental if total separation will occur
The provisions of section 10(j) of the maintain consistency between our solely as a result of random and
ESA, as summarized above, introduce proposed regulations and the existing unpredictable events.’’
some terminology and concepts that are USFWS regulations as much as possible We believe USFWS’s interpretation is
not otherwise used or defined in the to provide for consistent applicable for situations in which
ESA or in our current implementing implementation of ESA section 10(j) complete temporal or physical barriers
regulations. These terms and concepts between the agencies, but we are exist that ensure the geographic
include: ‘‘further the conservation of,’’ proposing changes we believe are isolation of an experimental population
‘‘experimental population,’’ identifying necessary to implement the statutory for at least part of the year or life cycle
an experimental population, and requirements in a manner appropriate of the individuals in the experimental
determining whether an experimental for species under NMFS’ jurisdiction. population. Thus, we propose to adopt
population is essential to the continued NMFS’ intent when designating an the same definition as USFWS for
existence of the species. The USFWS experimental population under ESA ‘‘experimental population,’’ with two
promulgated regulations in 1984 (49 FR section 10(j) is that the population will small changes. First, we propose to
33885, August 27, 1984) to guide their retain that designation until the donor substitute ‘‘any’’ for the word ‘‘an’’ in
implementation of ESA section 10(j) (50 species is delisted, or until, for some the first sentence of USFWS’s
CFR 17.80 through 17.83), including unforeseen reason, the experimental
provisions related to the terms and definition, to match the statutory
population fails, for example, due to language. Second, in the second
concepts noted above. The USFWS has lack of donor stock or problems with
designated dozens of experimental sentence of their definition, USFWS
implementation. uses the word ‘‘natural’’ to distinguish
populations using those regulations (see
50 CFR 17.84 through 17.85). Although Definitions populations not designated as
the USFWS regulations do not govern experimental from experimental
Section 10(j) of the ESA states that an
regulatory actions by NMFS, we have populations. In our experience with our
‘‘experimental population’’ means ‘‘any
explicitly considered those regulations species, the term natural can be
population (including any offspring
recently in the only three experimental confusing when dealing with situations
arising solely there from) authorized by
population designations we have made: where some nonexperimental animals
the Secretary for release under [section
Middle Columbia River steelhead trout or populations derive from hatchery,
10(j)(2)], but only when, and at such
in the Deschutes River Basin (78 FR aquaculture, or other captive breeding
times as, the population is wholly
2893, January 15, 2013); Central Valley programs (e.g., such programs for
separate geographically from
spring-run Chinook Salmon in the San salmonids). Therefore, we propose to
nonexperimental populations of the
Joaquin River (78 FR 79622, December substitute the word ‘‘nonexperimental’’
same species.’’ Where members of an
31, 2013); and upper Columbia River for ‘‘natural’’ in the definition to
experimental population overlap with
spring-run Chinook Salmon in the improve clarity for species under
natural populations of the same species,
Okanogan River Subbasin (79 FR 40004, NMFS’s jurisdiction.
they are not deemed to be an Therefore, we propose that an
July 11, 2014). experimental population. In its ESA
We believe that there is a need for us ‘‘experimental population’’ means ‘‘any
section 10(j) regulations at 50 CFR introduced and/or designated
to have regulations laying out NMFS’s 17.80, USFWS added that a population
interpretation of and procedures for population (including any off-spring
shall be treated as experimental only arising solely therefrom) that has been
implementing ESA section 10(j), beyond when the times of geographic separation
what Congress has specifically directed, so designated in accordance with the
are ‘‘reasonably predictable’’, for procedures of this subpart [of the
just as USFWS did in their section 10(j) example, with ‘‘fixed migration
implementing regulations. Now that we regulations] but only when, and at such
patterns, natural or man-made barriers.’’ times as, the population is wholly
have gained some experience in They further stated that ‘‘[a] population
designating experimental populations, separate geographically from
is not treated as experimental if total nonexperimental populations of the
we are in a position to develop our own separation will occur solely as a result
implementing regulations for ESA same species. Where part of an
of random and unpredictable events.’’ experimental population overlaps with
section 10(j) that will help provide USFWS full definition of ‘‘experimental
clarity and reduce uncertainty for the nonexperimental populations of the
population’’ is: same species on a particular occasion,
public about our future practices. In
developing this proposal, we reviewed ‘‘The term experimental population means but is wholly separate at other times,
the ESA, legislative history of the 1982 an introduced and/or designated population specimens of the experimental
(including any off-spring arising solely population will not be recognized as
ESA amendments, existing USFWS ESA therefrom) that has been so designated in
section 10(j) regulations, public accordance with the procedures of this
such while in the area of overlap. That
comments from the USFWS rulemaking subpart but only when, and at such times as is, experimental status will only be
to develop their ESA section 10(j) the population is wholly separate recognized outside the areas of overlap.
regulations, and relevant public Thus, such a population shall be treated
mstockstill on DSK4VPTVN1PROD with PROPOSALS

geographically from nonexperimental
comments from our own recent populations of the same species. Where part as experimental only when the times of
experimental population designations, of an experimental population overlaps with geographic separation are reasonably
and we consulted with USFWS staff. We natural populations of the same species on a predictable; e.g., fixed migration
particular occasion, but is wholly separate at
then convened a group of NMFS staff other times, specimens of the experimental
patterns, natural or man-made barriers.
with experience in ESA section 10(j) population will not be recognized as such A population is not treated as
designations to help develop this while in the area of overlap. That is, experimental if total separation will
proposal. In the following sections, we experimental status will only be recognized occur solely as a result of random and
discuss our proposed regulations outside the areas of overlap. Thus, such a unpredictable events.’’

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45926 Federal Register / Vol. 80, No. 148 / Monday, August 3, 2015 / Proposed Rules

In order to implement ESA section an experimental population that has propagules for introduction elsewhere;
10(j) for any new experimental been or will be released into suitable (2) The likelihood that any such
population, the ESA requires a habitat ‘‘outside the current natural experimental population will become
determination as to whether or not the range’’ of the species. However, ESA established and survive in the
experimental population is essential to section 10(j)(2)(A) only uses the phrase foreseeable future; (3) The relative
the continued existence of the species. ‘‘outside the current range’’ rather than effects that establishment of an
ESA section 10(j), however, does not ‘‘outside the current natural range’’ to experimental population will have on
provide a definition of an ‘‘essential identify the geographic area in which an the recovery of the species; and (4) The
experimental population.’’ The USFWS experimental population is authorized extent to which the introduced
defined an ‘‘essential experimental for release. Further, there is no population may be affected by existing
population’’ as an experimental definition of ‘‘range’’, ‘‘current range,’’ or anticipated Federal or State actions or
population ‘‘whose loss would be likely or ‘‘current natural range’’ in the ESA or private activities within or adjacent to
to appreciably reduce the likelihood of 50 CFR parts 222 (NMFS ESA the experimental population area (50
the survival of the species in the wild,’’ implementing regulations) or 424 (Joint CFR 17.81(b)).
and stated that ‘‘[a]ll other experimental NMFS/USFWS ESA implementing The first factor USFWS considers is
populations are to be classified as regulations). The USFWS ESA section related to effects on the source
nonessential.’’ This definition closely 10(j) regulations at 50 CFR 17.80 populations of the organisms used to
follows language in the report of the through 17.83 also do not define establish or enhance an experimental
Congressional Conference Committee ‘‘natural’’. Based on our experience with population. The remaining three factors
when the 1982 ESA amendments were our species, we do not believe addition they consider relate to the likelihood or
passed (see Joint Explanatory Statement of the word ‘‘natural’’ in the phrase extent the experimental population will
of the Committee of Conference, H.R. ‘‘outside the current range’’ is necessary survive, thrive, and contribute to the
Conf. Rep. No. 97–835 (1982), at 15). for our species. Therefore, we do not recovery and conservation of the
Here again we believe the definition propose to include the word ‘‘natural’’ species. These three factors focus on key
used by USFWS is helpful, is consistent as a qualifier for the current range of a steps in the implementation of an
with congressional intent and has species. experimental population: (1) initial
worked well to date; and we recognize The USFWS regulations at 50 CFR establishment, (2) the contribution of an
that adopting an identical definition for 17.81(a) also establish a limitation that established experimental population to
this fundamental term will provide release of an experimental population the recovery of the listed species, and
consistency between NMFS and USFWS outside of the probable historic range of (3) the effect any nearby human
in the implementation of ESA section a species is allowed only if the Director activities might have on the
10(j). We therefore propose to adopt the of the USFWS makes a finding that ‘‘the experimental population and its
same definition as USFWS. primary habitat of the species has been potential contribution to the species
unsuitably and irreversibly altered or recovery.
Listing destroyed.’’ This provision is not We have found that using the list of
The beginning of the ‘‘Listing’’ section required under the ESA, and we believe factors developed by USFWS gives the
of the USFWS section 10(j) regulations it unnecessarily limits our ability to public adequate general information
(50 CFR 17.81(a)) describes the implement section 10(j) of the ESA in a about how we plan to interpret the
experimental population designation manner that conserves our listed provision for ‘‘furthering the
process and specifies that it is the species. Therefore, we do not include conservation of the species,’’ without
Secretary of the Interior who has the this language in our proposed rule. introducing needless complexity. In
authority to designate and release an rulemakings we have already completed
Furthering the Conservation of the to designate experimental populations
experimental population of a listed
Species (see above), we have provided detailed
species under USFWS jurisdiction into
suitable habitat outside of the species’ As noted above, ESA section 10(j) discussions of relevant species-specific
current natural range. In our proposed requires that before authorizing the information that we considered in order
regulations, we similarly specify that it release of an experimental population to make the ‘‘further the conservation
is the Secretary of Commerce who has outside the current range of the species, of’’ finding based on these four factors,
the authority to designate and release an the Secretary must determine that such and we intend to continue this practice
experimental population for species release will further the conservation of in future rulemakings. We also note the
under our jurisdiction. the species. The ESA provides little desirability of maintaining consistency
Consistent with the general intent of guidance on how to make such a between our regulations and those of
Congress with regard to the adoption of determination. The ESA does define USFWS. Therefore, we propose to adopt
regulations and the specific requirement ‘‘conservation’’ as ‘‘the use of all the same language and four factors as
in ESA section 10(j)(2)(B) that an methods and procedures which are the USFWS regulations for making the
experimental population be identified necessary to bring any endangered determination that release of an
by regulation, USFWS included a species or threatened species to the experimental population will further the
requirement that regulations designating point at which the measures provided conservation of the species, with two
experimental populations be adopted in pursuant to this [Act] are no longer small editorial revisions. First, we
accordance with 5 U.S.C. 553 (see 50 necessary.’’ In their ESA section 10(j) added a comma in the second sentence
regulations, USFWS identified four of paragraph (b) because it is
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CFR 17.81(a)), which contains the
informal rulemaking provisions of the factors that, using the best scientific and appropriate grammatically. Second, the
Administrative Procedure Act. commercial data available, they third factor in USFWS’s regulations says
Therefore, we propose to adopt this consider in making a finding that the USFWS will consider the ‘‘relative
provision as well. experimental population release will effects’’ the experimental population
further the conservation of the species: will have on recovery of the species. In
Current Range (1) Any possible adverse effects on our experience with our species, we
The USFWS regulations at 50 CFR extant populations of a species as a have found the term ‘‘relative’’ in this
17.81(a) provide for the designation of result of removal of individuals, eggs, or factor is superfluous, and we therefore

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Federal Register / Vol. 80, No. 148 / Monday, August 3, 2015 / Proposed Rules 45927

do not include it in our proposal. restrictions, protective measures, or on the conservation and recovery of the
Neither of these changes is intended to other special management concerns of species. We agree with this provision to
make our proposed regulation that population, which may include, but help ensure the success of experimental
functionally different than USFWS’s are not limited to, measures to isolate population designations and to formally
corresponding regulation. and/or contain the experimental and publicly review these designations.
population designated in the regulation We note that the ESA requires that we
Identification of the Experimental
from natural populations[.]’’ This conduct a status review every 5 years for
Population
provision addresses the linkage between each listed species under our
In their ESA section 10(j) designating experimental populations jurisdiction. We intend to use the 5 year
implementing regulations, USFWS under section 10(j) of the ESA and review process for tracking the status of
requires that any regulation designating implementing companion protective experimental populations and ensuring
an experimental population shall regulations under ESA section 4(d). The that experimental population
provide, among other things, language also specifies actions needed designations further the conservation of
‘‘[a]ppropriate means to identify the to successfully implement an the species as expected.
experimental population, including, but experimental population release. We
not limited to, its actual or proposed agree that it is helpful to clarify the Permits To Allow Establishment and
location, actual or anticipated relationship between sections 4(d) and Maintenance of an Experimental
migration, number of specimens 10(j) of the ESA and the intent of Population
released or to be released, and other Congress and the agency in
criteria appropriate to identify the In their ESA section 10(j) regulations,
implementing ESA section 10(j). Based USFWS notes that they may issue a
experimental population(s)’’ (50 CFR on our experience with our species,
17.81(c)(1)). We believe these examples permit under section 10(a)(1)(A) of the
however, we believe additional ESA, if appropriate under the standards
of means of identifying an experimental clarifying language in this section is
population are relevant and helpful, and set out in subsections 10(d) and (j) of the
appropriate for our species. ESA, to allow acts necessary for the
we propose to include them in our We believe this section should make
regulations. However, we add the establishment and maintenance of an
it clear that management restrictions,
qualifier ‘‘if appropriate’’ to our experimental population. This provision
protective measures, and other special
proposal to make it clear that not all of highlights the intent of Congress that
management concerns would be applied
the listed means will be relevant to each experimental populations be
to an experimental population as
experimental population designation for appropriate to the specific situation as implemented through provisions of the
our species. With the addition of the ‘‘if not all of these measures would be ESA and provides the relevant
appropriate’’ qualifier, we also change applicable for all of our species. We mechanism by which this would
the commas separating the examples to therefore add this clarification to our normally occur. Our implementing
semicolons to more clearly separate proposed regulatory language. Second, practices are similar to those of USFWS,
them. we again propose using the word and we therefore propose to include this
‘‘nonexperimental,’’ instead of the word provision in our regulations, with some
Finding Whether the Experimental edits solely to improve clarity and
‘‘natural,’’ to describe nonexperimental
Population Is or Is Not Essential streamline the provision. In the USFWS
populations, as discussed above. Third,
The USFWS ESA section 10(j) we add language to further clarify the regulations at 50 CFR 17.81, this
regulations at 50 CFR 17.81(c)(2) distinction between regulations adopted provision is an un-numbered sentence
incorporate the requirement of the ESA under the provisions of ESA section 4(d) as part of paragraph (4) under
that the designation of an experimental and those adopted under ESA section subparagraph (b), which otherwise deals
population include a determination as 10(j). Finally, we add a comma after with the factors to consider in making
to whether the experimental population ‘‘include,’’ because it is appropriate a determination that an experimental
is essential to the continued existence of grammatically to separate the ‘‘but are population will further the conservation
the listed species. The language is as not limited to’’ clause. These of the species. In order to emphasize the
follows: ‘‘(c) Any regulation clarifications are not intended to make provision as a stand-alone provision and
promulgated under paragraph (a) of this our proposed regulations functionally to make it easier to directly cite, in our
section shall provide: . . . (2) A finding, differ from those of USFWS. Therefore, proposed rule we place this provision in
based solely on the best scientific and our proposed regulatory language is: its own numbered subparagraph (d). We
commercial data available, and the ‘‘Management restrictions, protective also propose to not include the
supporting factual basis, on whether the measures, or other special management following phrase from the USFWS
experimental population is, or is not, concerns of that population, as regulations: ‘‘under the standards set
essential to the continued existence of appropriate, which may include, but are out in subsections 10(d) and (j) of the
the species in the wild[.]’’ Based on our not limited to, measures to isolate and/ ESA,’’ because the phrase is
experience, this language is adequate to or contain the experimental population unnecessary. Under the provisions of
describe the statutory requirement, and designated in the regulation from the statute, any permit for an
we propose to adopt identical language. nonexperimental populations and experimental population issued under
We have already discussed above that protective regulations established ESA section 10(a)(1)(A) would have to
we will adopt the same definition as the pursuant to section 4(d) of the Act.’’ meet the standards set out in those
subsections, so it is not necessary to
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USFWS regulations for ‘‘essential
Periodic Review explicitly list the subsections in the
experimental population.’’
50 CFR 17.81(c)(4) of the USFWS regulations. Our proposed regulations
Protective Measures section 10(j) regulations requires that will thus read, ‘‘The Secretary may issue
In 50 CFR 17.81(c)(3) of their ESA any regulation designating an a permit under section 10(a)(1)(A) of the
section 10(j) regulations, USFWS experimental population shall provide a Act, if appropriate, to allow acts
establishes that their rulemakings for process for periodic review and necessary for the establishment and
designating experimental populations evaluation of the success or failure of maintenance of an experimental
will also provide: ‘‘Management the release and the effect of the release population.’’

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45928 Federal Register / Vol. 80, No. 148 / Monday, August 3, 2015 / Proposed Rules

Stakeholder Consultations Location of Experimental Population the species during certain periods of the
Regulations in the Code of Federal year, no critical habitat will be
In their regulations implementing Regulations designated for the area of overlap,
ESA section 10(j), USFWS establishes unless implemented as a revision to
that, in the process of developing and In their ESA section 10(j) regulations,
USFWS provides that special rules critical habitat of the natural population
implementing experimental population for reasons unrelated to the overlap
relating to a designation of an
rules, they will consult with appropriate itself.’’ This language is not included in
experimental population will be
State fish and wildlife agencies, local the ESA, and in our experience with our
published in specific sections of the
governmental entities, affected Federal species this language has been
CFR as appropriate, and that
agencies, and affected private unnecessary to understand and
experimental populations will be
landowners, including through public implement the relevant provisions of
separately listed in the lists of
meetings, when appropriate (50 CFR the ESA. We therefore do not include
threatened and endangered plants and
17.81(d)). USFWS further establishes in this language in our proposed rule.
animals in the CFR as appropriate. In
this paragraph that, to the maximum our proposed regulations, we similarly Prohibitions
extent practicable, any regulation state that our regulations relating to
promulgated pursuant to this section The USFWS ESA section 10(j)
specific experimental populations will regulations at 50 CFR 17.82 reiterate the
shall represent an agreement between continue to be published in Title 50,
USFWS, the affected State and Federal ESA section 10(j) provision that each
part 223 of the CFR, with our member of an experimental population
agencies, and persons holding any regulations related to threatened
interest in land which may be affected shall be treated as if it were listed as a
species, and that our designated threatened species and add that this
by the establishment of an experimental experimental populations also will be applies for purposes of establishing
population. We strongly believe that separately listed in the lists of protective regulations under section 4(d)
consultations with affected parties are threatened and endangered plants and of the ESA. Based on our experience
critical to the success of experimental animals in the CFR as appropriate. We with our species, even with the
population designations and propose to note that the regulations relating to language in 50 CFR 17.82, stakeholders
adopt this language in our regulations. listing and designation of an still have questions regarding the
We believe that our trust responsibilities experimental population that are being relationship between ESA sections 10(j)
with regard to tribal governments proposed in this rulemaking would be and 4(d). Therefore, we propose
warrant explicitly including published in Title 50, part 222 of the modified language for our regulations to
consultation with tribes in our ESA CFR, with our other ESA implementing clarify and explain in more detail the
section 10(j) regulations. We have regulations. relationship between these two sections.
therefore listed tribal governments in This modified language is not intended
Critical Habitat for Experimental
our proposal. This addition is not to function differently or lead to
Populations Determined To Be Essential
intended to suggest that USFWS’s different outcomes than the USFWS
regulations do not allow for The Secretary may designate critical language, but is only intended to
consultation with tribal governments, habitat, as defined in section (3)(5)(A) of provide greater explanation about the
and, in fact, USFWS has consulted with the ESA, for an experimental population relationship between ESA sections 10(j)
tribal governments on ESA section 10(j) determined to be essential (but not for and 4(d). The first sentence would read
designations. Therefore, listing tribal populations determined to be the same as 50 CFR 17.82: ‘‘Any
governments in our regulations would nonessential). In their ESA section 10(j) population determined by the Secretary
not make our provision functionally regulations, USFWS emphasizes that the to be an experimental population shall
differ from the corresponding provision designation of critical habitat for an be treated as if it were listed as a
in USFWS’s regulations. We would just essential experimental population will threatened species for purposes of
like to explicitly list tribal governments be made in accordance with section 4 of establishing protective regulations
in our regulations based on our the ESA (50 CFR 17.81(f)). We agree that under section 4(d) of the Act with
experience with our species. In fact, emphasizing the provisions of ESA respect to such population.’’ However,
tribal governments have been integral in section 4 in the ESA section 10(j) we propose to replace the second
the development of experimental regulations is useful, and we therefore sentence of the USFWS regulations at 50
populations we have already designated propose to include the same language in CFR 17.82 (‘‘The Special rules
(see above). our regulations. In our proposed (protective regulations) adopted for an
regulations, we made two changes from experimental population under § 17.81
We propose one other addition in this the language in 50 CFR 17.81(f), will contain applicable prohibitions, as
section of our regulations. The USFWS however. First, the USFWS regulations appropriate, and exceptions for that
regulations at 50 CR 17.81(d) identify say: ‘‘No designation of critical habitat population.’’) with the following text in
persons holding an interest in land will be made for nonessential our regulations: ‘‘Accordingly, when
which may be affected by an populations.’’ We add the word designating, or revising, an
experimental population designation as ‘‘experimental’’ after ‘‘nonessential,’’ to experimental population under section
a stakeholder group to be consulted. emphasize that the nonessential 10(j) of the Act, the Secretary may also
Based on our experience and work in populations are, in fact, ESA section exercise his or her authority under
aquatic habitat and the fact that all of 10(j) experimental populations. section 4(d) of the Act to include
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our species are aquatic species, we Second, in their regulations, USFWS protective regulations necessary and
believe the addition of persons holding adds additional language regarding advisable to provide for the
interests in water (i.e., aquatic habitat), critical habitat for experimental conservation of such species as part of
which may be affected by an populations (50 CFR 17.81(f)). The the special rule for the experimental
experimental population designation, as language USFWS uses is: ‘‘In those population. Any protective regulations
an additional stakeholder group is situations where a portion or all of an applicable to the species from which the
warranted and have included that essential experimental population experimental population was sourced
addition in this proposed rule. overlaps with a natural population of do not apply to the experimental

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Federal Register / Vol. 80, No. 148 / Monday, August 3, 2015 / Proposed Rules 45931

recognized as such while in the area of (1) Appropriate means to identify the (g) The Secretary may designate
overlap. That is, experimental status experimental population, including, but critical habitat as defined in section
will only be recognized outside the not limited to, its actual or proposed (3)(5)(A) of the Act for an essential
areas of overlap. Thus, such a location; actual or anticipated experimental population as determined
population shall be treated as migration; number of specimens pursuant to paragraph (c)(2) of this
experimental only when the times of released or to be released, if appropriate; section. Any designation of critical
geographic separation are reasonably and other criteria appropriate to identify habitat for an essential experimental
predictable; e.g., fixed migration the experimental population(s); population will be made in accordance
patterns, natural or man-made barriers. (2) A finding, based solely on the best with section 4 of the Act. No
A population is not treated as scientific and commercial data designation of critical habitat will be
experimental if total separation will available, and the supporting factual made for nonessential experimental
occur solely as a result of random and basis, on whether the experimental populations.
unpredictable events. population is, or is not, essential to the
(b) The term essential experimental § 222.503 Prohibitions.
continued existence of the species in the
population means an experimental wild; (a) Any population determined by the
population whose loss would be likely (3) Management restrictions, Secretary to be an experimental
to appreciably reduce the likelihood of protective measures, or other special population shall be treated as if it were
the survival of the species in the wild. listed as a threatened species for
management concerns of that
All other experimental populations are purposes of establishing protective
population, as appropriate, which may
to be classified as nonessential. regulations under section 4(d) of the Act
include, but are not limited to, measures
§ 222.502 Listing. to isolate and/or contain the with respect to such population.
(a) The Secretary may designate as an experimental population designated in (b) Accordingly, when designating, or
experimental population a population of the regulation from nonexperimental revising, an experimental population
endangered or threatened species that populations and protective regulations under section 10(j) of the Act, the
has been or will be released into established pursuant to section 4(d) of Secretary may also exercise his or her
suitable habitat outside the species’ the Act; and authority under section 4(d) of the Act
current range, subject to the further (4) A process for periodic review and to include protective regulations
conditions specified in this section, evaluation of the success or failure of necessary and advisable to provide for
provided, that all designations of the release and the effect of the release the conservation of such species as part
experimental populations must proceed on the conservation and recovery of the of the special rule for the experimental
by regulation adopted in accordance species. population. Any protective regulations
with 5 U.S.C. 553 and the requirements (d) The Secretary may issue a permit applicable to the species from which the
of this subpart. under section 10(a)(1)(A) of the Act, if experimental population was sourced
(b) Before authorizing the release as appropriate, to allow acts necessary for do not apply to the experimental
an experimental population of any the establishment and maintenance of population unless specifically included
population (including eggs, propagules, an experimental population. in the special rule for the experimental
or individuals) of an endangered or (e) The National Marine Fisheries population.
threatened species, and before Service shall consult with appropriate § 222.504 Interagency cooperation.
authorizing any necessary State fish and wildlife agencies, affected
transportation to conduct the release, tribal governments, local governmental (a) Any experimental population
the Secretary must find by regulation entities, affected Federal agencies, and designated for a listed species
that such release will further the affected private landowners in determined pursuant to § 222.502(c)(2)
conservation of the species. In making developing and implementing not to be essential to the survival of that
such a finding, the Secretary shall experimental population rules. When species and not occurring within the
utilize the best scientific and appropriate, a public meeting will be National Park System or the National
commercial data available to consider: conducted with interested members of Wildlife Refuge System, shall be treated
(1) Any possible adverse effects on for purposes of section 7 of the Act
the public. Any regulation promulgated
extant populations of a species as a (other than this paragraph (a) thereof) as
pursuant to this section shall, to the
result of removal of individuals, eggs, or a species proposed to be listed under
maximum extent practicable, represent
propagules for introduction elsewhere; the Act as a threatened species, and the
(2) The likelihood that any such an agreement between the National
Marine Fisheries Service, the affected provisions of section 7(a)(4) of the Act
experimental population will become shall apply.
established and survive in the State and Federal agencies and tribal
governments, and persons holding any (b) Any experimental population
foreseeable future; designated for a listed species that
(3) The effects that establishment of interest in land or water which may be
affected by the establishment of an either has been determined pursuant to
an experimental population will have
experimental population. § 222.502(c)(2) to be essential to the
on the recovery of the species; and
(4) The extent to which the (f) Any population of an endangered survival of that species, or occurs within
introduced population may be affected species or a threatened species the National Park System or the
by existing or anticipated Federal or determined by the Secretary to be an National Wildlife Refuge System as now
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State actions or private activities within experimental population in accordance or hereafter constituted, shall be treated
or adjacent to the experimental with this subpart shall be identified by for purposes of section 7 of the Act as
population area. special rule in part 223 as appropriate a threatened species, and the provisions
(c) Any regulation promulgated under and separately listed in 50 CFR 17.11(h) of section 7(a)(2) of the Act shall apply.
paragraph (a) of this section shall (wildlife) or 50 CFR 17.12(h) (plants) as [FR Doc. 2015–18894 Filed 7–31–15; 8:45 am]
provide: appropriate. BILLING CODE 3510–22–P

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Document Created: 2018-02-23 10:51:53
Document Modified: 2018-02-23 10:51:53

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule and request for comments.
Dates		To allow us adequate time to consider your comments on this proposed rule, they must be received no later than October 2, 2015.
Contact		Dwayne Meadows, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, (301) 427-8403.
FR Citation		80 FR 45924
RIN Number		0648-BE43

80 FR 45924 - Endangered and Threatened Species: Proposed Regulations for the Designation of Experimental Populations Under the Endangered Species Act

DEPARTMENT OF COMMERCENational Oceanic and Atmospheric Administration

Federal Register Volume 80, Issue 148 (August 3, 2015)

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration