[Federal Register Volume 87, Number 109 (Tuesday, June 7, 2022)]
[Proposed Rules]
[Pages 34625-34629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12061]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2021-0033; FF09E41000 2223 FXES111609C0000]
RIN 1018-BF98
Endangered and Threatened Wildlife and Plants; Designation of
Experimental Populations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish Wildlife Service (Service), propose to
revise the regulations concerning experimental populations of
endangered species and threatened species under the Endangered Species
Act (ESA). We are proposing to remove language generally restricting
the introduction of experimental populations to only the species'
``historical range'' to allow for the introduction of populations into
habitat outside of their historical range for conservation purposes. To
provide for the conservation of certain species, we have concluded that
it may be increasingly necessary and appropriate to establish
experimental populations outside of their historical range if the
ability of the habitat to support one or more life history stages has
been reduced due to threats, such as climate change or invasive
species. We are also proposing minor changes to clarify the existing
regulations. These minor changes are not intended to alter the
substance or scope of the regulations.
DATES: We will accept comments from all interested parties until August
8, 2022. Please note that if you are using the Federal eRulemaking
Portal (see ADDRESSES below), the deadline for submitting an electronic
comment is 11:59 p.m. Eastern Standard Time on this date.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2021-0033,
which is the docket number for this rulemaking. Then, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2021-0033; U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments below for more information).
FOR FURTHER INFORMATION CONTACT: Lisa Ellis, Acting Chief, Division of
Restoration and Recovery, U.S. Fish and Wildlife Service, 5275 Leesburg
Pike, Falls Church, VA 22041-3803, telephone 703-358-2171. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
The purposes of the ESA are to provide a means to conserve the
ecosystems upon which listed species depend, to develop a program for
the conservation of listed species, and to achieve the purposes of
certain treaties and conventions. Moreover, the ESA states that it is
the policy of Congress that Federal agencies shall seek to conserve
threatened and endangered species and use their authorities to further
the purposes of the ESA (16 U.S.C. 1531(c)(1)). The ESA's implementing
regulations are found in title 50 of the Code of Federal Regulations
(CFR).
The 1982 amendments to the ESA added section 10(j) to facilitate
reintroductions of listed species by allowing the Service to designate
``experimental populations.'' The regulations to carry out section
10(j) provide that the Service may designate as an experimental
population a population of an endangered species or a threatened
species that will be released into suitable natural habitat outside the
species' current natural range (but within its probable historical
range, absent a finding by the Director in the extreme case that the
primary habitat of the species has been unsuitably and irreversibly
altered or destroyed) (50 CFR 17.81). At the time the Service adopted
these regulations, it did not anticipate the impact of climate change
on species and their habitats. We have since learned that climate
change is causing, or is anticipated to cause, many species' suitable
habitat to shift outside of their historical range. In addition, other
threats such as invasive species may also reduce the ability of habitat
to support one or more life history stages within the species'
historical range. Therefore, it may be necessary and appropriate to
establish experimental populations outside of the species' historical
range to provide for their conservation and adapt to the habitat-
related impacts of climate change and other threats. These proposed
regulatory changes will more clearly establish the authority of the
Service to introduce experimental populations into areas of habitat
outside of the historical range of the affected listed species. The
proposed revisions will not otherwise change the process for
designating an experimental population.
Proposed Regulatory Revisions
We seek public comments on the proposed revisions to the
regulations in 50 CFR part 17, subpart H. The primary proposed revision
is to delete the reference to a species' ``historical range.'' We
intend for this change to allow for experimental populations to be
introduced into habitat outside of the historical range of the species
under appropriate circumstances. Such circumstances could include
instances where little to no habitat remains within the historical
range of a species or where formerly suitable habitat within the
historical range has undergone, or is undergoing, irreversible decline
or change, rendering it unable to support one or more life history
stages for the species, thereby leading to the need to establish the
species in habitat in areas outside the historical range. If this
proposal is finalized, it will be applied to future designations and
will not require the reevaluation of any prior designation of an
experimental population.
[[Page 34626]]
Section 17.80 Definitions
In this section under paragraph (a), we propose to replace the word
``natural populations'' with ``nonexperimental populations'' to improve
clarity.
Section 17.81 Listing
We propose several edits and additions to this section. Under
paragraph (a), the terms ``natural'' and ``suitable'' would be deleted
from the first sentence because these terms are not defined. We propose
to replace ``suitable'' with ``is necessary to support one or more life
history stages,'' i.e., ``suitable natural habitat'' would be revised
to ``habitat that is necessary to support one or more life history
stages.'' In addition, the parenthetical phrase generally limiting an
experimental population of a species to its ``probable historic (sic)
range'' would be deleted.
We propose to move the sentence following paragraph (b)(4) to a new
paragraph. That sentence does not relate to introduced populations
being affected by actions within or adjacent to the experimental
population area. Rather, it addresses the Secretary's authority to
issue section 10(a)(1)(A) permits for establishment and maintenance of
an experimental population. Because this is an undesignated sentence in
the regulatory text, and to provide more emphasis on the need for
section 10(a)(1)(A) permits, we propose to move this sentence about
Secretarial authority to a new paragraph (d).
In paragraph (c)(3), the reference to ``natural populations,''
which are not defined, would be replaced with ``nonexperimental
populations.''
In the existing paragraph (d), describing with whom the Service
will consult, we propose to add Tribal governments to those affected by
the establishment of experimental populations. We are also making a
minor change from ``local governmental entities'' to ``local government
agencies'' to be consistent with National Marine Fisheries Service
section 10(j) regulations, although this proposed word change does not
reflect any intent to change our obligation to consult with local
governments. Also, we propose to add ``water'' to identify that the
interest of agencies, Tribes, or persons may be in water as well as in
land. Because of the previously described addition of text to paragraph
(d), we would move the current provisions of paragraph (d) to paragraph
(e) and the current provisions of paragraph (e) to paragraph (f).
In the existing paragraph (f), we propose to add ``experimental''
to the third sentence to clarify that the referenced nonessential
populations are experimental populations under section 10(j). In
addition, we propose to delete the last sentence because this language
is not included in the ESA and it is not necessary to implement the
statutory provisions related to critical habitat designations. We would
redesignate this paragraph as paragraph (g).
Section 17.82 Prohibitions
We propose to replace the phrase ``Special rules'' with ``species-
specific rules'' to clarify that the rules are developed for specific
species.
Section 17.83 Interagency Cooperation
In this section, which relates to how experimental populations are
treated for purposes of interagency consultation under ESA section 7,
we propose the following changes:
Paragraph (b) would be divided because it covers two different
subjects. The first is how the Service will treat an experimental
population that either: (1) is essential to the survival of the species
or (2) occurs within the National Park System or the National Wildlife
Refuge System. The second is how agencies should consider experimental
and nonexperimental populations during section 7 consultations (i.e.,
together as a single species).
The new paragraph (c) would contain part of paragraph (b), as
described above, including the existing provision that any section 7
consultation or conference on a proposed Federal action will consider
both experimental and nonexperimental populations to constitute a
single species for the purposes of conducting the section 7 analyses.
Sections 17.84 and 17.85
These sections contain the regulations that apply to experimental
populations of particular listed species. We propose to change the
title of each section by deleting ``special'' and inserting ``species-
specific'' because ``special'' is vague and ``species-specific'' is a
better description to indicate that each rule is specific to a
particular species.
Section 17.86
This section is removed and reserved.
Public Comments
You may submit your comments and materials concerning the proposed
rule by one of the methods listed in ADDRESSES. Comments must be
submitted to https://www.regulations.gov before 11:59 p.m. (Eastern
Time) on the date specified in DATES. We will not consider mailed
comments that are not postmarked by the date specified in DATES.
We will post your entire comment--including your personal
identifying information--on https://www.regulations.gov. If you provide
personal identifying information in your comment, you may request at
the top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting documentation
we used in preparing this proposed rule, will be available for public
inspection on https://www.regulations.gov.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rulemaking
is not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the Nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
proposed rule in a manner consistent with these requirements. This
proposed rule is consistent with Executive Order 13563, and in
particular with the requirement of retrospective analysis of existing
rules, designed ``to make the agency's regulatory program more
effective or less burdensome in achieving the regulatory objectives.''
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rulemaking on small entities (i.e., small
[[Page 34627]]
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency, or that person's designee, certifies that the rulemaking
will not have a significant economic impact on a substantial number of
small entities. SBREFA amended the Regulatory Flexibility Act to
require Federal agencies to provide a statement of the factual basis
for certifying that a rule will not have a significant economic impact
on a substantial number of small entities. We certify that, if adopted
as proposed, this rulemaking would not have a significant economic
effect on a substantial number of small entities. The following
discussion explains our rationale.
This rulemaking would revise and clarify requirements for the
Service regarding factors for establishing experimental populations
under the ESA. The proposed changes to these regulations do not expand
the reach of species protections.
The Service is the only entity that is directly affected by this
proposed rule because we are the only entity that would apply these
regulations to designate experimental populations. No external
entities, including any small businesses, small organizations, or small
governments, would experience any economic impacts from this
rulemaking.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this proposed rule would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this rulemaking would not impose a cost of $100
million or more in any given year on local or State governments or
private entities. A Small Government Agency Plan is not required. As
explained above, small governments would not be affected because the
proposed rule would not place additional requirements on any city,
county, or other local municipalities.
(b) This proposed rule would not produce a Federal mandate on
State, local, or Tribal governments or the private sector of $100
million or greater in any year; that is, this proposed rule is not a
``significant regulatory action'' ' under the Unfunded Mandates Reform
Act. This proposed rule would impose no obligations on State, local, or
Tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. This proposed rule would not
pertain to ``taking'' of private property interests, nor would it
directly affect private property. A takings implication assessment is
not required because this proposed rule (1) would not effectively
compel a property owner to suffer a physical invasion of property and
(2) would not deny all economically beneficial or productive use of the
land or aquatic resources. This proposed rule would substantially
advance a legitimate government interest (conservation and recovery of
endangered species and threatened species) and would not present a
barrier to all reasonable and expected beneficial use of private
property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this proposed rule would have significant federalism effects
and have determined that a federalism summary impact statement is not
required. This proposed rule pertains only to designation of
experimental populations under the ESA and would not have substantial
direct effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.
Civil Justice Reform (E.O. 12988)
This proposed rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This proposed rule would clarify factors for
designation of experimental populations under the ESA.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior's manual at 512 DM 2, we are considering possible effects
of this proposed rule on federally recognized Indian Tribes. We will
continue to collaborate and coordinate with Tribes on issues related to
federally listed species and their habitats. See Joint Secretarial
Order 3206 (``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act,'' June 5, 1997).
Paperwork Reduction Act of 1995 (PRA)
This proposed regulation revision does not contain any new
collections of information that require approval by the Office of
Management and Budget (OMB) under the PRA (44 U.S.C. 3501 et seq.). OMB
has previously approved the information collection requirements
associated with reporting requirements associated with experimental
populations and assigned the following OMB Control Number: 1018-0095,
``Endangered and Threatened Wildlife, Experimental Populations, 50 CFR
17.84'' (expires 9/30/2023). An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act
We are analyzing this proposed regulation in accordance with the
criteria of the National Environmental Policy Act (NEPA), the
Department of the Interior regulations on Implementation of the
National Environmental Policy Act (43 CFR 46.10-46.450), and the
Department of the Interior Manual (516 DM 8).
We anticipate that the categorical exclusion found at 43 CFR
46.210(i) likely applies to the proposed regulation changes. At 43 CFR
46.210(i), the Department of the Interior has found that the following
category of actions would not individually or cumulatively have a
significant effect on the human environment and are, therefore,
categorically excluded from the requirement for completion of an
environmental assessment or environmental impact statement: Policies,
directives, regulations, and guidelines: that are of an administrative,
financial, legal, technical, or procedural nature; or whose
environmental effects are too broad, speculative, or conjectural to
lend themselves to meaningful analysis and will later be subject to the
NEPA process, either collectively or case-by-case. When the Service
proposes to establish an experimental population, the proposed action
will be subject to the NEPA process at that time.
We invite the public to comment on the extent to which this
proposed regulation may have a significant impact on the human
environment or fall within one of the categorical exclusions for
actions that have no individual or cumulative effect on the quality of
the human environment. We will complete our analysis, in compliance
with NEPA, before finalizing this regulation.
[[Page 34628]]
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. The proposed revised
regulations are not expected to affect energy supplies, distribution,
and use. Therefore, this action is a not a significant energy action,
and no statement of energy effects is required.
Clarity of the Rulemaking
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rulemaking, your comments should be as specific as possible.
For example, you should tell us the numbers of the sections or
paragraphs that are unclearly written, which sections or sentences are
too long, the sections where you feel lists or tables would be useful,
etc.
Authority
We issue this proposed rule under the authority of the Endangered
Species Act, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons described above, we hereby propose to amend subpart
H, of part 17, title 50 of the Code of Federal Regulations, as set
forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.80 by revising paragraph (a) to read as follows:
Sec. 17.80 Definitions.
(a) The term experimental population means an introduced and/or
designated population (including any offspring 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 recognized
as such while in the area of overlap. That is, experimental status will
be recognized only outside the areas of overlap. Thus, such a
population will be treated as experimental only when the times of
geographic separation are reasonably predictable, e.g., fixed migration
patterns, natural or manmade barriers. A population is not treated as
experimental if total separation will occur solely as a result of
random and unpredictable events.
* * * * *
0
3. Amend Sec. 17.81 by:
0
a. Revising paragraph (a) and paragraph (b) introductory text;
0
b. Removing the undesignated paragraph following paragraph (b)(4);
0
c. Revising paragraph (c)(3);
0
d. Redesignating paragraphs (d), (e), and (f) as paragraphs (e), (f),
and (g);
0
e. Adding a new paragraph (d); and
0
f. Revising newly redesignated paragraphs (e), (f), and (g).
The revisions and addition read as follows:
Sec. 17.81 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 habitat that is necessary to support one or more life
history stages 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 will use the best
scientific and commercial data available to consider:
* * * * *
(c) * * *
(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
* * * * *
(d) The Secretary may issue a permit under section 10(a)(1)(A) of
the Act, if appropriate under the standards set out in subsections
10(d) and (j) of the Act, to allow acts necessary for the establishment
and maintenance of an experimental population.
(e) The Service will consult with appropriate State fish and
wildlife agencies, affected Tribal governments, local governmental
agencies, 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
will, to the maximum extent practicable, represent an agreement between
the Service, the affected State and Federal agencies, Tribal
governments, local government agencies, and persons holding any
interest in land or water that 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 will be identified by a species-specific
rule in Sec. Sec. 17.84 and 17.85 as appropriate and separately listed
in Sec. 17.11(h) (wildlife) or Sec. 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.
0
4. Revise Sec. 17.82 to read as follows:
Sec. 17.82 Prohibitions.
Any population determined by the Secretary to be an experimental
[[Page 34629]]
population will 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. The species-specific rules
(protective regulations) adopted for an experimental population under
Sec. 17.81 will contain applicable prohibitions, as appropriate, and
exceptions for that population.
0
5. Amend Sec. 17.83 by revising paragraph (b) and adding paragraph (c)
to read as follows:
Sec. 17.83 Interagency cooperation.
* * * * *
(b) For a listed species, any experimental population that,
pursuant to Sec. 17.81(c)(2), has been determined to be essential to
the survival of the species or that occurs within the National Park
System or the National Wildlife Refuge System, as now or hereafter
constituted, will be treated for purposes of section 7 of the Act as a
threatened species.
(c) For purposes of section 7 of the Act, any consultation or
conference on a proposed Federal action will treat any experimental and
nonexperimental populations as a single listed species for the purposes
of conducting the analyses and making agency determinations pursuant to
section 7(a) of the Act.
0
6. Amend Sec. 17.84 by:
0
a. Revising the section heading; and
0
b. Removing the word ``special'' where it appears in the heading and
first sentence of paragraph (l)(1) and in the headings to paragraphs
(l)(16) and (x)(8).
The revision reads as follows:
Sec. 17.84 Species-specific rules--vertebrates.
* * * * *
0
7. Amend Sec. 17.85 by revising the section heading and paragraph
(a)(2)(i) to read as follows:
Sec. 17.85 Species-specific rules--invertebrates.
(a) * * *
(2) * * *
(i) Except as expressly allowed in the rule in this paragraph (a),
all the prohibitions of Sec. 17.31(a) and (b) apply to the mollusks
identified in the rule in this paragraph (a).
* * * * *
Sec. 17.86 [Removed and Reserved]
0
8. Remove and reserve Sec. 17.86.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-12061 Filed 6-6-22; 8:45 am]
BILLING CODE 4333-15-P