[Federal Register Volume 81, Number 102 (Thursday, May 26, 2016)]
[Rules and Regulations]
[Pages 33416-33423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12379]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 140725620-6418-02]
RIN 0648-BE43


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

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

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue final 
regulations to amend the Code of Federal Regulations (CFR) to implement 
the Endangered Species Act (ESA)

[[Page 33417]]

regarding experimental populations. This rule amends the CFR 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.

DATES: The final rule is effective June 27, 2016.

ADDRESSES: Supplementary information used in the development of this 
rule, including the public comments received, may be viewed online at 
http://www.regulations.gov at FDMS Docket No. NOAA-NMFS-2014-0104.

FOR FURTHER INFORMATION CONTACT: Heather Coll, NMFS, Office of 
Protected Resources, (301) 427-8455.

SUPPLEMENTARY INFORMATION:

Background

    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 the 
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 provides that each member of 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 that apply to endangered species under ESA section 
9.
    We have developed regulations providing NMFS's interpretation of, 
and procedures for, implementing ESA section 10(j). In developing our 
regulations, we reviewed the ESA, legislative history of the 1982 ESA 
amendments, existing U.S. Fish and Wildlife Service (USFWS) ESA section 
10(j) regulations, public comments from the USFWS rulemaking to develop 
their ESA section 10(j) regulations, and public comments from our own 
recent experimental population designations; and consulted with USFWS 
staff. We then convened a group of NMFS staff with experience in ESA 
section 10(j) designations to draft our own 10(j) regulations.
    We strove to maintain consistency between our regulations and the 
USFWS regulations as much as possible to provide for consistent 
implementation of ESA section 10(j) between the agencies. We are 
finalizing regulations that we believe are necessary to implement the 
statutory requirements in a manner appropriate for species under NMFS' 
jurisdiction, while also clarifying our interpretation of ESA section 
10(j).
    We published our proposed rule in the Federal Register for public 
comment, and after considering public comments, are issuing our final 
rule with four changes from the proposed rule (80 FR 45924; August 3, 
2015). First, pertaining to listing at 50 CFR 222.502(c)(1), we removed 
the words ``if appropriate'' to describe what a listing regulation 
shall provide when an experimental population designation is made. Also 
regarding listing at 50 CFR 222.502(e), we added ``local government 
entities'' to the last sentence, which describes the entities that are 
part of the agreement when a regulation is promulgated for an 
experimental population. Regarding interagency cooperation at 50 CFR 
222.504(a) and (b), we removed the language ``designated for a listed 
species'' because it was redundant, and because removing it makes the 
sentence simpler. This change is not intended to make our regulation 
functionally different than USFWS' corresponding regulation. Finally, 
also regarding interagency cooperation at 50 CFR 222.504, we added a 
paragraph (c), with the following language, to provide guidance and 
clarity in ESA section 7 consultations: ``For purposes of section 7 of 
the Act, any consultation on a proposed Federal action that may affect 
both an experimental and a nonexperimental population of the same 
species should consider that species' experimental and nonexperimental 
populations to constitute a single listed species for the purposes of 
conducting the analyses under section 7 of the Act.''
    We provide a summary of public comments and our responses below.

Summary of Comments

    In our proposed regulations (80 FR 45924, August 3, 2015), we 
requested written comments from the public for 60 days, ending October 
2, 2015, and we received nine comments. We received one request to 
extend the public comment period but did not do so, because we believe 
the 60-day comment period provided adequate time for comment. We 
considered all substantive information provided during the comment 
period and, where appropriate, incorporated explanations here and into 
the Background and Summary of Final Rule sections of this final rule.
    We received seven substantive comments supporting the intent of our 
proposed regulations, agreeing with the overall rulemaking, and 
expressing appreciation for framing the NMFS ESA section 10(j) 
regulations in a manner that is consistent with FWS regulations. More 
specifically, most were very supportive of our: (1) Expansion of the 
stakeholder consultation and collaboration provision; and (2) our 
decision to explain the relationship between ESA sections 10(j) and 
4(d). In addition to providing overall support for the proposed rule, 
the seven substantive commenters requested further clarification on 
several issues, and in some cases, requested specific language changes 
for the regulations. We summarize those comments and requests and 
provide our responses.
    Comment 1: We received several comments related to proposed section 
222.502(e). A few commenters requested that we clarify to what extent 
an experimental population designation is an ``agreement'' between 
interested parties. One commenter requested that we seek concurrence 
before a material change is made to an experimental population 
designation or ESA section 4(d) rule. One commenter requested that we 
specify that we would not proceed with a reintroduction if an 
interested party refuses to cooperate because of the

[[Page 33418]]

determination regarding whether an experimental population is 
essential.
    Response 1: The regulatory text at issue, as revised in this final 
rule, provides, ``[a]ny 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, tribal governments, local government entities, and 
persons holding any interest in land or water which may be affected by 
the establishment of an experimental population.'' We strongly believe 
that working with affected parties is critical to the success of 
experimental population designations and our intent is to reach 
agreement with all interested parties on these designations. The phrase 
``to the maximum extent practicable'' is necessary, however, because 
within the process of trying to reach agreement, there are many 
potential stakeholders with different interests and perspectives and it 
is conceivable that, while most stakeholders are in agreement, there 
may be others who are not.
    We foresee that material changes to an ESA section 10(j) rule would 
be rare, however, it is possible that they could be needed in rare 
circumstances in response to changed circumstances that we did not 
foresee or consider at the time we developed the ESA section 10(j) 
rule. In this case, we would seek input from all interested parties and 
obtain an agreement, to the maximum extent practicable, to move forward 
with that change. After receiving comments from the interested parties 
on a potential material change, we will decide whether to move forward 
with the change. Additionally, because we must promulgate a regulation 
in order to make the designation, we would provide the public an 
opportunity to comment on the proposed rulemaking to amend the 
designation.
    Regarding the commenter's request that we would not proceed with a 
reintroduction if an interested party refuses to cooperate because of a 
disagreement regarding the determination whether the population is 
essential, it is our intention, as noted above, to reach agreement with 
all parties. If consensus is not possible, we must still proceed to 
make a determination as to whether an experimental population is 
essential based upon the best available information.
    Comment 2: A few commenters requested that we clarify whether we 
intend to include local governments as interested parties we will work 
with toward agreement in an experimental population designation, and 
one commenter suggested specific language for including local 
governments.
    Response 2: As provided in our proposed regulations, local 
governmental entities are among the entities we will consult with in 
developing and implementing experimental population rules. For this 
final rule, we added ``local government entities'' to the last sentence 
in 50 CFR 222.502(e), which describes the entities that are part of the 
agreement when a regulation is promulgated for an experimental 
population.
    Comment 3: Many commenters supported the expansion of the 
stakeholder consultation provision to include those persons holding an 
interest in water. In addition, commenters requested we place this 
expansion within the regulatory text, as the commenters asserted it was 
only stated in the preamble of the proposed rule. Some commenters 
wanted us to further describe what we meant by interest in water and to 
list specific entities that would participate as stakeholders.
    Response 3: The provision expanding stakeholder consultation to 
include those persons holding an interest in water was in the proposed 
regulatory text. It is included in the final regulation (50 CFR 
222.502(e)).
    We decline to further define ``interest in water.'' As stated 
above, we strongly believe that consultations with affected parties are 
critical to the success of experimental population designations and our 
intent is to reach agreement with all interested parties on all aspects 
of these experimental population designations. We intend the universe 
of stakeholders in the consultation process to be inclusive and do not 
want to predefine who may be a stakeholder. The reason for this is that 
we consider ``persons holding any interest in . . . water'' to be broad 
and diverse, and to include, for example, those who have a legal, 
financial, cultural, aesthetic, or other interest.
    Comment 4: One commenter asked us to elaborate on the interaction 
between this rule and our recent regulations modifying the definition 
of adverse modification and the procedures and standards used for 
critical habitat designation.
    Response 4: We published a final rule to revise the Endangered 
Species Act (ESA) section 7(a)(2) regulatory definition of 
``destruction or adverse modification'' that codifies the current 
policy and practice of the National Marine Fisheries Service and the 
Fish and Wildlife Service (81 FR 7214; February 11, 2016). We also 
published a final rule that amends portions of 50 CFR part 424 to 
clarify procedures for designating and revising critical habitat (81 FR 
7413; February 11, 2016). This amendment made minor edits to the scope 
and purpose, added and removed some definitions, and clarified the 
criteria for designating critical habitat.
    Our revisions to the procedures for designating and revising 
critical habitat are not expected to impact future ESA section 10(j) 
designations. Critical habitat cannot be designated for nonessential 
experimental populations. In the event that we identify critical 
habitat for an essential experimental population under ESA section 
10(j), then these regulations would apply to the designation and 
resulting section 7 consultations.
    Comment 5: One commenter requested that we include the same 
provision as USFWS related to analyses under ESA section 7 involving an 
experimental population, that we should consider any experimental and 
nonexperimental populations to constitute a single listed species for 
the purpose of conducting analyses under ESA section 7.
    Response 5: We have added a provision related to analyses under ESA 
section 7 involving an experimental population to provide guidance and 
clarity. The final regulation (50 CFR 222.504(c)) states: ``For 
purposes of section 7 of the Act, any consultation on a proposed 
Federal action that may affect both an experimental and a 
nonexperimental population of the same species should consider that 
species' experimental and nonexperimental populations to constitute a 
single listed species for the purposes of conducting the analyses under 
section 7 of the Act.'' Though this language differs from USFWS' 
language, none of the differences are intended to cause our regulation 
to functionally differ from USFWS's corresponding regulation.
    Comment 6: One commenter requested that we include the same 
provision as USFWS regarding clarification of how critical habitat 
would be designated for an area of overlap between a nonexperimental 
population and an experimental population.
    Response 6: This concern would only apply to essential experimental 
populations, because we cannot designate critical habitat for 
nonessential populations. The USFWS language the commenter refers to 
is: ``[i]n 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

[[Page 33419]]

shall be designated for the area of overlap.'' 50 CFR 17.81(f). We 
believe this language is unnecessary and could be misinterpreted to 
mean that there should be no critical habitat designated for either 
experimental or nonexperimental populations, which is not correct. 
Section 10(j) of the ESA states that populations will be recognized as 
experimental only when they are wholly separate geographically from 
nonexperimental populations. Thus, at times and locations where there 
is overlap, any critical habitat designation for the nonexperimental 
population will apply to the experimental population.
    Comment 7: One commenter requested that we reconsider the 12-year 
expiration in the final rule designating Middle Columbia River 
steelhead trout as an experimental population.
    Response 7: We have designated three experimental populations of 
salmonids based on the specific and unique circumstances for those 
populations. As we stated in the proposed regulations, we do not intend 
the final implementing regulations herein to require us to review or 
revise those existing designations. The implementing regulations we are 
finalizing in this rule do not alter the findings we made in our prior 
designations and rulemakings. Therefore, the existing designations will 
not change as a result of finalizing this rule.
    With respect to future designations, we anticipate that 
designations having an expiration date will be rare. It is our intent 
that future experimental population designations will remain in place 
until the species is delisted. For further detail on delisting and 
revising experimental populations, see Response 11.
    Comment 8: One commenter asked us to expand on the reasoning for 
removing ``natural'' as a qualifier from the term ``current range'' and 
asked whether this would increase or decrease areas where experimental 
populations could be established.
    Response 8: ESA section 10(j)(2)(A) uses the phrase ``outside the 
current range'' rather than ``outside the current natural range,'' 
which is used in the USFWS regulations, to identify the geographic area 
in which an experimental population is authorized for release. 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.'' For this reason, including the word 
``natural'' in the phrase ``outside the current range'' could be 
confusing. Removing the word ``natural'' eliminates this confusion. The 
term ``current range'' means the geographic area where the species is 
at the time of the designation. We do not anticipate that this will, as 
a general matter, increase or decrease areas where experimental 
populations could be established.
    Comment 9: One commenter requested that we provide an example of 
when listing proposed location, migration, number of specimens to be 
released, as well as other criteria appropriate to identify 
experimental populations would not be appropriate to include in the 
rule designating the experimental population.
    Response 9: In rules designating experimental populations, we will 
provide all of the best available information at that time for 
identifying the population. Over the course of implementing the rules, 
more specific information could emerge that was not available at the 
time of the rulemaking. For example, it is possible that not all of the 
information regarding proposed location, migration, number of specimens 
to be released, and other criteria appropriate to identify that 
experimental population would be available at the time of designating 
an experimental population.
    For the final regulation we deleted the clause ``if appropriate'' 
because it appeared to apply to just the number of specimens released 
or to be released, whereas we intend that any means used to identify 
the experimental population would need to be appropriate to the 
specific scenario. The final regulation states: ``. . . Appropriate 
means to identify the experimental population, including, but not 
limited to, its actual or proposed location; actual or anticipated 
migration; number of specimens released or to be released; and other 
criteria appropriate to identify the experimental population(s)'' (50 
CFR 222.502(c)(1)).''
    Comment 10: One commenter asked us to clarify that hatchery stocks 
not currently listed under the ESA will not be treated as threatened or 
as a species proposed for listing if an experimental population is 
established in the same area.
    Response 10: If an unlisted hatchery stock co-occurs in the same 
geographic area as an experimental population, that hatchery stock's 
status would not change and it would not be treated as threatened or 
proposed for listing simply because it co-occurs with an experimental 
population.
    Comment 11: One commenter requested that we clarify that an 
experimental population will retain that designation until the donor 
species is delisted because of recovery, asserting that the change 
would remove ambiguity about whether NMFS would remove a designation 
under section 10(j) of the ESA if the donor species is delisted due to 
extinction. Another commenter asked us to explain our position on 
revising the designation of an experimental population.
    Response 11: As we stated in the preamble to the proposed rule, 
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 (80 FR 45924; August 3, 2015). A 
species (here, donor species) is delisted either because of extinction, 
recovery, or because the original data for classification was in error 
(50 CFR 424.11(d)). In any decision to change the donor species' 
status, we would consider the role of experimental populations in 
contributing to the conservation of the species. This also clarifies 
our intent with regard to revising experimental population 
designations. Our intent is that experimental populations retain their 
designations until the donor species is delisted. We do have the 
authority to revise experimental population designations and, while we 
cannot predict all future circumstances, at this time we do not 
anticipate making such revisions. However, NMFS has the authority to 
revise experimental population designations and may need to do so if 
there is a substantial change in the circumstances that led to 
determinations in the original experimental population designation. In 
that case, NMFS would need to revise the rule designating the 
experimental population, which would be subject to the same rulemaking 
procedures as the original experimental population designation.
    Comment 12: We received several comments voicing concern that no 
experimental populations have been designated as essential even though 
some experimental populations have ``carried the future of the species 
on their backs.'' These commenters also urged us to include criteria, 
develop policy, or develop guidance on when an experimental population 
would be deemed essential.
    Response 12: While we have not yet proposed designating any 
experimental

[[Page 33420]]

population as essential, the statute and these regulations provide the 
potential for future opportunities to do so. We believe there is 
appropriate guidance laid out in the regulations, including the 
definition of ``essential experimental population,'' and statute to 
designate an experimental population that we determine to be an 
essential experimental population.
    Comment 13: One commenter stated that non-listed populations should 
not be used as sources to establish new populations that would be 
afforded any ESA protection (threatened or proposed). The commenter 
wanted to see more explicit language addressing this issue.
    Response 13: ESA section 10(j) authorizes us to establish 
experimental populations of endangered or threatened species. It does 
not allow us to designate populations of non-listed species as 
experimental populations under ESA section 10(j). Therefore we do not 
believe additional language pertaining to non-listed species is 
necessary.
    Comment 14: One commenter asked that we remove provisions that the 
commenter believed encourage restrictions on movement of experimental 
populations and suggested alternative regulatory text. Specifically, 
the commenter asserted that the language at 50 CFR 222.502(c)(3), 
``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 nonexperimental 
populations,'' would send a signal to the public that rules under 
section 10(j) of the ESA should always include specific measures to 
isolate/contain populations.
    Response 14: We do not believe nor do we intend that our 
regulations encourage restrictions on movement of experimental 
populations. The language, ``which may include, but are not limited to, 
measures to isolate and/or contain the experimental population 
designation,'' is language from the USFWS regulations that provides an 
example. We are trying to keep our changes from the USFWS regulations 
to a minimum; and we do not feel it is necessary to eliminate the 
subject language. At the time of experimental population designation, 
we will develop management restrictions, protective measures, and other 
special management concerns that are specific to the subject 
experimental population.

Required Determinations

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 rule that meet this 
criteria.

Executive Order 12866

    This 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, certified 
to the Chief Counsel for Advocacy at the Small Business Administration 
during the proposed rule stage that this action would not have a 
significant economic effect on a substantial number of small entities. 
There were no comments received regarding the certification. The 
following discussion explains our rationale.
    The final regulations clarify how we implement the provisions of 
section 10(j) of the ESA. The final regulations do not materially alter 
our current practices or expand our reach. We are the only entity that 
is directly affected by this final 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 final 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.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    1. This rule will not ``significantly or uniquely'' affect small 
governments. We have determined and certify under the Unfunded Mandates 
Reform Act (2 U.S.C. 1502 et seq.) that this rule will 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 regulation will not place additional requirements on any 
city, county, or other local municipalities.
    2. This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This regulation would 
not impose any additional management or protection requirements on the 
States or other entities.

Executive Order 12630

    In accordance with E.O. 12630, this 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.

[[Page 33421]]

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.

Civil Justice Reform (E.O. 12988)

    This rule will not unduly burden the judicial system and meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 
12988. This rule clarifies how the Services will make designations 
under section 10(j) of the ESA: (1) Establishing and/or designating 
certain populations of species listed as endangered or threatened as 
experimental populations; (2) determining whether experimental 
populations are ``essential'' or ``nonessential;'' and (3) promulgating 
appropriate protective measures for experimental populations.

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 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 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 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 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 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 invited all interested tribes to discuss the rule with us at 
their convenience should they choose to have a government-to-government 
consultation. We received no such request for government-to-government 
consultation.

Environmental Justice (E.O. 12898)

    E.O. 12898, Environmental Justice, requires that Federal actions 
address environmental justice in the decision-making process. This rule 
is not expected to have a disproportionately high effect on minority 
populations or low-income populations.

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 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: May 20, 2016.
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 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 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

[[Page 33422]]

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.
    (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; 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, tribal 
governments, local government entities, 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 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 determined pursuant to paragraph 
(c) of this section 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 subsection (a)(1) 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 that either has been determined 
pursuant to paragraph (c) of this section 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.
    (c) For purposes of section 7 of the Act, any consultation on a 
proposed Federal action that may affect both an experimental and a 
nonexperimental

[[Page 33423]]

population of the same species should consider that species' 
experimental and nonexperimental populations to constitute a single 
listed species for the purposes of conducting the analyses under 
section 7 of the Act.

[FR Doc. 2016-12379 Filed 5-25-16; 8:45 am]
 BILLING CODE 3510-22-P