[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