[Federal Register Volume 88, Number 64 (Tuesday, April 4, 2023)]
[Rules and Regulations]
[Pages 19880-19894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06958]



[[Page 19880]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2022-0061; FXES1113090FEDR-224-FF09E22000]
RIN 1018-BF61


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

DATES: This final rule is effective May 4, 2023.

ADDRESSES: Comments and materials we received in response to our 
proposed rule, as well as supporting documents we used in preparing 
this final rule, are available on https://www.regulations.gov under 
Docket No. FWS-R1-ES-2022-0061.

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

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under section 10(j) of the 
Endangered Species Act (16 U.S.C. 1531 et seq.), a population of a 
threatened or endangered species may be designated as an experimental 
population prior to its reintroduction. Experimental populations can be 
designated only by issuing a rule (hereafter referred to as a ``10(j) 
rule'').
    What this document does. This rule will designate sihek 
(Todiramphus cinnamominus) introduced to Palmyra Atoll as a 
nonessential experimental population on the List of Endangered and 
Threatened Wildlife in title 50 of the Code of Federal Regulations at 
50 CFR 17.11(h) with a rule set forth at 50 CFR 17.84.
    The basis for our action. Based on the best scientific and 
commercial data available (in accordance with 50 CFR 17.81), we find 
that introducing sihek to Palmyra Atoll, with the regulatory provisions 
in this final rulemaking, will further the conservation of the species. 
The nonessential experimental population status is appropriate for the 
introduced population because we have determined that it is not 
essential to the continued existence of the species in the wild.
    In the making of our finding that this action will further the 
conservation of the species, we evaluate any possible adverse effects 
on the captive population of sihek, the likelihood that any such 
experimental population will become established and survive in the 
foreseeable future, the relative effects that establishment of an 
experimental population will have on the recovery of the species, and 
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. This rule also 
identifies the boundaries of the experimental population, explains our 
rationale for why the population is not essential to the continued 
existence of the species, describes management restrictions, protective 
measures, or other special management concerns of that population, and 
explains our rationale for determining that the habitat for sihek has 
been indefinitely altered or destroyed, currently a requirement under 
section 10(j) of the Act, and our regulations in title 50 CFR 17.81, 
for introducing a species outside its historical range.
    Peer review and public comment. To ensure that our findings were 
based on scientifically sound data, assumptions, and analysis--and 
consistent with our Policy for Peer Review in Endangered Species Act 
Activities (59 FR 34270, July 1, 1994), and additional guidance (USFWS 
in litt. 2016)--we invited six objective and independent specialists to 
review our proposed rule. We received three responses. We also 
considered all comments and information received during the public 
comment period. All comments received during the peer review process 
and the public comment period have been incorporated into this final 
rule or are addressed below in Summary of Comments and Recommendations.

Background

    On August 31, 2022, we published in the Federal Register a proposed 
rule to establish a nonessential experimental population of sihek on 
Palmyra Atoll (87 FR 53429, August 31, 2022). The comment period on the 
proposed rule was open for 30 days, through September 30, 2022. 
Comments on the proposed rule are addressed below under Summary of 
Comments and Recommendations.

Statutory and Regulatory Framework for Experimental Populations

    Species listed as endangered or threatened are afforded protection 
primarily through the prohibitions in section 9 of the Act. Section 9 
of the Act, among other things, prohibits take of endangered wildlife. 
``Take'' is defined by the Act as harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or attempt to engage in any 
such conduct. Section 7 of the Act outlines the procedures for Federal

[[Page 19881]]

interagency cooperation to conserve federally listed species and 
protect designated critical habitat. Section 7 mandates that Federal 
agencies use their existing authorities to further the purposes of the 
Act by carrying out programs for the conservation of listed species. It 
also requires that Federal agencies, in consultation with the Service, 
ensure that any action they authorize, fund, or carry out is not likely 
to jeopardize the continued existence of a listed species or result in 
the destruction or adverse modification of designated critical habitat. 
Section 7 of the Act does not affect activities undertaken on private 
land unless they are authorized, funded, or carried out by a Federal 
agency.
    The Act was amended in 1982 to include section 10(j), which allows 
for the designation of reintroduced populations of listed species as 
``experimental populations.'' The provisions of section 10(j) were 
enacted to ameliorate concerns that reintroduced populations will 
negatively impact landowners and other private parties, by giving the 
Secretary greater regulatory flexibility and discretion in managing the 
reintroduced species to encourage recovery in collaboration with 
partners, especially private landowners. Under section 10(j) of the 
Act, and our regulations in title 50 of the Code of Federal Regulations 
at 50 CFR 17.81, the Service may designate an endangered or threatened 
species that has been or will be released within its probable 
historical range as an experimental population. The Service may also 
designate an experimental population for an endangered or threatened 
species outside of the species' probable historical range in extreme 
cases when the Director of the Service finds that the primary habitat 
of the species within its historical range has been unsuitably and 
irreversibly altered or destroyed. All experimental populations are 
classified as ``nonessential'' unless we determine that the loss of the 
experimental population would be likely to appreciably reduce the 
likelihood of the survival of the species in the wild. The sihek 
population we are establishing on Palmyra Atoll is designated as 
nonessential.
    The nonessential experimental population (NEP) designation allows 
us to develop tailored ``take'' prohibitions that are necessary and 
advisable to provide for the conservation of the species. The 
protective regulations adopted for an experimental population in a 
section 10(j) rule contain the applicable prohibitions and exceptions 
for that population and apply to all areas described for the 
nonessential population.
    Section 7(a)(2) of the Act requires that Federal agencies, in 
consultation with the Service, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or adversely modify its critical habitat. For the 
purposes of section 7 of the Act, we treat an NEP as a threatened 
species when the population is located within a National Wildlife 
Refuge or unit of the National Park Service. When NEPs are located 
outside of a National Wildlife Refuge or National Park Service unit, 
for the purposes of section 7 we treat the population as proposed for 
listing and only sections 7(a)(1) and 7(a)(4) of the Act apply. In 
these instances, a section 10j rule provides additional flexibility in 
managing the nonessential population because Federal agencies are not 
required to consult with us under section 7(a)(2) for an NEP. Section 
7(a)(1) requires Federal agencies to use their authorities to carry out 
programs for the conservation of listed species. Section 7(a)(4) 
requires Federal agencies to confer (rather than consult) with the 
Service on actions that are likely to jeopardize the continued 
existence of a species proposed to be listed.
    Section 10(j)(2)(C)(ii) of the Act states that critical habitat 
shall not be designated for any experimental population that is 
determined to be nonessential. Accordingly, we do not designate 
critical habitat in areas where we establish an NEP.
    Before authorizing the release as an experimental population of an 
endangered or threatened species, and before authorizing any necessary 
transportation to conduct the release, the Service must find that the 
release will further the conservation of the species. In making such a 
finding, the Service uses the best scientific and commercial data 
available to consider the following factors (see 50 CFR 17.81(b)):
    (1) Any possible adverse effects on extant populations of a species 
as a result of removal of individuals, eggs, or propagules for 
introduction elsewhere (see Donor Stock Assessment and Effects on Donor 
Population, below);
    (2) the likelihood that any such experimental population will 
become established and survive in the foreseeable future (see 
Likelihood of Population Establishment and Survival, below);
    (3) the relative effects that establishment of an experimental 
population will have on the recovery of the species (see Importance of 
the NEP to Recovery Efforts, below); and
    (4) the extent to which the introduced population may be affected 
by existing or anticipated Federal or State actions or private 
activities within or adjacent to the experimental population area (see 
Management, below).
    Furthermore, as set forth at 50 CFR 17.81(c), all regulations 
designating experimental populations under section 10(j) of the Act 
must provide:
    (1) Appropriate means to identify the experimental population, 
including, but not limited to, its actual or proposed location, actual 
or anticipated migration, number of specimens released or to be 
released, and other criteria appropriate to identify the experimental 
population (see Location and Boundaries of the NEP Area, below);
    (2) a finding, based solely on the best scientific and commercial 
data available, and the supporting factual basis, on whether the 
experimental population is, or is not, essential to the continued 
existence of the species in the wild (see Is the Experimental 
Population Essential or Nonessential?, below);
    (3) management restrictions, protective measures, or other special 
management concerns for that population, which may include, but are not 
limited to, measures to isolate and/or contain the experimental 
population designated in the regulation from natural populations (see 
Management, below; and
    (4) a process for periodic review and evaluation of the success or 
failure of the release and the effect of the release on the 
conservation and recovery of the species (see Monitoring and 
Evaluation, below).
    Under 50 CFR 17.81(d), the Service must consult with appropriate 
State fish and wildlife agencies, local governmental entities, affected 
Federal agencies, and affected private landowners in developing and 
implementing experimental population rules. To the maximum extent 
practicable, section 10(j) rules represent an agreement between the 
Service, the affected State and Federal agencies, and persons holding 
any interest in land that may be affected by the establishment of an 
experimental population.

Legal Status of the Species and Previous Federal Actions

    We listed sihek as an endangered species under the Act on August 
27, 1984 (49 FR 33881). At the time of listing, sihek was known as the 
Guam Micronesian kingfisher (Halcyon cinnamomina cinnamomina). On June 
23, 2015 (80 FR 35860), we updated our List of Endangered and 
Threatened

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Wildlife (50 CFR 17.11) to reflect new taxonomic information indicating 
that the Guam Micronesian kingfisher (Halcyon cinnamomina cinnamomina) 
is now considered the Guam kingfisher (Todiramphus cinnamominus). 
Throughout this document, we refer to the species as sihek because that 
is the locally used common name on Guam. We designated critical habitat 
for sihek on October 28, 2004 (69 FR 62944), consisting of 376 ac (153 
ha) on northern Guam. We finalized the Native Forest Birds of Guam and 
Rota of the Commonwealth of the Northern Mariana Islands Recovery Plan 
in 1990 and the Revised Recovery Plan for Sihek or Guam Micronesian 
Kingfisher (Halcyon cinnamomina cinnamomina) in 2008 (73 FR 67541, 
November 14, 2008).

Biological Information

Species Description

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

Historical and Current Range

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

Life Cycle

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

Habitat Use

    Relatively little is known about the habitat use of sihek. Mature 
forests with appropriate nest sites were probably an important 
component for successful reproduction and survival. Sihek are cavity 
nesters and apparently requires large, standing dead trees. Nest trees 
were reported as averaging 43 centimeters (17 inches) in diameter 
(Marshall 1989, p. 475). Sihek also appear to require diverse 
vegetative structure capable of providing a wide range of both 
invertebrate and vertebrate prey as well as exposed perches and areas 
of open ground for foraging (USFWS 2002, p. 63739). Good-quality sihek 
habitat would therefore provide a combination of closed canopy forest 
with large, standing dead trees for nesting, and areas of open 
understory or forest edges for foraging (Jenkins 1983, pp. 22-23; 
Marshall 1989, pp. 475-476; USFWS 2002, p. 63739).

Movement Ecology

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

Causes of Decline and Threats

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

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pp. 16-26) provides further description of these threats.

Recovery Efforts to Date

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

Habitat Protection

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

Brown Treesnake Control

    We currently lack adequate tools to eradicate brown treesnakes from 
Guam, and the continued presence of brown treesnakes throughout the 
landscape prevents the successful reestablishment of sihek on Guam in 
the foreseeable future. However, there is incremental progress in 
addressing this threat. Since 2010, the interagency Brown Treesnake 
Technical Working Group has advanced landscape-scale brown treesnake 
suppression capabilities with the development and refinement of an 
aerial delivery system for toxicant baiting, comprising an automated 
bait manufacturing system and an automated dispensing module for 
applying baits from aircraft. Aerial toxicant baiting has recently been 
evaluated in both fenced and non-fenced 55-ha (136-ac) sites; brown 
treesnake suppression, but not eradication, has been validated using 
this technique (Siers et al. in litt. 2020, p. 4). Further, simulated 
aerial baiting for brown treesnake eradication within a 5-ha (12-ac) 
brown treesnake exclusion area indicates that some brown treesnake size 
classes do not consume baits and additional control tools are needed to 
achieve suppression objectives and/or eradication (Siers et al. in 
litt. 2020, p. 4).
    Island-wide eradication of invasive vertebrates has been achieved 
on 965 islands for various taxonomic groups (see Keitt et al. 2011, 
http://diise.islandconservation.org/); however, snake eradication 
efforts are rare, and there is only one other documented ongoing effort 
to eradicate snakes from an island (http://diise.islandconservation.org/). Additional technological and 
methodological advancements along with community engagement are still 
needed to achieve landscape-scale eradication of brown treesnakes on 
Guam. The aerial delivery system tools are operational, but full 
operational implementation of the aerial suppression program will 
require further understanding of site-specific effects of the 
technology and development of efficient monitoring protocols. 
Therefore, while technological advances to control brown treesnakes 
show promise as a tool, they currently do not control snakes to a level 
sufficient to allow the return of sihek to Guam before significant 
declines in the captive population of sihek are likely to occur, 
discussed further below. Thus, interim conservation measures for sihek 
are necessary to reduce its extinction risk while brown treesnake 
suppression and eradication methods are perfected and implemented.

Captive-Breeding Efforts

    In 1983, the Association of Zoos & Aquariums (AZA) initiated the 
Guam Bird Rescue Project in response to the widespread decline of 
Guam's native birds. Sihek was one of the Guam birds selected under 
this program for captive (ex situ) conservation efforts (Hutchins et 
al. in litt. 1996, p. 4). Between 1984 and 1986, 29 sihek were 
translocated from Guam to several zoos in the mainland United States. 
The program was established with the intent of being a short-term 
rescue but due to the continued presence of brown treesnakes on Guam, 
ultimately led to an ongoing breeding program. By 1990, the ex situ 
population increased to 61 sihek in 12 mainland zoos. Currently, an 
estimated 139 sihek are held at 25 AZA institutions and in a facility 
at the Guam Department of Agriculture's Division of Aquatic and 
Wildlife Resources (DAWR) (Newland, S., in litt. 2022a).
    A Species Survival Plan Program for sihek, developed by the AZA, 
has been in place since 1986. In general, Species Survival Plan 
Programs are established to oversee the population management of 
species within AZA-accredited facilities. The plans typically include a

[[Page 19884]]

population studbook and an annual breeding and transfer plan to ensure 
the genetic and demographic health of the population. The donor 
population is carefully managed through the Species Survival Plan 
Program to ensure the population's long-term viability.
    Sihek are relatively difficult to manage in zoos because of their 
aggressive territorial behavior and moderately expensive diet. In 
addition, little forward progress toward a recovery program in the wild 
has led to few new institutions willing to hold or breed the species, 
which ultimately limits population growth. The small founding 
population, as well as the limited ability to increase the population 
beyond its current size, has serious implications for long-term 
survival of sihek.
    Two separate population viability analyses (PVAs) demonstrated 
rapid declines in the population under current conditions (Johnson et 
al. in litt. 2015, p. 8; Trask et al. 2021, p. 6). Without changes to 
management practices that increase reproduction (i.e., reproductive 
output stays the same), the sihek population is predicted to decline to 
below 100 individuals by the year 2040 (Johnson et al. 2015, p. 8); and 
with a slight decrease in reproductive output of just 7 percent, the 
population is projected to decrease to 25 individuals by 2040 (Johnson 
et al. 2015, p. 9). One of the PVAs incorporated an inbreeding 
coefficient into their models and demonstrated, among other things, a 
rapid decline in the population without an increase in reproductive 
output such that in 50 years the mean population size is projected to 
decline to approximately 30 individuals (Trask et al. 2021, entire). 
The ex situ population of sihek is therefore sensitive to even slight 
reductions in reproductive output and is at a heightened risk of 
extinction due to small population dynamics in their existing limited 
breeding and holding space. However, a small increase in average annual 
reproductive output (from 2.54 hatchlings per female per year to 2.70 
hatchlings per female per year) could support long-term (50-year) sihek 
population viability as well as a release program (Trask et al. 2021, 
p. 6).
    Breeding facilities for sihek are currently at capacity. Without 
the ability to release sihek, the species' population growth is 
constrained. The sihek's current small population size puts the species 
at risk from stochastic environmental events (e.g., disease outbreaks 
in the ex situ population or changes in the ability of facilities to 
house and breed sihek) and demographic threats (e.g., sex-ratio biases, 
as well as from genetic threats from increasing rates of loss of 
genetic diversity and accumulation of inbreeding). Further, maintaining 
the species entirely under captive environmental conditions puts the 
species at risk from genetic adaptations to captivity (Frankham 2008, 
entire). This situation could result in individuals having reduced 
fitness under wild conditions and could negatively impact the success 
of efforts to ultimately recover the species on Guam.

Reintroduction

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

Location and Boundaries of the NEP Area

    The NEP area for sihek occurs outside the species' historical range 
and encompasses the 618 ac (250 ha) of emergent land distributed among 
the 25 islands that make up Palmyra Atoll (Collen et al. 2009, p. 712), 
and inclusive of the lagoons surrounding those islands. The islands 
vary in size from approximately 0.24 to 242 ac (0.1 to 97.9 ha). 
Palmyra Atoll is located in the Northern Line Islands, approximately 
1,000 miles (1,609 km) south of Honolulu, Hawaii, and 3,647 miles 
(5,869 km) east of Guam (5[deg]53' N latitude, 162[deg]05' W 
longitude). Palmyra Atoll is considered a wet atoll with high humidity, 
typically greater than 90 percent, and temperatures between 75 and 81 
[deg]F (24-27 [deg]C) and rainfall averages 175 inches (in) (444.5 
centimeters (cm)) per year (Hathaway et al. 2011, p. 6), without a 
specific rainy season. Temperatures on Guam are slightly higher, 
ranging 75-90 [deg]F (24-32 [deg]C), with rainfall averaging 98 in (249 
cm), with the greatest rainfall occurring between July and November 
(https://www.weather-us.com/en/guam-usa-climate).
    The closest landmass is more than 144 mi (232 km) from Palmyra. 
Given this and the fact that sihek are an island endemic not known to 
undertake long-distance flights over open ocean, it is extremely 
unlikely that sihek would move outside of the NEP area and survive. 
Also, no other kingfisher species occur on Palmyra Atoll, thus all 
kingfishers on the atoll will be members of the NEP.

Land Ownership

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

Likelihood of Population Establishment and Survival

    In late 2020, we established a recovery team for sihek whose 
purpose is to assist the Service in developing and implementing a 
conservation strategy for reestablishing sihek in the wild. Members of 
this team developed a phased approach whereby learning sites (sites 
used to test conservation translocation procedures as well as 
demographic and behavioral responses of target species) help achieve 
the overarching objectives of reducing global sihek extinction risk, 
while also refining techniques to establish viable wild populations on 
Guam. Based on habitat suitability, food resource availability, and 
willing partners, we have identified Palmyra Atoll as a learning site.
    The best available scientific data indicate that the introduction 
of sihek into suitable habitat is biologically feasible and would 
promote the conservation of the species. Coarse-scale modeling 
indicated Palmyra could support up to 15 breeding pairs (Laws and 
Kesler in litt. 2011, p. 65). We evaluated the ecological suitability 
of Palmyra Atoll and concluded sufficient habitat conditions and food 
resources are available to support the small

[[Page 19885]]

number of sihek needed for a temporary training site (USFWS unpublished 
data). No known predators of sihek occur on the Atoll. Further, we 
developed a release and monitoring program that includes interventions 
such as supplemental feeding if needed to increase the chances of 
survival. We assessed the potential environmental impacts of 
introducing sihek and designating the population as an NEP on Palmyra 
in an environmental assessment (USFWS 2023) (See National Environmental 
Policy Act section, below). To minimize risk to the ecosystem on 
Palmyra Atoll associated with the introduction, we will monitor for 
potential environmental impacts as part of the release program (see 
Monitoring and Evaluation, below).

Potential Effects of Activities on Palmyra Atoll on Introduced Sihek

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

Importance of the NEP to Recovery Efforts

    This nonessential experimental population of sihek on Palmyra Atoll 
will promote the conservation and recovery of the species. The 
International Union for the Conservation of Nature's Guidelines for 
Reintroduction and Other Conservation Translocations (2013, p. 4) 
identifies several criteria to consider prior to undertaking a 
reintroduction, including ``strong evidence that the threat(s) that 
caused any previous extinction have been correctly identified and 
removed or sufficiently reduced.'' Although the basic habitat 
components required by sihek on Guam are still present, they have been 
made unavailable to sihek due to the ongoing and pervasive threat of 
brown treesnakes (see Recovery Efforts to Date). Innovations in brown 
treesnake management show promise for controlling their populations at 
a landscape level but not within the time needed before we expect 
deleterious declines in the ex situ sihek population. The current 
captive-only sihek population is at high risk of extinction, and a 
moderate decline in reproductive output is likely to have long-term 
negative consequences on the survival probability for this species (see 
Captive-Breeding Efforts and Reintroduction). The number of breeding 
institutions participating in sihek management is limited and declining 
(Newland in litt. 2021b), further increasing the risk of reduced 
breeding effort and its associated population decline. Advancements in 
brown treesnake control show promise for reintroducing sihek to its 
native range on Guam in the future and that remains a recovery goal, 
but current control methods are not likely to be able to eradicate this 
threat prior to substantial forecasted declines in the sihek 
population.
    Introducing a species outside its historical range per our current 
regulation at 50 CFR 17.81 requires the Service to find that a species' 
primary habitat has been irreversibly altered or destroyed. While 
sihek's primary habitat on Guam has not been irreversibly altered or 
destroyed in perpetuity, we interpret the meaning of ``irreversibly 
altered or destroyed'' in the context of the unique conditions facing 
sihek and the very limited current alternatives to prevent its 
extinction. The habitat on Guam has been irreversibly altered and 
destroyed for a period of time meaningful to the survival of the 
species. The ex situ population of sihek is extremely vulnerable to 
rapid population decline and extinction risk under current reproductive 
conditions (Johnson et al 2015, p. 8, Trask et al. 2021, p. 6) such 
that increased reproductive output is paramount for population 
viability (Trask et al 2021, p. 7). Holding and breeding space at 
breeding institutions is limited, preventing growth of the ex situ 
population. Methods to control brown treesnakes on Guam are not 
sufficient to prevent significant predation on native bird species at 
this time and prevents us from releasing sihek there presently. 
Improvements in landscape-scale snake management are under development 
and are making incremental progress but will not be available for use 
prior to expected significant declines in the sihek population. Because 
of the immediate need to increase reproductive output and due to the 
continued presence of brown treesnakes on Guam, we find that sihek's 
habitat on Guam is irreversibly altered or destroyed for the purpose of 
this action, that is, until management of snakes at a landscape level 
makes it suitable for reintroduction and recovery.
    We are releasing sihek onto Palmyra Atoll, which is outside its 
historical range, for the following purposes: (1) invigorate the ex 
situ conservation program to increase reproductive output by increasing 
breeding space at existing facilities and/or recruiting additional 
facilities to join the ex situ conservation program; and (2) develop 
and refine release and monitoring methods to be applied when 
reestablishing a population on Guam to recover the species. Release of 
sihek on Palmyra Atoll will improve the likelihood of successful 
reintroduction and recovery on Guam by: (1) providing the opportunity 
to develop and test release and monitoring techniques, (2) providing 
information on sihek's ability to survive in the wild, (3) assessing 
how much human intervention is required to support a wild population, 
(4) increasing the global population of sihek as an extension of the ex 
situ population as well as invigorating the breeding program, and (5) 
potentially serving as a source of wild-hatched birds for future 
releases on Guam or other sites.

Is the Experimental Population Essential or Nonessential?

    When we establish experimental populations under section 10(j) of 
the Act, we must determine whether that population is essential or 
nonessential to the continued existence of the species. This 
determination is based solely on the best scientific and commercial 
data available. We consider an experimental population essential if its 
loss would be likely to appreciably

[[Page 19886]]

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

Release Procedures

    Late-stage nestlings or recent fledglings will be flown to Palmyra 
Atoll where they will be held in release aviaries for up to 1 month. 
Three sets of three flight aviaries will be established across Palmyra 
Atoll at, or close to, locations where habitat appears most suitable. 
During this time, sihek will undergo acclimation and training to 
respond to supplementary feeding signals. Prior to release, all sihek 
will be fitted with a radio transmitter consistent with the Bird 
Banding Laboratory of North America's guidelines that transmitters be 
no more than 3 percent of a bird's body weight (Gustafson et al. 1997).
    Release from aviaries will be via opening of a panel in the aviary 
wall to allow individuals to come and go freely. We will monitor each 
sihek daily, immediately after release and throughout their first year 
of release. Once released, sihek will be exposed to conditions in the 
wild that the species has not encountered in more than 30 years. While 
still being held in pre-release aviaries on Palmyra Atoll, we will 
provide natural prey items as much or as often as necessary so the 
sihek can learn to forage on multiple food sources. Further, sihek will 
be trained to come to feeders through reinforcement with a whistle, 
thus allowing for a way to provide supplemental food if needed. We will 
also conduct a thorough health assessment on each individual prior to 
release to ensure they are in good body condition. After release, we 
will monitor sihek daily, and if an individual is sick or injured, we 
may intervene and bring it back under human care temporarily.
    After the first year, we may reduce the intensity of monitoring if 
few or no problems are observed. Sihek monitoring will cover a range of 
components, including general behavior (maintenance, foraging, 
locomotion, conspecific interactions); health (weights collected 
remotely at feeding stations, fecal samples, and semiannual capture and 
assessment); and breeding (pairing, territoriality, nest excavation, 
nest building, egg laying and clutch size, hatch date, nestling 
survival, and fledge success). Additional details of the release 
procedures are provided in the Sihek Management Plan (Andrews et al. in 
litt. 2022).

Donor Stock Assessment and Effects on Donor Population

    The donor population for the introduction of sihek to Palmyra Atoll 
is the ex situ population of sihek. This population is distributed 
among 25 breeding facilities in the U.S. mainland and on Guam (24 AZA 
institutions and 1 Guam Division of Aquatic and Wildlife Resources 
(DAWR) facility), with the population being managed through the Sihek 
Species Survival Plan Program (see Captive-Breeding Efforts). The most 
recent population count documented 139 birds (Newland in litt. 2022a). 
The population size remains below the target of 200 individuals 
identified in the 2020 Species Survival Plan Program (Newland et al. 
2020, p. 2) in large part due to limited holding capacity across the 
breeding facilities. Recent funding for the construction of another 
facility at Brookfield Zoo, as well as for the transfer to and 
maintenance of sihek at that facility, has allowed for growth of the 
population. The current Species Survival Plan Program coordinator is 
actively seeking additional AZA institutions to participate in the 
sihek breeding effort, and this solicitation will likely be aided by 
releases to Palmyra Atoll and the recent progress in recovery planning 
for the species.
    Population models indicate that an increase in breeding (i.e., 
production of hatchlings) is required to ensure the sustainable removal 
of individuals from the ex situ population for release to Palmyra 
(Johnson et al. 2015, p. 13, and Trask et al. 2021, p. 6). We have 
observed measurable population increases when there has been focused 
management to increase productivity in the ex situ population. Between 
2004 and 2013, the sihek population increased from 61 birds to a peak 
of 157 birds because of increased reproductive output using multiple 
clutching (when a breeding pair is induced to produce more than one 
clutch of eggs per year by removing and artificially incubating the 
first clutch of eggs) (Newland et al. in litt. 2020, pp. 4-5). The best 
available information indicates that increasing ex situ reproductive 
output to rates seen between 2004 and 2013 is likely to support a 
release program on Palmyra without negatively impacting the long-term 
viability of the species (Trask et al. 2021, p. 6).
    Only a small number of sihek will be removed from the ex situ 
population for release on Palmyra Atoll. We plan to remove up to 9 in 
the first year, and fewer than 9 in subsequent years, to

[[Page 19887]]

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

Management

    We will collaborate with Guam DAWR, Zoological Society of London, 
AZA, Palmyra Atoll National Wildlife Refuge, and The Nature Conservancy 
on releases, monitoring, coordination, and other tasks as needed to 
ensure successful introduction of the species to Palmyra Atoll. A few 
specific management considerations are addressed below.
    Incidental Take: Experimental population rules contain specific 
prohibitions and may provide exceptions regarding the taking of 
individual animals under the Act. The specific prohibitions and 
exceptions we adopt in this final rule are compatible with most routine 
human activities anticipated in the NEP area (e.g., resource 
monitoring, invasive species management, and research; see Importance 
of the NEP to Recovery Efforts, above). Section 3(19) of the Act 
defines ``take'' as ``to harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or to attempt to engage in any such 
conduct.'' ``Incidental take'' is further defined as take that is 
incidental to, and not the purpose of, the carrying out of an otherwise 
lawful activity. Incidental take of sihek within the experimental 
population area will be allowed, provided that the take is 
unintentional and not due to negligent conduct.
    Special Handling/Intentional Take: Employees of the Service, Guam 
DAWR, The Nature Conservancy, Zoological Society of London, AZA 
facilities holding sihek, and authorized agents acting on behalf of the 
Service or these other entities may intentionally take sihek through 
handling sihek for scientific purposes; relocating individuals or 
bringing individuals into captivity for the purposes of increasing 
sihek survival or fecundity; aiding sick or injured sihek; salvaging 
dead sihek; disposing of a dead specimen; or aiding in law enforcement 
investigations involving the sihek. Any other person would need to 
acquire a permit from the Service for these activities.
    Interagency Consultation: For purposes of section 7(a)(2) of the 
Act, section 10(j) of the Act and our regulations (50 CFR 17.83) 
provide that nonessential experimental populations are treated as 
species proposed for listing under the Act except on National Park 
Service and National Wildlife Refuge System lands, where they are 
treated as threatened species for the purposes of section 7(a)(2) of 
the Act. We will address our section 7(a)(2) consultation obligations 
for sihek within the Palmyra National Wildlife Refuge through a 
programmatic intra-Service consultation completed prior to releasing 
birds. Any activities outside of those analyzed in our programmatic 
consultation that may affect sihek within the NEP area will be 
addressed through future individual intra-Service section 7 
consultations.
    Public Awareness and Cooperation: On November 18, 2021, in 
cooperation with Guam DAWR, we engaged the Governor of Guam and 
constituents to inform them of our plans to introduce sihek to Palmyra 
Atoll. We coordinated closely with the co-manager of Palmyra Atoll (The 
Nature Conservancy) throughout the planning process, and we expect our 
coordination with them will continue through the duration of the 
project. We publicized availability of the proposed rule (87 FR 53429, 
August 31, 2022) and the opportunity for comment with a press release 
(https://fws.gov/story/2022-08/usfws-proposes-experimental-population-sihek-palmyra-atoll). We also sent letters to 14 conservation partners, 
notifying them of the availability of the proposed rule and requesting 
comments.

Monitoring and Evaluation

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

[[Page 19888]]

exhibiting behaviors typical of Todiramphus species; and (2) sihek are 
not having undesirable impacts on prey species populations (undesirable 
impacts are discussed further in the sections below). If the two 
situations described above occur, then we may reduce staffing to less 
than full time and monitor sihek and the environment less intensively. 
If undesirable impacts on prey species populations are not resolvable, 
we would evaluate whether this was an unacceptable impact requiring 
termination of the program. Unacceptable impacts are discussed below, 
in Exit Strategy.

Ecosystem Impacts

    As Palmyra Atoll is outside the native range of the sihek, 
introduction of sihek to Palmyra Atoll could have potential impacts on 
native species. The International Union for the Conservation of Nature, 
Species Specialist Commission, Invasive Species Specialist Group 
recognizes several different mechanisms of impact that introduced 
species (that others have sometimes called alien species) can have on 
native ecosystems (Pagad et al. 2015, pp. 130-132). These include 
impacts through predation, competition, hybridization, or transmission 
of disease-causing pathogens to native species (Blackburn et al. 2014, 
pp. 4-7).
    To assess the potential impacts that sihek may have on Palmyra 
Atoll and the mechanisms through which these impacts may occur, 
researchers on the recovery team conducted an environmental impact 
assessment, based on the Environmental Impact Classification for Alien 
Taxa (EICAT) (Blackburn et al. 2014, entire) and the Generic Impact 
Scoring System (Nentwig et al. 2010, entire). This process involved 
consulting with a range of relevant experts (n=19), who were asked to 
provide their judgment on the level of impact that sihek may have 
through each potential impact mechanism. Impact levels were described 
in a range from the lowest level of ``minimal,'' where effects are 
negligible, to the highest level of ``massive,'' where impacts result 
in local extinction(s) and community-level changes are irreversible. We 
evaluated the relative risk of competition, hybridization, predation 
impacts, and disease transmission in an environmental assessment. Based 
on our analysis in the environmental assessment, we conclude there is 
no risk of competition or hybridization, and there are sufficient 
measures in place to prevent disease transmission from the 
introduction. In addition, the planned intensive monitoring will be 
sufficient to detect, and provide a timely response to, potential 
impacts of the sihek on the recipient ecosystem on Palmyra Atoll.
    In the EICAT assessment, experts considered predation by sihek to 
be the most likely impact of sihek introduction to Palmyra (although 
the magnitude of this factor was judged to be moderate at most). The 
EICAT assessment experts' scoring generally assessed the introduction 
of a novel avian predator. Therefore, we will focus post-release 
environmental monitoring on potential sihek prey species that are 
native to Palmyra Atoll. We will obtain sihek diet information through 
behavioral observation and fecal samples, as described above (Release 
Procedures and Monitoring and Evaluation). This information will 
highlight major components of sihek post-release diet and help guide 
more focused monitoring.
    At a minimum, we will coordinate with The Nature Conservancy and 
Palmyra National Wildlife Refuge to carry out annual monitoring on a 
range of suitable prey items, as described above. We will use the most 
appropriate survey methods for different taxa. If dietary and 
behavioral observations of released sihek suggest a particular 
prevalence and abundance of specific prey items that are of 
conservation concern, we will establish more frequent monitoring 
surveys. We will analyze post-release monitoring data to obtain 
estimates of abundance and density for reference taxa. These estimates 
will then be compared with pre-release monitoring data, collected in 
the weeks prior to release, with estimates from paired locations across 
the island in a before-after, control-impact experimental design. In 
the event we find estimated impacts to be unacceptably high, such as 
preferential prey selection for one species such that it has 
population-level effects, we will activate an appropriate response (see 
Exit Strategy, below).
    Our present monitoring plan relies on a combination of targeted 
prey species surveys and information from existing monitoring of 
released birds. Our monitoring approach balances the negative impacts 
of frequent invasive surveys with the need to identify serious negative 
consequences of the sihek releases on the recipient site. Active 
monitoring will be for 2 years after the first release, and we will 
regularly assess results through monthly summaries, analyses at 6-month 
intervals, and annual predictive modeling. After the first 2 years, we 
will determine whether to continue at full intensity, reduce the 
intensity of our monitoring, or discontinue monitoring. Factors that 
will impact our decision making regarding monitoring include evidence 
of:
     Sihek prey selection for a single species, which could 
indicate population impacts to that species;
     detection of significant changes in abundance of prey in 
areas with sihek compared with areas without sihek; or
     shifts in community composition and diversity that differ 
significantly between areas with sihek and areas without sihek.
    If any undesirable impacts are causally linked to the introduction 
of sihek, we will weigh the benefits and risks in consultation with the 
recovery team and The Nature Conservancy to determine whether to 
continue ongoing management, adopt risk mitigation strategies, or 
terminate the program (see Exit Strategy, below).
    Annual reports summarizing monitoring and management activities 
will be developed by the Zoological Society of London in collaboration 
with the Service, The Nature Conservancy, and the Sihek Recovery Team.

Exit Strategy

    Depending on the circumstances, the Service may either terminate or 
pause the release program to address identified issues before possibly 
resuming. These scenarios and the Service's expected response are 
detailed below.
    The Service will terminate the release program on Palmyra Atoll if:
    (1) Monitoring indicates the benefits from the Palmyra population 
(including learning and refining release and support strategies for 
eventual releases on Guam) no longer outweigh the risks to the species 
or the welfare of the NEP or ex situ population; or
    (2) monitoring shows unacceptable impacts on the ecosystem that can 
be clearly causally linked to the introduction of sihek.
    In addition to these ``must terminate'' scenarios, the Service may 
also terminate the release program:
    (3) When the purposes of the program have been realized (e.g., we 
have developed successful release and monitoring methodologies to apply 
to future release efforts or we have demonstrated sihek can survive and 
reproduce in the wild without human intervention, see Importance of the 
NEP to Recovery Efforts), although we do not anticipate this scenario 
until 10 or more years after the first release.
    The Service may also temporarily suspend the program to address 
issues that arise before program termination under any of the three 
scenarios above. The monitoring team will summarize

[[Page 19889]]

information they collect on a regular basis and will share it with the 
recovery team and the managers of Palmyra Atoll (the Service and The 
Nature Conservancy). If results indicate the program is approaching 
scenario (1) or (2) above, then the Service, in consultation with the 
recovery team and The Nature Conservancy, will determine if terminating 
the program is the best way to avoid these outcomes, or whether the 
program should be paused, and adaptive steps taken to address them 
before resuming the program.
    Regular monitoring and reporting will also inform progress toward 
achieving program goals and scenario (3) above: The Service will 
determine--in consultation with the recovery team and The Nature 
Conservancy--when the purpose of the NEP has been achieved such that 
the program can come to an end. When the Service terminates the 
program, the Service will also address what will happen with any 
remaining individuals in the NEP, i.e., whether they will be relocated 
to captivity, relocated to other suitable habitat, or remain on 
Palmyra, based on the circumstances at the time of termination.

Summary of Comments and Recommendations

    In the proposed rule published on August 31, 2022 (87 FR 53429), we 
requested that all interested parties submit written comments on the 
proposal by September 30, 2022. In addition, in accordance with our 
joint policy on peer review published in the Federal Register on July 
1, 1994 (59 FR 34270), and updated guidance issued on August 22, 2016 
(USFWS 2016, entire), we solicited peer review of our proposed rule 
from six knowledgeable individuals with scientific expertise in 
conservation translocation, endangered species management, Pacific 
Island birds, and Guam native bird species. We received responses from 
three peer reviewers. We also contacted appropriate Federal and State 
agencies, local experts, and organizations, and other interested 
parties and invited them to comment on the proposal.
    We reviewed all comments received from the public and peer 
reviewers for substantive issues and new information regarding the 
establishment of an experimental population of sihek on Palmyra Atoll. 
Comments on these issues and information are addressed in the following 
summary and have been incorporated into this final rule as appropriate. 
Changes other than minor word changes for clarification or correction 
incorporated into the final rule are summarized in the Summary of 
Changes from the Proposed Rule section, below.

Peer Review Comments

    All peer reviewers expressed support for the introduction of an 
experimental population of sihek with an associated 10(j) rule and 
agreed that the action is likely to contribute to the conservation of 
the species. Comments from peer reviewers resulted in updates in two 
areas of this final rule (see Summary of Changes from Proposed Rule).
    (1) Comment: One peer reviewer indicated their support for 
establishing a 10(j) experimental population because of the negative 
consequences of maintaining a species solely in captivity, including 
risks associated with small population size and inbreeding depression.
    Response: Recent population viability models (Johnson et al. 2015 
in litt and Trask et al. 2021) have demonstrated rapid declines in the 
captive population if the reproductive rate remains the same. Breeding 
facilities are currently at capacity, and the sihek's population growth 
is constrained. The establishment of an experimental population of 
sihek on Palmyra Atoll will provide an opportunity to increase the 
sihek population, and to expose a portion of this population to habitat 
conditions in the wild for the first time in more than 30 years.
    (2) Comment: Multiple reviewers commented that, at present, sihek 
habitat on Guam is compromised by the continued presence of brown 
treesnakes. They stated that, nevertheless, good progress is being made 
towards the eventual eradication of brown treesnakes such that future 
restoration of sihek to Guam remains an attainable goal.
    Response: Reestablishing populations of sihek on Guam is an 
essential component of the recovery strategy for sihek, as expressed in 
the recovery criteria of the sihek recovery plan (USFWS 2008, pp. 42-
43). We presently cannot release sihek within their historical range 
due to the continued presence of brown treesnakes. The establishment of 
an experimental population on Palmyra Atoll will allow us the needed 
testing of field techniques for the future reintroduction of sihek on 
Guam, once landscape-scale management of brown treesnakes is 
implemented and effective. In recent years, technological advances to 
control brown treesnakes show promise as a tool to control snakes at a 
landscape level. However, they are not yet sufficient to protect sihek 
from unsustainable predation, and therefore it is not possible to 
reintroduce sihek to Guam before significant declines in the ex situ 
population are expected to occur. Thus, the establishment of an 
experimental population on Palmyra Atoll helps reduce sihek extinction 
risk while brown treesnake control methods are refined and implemented.
    (3) Comment: One reviewer stated that releasing sihek onto Palmyra 
Atoll as an experimental population is reasonable and scientifically 
sound. They went on to state that considerable work has been conducted 
to assess the suitability of Palmyra for Guam kingfishers, and to 
consider the possibilities of negative consequences to the fauna of 
Palmyra. The reviewer further stated that the process of introducing, 
managing, and monitoring sihek on Palmyra would provide invaluable 
knowledge for doing so eventually on Guam. As a result, the reviewer 
stated that the 10(j) experimental population of sihek will greatly 
increase the probability of success for a future Guam reintroduction.
    Response: Introducing a species outside its historical range has 
inherent risks, both to the species and the ecosystem into which it is 
being introduced. We evaluated the extinction risk to sihek and 
determined the experimental population on Palmyra Atoll would further 
the species' recovery by increasing the worldwide population, 
developing and refining release techniques, and establishing a source 
of wild-adapted birds for future releases. We also evaluated the 
suitability of Palmyra Atoll for sihek through an assessment of prey 
availability and habitat suitability based on available information. We 
will monitor sihek and prey species to evaluate potential impacts to 
their populations. If negative changes in populations are causally 
linked to sihek and are undesirable, we will weigh the benefits and 
risks in consultation with the recovery team and The Nature Conservancy 
to determine whether to continue ongoing management, adopt risk 
mitigation strategies, or terminate the program (see Exit Strategy, 
above).
    (4) Comment: One reviewer commented that successfully establishing 
a population of sihek on Palmyra would not only allow the species to 
exist in the wild again, allowing for beneficial behaviors and 
adaptations to be maintained, but would also be an important source of 
individuals for the reintroduction of sihek to Guam when conditions 
allow. Additionally, the process of introducing, managing, and 
monitoring sihek on Palmyra would provide invaluable knowledge for 
doing so

[[Page 19890]]

eventually on Guam. Therefore, the reviewer stated that the 10(j) 
experimental population of sihek will greatly increase the probability 
of success for a future Guam reintroduction.
    Response: The successful establishment of the experimental 
population on Palmyra will advance conservation and recovery of the 
species. .

Public Comments

    (1) Comment: Several commenters shared their support for the 
proposed 10(j) experimental population as a first step toward 
recovering the sihek.
    Response: In our efforts to further the conservation of sihek, we 
will learn valuable information that will inform future release 
efforts, including release techniques, behavior in wild conditions, and 
monitoring methods. We will also increase the number of sihek in 
existence and have a small population of wild birds to potentially help 
source future translocation efforts. Without the forethought of those 
who brought sihek into captivity and the effort of the institutions 
that have managed the populations during this time, the sihek would 
have been lost.
    (2) Comment: One commenter noted the importance of involving 
CHamoru scientists and cultural practitioners in the development and 
implementation of the project.
    Response: The Service values incorporating biological and cultural 
perspectives of the CHamoru people in sihek recovery efforts. At the 
beginning of translocation site selection and project development in 
2019, the Service held a workshop on Guam to receive input and feedback 
from cultural leaders. The intent of the workshop was to acknowledge 
and better understand the significant connection the sihek has with the 
CHamoru people and their culture. We recognize that the release of 
sihek is about much more than saving a species. Given the sihek's 
cultural and biological importance to Guam, the Service developed 
several objectives for connecting with the community that are reflected 
in work plans that complement this 10(j) regulatory process under the 
Act. Throughout project planning, in coordination with our partners, we 
actively sought out local and indigenous community involvement. Today, 
the Service continues to work with the Guam DAWR, scientists, cultural 
practitioners, and the public as we collaborate to return the sihek 
back to the wild. At the time of introduction, due to limited 
transportation infrastructure and the distance of Palmyra Atoll from 
Guam, accommodating more local involvement or protocols may be 
challenging. The Service welcomes continued discussions with the 
CHamoru community to address scientific and cultural protocols for the 
sihek.
    (3) Comment: One commenter noted the importance of an outreach 
program on Guam to increase awareness of sihek and to engender support 
for the establishment of an experimental population on Palmyra Atoll.
    Response: A partner on Guam was awarded a nationally competitive 
grant to assist with Guam outreach efforts. It is a multifaceted, 
multiyear outreach program to be implemented prior to and concurrent 
with the Service's sihek release and monitoring projects. The program 
was developed by the Service's partners and Guam-based collaborators 
with expertise in science and education, as well as with CHamoru 
language and culture. This outreach will engage 40 teachers, train high 
school students, and engage more than 2,000 fourth-grade students in 
the first year. This program will also empower students and teachers to 
take action to protect the sihek and Guam's natural resources, while 
promoting an appreciation of the sihek's cultural significance. A 
CHamoru Sihek Storybook will be produced in the CHamoru language, along 
with a sihek activity book, and a website with updateable sihek 
resources and student contributions. A sihek-focused curriculum will be 
created and shared with teachers and students.
    The outreach program is designed to increase awareness of the 
sihek's story: its threats, the status and importance of the sihek 
captive population, and future goals of the sihek recovery project. 
Expanding its reach beyond schools and with the public, the outreach 
program will share information at island-wide events and through local 
media and will enable the Service and its partners to showcase outreach 
milestones and successes.
    (4) Comment: One commenter expressed concern about our proposal to 
decrease ecosystem and prey monitoring if we detect negligible impacts 
from the introduction of sihek and suggested that we further define 
``unacceptable'' impacts.
    Response: Many potential prey species occur on Palmyra Atoll, and 
we have relatively little knowledge about what sihek will 
preferentially feed upon after release, other than using general 
assumptions about prey size and Todiramphus biology. Detecting the 
impact of released sihek on prey species and the recipient ecological 
community is likely to require a relatively large sample size, 
replicated in space and time, to achieve sufficient statistical power. 
Our monitoring plan relies on a combination of targeted prey species 
surveys and information from monitoring released birds. Our monitoring 
approach balances the negative impacts of frequent invasive surveys 
with the need to identify serious negative consequences of the sihek 
releases on the recipient site. Active monitoring will occur for at 
least 2 years after the first release, and we will regularly assess 
results through monthly summaries, more in-depth analyses at 6-month 
intervals, and annual predictive modeling. After the first 2 years, we 
will determine whether to continue at full intensity, downscale, or 
discontinue monitoring.
    In this final rule we have clarified that we will evaluate if 
impacts are undesirable relative to sihek predation on local species 
for purposes of our monitoring strategy based on the following factors:
     sihek prey selection for a single species, which could 
indicate population impacts to that species;
     detection of significant changes in abundance of prey in 
areas with sihek compared with areas without sihek; or
     shifts in community composition and diversity that differ 
significantly between areas with sihek and areas without sihek.
    If any undesirable impacts are causally linked to the introduction 
of sihek, we will weigh the benefits and risks in consultation with the 
recovery team and The Nature Conservancy to determine whether to 
continue ongoing management, adopt risk mitigation strategies, or 
terminate the program (see Exit Strategy, above).
    As to the commenter's request that we provide specific definitions 
for ``unacceptable'' impacts that require termination of the program, 
we are unable to define specific, quantitative parameters to do so. 
Rather, through our continued monitoring and coordination and 
consultation with the recovery team and The Nature Conservancy, we 
expect to keep ahead of any potential negative impacts to the ecosystem 
as a result of the introduction in order to adaptively respond before 
termination would be required.
    (5) Comment: One commenter stated that the removal of eggs from the 
captive population would have a deleterious impact and increase 
extinction risk, particularly if the released individuals do not 
survive.
    Response: We intend to introduce a small number of sihek to Palmyra 
Atoll: 9 individuals in the first year, with additional, likely 
smaller, cohorts of

[[Page 19891]]

birds in subsequent years to reach a target population of 20 birds. 
Evaluation has shown that a small increase in the average annual 
reproductive output (from 2.54 hatchlings per female per year to 2.70 
hatchlings per female per year) could support long-term (50-year) sihek 
population viability as well as a release program (Trask et al. 2021, 
p. 6). Further, we would remove eggs from captive-breeding pairs during 
incubation, and allow the pair to lay another clutch, thus replacing 
the birds removed from the ex situ (captive) population, which will--
from a demographic standpoint--negate the loss of these individuals. 
The ex situ population is the only population of sihek in the world, so 
we will monitor it closely to ensure that there are no negative impacts 
to its viability and potential growth. We have included triggers for 
pausing or ending the release program; a negative impact to the ex situ 
population is one of the triggers for enacting one of those strategies.
    (6) Comment: One commenter noted that the captive (ex situ) sihek 
population is small, and that measures will need to be in place to 
ensure the introduced population on Palmyra can survive.
    Response: We recognize the importance of ensuring the integrity of 
the captive (ex situ) population of sihek and implementing measures to 
maximize the odds that the introduced population on Palmyra survives. 
Only a small number of sihek will be removed from the ex situ 
population (up to nine in the first year), and the best available 
information indicates the ex situ population can support this program 
without negative impacts to its viability. Once released on Palmyra, 
sihek will be exposed to conditions in the wild--conditions that the 
species has not encountered in more than 30 years. While still being 
held in pre-release aviaries on Palmyra Atoll, we will provide natural 
prey items as necessary so the sihek can learn to forage on multiple 
food sources. Further, birds will be trained to come to feeders through 
reinforcement with an associated sound, thus allowing supplemental food 
provisioning if needed. We will also conduct a thorough health 
assessment of each individual prior to release to ensure they are in 
good body condition. After release, we will monitor individuals daily. 
If a bird is sick or injured, we may intervene and bring it in under 
veterinary care as needed.
    (7) Comment: One commenter was concerned that sihek might consume 
prey items with residual amounts of rodenticide from the 2011 
eradication of rats from Palmyra Atoll.
    Response: Amplification of toxicants through the food chain can be 
a concern in predator eradication programs. A study to evaluate 
potential impacts on Palmyra Atoll (Wegmann et al. 2019, entire) 
collected samples of numerous species, including potential sihek prey 
items, and tissue analyses showed no residue in invertebrates or geckos 
3 years after the rat eradication. Thus, secondary exposure to 
rodenticide through consumption of exposed prey items is highly 
unlikely.
    (8) Comment: One commenter expressed concern that sihek might 
consume prey items that have ingested rodenticides used to prevent rats 
from reinvading Palmyra Atoll.
    Response: Rodents were eradicated from Palmyra in 2011, and efforts 
to reduce the likelihood of reintroduction include a limited use of 
rodenticide when planes or ships arrive at the Atoll. Rodenticide is 
applied only around the points of entry (runway and dock), and baits 
are contained within bait boxes (Wegmann in litt. 2022a). This 
application occurs for two days prior to a plane or ship arriving and 
remains in place for four days after the arrival of a plane and for 16 
days after the arrival of a ship. The bait stations are monitored for 
rodent signs, and hermit crabs (Coenobita brevimanus and C. perlatus) 
on which sihek feed. The bait stations are placed on ``crab-resistant'' 
platforms to minimize entry by crabs, so very few crabs access the bait 
stations, and those that are found weigh generally around 2.8 oz (80g), 
which is well outside the size class of prey that sihek can take 
(Wegmann in litt. 2022b, Andrews et al. 2022, p. 19). Further, research 
showed no residue in invertebrates 3 years after the rat eradication 
(Wegmann et al. 2019). As a result, secondary exposure to rodenticide 
through consumption of exposed crustaceans is highly unlikely. If this 
unlikely scenario occurs, we will evaluate methods to further minimize 
such exposure risk (e.g., improving the stations to further reduce the 
ability of crabs to enter), while balancing the need to prevent the 
reinvasion of Palmyra by rodents. We would also consider the use of 
non-toxicant biosecurity methods.
    (9) Comment: Three commenters were concerned about potential 
predation of sihek by brown treesnakes on Palmyra Atoll.
    Response: No brown treesnakes occur on Palmyra Atoll. Sihek 
released on Palmyra Atoll will not be exposed to any predation pressure 
as no known predators of sihek occur on the Atoll.
    (10) Comment: One commenter was concerned with introduced sihek 
competing with other species on Palmyra Atoll, such as black drongo.
    Response: Black drongos occur on Guam but do not occur on Palmyra 
Atoll.
    No other native or nonnative species on Palmyra Atoll share the 
same diet or habitat preferences as the sihek. Thus, sihek will not 
directly compete with any species on Palmyra Atoll.

Summary of Changes From Proposed Rule

    Comments received by the public and peer reviewers resulted in 
updates in two areas from the proposed rule to the final rule. In the 
final rule preamble, we:
     Provide more detail regarding how we will determine if 
releasing sihek on Palmyra Atoll will have undesirable impacts to prey 
species (see Ecosystem Impacts); and
     Provide more detail regarding management of released sihek 
(see Release Procedures).

Findings

    Based on the best scientific and commercial data available (in 
accordance with 50 CFR 17.81), we find that releasing sihek onto 
Palmyra Atoll with the regulatory provisions in this rulemaking will 
further the conservation of the species. We find that the continued 
presence of the brown treesnake on Guam means that sihek's native 
habitat has been unsuitably and irreversibly altered or destroyed for 
the foreseeable future such that the introduction of sihek to Palmyra 
Atoll outside of its probable historical range is warranted and 
consistent with our regulations at 50 CFR 17.81. We define the 
foreseeable future as the period of time before significant declines in 
the ex situ population of sihek are likely to occur. The nonessential 
experimental population status is appropriate for the introduced 
population; the potential loss of the experimental population would not 
appreciably reduce the likelihood of the survival of the species in the 
wild because there are currently no sihek remaining in the wild.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling

[[Page 19892]]

for improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. We certify that this rule does not have a significant 
economic effect on a substantial number of small entities. The 
following discussion explains our rationale.
    The areas that are affected under this rule are restricted to 
Palmyra Atoll. Because of the regulatory flexibility for Federal agency 
actions provided by the NEP designation and the exemption for 
incidental take in the rule, we do not expect this rule to have 
significant effects on any activities within Federal, State, or private 
lands within the NEP area. In regard to section 7(a)(2) of the Act, the 
sihek population will be treated as proposed for listing, and, 
therefore, Federal action agencies are not required to consult on their 
activities, except on National Wildlife Refuge System lands, where the 
NEP will be treated as a threatened species for the purposes of section 
7 of the Act.
    Section 7(a)(4) of the Act requires Federal agencies to confer 
(rather than consult) with the Service on actions that are likely to 
jeopardize the continued existence of a species proposed for listing. 
However, because the NEP is, by definition, not essential to the 
survival of the species, and no sihek exist in the wild outside of the 
NEP area that could be impacted, conferring will likely never be 
required for the sihek population within the NEP area. Furthermore, the 
results of a conference are advisory in nature and do not restrict 
agencies from carrying out, funding, or authorizing activities. Section 
7(a)(1) of the Act requires Federal agencies to use their authorities 
to carry out programs to further the conservation of listed species, 
which would apply on any lands within the NEP area. On National 
Wildlife Refuge System lands within the NEP area, the sihek would be 
treated as a threatened species for the purposes of section 7 of the 
Act. As a result, and in accordance with our regulations, some 
modifications to proposed Federal actions within National Wildlife 
Refuge System lands may occur to benefit the sihek, but we do not 
expect projects to be substantially modified because these lands are 
already administered in a manner that is compatible with sihek 
conservation.
    This rule broadly authorizes incidental take of the sihek within 
the NEP area. The regulations implementing the Act define ``incidental 
take'' as take that is incidental to, and not the purpose of, carrying 
out an otherwise lawful activity, such as habitat management, 
infrastructure maintenance, and other activities in the NEP area that 
are in accordance with Federal, Tribal, State, and local laws and 
regulations. Intentional take for authorized data collection or 
recovery purposes by authorized personnel are also allowed under the 
NEP designation. Other forms of intentional take would require a 
section 10(a)(1)(A) recovery permit under the Act.
    The only private landowners on Palmyra Atoll are The Nature 
Conservancy and the Cooper family. The principal activities on private 
property near the release site are associated with scientific field 
station operations, including the operation of a landing strip for 
aircraft, and some limited recreation. The presence of the sihek is not 
likely to significantly affect the use of lands for these purposes 
because no new or additional economic or regulatory restrictions will 
be imposed upon private landowners due to the presence of the sihek. 
Therefore, this rulemaking is not expected to have any significant 
adverse impacts to activities on private lands within the NEP area.

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

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

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. When introduced populations of 
federally listed species are designated as nonessential experimental 
populations, the Act's regulatory requirements regarding the introduced 
population are significantly reduced. This rule would allow for the 
taking of sihek when such take is incidental to an otherwise legal 
activity.
    A takings implication assessment is not required because this 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 rule would 
substantially advance a legitimate government interest (conservation 
and recovery of a listed species) and would not present a barrier to 
all reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this rule has significant federalism effects and have 
determined that a federalism assessment is not required. This rule does 
not have substantial direct effects on the States, on the relationship

[[Page 19893]]

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

Civil Justice Reform (E.O. 12988)

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

Paperwork Reduction Act

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

National Environmental Policy Act

    In compliance with all provisions of the National Environmental 
Policy Act of 1969 (NEPA), we have analyzed the impact of this final 
rule. In cooperation with The Nature Conservancy, we prepared an 
environmental assessment, and we determined based on that assessment 
that the proposed action of implementing the introduction of sihek to 
Palmyra Atoll will not have a significant impact on the environment, 
which we documented in a finding of no significant impact (FONSI) 
(USFWS 2023).

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

    Executive Order 13211 requires agencies to prepare statements of 
energy effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, and 
use. Therefore, this action is not a significant energy action, and no 
statement of energy effects is required.

References Cited

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

Author

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

List of Subjects in 50 CFR Part 17

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

Signing Authority

    Wendi Weber, Acting Director of the U.S. Fish and Wildlife Service, 
approved this action on February 13, 2023, for publication. On March 
19, 2023, Martha Williams, Director of the U.S. Fish and Wildlife 
Service, authorized the undersigned to sign the document electronically 
and submit it to the Office of the Federal Register for publication as 
an official document of the U.S. Fish and Wildlife Service.

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife under BIRDS by revising the entry for ``Kingfisher, 
Guam (sihek)'' (as added February 2, 2023, at 88 FR 7134, and effective 
May 3, 2023) to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
          Common name             Scientific name      Where listed          Status          applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Birds
 
                                                  * * * * * * *
Kingfisher, Guam (=sihek)......  Todiramphus        Wherever found,    E................  49 FR 33881, 8/27/
                                  cinnamominus.      except where                          1984; 50 CFR 17.95(b)
                                                     listed as an                          \CH\.
                                                     experimental
                                                     population.
Kingfisher, Guam (=sihek)......  Todiramphus        U.S.A. (Palmyra    XN...............  88 [Insert Federal
                                  cinnamominus.      Atoll).                               Register page where
                                                                                           the document begins],
                                                                                           4/4/2023; 50 CFR
                                                                                           17.84(a) \10j\.
 
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3. Amend Sec.  17.84 by adding paragraph (a) to read as follows:


Sec.  17.84  Special rules--vertebrates.

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

Madonna Baucum,
Regulations and Policy Chief, Division of Policy, Economics, Risk 
Management, and Analytics of the Joint Administrative Operations, U.S. 
Fish and Wildlife Service.
[FR Doc. 2023-06958 Filed 4-3-23; 8:45 am]
BILLING CODE 4333-15-P