[Federal Register Volume 88, Number 126 (Monday, July 3, 2023)]
[Rules and Regulations]
[Pages 42642-42652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13672]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2021-0033; FF09E41000 234 FXES111609C0000]
RIN 1018-BF98


Endangered and Threatened Wildlife and Plants; Designation of 
Experimental Populations

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish Wildlife Service (Service), revise the 
regulations concerning experimental populations of endangered species 
and threatened species under the Endangered Species Act. We remove 
language generally restricting the introduction of experimental 
populations to only the species' ``historical range'' to allow for the 
introduction of populations into habitat outside of their historical 
range for conservation purposes. To provide for the conservation of 
certain species, we have concluded that it may be increasingly 
necessary and appropriate to establish experimental populations outside 
of their historical range if the

[[Page 42643]]

species' habitat has undergone, is undergoing, or is anticipated to 
undergo irreversible decline and is no longer capable of supporting the 
species due to threats such as climate change or invasive species. We 
added language that the Secretary will also consider any adverse 
effects that may result to the ecosystem from the experimental 
population being established. We also made minor changes to clarify the 
existing regulations; these minor changes do not alter the substance or 
scope of the regulations.

DATES: This final rule is effective August 2, 2023.

ADDRESSES: Public comments and materials received, as well as 
supporting documentation used in the preparation of this final rule, 
are available on the internet at https://www.regulations.gov in Docket 
No. FWS-HQ-ES-2021-0033.

FOR FURTHER INFORMATION CONTACT: Elizabeth Maclin, Chief, Division of 
Restoration and Recovery, U.S. Fish and Wildlife Service, 5275 Leesburg 
Pike, Falls Church, VA 22041-3803, telephone 703/358-2646. Individuals 
in the United States who are deaf, deafblind, hard of hearing, or have 
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Background

    The purposes of the Endangered Species Act (ESA; 16 U.S.C. 1531 et 
seq.) are to provide a means to conserve the ecosystems upon which 
listed species depend, to develop a program for the conservation of 
listed species, and to achieve the purposes of certain treaties and 
conventions. Moreover, the ESA states that it is the policy of Congress 
that Federal agencies shall seek to conserve threatened and endangered 
species and use their authorities to further the purposes of the ESA 
(16 U.S.C. 1531(c)(1)). The ESA's implementing regulations are found in 
title 50 of the Code of Federal Regulations (CFR).
    The 1982 amendments to the ESA added section 10(j) to facilitate 
reintroductions of listed species by allowing the Service to designate 
``experimental populations.'' The regulations to carry out section 
10(j) provide that the Service may designate as an experimental 
population a population of an endangered species or a threatened 
species that will be released into suitable natural habitat outside the 
species' current natural range (but within its probable historical 
range, absent a finding by the Director in the extreme case that the 
primary habitat of the species has been unsuitably and irreversibly 
altered or destroyed) (50 CFR 17.81). At the time the Service adopted 
these regulations, we did not anticipate the impact of climate change 
on species and their habitats. We have since learned that climate 
change is causing, or is anticipated to cause, many species' suitable 
habitat to shift outside of their historical range.
    The 2021 National Fish, Wildlife, and Plants Climate Adaptation 
Network's Climate Adaptation Strategy report summarizes impacts to 
species' behavior, morphology, and physiology, as well as shifts in 
ranges and demographic and population-level impacts from climate change 
(NFWPCAN, 2021, pp. 15-20). In chapter 7 of the Fourth National Climate 
Assessment (Lipton et. al., 2018, p. 269), one of the key messages 
states, ``Climate change continues to impact species and populations in 
significant and observable ways. Terrestrial, freshwater, and marine 
organisms are responding to climate change by altering individual 
characteristics, the timing of biological events, and their geographic 
ranges. Local and global extinctions may occur when climate change 
outpaces the capacity of species to adapt.'' A recent paper looked at 
Big Pine Key, Florida, as a case study in examining how to incorporate 
current scientific knowledge about regional climate projections in 
Service analyses. The authors examined the anticipated future effects 
of sea-level rise on existing habitat from saltwater intrusion of the 
freshwater lens below Big Pine Key. They stated that, beyond 3 ft (0.9 
m) of sea-level rise, few adaptation options are available for the 
Florida Key deer beyond relocations outside of the Florida Keys (Miller 
and Harwell, 2022, p. 14553). Thus, it is clear that climate change is 
presently affecting--and will continue to affect--species and their 
habitats, and that tools such as the establishment of experimental 
populations outside of their historical range will become increasingly 
important for the conservation and recovery of ESA-listed species.
    In addition to climate change, other threats such as invasive 
species may also reduce the ability of habitat to support experimental 
populations within the species' historical range. For example, both the 
Guam rail and Guam kingfisher (sihek) no longer have any habitat within 
their historical range that is suitable for reintroduction or 
establishment of an experimental population. The primary cause of the 
rail's and sihek's extinction in the wild was predation by the 
introduced brown tree snake (54 FR 43966, October 30, 1989; USFWS 2008, 
p. 21). Applying the current section 10(j) regulations, the Service's 
Director determined that each was an extreme case and found that the 
primary habitat of the species within its historical range had been 
unsuitably and irreversibly altered or destroyed. For the rail, we 
finalized the establishment of an experimental population on the island 
of Rota, and for the sihek we recently published a final rule to 
establish an experimental population on Palmyra Atoll; both locations 
are outside the historical range for these species (54 FR 43966, 
October 30, 1989; 88 FR 19880, April 4, 2023).
    Therefore, we have determined that it may be necessary and 
appropriate to establish experimental populations outside of a species' 
historical range to provide for its conservation and adaptation to the 
habitat-related impacts of climate change and other threats. On June 7, 
2022, we proposed to revise the section 10(j) regulations at 50 CFR 
part 17, subpart H (87 FR 34625), and in this final rule we discuss the 
comments we received during the comment period and our consideration of 
the issues raised.

This Rulemaking Action

    The regulatory changes in this final rule more clearly establish 
the authority of the Service to introduce experimental populations of 
listed species into areas of habitat outside of their historical 
ranges. Removing this restriction--that the Service may only consider 
designating an experimental population outside a species' historical 
range if the species' primary habitat has been unsuitably and 
irreversibly altered or destroyed--will allow the Service to act before 
populations are severely depleted, lose important elements of genetic 
diversity, or become habituated to captivity and may help to prevent 
species extinctions. Being able to act before situations are so dire 
that there is no remaining suitable habitat within the historical range 
will improve the likelihood of species recovery while reducing the need 
for costly and extreme measures.
    When introducing experimental populations outside of historical 
range, we must avoid adversely affecting the ecosystem into which the 
population is being introduced. Our practice is to follow the 
International Union for Conservation of Nature (IUCN) Guidelines for 
Reintroductions and

[[Page 42644]]

Other Conservation Translocations, which recommends conducting 
ecological risk assessments where appropriate. As part of this final 
rule, we added language stating that we will consider any possible 
adverse effects to the ecosystem that may result from the establishment 
of the experimental population. Other regulatory revisions included in 
this final rule do not change the process for designating an 
experimental population.
    In this rule, we finalize the proposed revisions at 87 FR 34625 
(June 7, 2022) to the regulations at 50 CFR part 17, subpart H. The 
primary revision was to delete the reference to a species' ``historical 
range.'' This change allows for experimental populations to be 
introduced into habitat outside of the historical range of the species 
under appropriate circumstances. Those circumstances could include 
instances where little to no habitat remains within the historical 
range of a species or where formerly suitable habitat within the 
historical range has undergone, is undergoing, or is anticipated to 
undergo irreversible decline or change, such that it no longer contains 
the resources necessary for survival and recovery, thereby leading to 
the need to establish the species in habitat in areas outside the 
historical range. Circumstances could also include instances where, 
based on the best available scientific information, we anticipate that 
the historical range will no longer contain habitat capable of 
supporting the recovery of the species. This rule will be applied to 
future designations and will not require the reevaluation of any prior 
designation of an experimental population.

Changes From the Proposed Rule

    Based on comments we received on the proposed rule (87 FR 34625, 
June 7, 2022), and to provide clarifications, we include the changes 
described below to the proposed regulations. Other than these 
revisions, we are finalizing the rule as proposed:
    1. In the regulation at 50 CFR 17.81(a), we removed the proposed 
reference to ``one or more life history stages.'' We determined that 
this language was confusing and did not communicate our intent that, in 
order to designate an experimental population outside the historical 
range, we must determine that there is habitat capable of supporting 
that experimental population. In considering this change we also 
decided it would be appropriate to change ``that is necessary to 
support'' to ``that is capable of supporting.''
    2. In Sec.  17.81(a), we also revised ``that has been or will be 
released'' to ``that will be released'' as the proposed language 
implied that we can retroactively designate already introduced 
populations, which we cannot do.
    3. To Sec.  17.81(b), we revised proposed Sec.  17.81(b)(4) for 
clarity by adding ``experimental'' before ``population'' in the first 
part of the sentence. We also added a new subparagraph (b)(5) to ensure 
that, when establishing an experimental population outside of the 
species' historical range, we consider whether establishing such a 
population will adversely affect the ecosystem in the area where the 
experimental population would be established.
    4. We revised proposed Sec.  17.81(c)(3) to address the possibility 
that removal of the experimental population may be necessary by adding 
the word ``remove'' to the sentence. In the past, we have recognized 
that removal may be needed, and this addition explicitly recognizes 
that possibility.
    5. We clarified and revised proposed Sec.  17.81(d) by changing the 
word ``acts'' to ``actions.''

Summary of Comments and Responses

    In our proposed rule to revise the regulations for establishing 
experimental populations published on June 7, 2022 (87 FR 34625), we 
requested public comments. By the close of the public comment period on 
August 8, 2022, we received just under 570 public comments on our 
proposed rule. We received comments from a range of sources including 
individual members of the public, States, Tribes, industry 
organizations, legal foundations and firms, and environmental 
organizations. Just under half of the comments received (253) were 
nearly identical statements from individuals indicating their general 
support for the proposed changes to the regulations but not containing 
substantive content. In addition, more than 50 identical comments 
generally indicated they did not support the proposed changes, and 
several stated general concern over impacts to private agricultural 
lands. The remaining comments were unique and raised substantive 
issues.
    We reviewed and considered all public comments prior to developing 
this final rule. Summaries of substantive comments and our responses 
are provided below. We combined similar comments where appropriate. We 
did not, however, consider or respond to comments that are not relevant 
to or are beyond the scope of this particular rulemaking action.
    Comment 1: Several commenters stated that the proposed rule 
conflicts with the 2018 United States Supreme Court decision in 
Weyerhaeuser Co. v. United States Fish and Wildlife Service, 139 S. Ct. 
361, 372 (2018). These commenters asserted that the court ruled that 
areas that are not habitat cannot be designated as critical habitat, 
even though at one time the area in question served as habitat for the 
species. They further stated that if habitat cannot be designated as 
critical habitat under the ESA, neither can land be designated as 
critical habitat if it was never part of the historical range of the 
species and never served as habitat for the species.
    Response: Nothing in these 10(j) regulation revisions changes the 
processes or regulations for designating critical habitat. 
Establishment of an experimental population does not designate critical 
habitat or require that any areas be designated as critical habitat. In 
accordance with these revised 10(j) regulations, critical habitat for 
experimental populations may be designated only for those experimental 
populations that we determine to be essential to the conservation of 
the species. We cannot designate critical habitat for nonessential 
experimental populations. In addition, we would not establish an 
experimental population in areas of habitat that would not support that 
population. For some species, areas that were not part of the species' 
historical range are now capable of supporting a population because of 
climate change, and those areas can now serve as habitat for that 
species. Consistent with Weyerhaeuser, we will designate as critical 
habitat only areas that are habitat for the given listed species, and 
we will make that determination based on the best available science for 
the particular species, the statutory definition of ``critical 
habitat,'' our implementing regulations, and existing case law (87 FR 
37757 at 37759, June 24, 2022).
    Comment 2: A few commenters stated that we should retain the 
following sentence that we proposed to delete from Sec.  17.81(f): ``In 
those situations where a portion or all of an essential experimental 
population overlaps with a natural population of the species during 
certain periods of the year, no critical habitat shall be designated 
for the area of overlap unless implemented as a revision to critical 
habitat of the natural population for reasons unrelated to the overlap 
itself.'' One commenter asserted that this sentence contains an 
important clarification. Another commenter also asserted that retaining 
this sentence provides assurance to private landowners that the 
expanded areas for potential release will not be

[[Page 42645]]

used to expand designation of critical habitat.
    Response: We have retained the proposed deletion in this final 
rule. We will not designate critical habitat for nonessential 
experimental populations. In designating critical habitat for essential 
experimental populations, we will follow section 4 of the ESA and the 
regulations and policies for critical habitat designations.
    Comment 3: A few commenters stated that the recent repeal of the 
2020 final rule that established the definition of ``habitat'' for 
designating critical habitat under the ESA is a concern. The commenters 
asserted that the lack of a regulatory definition for habitat adds to 
the uncertainty and subjectivity that will result when the Service 
designates experimental populations.
    Response: When we are analyzing whether and where to establish an 
experimental population, we look at whether the habitat is suitable to 
support that population and if the establishment of the population will 
be successful. This analysis is species-specific and is based on the 
best available scientific information. However, the evaluation of 
whether habitat in the experimental population area is suitable to 
support the species is distinct from a critical habitat designation, 
which is accomplished through a separate rulemaking process. Again, we 
cannot designate critical habitat for nonessential experimental 
populations.
    Comment 4: A commenter recommended the Service revise the proposed 
rule to clarify that impacts to nonessential experimental populations 
that have been introduced outside the species' historical range will 
not trigger consultation obligations under section 7 of the ESA. The 
commenter asserted that while such a provision would not meaningfully 
alter the trajectory of the species, it could make a critical 
difference in the Biden-Harris Administration's goal of expediently 
delivering clean energy on a large scale.
    Response: Section 10(j) of the ESA already provides for reduced or 
streamlined section 7 procedures for experimental populations. For 
nonessential experimental populations, except for those occurring on 
National Park Service (NPS) lands or the National Wildlife Refuge 
System (NWRS), the less formal conferencing process applies rather than 
the standard consultation process requirements. Conferencing is an 
important tool to ensure that impacts do not jeopardize the continued 
existence of the species because the need to conference is based on an 
analysis of the combined populations of the listed species, whether or 
not any are designated as a nonessential experimental population.
    Comment 5: A commenter expressed concern over the proposed revision 
requiring section 7 consultation to occur on experimental populations 
outside of historical habitat. The commenter stated that this proposed 
requirement would be onerous, lacks regulatory certainty for the 
regulated community, and stated is not clear how existing projects and 
land uses would be impacted should they now be required to undergo 
section 7 consultation where they previously did not because of being 
in non-occupied areas.
    Response: It is true that if we designated an experimental 
population outside of historical range, the section 7 consultation 
requirements would apply. For nonessential experimental populations, we 
would treat the population as a species proposed for listing (except 
within NWRS or NPS land, where such populations are treated as 
threatened species) and follow the more informal conferencing process, 
and for essential experimental populations we would follow the standard 
consultation process. Conferencing is required only when a proposed 
action is likely to jeopardize the continued existence of a species 
proposed for listing or destroy or adversely modify proposed critical 
habitat. We do not anticipate that there would be many circumstances 
where we would determine that a project affecting a nonessential 
experimental population is likely to jeopardize the listed species. 
Existing projects and land uses may not necessarily be affected if 
there is no further Federal nexus to those projects or land uses; when 
considering whether to establish an experimental population, whether 
within or outside historical range, we will coordinate closely with any 
affected entities.
    Comment 6: One commenter stated that where the Service elects to 
promulgate an ESA section 10(j) rule prohibiting take of experimental 
populations, the Service should establish a blanket exception for 
incidental take of nonessential experimental populations introduced 
outside the species' historical range. The commenter further asserted 
that otherwise, ESA section 10(j) rules prohibiting take outside of 
historical ranges would introduce unnecessary uncertainty for the 
construction and/or operation of renewable energy and transmission and 
distribution projects. Another commenter suggested that the Service 
should recognize that the ``blanket 4(d) rule'' does not apply to 
experimental populations and should further create a blanket exception 
to the take prohibition for nonessential experimental populations 
located outside the species' historical range.
    Response: All experimental populations are treated as if they were 
listed as a threatened species for purposes of establishing protective 
regulations under section 4(d) of the ESA. This provision allows the 
Service to devise those prohibitions and exceptions necessary to 
provide for the conservation of the species rather than provide the 
full prohibitions that would apply for an endangered species. If we 
reinstate the blanket 4(d) rule, we will not consider using it for an 
experimental population in the future, and we are not establishing a 
blanket exception for incidental take that would apply to all 10(j) 
populations because we conclude that each situation is unique and 
requires careful consideration of what prohibitions may be necessary to 
apply to the experimental population; creating a blanket exception to 
the take prohibition for a nonessential designation would not provide 
the flexibility that is needed to further the conservation of the 
species. When we establish an experimental population, we propose a 
species-specific rule that outlines any prohibitions that will apply to 
that species' experimental population. Throughout this process we work 
with any entities that may be affected by the establishment of the 
experimental population to address any concerns about how the 
population may affect any ongoing or future renewable energy projects.
    Comment 7: One commenter suggested that the Service should 
explicitly recognize the value of mitigation in areas outside a 
species' historical range. The commenter stated that, should the 
Service finalize the proposed rule, there will be regulatory 
confirmation that the agency believes areas outside a species' 
historical range can serve valuable conservation purposes (e.g., as 
different areas become able to support a life stage due to the effects 
of climate change or other factors). Where the Service has introduced 
an experimental population outside the species' historical range, the 
commenter asserted that the agency should also allow the proponents of 
projects having impacts to the species within the historical range to 
provide compensatory mitigation in areas outside the historical range 
in which the Service has introduced the experimental population.
    Response: Fulfilling the Service's mission and recovering species 
requires all available conservation tools,

[[Page 42646]]

potentially including compensatory mitigation in an area with an 
introduced experimental population. Any such decision will be species- 
and situation-specific, and we will make the decision in the context of 
recovery and landscape-level planning and will follow our current 
regulations and policies for section 10(j) and compensatory mitigation.
    Comment 8: A commenter stated that we are revising the current 
10(j) regulations to interpret the statute as making it discretionary 
rather than mandatory to use the best available science to determine 
whether the release will further the conservation of the species. The 
commenter further stated that FWS should explicitly state that it is 
changing the language to reflect a changed interpretation or policy 
instead of doing it tacitly and without acknowledging it.
    Response: We have not proposed or finalized any revisions to the 
10(j) regulations that change the requirement to use the best 
scientific and commercial data available when considering whether to 
establish an experimental population. See 50 CFR 17.81(b). Regardless 
of whether an experimental population is within or outside the 
historical range of the species, the Service must still find, based on 
the best scientific and commercial data available, that the 
experimental population will further the conservation of the species.
    Comment 9: Several commenters stated that the criteria we used to 
justify the proposed rule are vague, nonspecific, and undefined. They 
suggested that the proposed rule does not state to what degree a 
species' habitat needs to suffer such damage before this new authority 
could be invoked. The commenters asserted that this criterion also 
fails to meet the standard of objective science-based decision-making 
that the Service is required by the ESA to meet. Another commenter 
requested that we reemphasize the importance of conserving 
nonexperimental populations in place wherever possible. This commenter 
stated that only non-development-related pressures (e.g., threats that 
are impossible to abate through protection of originally designated 
critical habitat, like climate change) should be considered as 
appropriate reasons to establish experimental populations of rare 
plants outside of their historical range.
    Response: Conserving nonexperimental populations is important to 
the recovery of species; however, for some species, establishing 
experimental populations may be necessary to advance their recovery. 
Defining what specific type of threats are ``appropriate 
circumstances'' is not necessary or advisable because they will vary by 
species, their habitat needs, habitat availability, and threats to the 
species and any definition may fail to acknowledge all circumstances 
under which establishing an experimental population is appropriate. 
However, in the preamble of this final rule we further explained, in 
general terms, when we might establish an experimental population 
outside of its historical range. Additionally, the regulations at 50 
CFR 17.81(b) and (c) do outline required elements that we must consider 
or provide in any specific experimental population regulation. 
Regardless of whether an experimental population designation is within 
or outside of a species' historical range, it must be based on the best 
available science and further the conservation of the species.
    Comment 10: One commenter indicated that clarity is needed to 
ensure that an experimental population designation can be applied even 
when releases have already been conducted, regardless of the date of 
such releases. Another commenter stated that the regulation change 
should not be limited to new introductions and that the Service should 
reevaluate and update prior designations to comply with this change. 
The commenters stated that not doing a reevaluation would penalize 
existing experimental populations that could benefit significantly by 
being introduced or allowed to expand outside their ``historical 
range'' as it was defined when they were listed.
    Response: We cannot designate a population as experimental if that 
population was already released and not as an experimental population; 
we stated in the proposed rule, and further clarified in this final 
rule, that these regulations would not apply retroactively. However, it 
is possible that we may consider establishing additional experimental 
populations for species that already have an experimental population 
and could at that time consider whether to establish one or more 
populations outside of the species' historical range. Requirements for 
periodic review of the effects of experimental populations on the 
recovery of the species (Sec.  17.81(c)(4)), as well as the requirement 
to review the status of a species under section 4(c)(2) of the Act (5-
year status reviews) provide mechanisms to evaluate and adjust our 
recovery programs for individual species.
    Comment 11: A commenter stated that, rather than designating 
experimental populations, the Service should find landscapes where a 
listed species is thriving and prohibit changes to the management and 
maintain the current uses of that land until the species recovers. The 
commenter further stated that the Service should seek to copy and apply 
that management to similar lands within the species' natural range 
where the species has been extirpated.
    Response: Conserving populations within their current range is 
important to the recovery of listed species, and establishing 
experimental populations is one of the tools we use to help achieve 
that goal. However, in some circumstances, such as when climate change 
or invasive species have altered the habitat within the current range 
so that it is no longer capable of supporting the species, establishing 
experimental populations outside of a species' historical range is also 
an important recovery tool.
    Comment 12: One commenter recommended that the Service, in 
collaboration with the National Marine Fisheries Service (NMFS), 
quickly, expeditiously, and with stakeholder involvement develop 
comprehensive guidance as to translocation decision-making. The 
commenter stated that, where potential translocations of listed species 
may promote conservation, that guidance should help decision-makers at 
the Services answer translocation questions.
    Response: While overarching guidance on translocations is 
important, at this time we will not be developing such guidance with 
NMFS. We have, however, recommended that our field and regional offices 
follow the IUCN reintroduction guidelines, which serves this purpose.
    Comment 13: One commenter suggested that we reference the IUCN 
reintroduction guidelines in regulation and specifically mentioned our 
internal memo recommending the use of the guidelines.
    Response: While the IUCN guidelines are important in guiding 
introductions and we have communicated that information to our staff in 
our regions and field offices, we do not find it is necessary to 
reference them in these regulations. Because the best available science 
and guidance may change over time, it is unwise to reference a specific 
set of guidelines in our regulations. Instead, our regulations at Sec.  
17.81(b) include the direction to ``use the best scientific and 
commercial data available.''
    Comment 14: A commenter urged us to add terminology to 50 CFR part 
17 or the preamble to this rulemaking that

[[Page 42647]]

reflects the importance of and need for connectivity between current 
and reintroduced populations, and between historical and newly suitable 
habitats.
    Response: While connectivity between populations is very important, 
the 1982 amendments to the ESA and our regulations for experimental 
populations require that the experimental population must be 
geographically separate from other populations of that species. Where 
populations will not be geographically separate, or where the goal is 
to promote connectivity of populations, tools such as safe harbor 
agreements or recovery permits, rather than designation of experimental 
populations under section 10(j) of the Act, may be more appropriate.
    Comment 15: Several commenters note that the Service has recognized 
that invasive species can pose a threat to species within their 
historical range. The commenters also stated that establishing 
experimental populations of endangered species outside of the species' 
historical range also, like invasive species, has the potential to 
disrupt the ecosystem in the introduced range such that it impacts 
native and/or threatened or endangered species. They further asserted 
that establishing a population outside of its historical range could 
have myriad unforeseeable and unintended consequences to other native 
wildlife species and native plant communities.
    Response: Invasive species do pose threats to many species, and we 
would need to carefully consider whether an experimental population 
established outside of its historical range could itself become an 
invasive species. While we think this scenario is unlikely, as ESA-
listed species do not typically have characteristics of invasive 
species, we have revised the regulations by adding a new subparagraph 
in Sec.  17.81(b) to indicate that, when we are considering 
establishing an experimental population outside of historical range, we 
will analyze any adverse effects on the ecosystem into which the 
experimental population is being introduced.
    Comment 16: A few commenters stated that, while narrow, there is an 
avenue in the current regulations for designating experimental 
populations outside their historical range. The commenters explained 
that such designations are necessarily limited and can occur only in 
``the extreme case that the primary habitat of the species has been 
unsuitably and irreversibly altered or destroyed.'' They further 
explained that this ``extreme case'' standard ensures a species is 
limited to its historical range unless and until there is a robust 
scientific evaluation of the species' primary habitat. The commenters 
asserted that, considering the profound and sometimes irreversible 
effect introduction can have on existing species, existing habitat, and 
human development, to name only a few, it is imperative that such 
evaluations occur in advance of any designation.
    Response: Deleting the reference to ``historical range'' and 
removing the requirement that the species' primary habitat be destroyed 
is necessary to make the process of establishing experimental 
populations outside a species' historical range more flexible. With 
climate change and other threats, such as invasive species, 
increasingly becoming an issue for some species, it is likely that 
habitats will become unsuitable and such situations are no longer 
``extreme cases.'' These revisions will allow greater flexibility to 
act before primary habitats are destroyed and allow for more efficient 
and effective recovery efforts. For listed species whose recovery is 
threatened by factors such as these, we view experimental population 
establishment outside of their historical ranges as a potential tool 
for their management and conservation.
    Comment 17: Commenters stated that giving the Service the ability 
to designate non-historical habitat for experimental endangered species 
populations will be misused by the agency and other nongovernmental 
organizations to unduly burden the energy and agricultural industries 
and force operators out of business.
    Response: The process for designating an experimental population is 
rigorous, and we must go through a public notice and comment rulemaking 
process before deciding to establish an experimental population, 
whether within or outside historical range. During the process, we 
coordinate with State agencies, Tribal governments, local governments, 
industry groups, private landowners, and other entities that may be 
affected by the establishment of an experimental population.
    Comment 18: One commenter stated that the reference to ``affected 
private landowner,'' while already in the existing regulations, is 
unclear and should be further defined. The commenter asserted that 
private forest owners are looking for certainty and consistency in the 
application of rules and policies under the ESA, and the proposed rule 
should be explicit about with whom the Service will engage before 
drafting rules and when introducing populations into habitat outside of 
their historical range for conservation purposes. Further, the 
commenter urged the Service to provide a definitive and transparent 
framework for engagement and outreach to the affected private 
landowners.
    Response: Determining with which entities we will collaborate will 
be important when we are contemplating proposing to establish an 
experimental population--whether within or outside historical range. 
With whom we engage will vary depending on the species and potential 
location of the experimental population. However, because we cannot 
anticipate in advance all potential stakeholders, the term ``affected 
private landowners'' is intentionally broad. Defining the term further 
could unintentionally exclude groups of landowners. Therefore, we are 
not further defining ``affected private landowner.''
    Comment 19: Commenters suggested that the Service should establish 
experimental populations in areas where States and private partners are 
willing to develop innovative programs to make the reintroduced species 
an asset to neighboring landowners, rather than a liability. The 
commenters asserted that this could be done through, for instance, a 
pay-for-presence program that financially rewards landowners for the 
documented presence of the introduced species on their land.
    Response: We support the goal of having a reintroduced experimental 
population be an asset to landowners, but we do not currently have the 
authorization or funding to establish a pay-for-presence program.
    Comment 20: One commenter recommended that, instead of expanding 
the scope of section 10(j) experimental populations, the Service should 
evaluate use of non-ESA frameworks under State wildlife management 
authority when contemplating potential introductions of ESA-protected 
species outside historical range. The commenter stated that the Service 
could develop more flexible management programs in cooperation with 
States, land management agencies, and private landowners that could 
avoid ESA regulatory burdens and associated risks and costs of 
litigation. The commenter further asserted that most importantly, such 
agreements would enhance local collaboration and control and increase 
the likelihood of social acceptance and, ultimately, long-term success 
of conservation translocations.
    Response: We do work collaboratively with States and other agencies 
when considering whether to establish an experimental population and 
can craft species-specific rules that include only the take 
prohibitions necessary for the

[[Page 42648]]

conservation of the species. When establishing an experimental 
population, we must follow the ESA and our regulations. Introduction of 
species under the authorities of section 10(j) allow for regulatory 
flexibilities by the establishment of a section 4(d) rule. A species 
introduced without a section 10(j) rule is subject to all the 
regulatory authorities of the ESA. In addition, we can collaboratively 
reintroduce populations of ESA-listed species without using the 
experimental population tool and could also use our Safe Harbor 
Agreement tool as a mechanism for reintroducing listed species.
    Comment 21: One commenter indicated that it was of critical 
importance to assure the full coordination and cooperation between the 
Service and any affected States as an integral part of the experimental 
population establishment process, along with recognition that an 
affected State must agree to the proposed action.
    Response: While we have not revised our regulations to include a 
requirement that the affected State(s) must agree to the proposed 
establishment of an experimental population, our full coordination with 
State agencies and all other affected entities when going through the 
process to establish an experimental population is extremely important 
and is reflected in our regulations (see Sec.  17.81(e)).
    Comment 22: One commenter stated that that the Service should work 
with Tribes to seek and incorporate Indigenous Traditional Ecological 
Knowledge (ITEK) into decisions relating to experimental populations as 
doing so will help produce better decisions.
    Response: We have added Tribes into the regulations as an entity 
with whom we must coordinate (see Sec.  17.81(e)). Our intent is to 
fully coordinate with any Tribes that may be affected by the 
establishment of an experimental population. We will also work with 
Tribes to gather ITEK when going through the experimental population 
establishment process.
    Comment 23: A number of commenters stated that, given the 
increasing threats to many species within their historical ranges, 
recovery of those species may be increasingly dependent on the 
introduction of experimental populations. They stated that it is 
increasingly necessary for the Service to use the ``essential'' 
designation. The commenters further asserted that more generous use of 
the ``essential'' designation would allow the Service to designate 
critical habitat for experimental populations, which would be an 
important tool in addressing the increasing threats to habitat 
recognized in the proposed rule.
    Response: Establishing experimental populations is one tool to help 
recover listed species. Our determination as to whether an experimental 
population is essential to the continued existence of the species is 
made on a species-by-species basis, considering the status of that 
species and the best available scientific and commercial information. 
We cannot predict in advance whether we will make essential 
determinations more frequently in the future.
    Comment 24: One commenter suggested that we revise Sec.  
17.81(c)(2), the requirement to determine whether an ``experimental 
population is, or is not, essential to the continued existence of the 
species in the wild,'' by adding ``or in captivity, if the species is 
solely held in captivity.''
    Response: We did not include the proposed revision in this final 
rule because this concept is outside the scope of our proposal and the 
public did not have an opportunity to comment on it.
    Comment 25: Several commenters supported the proposed revisions and 
noted that climate change poses new and growing threats to a myriad of 
species. The commenters asserted that many species, including 
threatened and endangered species with already limited habitat 
availability, must either adapt to rapidly shifting temperature and 
precipitation regimes or migrate at a pace commensurate with climatic 
changes to avoid extinction. They stated that species with low vagility 
or dispersal capability may not be able to keep up with such shifts and 
may be driven to extinction via this migration lag.
    Response: Climate change poses threats to numerous species, the 
impacts of which we did not anticipate at the time we adopted these 
regulations in 1984. One reason we are revising our regulations is that 
we have since learned that the impact of climate change is causing, or 
is anticipated to cause, many species' suitable habitat to shift 
outside of their historical range. In these instances, having a tool 
that allows us to establish an experimental population outside of a 
species' historical range will help us better recover listed species.
    Comment 26: One commenter stated that every regulation, every tool, 
and every policy the Service creates should be evaluated through the 
lens of section 2(c) of the ESA and the definition of ``conservation.'' 
The commenter explained that if the action does not use ``all methods 
and procedures which are necessary'' to recover species, it should be 
revised, as the Service proposes to do here.
    Response: Establishing experimental populations is one tool we can 
implement to support the recovery of listed species. We are revising 
our 10(j) regulations to reflect our determination that, in order to 
provide for the conservation of certain species, it may be increasingly 
necessary and appropriate to establish experimental populations outside 
of their historical range if the species' habitat has undergone, is 
undergoing, or is anticipated to undergo irreversible decline and is no 
longer capable of supporting the species due to threats such as climate 
change or invasive species. The commenter's views about how section 
2(c) and the definition of ``conservation'' should be broadly applied 
throughout our ESA program are beyond the scope of this rule.
    Comment 27: A few commenters stated that the Service's proposed 
change is not only within its authority but is necessary to fulfill the 
purposes of the ESA and specifically section 10(j). They stated that 
threats including climate change, invasive species, and human stressors 
like development are increasingly degrading many species' ability to 
survive--let alone recover--within their historical ranges. In 
addition, a number of commenters supported the proposed regulatory 
revisions and stated that it is clear that the ESA did not foresee or 
address the potential ESA implementation problems that climate change 
would present. The commenters asserted that adapting the regulations to 
accommodate shifts in habitat due to climate change potentially has 
merit if the process is sufficiently rigorous to avoid unanticipated 
secondary effects.
    Response: As stated in the preamble, in 1984, when our regulations 
pertaining to section 10(j) of the ESA were first written, climate 
change and invasive species were not recognized as the significant 
threats they are today. As an agency, we need to adapt our regulations 
and policies to address changing threats to species.
    Comment 28: Several commenters stated that the Service should 
prioritize habitats near or adjacent to species' historical ranges 
where at all possible. They asserted that, when this is not possible, 
great effort should be taken to identify habitats that are clearly 
analogous to those in species' historical ranges for reintroduction 
efforts.
    Response: We will prioritize habitats near or adjacent to species' 
historical ranges where possible, but we must ensure that the 
experimental population

[[Page 42649]]

is geographically separate from other populations of the species. 
Furthermore, we will prioritize areas within the historical range if 
those areas are still capable of supporting the species and an 
experimental population. If climate change or other threats have made, 
or are likely to make, areas within historical range incapable of 
supporting the species and an experimental population, we will then 
consider areas outside of the species' historical range.
    Comment 29: Some commenters stated that the idea of ``historical 
range'' is no longer relevant in a modern conservation context. They 
asserted that the historical range of a species may no longer be 
meaningful because the historical climate and historical habitat in the 
historical range may no longer exist.
    Response: Climate change and other threats are changing the 
habitats of many species and species' ranges continually change over 
time due to many factors, such that there may be no single reference 
point for a species' historical range. However, historical range still 
provides important context to understand a species' biological needs, 
ecological roles, and the factors that affect it. We will still use the 
concept of historical range within the context of designating 
experimental populations to determine when it may be appropriate to 
assess the potential for adverse effects of introducing a species 
outside its historical range to the receiving ecosystems.
    Comment 30: Commenters stated that the Service did not address the 
longstanding policy considerations and interpretations of the ESA 
statutory provisions that underpinned the 1984 rulemaking. The 
commenters indicated that we did not acknowledge our prior 
determination in 1984 that the purposes and policies of the ESA 
prohibit the transplantation of listed species beyond their historical 
ranges and must reconcile this interpretation with the revisions we 
proposed.
    Response: We acknowledge that our prior 1984 determination 
generally prohibits the transplantation of listed species beyond their 
historical range. However, when the 1984 regulations were developed, we 
were not aware of the potential impacts of climate change that could 
render habitat within a species' historical range unsuitable for the 
species. Also, when we developed the 1984 regulations, we reserved the 
ability in extreme situations for transplantations outside the 
historical range at Sec.  17.81(a) (see above Response to Comment 16). 
Through this rule change we are adjusting our regulatory authority to 
allow us to adequately respond to these potential scenarios in 
circumstances where it may not be possible to recover a species within 
its historical range because of loss or alteration of some or all its 
suitable habitat. As noted above, this final rule is consistent with 
our statutory authority because the only applicable requirement for an 
experimental population is to be ``wholly separate geographically from 
nonexperimental populations of the same species.''
    Comment 31: Several commenters believed the Service's analysis 
under the Regulatory Flexibility Act (RFA) and consideration of 
responsibilities under Executive Order (E.O.) 13132 is incorrect. The 
commenters also disagreed with our finding for E.O. 12630 that the 
proposed rule would not have significant takings implications and that 
a takings implication assessment is not warranted. They urged us to 
conduct such an assessment before finalizing the rule.
    Response: Regarding E.O. 13132, the Service is the only entity that 
is directly affected by this rule as we are the only entity that would 
apply these regulations to designate experimental populations. This 
rule will further the goals of conservation and recovery of endangered 
species and threatened species. While serving to advance these 
legitimate government interests, this rule will not have substantial 
direct effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government.
    Regarding E.O. 12630, no external entities, including any small 
businesses, small organizations, or small governments, will experience 
any economic impacts from this rule. Moreover, the rule change does not 
directly affect private property. It will not result in either a 
physical or regulatory taking because it will not present a barrier to 
all reasonable and expected beneficial uses of private property.
    Finally, we note that designation of any experimental population 
would require a public notice-and-comment rulemaking process that would 
undergo individual review and analysis under the RFA and these 
Executive orders.
    Comment 32: A few commenters stated that the Service attempts to 
avoid its obligations under the Unfunded Mandates Reform Act (UMRA) by 
failing to include local government in the development of its 
regulations and by failing to examine the impact of the proposed 
regulations on the operations of local government.
    Response: The requirement to undertake an analysis under the UMRA 
applies only to regulations containing ``Federal mandates'' that meet 
the threshold levels under the Act. (2 U.S.C. 1532-1535.) The UMRA 
defines ``Federal mandate'' as a regulation that would impose either an 
enforceable duty upon State, local, or Tribal governments (Federal 
intergovernmental mandate) or an enforceable duty upon the private 
sector (Federal private sector mandate). (2 U.S.C. 658(5)-(7).) The 
regulatory changes in this final rule would not impose an enforceable 
duty on State, local, or Tribal governments, or the private sector. The 
only direct impact of this rule change is upon the Service because this 
rulemaking action pertains to the general requirements that apply when 
the Service exercises its authority to establish experimental 
populations. When the Service proposes to establish a specific 
experimental population, whether within or outside of historical range, 
we will undertake an analysis under the UMRA.
    Comment 33: Some commenters asserted the need to conduct National 
Environmental Policy Act (NEPA) analysis on the regulation revision and 
that this rulemaking action should not be categorically excluded. They 
stated the Service is seeking to fast-track this revision by claiming a 
categorical exclusion under NEPA and disagreed with our finding. In 
particular, several commenters stated that the rule does not consider 
the economic and environmental harm of experimental populations that 
currently impact public land managers and the agriculture industry in 
Arizona.
    Response: We have complied with NEPA by determining that the rule 
is covered by a categorical exclusion found at 43 CFR 46.210(i). We 
explained this determination in an Environmental Action Statement that 
is posted in the docket for this rule. This rule change sets out the 
overarching process and considerations that the Service undertakes when 
it designates an experimental population, and this rulemaking action 
has no significant impacts on the human environment. When the Service 
proposes to establish an experimental population, the proposed action 
will be subject to the NEPA process at that time.
    Comment 34: One commenter recommended a more significant investment 
in environmental review when considering introduction of a species 
beyond its historical range. The commenter asserted that such processes 
should go beyond the use of the typical environmental assessment (EA) 
and include the compilation of an

[[Page 42650]]

environmental impact statement (EIS) to explore and solicit input on 
all possible alternative actions with stakeholders. The commenter 
further asserted that if introduction beyond a species' historical 
range is targeted as the preferred action, emphasis must be placed on 
understanding and planning for the potential cumulative and indirect 
impacts of such an action.
    Response: When we propose to establish an experimental population 
beyond a species' historical range, we will undertake a thorough 
analysis under NEPA and decide whether to use a categorical exclusion, 
an EA, or an EIS.

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 determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The Executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements. This rule is 
consistent with Executive Order 13563, and in particular with the 
requirement of retrospective analysis of existing rules, designed ``to 
make the agency's regulatory program more effective or less burdensome 
in achieving the regulatory objectives.''

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the 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, or that person's designee, 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 would 
not have a significant economic effect on a substantial number of small 
entities. The following discussion explains our rationale.
    This rulemaking revises and clarify requirements for the Service 
regarding factors for establishing experimental populations under the 
ESA. The changes to these regulations do not expand the reach of 
species protections.
    The Service is the only entity that is directly affected by this 
rule because we are the only entity that would apply these regulations 
to designate experimental populations. No external entities, including 
any small businesses, small organizations, or small governments, will 
experience any economic impacts from this rule. The future designation 
of any experimental population would require a public notice and 
comment rulemaking process that would include a review under the 
Regulatory Flexibility Act.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) On the basis of information contained in the Regulatory 
Flexibility Act section above, this rule would not ``significantly or 
uniquely'' affect small governments. We have determined and certify 
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this 
rule would not impose a cost of $100 million or more in any given year 
on local or State governments or private entities. A small government 
agency plan is not required. As explained above, small governments will 
not be affected because the rule will not place additional requirements 
on any city, county, or other local municipalities.
    (b) This rule will not produce a Federal mandate on State, local, 
or Tribal governments or the private sector of $100 million or greater 
in any year; that is, this rule is not a ``significant regulatory 
action''' under the Unfunded Mandates Reform Act. This rule does not 
impose any obligations on State, local, or Tribal governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. This rule does not pertain to 
``taking'' of private property interests, nor will it directly affect 
private property. A takings implication assessment is not required 
because this rule (1) will not effectively compel a property owner to 
suffer a physical invasion of property and (2) will not deny all 
economically beneficial or productive use of the land or aquatic 
resources. This rule substantially advances a legitimate government 
interest (conservation and recovery of endangered species and 
threatened species) and will 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 would have significant federalism effects and have 
determined that a federalism summary impact statement is not required. 
This rule pertains only to designation of experimental populations 
under the ESA and will not have substantial direct effects on the 
States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.

Civil Justice Reform (E.O. 12988)

    This rule does not unduly burden the judicial system and meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of Executive 
Order 12988. This rule clarifies factors for designation of 
experimental populations under the ESA.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior's manual at 512 DM 2, we have considered possible effects 
of this rule on federally recognized Indian Tribes. We will continue to 
collaborate and coordinate with Tribes on issues related to federally 
listed species and their habitats. See Joint Secretary's Order 3206 
(``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act,'' June 5, 1997). As 
discussed earlier in this document, we have revised the regulations to 
add a requirement for

[[Page 42651]]

consultation with affected Tribal governments in developing and 
implementing experimental population rules. Any regulation promulgated 
pursuant to this section will, to the maximum extent practicable, 
represent an agreement between the Service, the affected State and 
Federal agencies, Tribal governments, local government agencies, and 
persons holding any interest in land or water that may be affected by 
the establishment of an experimental population.

Paperwork Reduction Act of 1995 (PRA)

    This regulation revision does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under the PRA (44 U.S.C. 3501 et seq.). OMB has previously 
approved the information collection requirements associated with 
reporting requirements associated with experimental populations and 
assigned the following OMB Control Number: 1018-0095, ``Endangered and 
Threatened Wildlife, Experimental Populations, 50 CFR 17.84'' (expires 
9/30/2023). An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.

National Environmental Policy Act

    We analyzed this regulation in accordance with the criteria of the 
National Environmental Policy Act (NEPA), the Department of the 
Interior regulations on Implementation of the National Environmental 
Policy Act (43 CFR 46.10-46.450), and the Department of the Interior 
Manual (516 DM 8).
    We find that the categorical exclusion found at 43 CFR 46.210(i) 
applies to these regulation changes. At 43 CFR 46.210(i), the 
Department of the Interior has found that the following category of 
actions would not individually or cumulatively have a significant 
effect on the human environment and are, therefore, categorically 
excluded from the requirement for completion of an environmental 
assessment or environmental impact statement: Policies, directives, 
regulations, and guidelines: that are of an administrative, financial, 
legal, technical, or procedural nature; or whose environmental effects 
are too broad, speculative, or conjectural to lend themselves to 
meaningful analysis and will later be subject to the NEPA process, 
either collectively or case-by-case. When the Service proposes to 
establish an experimental population for a particular species, the 
proposed action will be subject to the NEPA process at that time.

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

    Executive Order 13211 requires agencies to prepare statements of 
energy effects when undertaking certain actions. The revised 
regulations are not expected to 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 Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT) or online at https://www.regulations.gov in Docket 
No. FWS-HQ-ES-2021-0033.

Authority

    We issue this rule under the authority of the Endangered Species 
Act, as amended (16 U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    For the reasons described above, we hereby amend subpart H, of part 
17, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.80 by revising paragraph (a) to read as follows:


Sec.  17.80  Definitions.

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

0
3. Amend Sec.  17.81 by:
0
a. Revising paragraph (a), paragraph (b) introductory text, and 
paragraphs (b)(3) and (b)(4);
0
b. Removing the undesignated paragraph following paragraph (b)(4);
0
c. Adding paragraph (b)(5);
0
d. Revising paragraph (c)(3);
0
e. Redesignating paragraphs (d), (e), and (f) as paragraphs (e), (f), 
and (g);
0
f. Adding a new paragraph (d); and
0
g. Revising the newly designated paragraphs (e), (f), and (g).
    The revisions and additions read as follows:


Sec.  17.81  Listing.

    (a) The Secretary may designate as an experimental population a 
population of endangered or threatened species that will be released 
into habitat that is capable of supporting the experimental population 
outside the species' current range, subject to the further conditions 
specified in this section, provided that all designations of 
experimental populations must proceed by regulation adopted in 
accordance with 5 U.S.C. 553 and the requirements of this subpart.
    (b) Before authorizing the release as an experimental population of 
any population (including eggs, propagules, or individuals) of an 
endangered or threatened species, and before authorizing any necessary 
transportation to conduct the release, the Secretary must find by 
regulation that such release will further the conservation of the 
species. In making such a finding, the Secretary will use the best 
scientific and commercial data available to consider:
* * * * *
    (3) The relative effects that establishment of an experimental 
population will have on the recovery of the species;
    (4) The extent to which the introduced experimental population may 
be affected by existing or anticipated Federal or State actions or 
private activities within or adjacent to the experimental population 
area; and
    (5) When an experimental population is being established outside of 
its historical range, any possible adverse effects to the ecosystem 
that may result

[[Page 42652]]

from the experimental population being established.
* * * * *
    (c) * * *
    (3) Management restrictions, protective measures, or other special 
management concerns of that population, as appropriate, which may 
include but are not limited to, measures to isolate, remove, and/or 
contain the experimental population designated in the regulation from 
nonexperimental populations; and
* * * * *
    (d) The Secretary may issue a permit under section 10(a)(1)(A) of 
the Act, if appropriate under the standards set out in sections 10(d) 
and 10(j) of the Act, to allow actions necessary for the establishment 
and maintenance of an experimental population.
    (e) The Service will consult with appropriate State fish and 
wildlife agencies, affected Tribal governments, local governmental 
agencies, affected Federal agencies, and affected private landowners in 
developing and implementing experimental population rules. When 
appropriate, a public meeting will be conducted with interested members 
of the public. Any regulation promulgated pursuant to this section 
will, to the maximum extent practicable, represent an agreement between 
the Service, the affected State and Federal agencies, Tribal 
governments, local government agencies, and persons holding any 
interest in land or water that may be affected by the establishment of 
an experimental population.
    (f) Any population of an endangered species or a threatened species 
determined by the Secretary to be an experimental population in 
accordance with this subpart will be identified by a species-specific 
rule in Sec. Sec.  17.84 and 17.85 as appropriate and separately listed 
in Sec.  17.11(h) (wildlife) or Sec.  17.12(h) (plants) as appropriate.
    (g) The Secretary may designate critical habitat as defined in 
section (3)(5)(A) of the Act for an essential experimental population 
as determined pursuant to paragraph (c)(2) of this section. Any 
designation of critical habitat for an essential experimental 
population will be made in accordance with section 4 of the Act. No 
designation of critical habitat will be made for nonessential 
experimental populations.

0
4. Revise Sec.  17.82 to read as follows:


Sec.  17.82  Prohibitions.

    Any population determined by the Secretary to be an experimental 
population will be treated as if it were listed as a threatened species 
for purposes of establishing protective regulations under section 4(d) 
of the Act with respect to such population. The species-specific rules 
(protective regulations) adopted for an experimental population under 
Sec.  17.81 will contain applicable prohibitions, as appropriate, and 
exceptions for that population.

0
5. Amend Sec.  17.83 by revising paragraph (b) and adding paragraph (c) 
to read as follows:


Sec.  17.83  Interagency cooperation.

* * * * *
    (b) For a listed species, any experimental population that, 
pursuant to Sec.  17.81(c)(2), has been determined to be essential to 
the survival of the species or that occurs within the National Park 
System or the National Wildlife Refuge System, as now or hereafter 
constituted, will be treated for purposes of section 7 of the Act as a 
threatened species.
    (c) For purposes of section 7 of the Act, any consultation or 
conference on a proposed Federal action will treat any experimental and 
nonexperimental populations as a single listed species for the purposes 
of conducting the analyses and making agency determinations pursuant to 
section 7(a) of the Act.

0
6. Amend Sec.  17.84 by:
0
a. Revising the section heading; and
0
b. In paragraphs (l)(1), (l)(16), and (x)(8) remove the word 
``special'' wherever it appears.
    The revision reads as follows:


Sec.  17.84  Species-specific rules--vertebrates.

* * * * *

0
7. Amend Sec.  17.85 by revising the section heading and paragraph 
(a)(2)(i) to read as follows:


Sec.  17.85  Species-specific rules--invertebrates.

    (a) * * *
    (2) * * *
    (i) Except as expressly allowed in the rule in this paragraph (a), 
all the prohibitions of Sec.  17.31(a) and (b) apply to the mollusks 
identified in the rule in this paragraph (a).
* * * * *


Sec.  17.86  [Removed and Reserved]

0
8. Remove and reserve Sec.  17.86

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-13672 Filed 6-30-23; 8:45 am]
BILLING CODE 4333-15-P