[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