[Federal Register Volume 80, Number 148 (Monday, August 3, 2015)]
[Proposed Rules]
[Pages 45924-45931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18894]



[[Page 45924]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 140725620-4620-01]
RIN 0648-BE43


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

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

ACTION: Proposed rule and request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose 
regulations to amend the Code of Federal Regulations (CFR) to implement 
the Endangered Species Act (ESA) regarding experimental populations. 
The CFR would be amended to establish definitions and procedures for: 
establishing and/or designating certain populations of species 
otherwise listed as endangered or threatened as experimental 
populations; determining whether experimental populations are 
``essential'' or ``nonessential;'' and promulgating appropriate 
protective measures for experimental populations. We seek public 
comment on this proposal.

DATES: To allow us adequate time to consider your comments on this 
proposed rule, they must be received no later than October 2, 2015.

ADDRESSES: You may submit comments on this proposed rule, identified by 
NOAA-NMFS-2014-0104, by any of the following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal.
    1. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-
2014-0104.
    2. Click the ``Comment Now!'' icon, complete the required fields.
    3. Enter or attach your comments.

--or--
     Mail: Submit written comments to Dwayne Meadows, 
Endangered Species Division F/PR3, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910.
     Fax: (301) 713-4060.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are part of the 
public record and will generally be posted to http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910, (301) 427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    Congress amended the ESA in 1982 (Pub. L. 97-304). Among the 
changes made to the law at that time was the addition of a new section, 
10(j), which established procedures for designating a specific 
population of a listed species as an ``experimental population.'' Prior 
to the 1982 amendments we, and the U.S. Fish and Wildlife Service 
(USFWS), which implements the ESA for terrestrial, freshwater, and some 
other species of wildlife and plants, were authorized to translocate a 
listed species into unoccupied portions of its range in order to aid in 
the recovery of the species. Significant opposition to translocation 
efforts often occurred, however, usually due to concerns over the rigid 
protections and prohibitions applicable to these translocated 
populations. ESA section 10(j) was designed to resolve these conflicts 
by providing new administrative flexibility for selectively applying 
the prohibitions of the ESA to experimental populations of listed 
species (see, e.g., H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982)).
    Section 10(j)(1) of the ESA (16 U.S.C. 1539(j)(1)) defines an 
experimental population as a population that has been authorized for 
release by the Secretary of Commerce (Secretary) or Secretary of 
Interior, but only when, and at such times as, the population is wholly 
separate geographically from nonexperimental populations of the same 
species. The Secretary may authorize the release (and related 
transportation) of any experimental population (including eggs, 
propagules, or individuals) of a listed species outside of the species' 
current range if the Secretary determines that the release would 
``further the conservation of'' the listed species (16 U.S.C. 
1539(j)(2)(A)). Section 10(j)(2)(B) also requires that, before 
authorizing the release of an experimental population, the Secretary 
``identify'' the experimental population by regulation and determine, 
based on the best available information, whether the experimental 
population is ``essential to the continued existence'' of the listed 
species (16 U.S.C. 1539(j)(2)(B)).
    Section 10(j) of the ESA further establishes that an experimental 
population shall be treated as a threatened species under the ESA, with 
two exceptions that apply if an experimental population is determined 
to be not essential to the listed species' continued existence (i.e., 
is nonessential): (1) A nonessential experimental population (NEP) 
shall be treated as a species proposed for listing for purposes of 
section 7 of the ESA, except when the NEP occurs in an area within the 
National Wildlife Refuge System or the National Park System; and (2) 
critical habitat shall not be designated for a NEP. Treatment of an 
experimental population as ``threatened'' under the ESA enables the 
Secretary to issue regulations under the authority of section 4(d) of 
the ESA that he or she deems necessary and advisable to provide for the 
conservation of the species, which may be less restrictive than taking 
prohibitions applicable to endangered species under ESA section 9. For 
essential experimental populations, treatment as a threatened species 
also means ESA section 7(a)(2) applies, requiring each Federal agency 
to consult with us to insure that any action authorized, funded, or 
carried out by the agency is not likely to jeopardize the continued 
existence of the experimental population or result in the destruction 
or adverse modification of the experimental population's critical 
habitat. When a NEP occurs within the National Wildlife Refuge System 
or National Park System, it also must be treated as a threatened 
species for the purposes of ESA section 7, and section 7(a)(2) 
consultations are required. Under the first exception described above, 
however, the only provisions of section 7 that apply to a NEP outside 
of a National Wildlife Refuge or National Park are sections 7(a)(1) and 
7(a)(4). Section 7(a)(1) requires that Federal agencies use their 
authorities in furtherance of the purposes of the ESA by carrying out 
programs for the conservation of threatened and endangered species. 
Section 7(a)(4) requires Federal agencies to confer,

[[Page 45925]]

rather than consult, with us on actions that are likely to jeopardize 
the continued existence of a species proposed to be listed. The results 
of a conference are advisory in nature.
    The provisions of section 10(j) of the ESA, as summarized above, 
introduce some terminology and concepts that are not otherwise used or 
defined in the ESA or in our current implementing regulations. These 
terms and concepts include: ``further the conservation of,'' 
``experimental population,'' identifying an experimental population, 
and determining whether an experimental population is essential to the 
continued existence of the species. The USFWS promulgated regulations 
in 1984 (49 FR 33885, August 27, 1984) to guide their implementation of 
ESA section 10(j) (50 CFR 17.80 through 17.83), including provisions 
related to the terms and concepts noted above. The USFWS has designated 
dozens of experimental populations using those regulations (see 50 CFR 
17.84 through 17.85). Although the USFWS regulations do not govern 
regulatory actions by NMFS, we have explicitly considered those 
regulations recently in the only three experimental population 
designations we have made: Middle Columbia River steelhead trout in the 
Deschutes River Basin (78 FR 2893, January 15, 2013); Central Valley 
spring-run Chinook Salmon in the San Joaquin River (78 FR 79622, 
December 31, 2013); and upper Columbia River spring-run Chinook Salmon 
in the Okanogan River Subbasin (79 FR 40004, July 11, 2014).
    We believe that there is a need for us to have regulations laying 
out NMFS's interpretation of and procedures for implementing ESA 
section 10(j), beyond what Congress has specifically directed, just as 
USFWS did in their section 10(j) implementing regulations. Now that we 
have gained some experience in designating experimental populations, we 
are in a position to develop our own implementing regulations for ESA 
section 10(j) that will help provide clarity and reduce uncertainty for 
the public about our future practices. In developing this proposal, we 
reviewed the ESA, legislative history of the 1982 ESA amendments, 
existing USFWS ESA section 10(j) regulations, public comments from the 
USFWS rulemaking to develop their ESA section 10(j) regulations, and 
relevant public comments from our own recent experimental population 
designations, and we consulted with USFWS staff. We then convened a 
group of NMFS staff with experience in ESA section 10(j) designations 
to help develop this proposal. In the following sections, we discuss 
our proposed regulations section by section. We compare our proposal to 
the existing USFWS regulations to make clear the areas where our 
regulations will differ from the USFWS regulations. We strove to 
maintain consistency between our proposed regulations and the existing 
USFWS regulations as much as possible to provide for consistent 
implementation of ESA section 10(j) between the agencies, but we are 
proposing changes we believe are necessary to implement the statutory 
requirements in a manner appropriate for species under NMFS' 
jurisdiction. NMFS' intent when designating an experimental population 
under ESA section 10(j) is that the population will retain that 
designation until the donor species is delisted, or until, for some 
unforeseen reason, the experimental population fails, for example, due 
to lack of donor stock or problems with implementation.

Definitions

    Section 10(j) of the ESA states that an ``experimental population'' 
means ``any population (including any offspring arising solely there 
from) authorized by the Secretary for release under [section 10(j)(2)], 
but only when, and at such times as, the population is wholly separate 
geographically from nonexperimental populations of the same species.'' 
Where members of an experimental population overlap with natural 
populations of the same species, they are not deemed to be an 
experimental population. In its ESA section 10(j) regulations at 50 CFR 
17.80, USFWS added that a population shall be treated as experimental 
only when the times of geographic separation are ``reasonably 
predictable'', for example, with ``fixed migration patterns, natural or 
man-made barriers.'' They further stated that ``[a] population is not 
treated as experimental if total separation will occur solely as a 
result of random and unpredictable events.'' USFWS full definition of 
``experimental population'' is:

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

    We believe USFWS's interpretation is applicable for situations in 
which complete temporal or physical barriers exist that ensure the 
geographic isolation of an experimental population for at least part of 
the year or life cycle of the individuals in the experimental 
population. Thus, we propose to adopt the same definition as USFWS for 
``experimental population,'' with two small changes. First, we propose 
to substitute ``any'' for the word ``an'' in the first sentence of 
USFWS's definition, to match the statutory language. Second, in the 
second sentence of their definition, USFWS uses the word ``natural'' to 
distinguish populations not designated as experimental from 
experimental populations. In our experience with our species, the term 
natural can be confusing when dealing with situations where some 
nonexperimental animals or populations derive from hatchery, 
aquaculture, or other captive breeding programs (e.g., such programs 
for salmonids). Therefore, we propose to substitute the word 
``nonexperimental'' for ``natural'' in the definition to improve 
clarity for species under NMFS's jurisdiction.
    Therefore, we propose that an ``experimental population'' means 
``any introduced and/or designated population (including any off-spring 
arising solely therefrom) that has been so designated in accordance 
with the procedures of this subpart [of the regulations] 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 only be recognized outside the areas of overlap. Thus, such 
a population shall be treated as experimental only when the times of 
geographic separation are reasonably predictable; e.g., fixed migration 
patterns, natural or man-made barriers. A population is not treated as 
experimental if total separation will occur solely as a result of 
random and unpredictable events.''

[[Page 45926]]

    In order to implement ESA section 10(j) for any new experimental 
population, the ESA requires a determination as to whether or not the 
experimental population is essential to the continued existence of the 
species. ESA section 10(j), however, does not provide a definition of 
an ``essential experimental population.'' The USFWS defined an 
``essential experimental population'' as an experimental population 
``whose loss would be likely to appreciably reduce the likelihood of 
the survival of the species in the wild,'' and stated that ``[a]ll 
other experimental populations are to be classified as nonessential.'' 
This definition closely follows language in the report of the 
Congressional Conference Committee when the 1982 ESA amendments were 
passed (see Joint Explanatory Statement of the Committee of Conference, 
H.R. Conf. Rep. No. 97-835 (1982), at 15). Here again we believe the 
definition used by USFWS is helpful, is consistent with congressional 
intent and has worked well to date; and we recognize that adopting an 
identical definition for this fundamental term will provide consistency 
between NMFS and USFWS in the implementation of ESA section 10(j). We 
therefore propose to adopt the same definition as USFWS.

Listing

    The beginning of the ``Listing'' section of the USFWS section 10(j) 
regulations (50 CFR 17.81(a)) describes the experimental population 
designation process and specifies that it is the Secretary of the 
Interior who has the authority to designate and release an experimental 
population of a listed species under USFWS jurisdiction into suitable 
habitat outside of the species' current natural range. In our proposed 
regulations, we similarly specify that it is the Secretary of Commerce 
who has the authority to designate and release an experimental 
population for species under our jurisdiction.
    Consistent with the general intent of Congress with regard to the 
adoption of regulations and the specific requirement in ESA section 
10(j)(2)(B) that an experimental population be identified by 
regulation, USFWS included a requirement that regulations designating 
experimental populations be adopted in accordance with 5 U.S.C. 553 
(see 50 CFR 17.81(a)), which contains the informal rulemaking 
provisions of the Administrative Procedure Act. Therefore, we propose 
to adopt this provision as well.

Current Range

    The USFWS regulations at 50 CFR 17.81(a) provide for the 
designation of an experimental population that has been or will be 
released into suitable habitat ``outside the current natural range'' of 
the species. However, ESA section 10(j)(2)(A) only uses the phrase 
``outside the current range'' rather than ``outside the current natural 
range'' to identify the geographic area in which an experimental 
population is authorized for release. Further, there is no definition 
of ``range'', ``current range,'' or ``current natural range'' in the 
ESA or 50 CFR parts 222 (NMFS ESA implementing regulations) or 424 
(Joint NMFS/USFWS ESA implementing regulations). The USFWS ESA section 
10(j) regulations at 50 CFR 17.80 through 17.83 also do not define 
``natural''. Based on our experience with our species, we do not 
believe addition of the word ``natural'' in the phrase ``outside the 
current range'' is necessary for our species. Therefore, we do not 
propose to include the word ``natural'' as a qualifier for the current 
range of a species.
    The USFWS regulations at 50 CFR 17.81(a) also establish a 
limitation that release of an experimental population outside of the 
probable historic range of a species is allowed only if the Director of 
the USFWS makes a finding that ``the primary habitat of the species has 
been unsuitably and irreversibly altered or destroyed.'' This provision 
is not required under the ESA, and we believe it unnecessarily limits 
our ability to implement section 10(j) of the ESA in a manner that 
conserves our listed species. Therefore, we do not include this 
language in our proposed rule.

Furthering the Conservation of the Species

    As noted above, ESA section 10(j) requires that before authorizing 
the release of an experimental population outside the current range of 
the species, the Secretary must determine that such release will 
further the conservation of the species. The ESA provides little 
guidance on how to make such a determination. The ESA does define 
``conservation'' as ``the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this [Act] are no 
longer necessary.'' In their ESA section 10(j) regulations, USFWS 
identified four factors that, using the best scientific and commercial 
data available, they consider in making a finding that the experimental 
population release will further the conservation of the species: (1) 
Any possible adverse effects on extant populations of a species as a 
result of removal of individuals, eggs, or propagules for introduction 
elsewhere; (2) The likelihood that any such experimental population 
will become established and survive in the foreseeable future; (3) The 
relative effects that establishment of an experimental population will 
have on the recovery of the species; and (4) The extent to which the 
introduced population may be affected by existing or anticipated 
Federal or State actions or private activities within or adjacent to 
the experimental population area (50 CFR 17.81(b)).
    The first factor USFWS considers is related to effects on the 
source populations of the organisms used to establish or enhance an 
experimental population. The remaining three factors they consider 
relate to the likelihood or extent the experimental population will 
survive, thrive, and contribute to the recovery and conservation of the 
species. These three factors focus on key steps in the implementation 
of an experimental population: (1) initial establishment, (2) the 
contribution of an established experimental population to the recovery 
of the listed species, and (3) the effect any nearby human activities 
might have on the experimental population and its potential 
contribution to the species recovery.
    We have found that using the list of factors developed by USFWS 
gives the public adequate general information about how we plan to 
interpret the provision for ``furthering the conservation of the 
species,'' without introducing needless complexity. In rulemakings we 
have already completed to designate experimental populations (see 
above), we have provided detailed discussions of relevant species-
specific information that we considered in order to make the ``further 
the conservation of'' finding based on these four factors, and we 
intend to continue this practice in future rulemakings. We also note 
the desirability of maintaining consistency between our regulations and 
those of USFWS. Therefore, we propose to adopt the same language and 
four factors as the USFWS regulations for making the determination that 
release of an experimental population will further the conservation of 
the species, with two small editorial revisions. First, we added a 
comma in the second sentence of paragraph (b) because it is appropriate 
grammatically. Second, the third factor in USFWS's regulations says 
USFWS will consider the ``relative effects'' the experimental 
population will have on recovery of the species. In our experience with 
our species, we have found the term ``relative'' in this factor is 
superfluous, and we therefore

[[Page 45927]]

do not include it in our proposal. Neither of these changes is intended 
to make our proposed regulation functionally different than USFWS's 
corresponding regulation.

Identification of the Experimental Population

    In their ESA section 10(j) implementing regulations, USFWS requires 
that any regulation designating an experimental population shall 
provide, among other things, ``[a]ppropriate means to identify the 
experimental population, including, but not limited to, its actual or 
proposed location, actual or anticipated migration, number of specimens 
released or to be released, and other criteria appropriate to identify 
the experimental population(s)'' (50 CFR 17.81(c)(1)). We believe these 
examples of means of identifying an experimental population are 
relevant and helpful, and we propose to include them in our 
regulations. However, we add the qualifier ``if appropriate'' to our 
proposal to make it clear that not all of the listed means will be 
relevant to each experimental population designation for our species. 
With the addition of the ``if appropriate'' qualifier, we also change 
the commas separating the examples to semicolons to more clearly 
separate them.

Finding Whether the Experimental Population Is or Is Not Essential

    The USFWS ESA section 10(j) regulations at 50 CFR 17.81(c)(2) 
incorporate the requirement of the ESA that the designation of an 
experimental population include a determination as to whether the 
experimental population is essential to the continued existence of the 
listed species. The language is as follows: ``(c) Any regulation 
promulgated under paragraph (a) of this section shall provide: . . . 
(2) A finding, based solely on the best scientific and commercial data 
available, and the supporting factual basis, on whether the 
experimental population is, or is not, essential to the continued 
existence of the species in the wild[.]'' Based on our experience, this 
language is adequate to describe the statutory requirement, and we 
propose to adopt identical language. We have already discussed above 
that we will adopt the same definition as the USFWS regulations for 
``essential experimental population.''

Protective Measures

    In 50 CFR 17.81(c)(3) of their ESA section 10(j) regulations, USFWS 
establishes that their rulemakings for designating experimental 
populations will also provide: ``Management restrictions, protective 
measures, or other special management concerns of that population, 
which may include, but are not limited to, measures to isolate and/or 
contain the experimental population designated in the regulation from 
natural populations[.]'' This provision addresses the linkage between 
designating experimental populations under section 10(j) of the ESA and 
implementing companion protective regulations under ESA section 4(d). 
The language also specifies actions needed to successfully implement an 
experimental population release. We agree that it is helpful to clarify 
the relationship between sections 4(d) and 10(j) of the ESA and the 
intent of Congress and the agency in implementing ESA section 10(j). 
Based on our experience with our species, however, we believe 
additional clarifying language in this section is appropriate for our 
species.
    We believe this section should make it clear that management 
restrictions, protective measures, and other special management 
concerns would be applied to an experimental population as appropriate 
to the specific situation as not all of these measures would be 
applicable for all of our species. We therefore add this clarification 
to our proposed regulatory language. Second, we again propose using the 
word ``nonexperimental,'' instead of the word ``natural,'' to describe 
nonexperimental populations, as discussed above. Third, we add language 
to further clarify the distinction between regulations adopted under 
the provisions of ESA section 4(d) and those adopted under ESA section 
10(j). Finally, we add a comma after ``include,'' because it is 
appropriate grammatically to separate the ``but are not limited to'' 
clause. These clarifications are not intended to make our proposed 
regulations functionally differ from those of USFWS. Therefore, our 
proposed regulatory language is: ``Management restrictions, protective 
measures, or other special management concerns of that population, as 
appropriate, which may include, but are not limited to, measures to 
isolate and/or contain the experimental population designated in the 
regulation from nonexperimental populations and protective regulations 
established pursuant to section 4(d) of the Act.''

Periodic Review

    50 CFR 17.81(c)(4) of the USFWS section 10(j) regulations requires 
that any regulation designating an experimental population shall 
provide a process for periodic review and evaluation of the success or 
failure of the release and the effect of the release on the 
conservation and recovery of the species. We agree with this provision 
to help ensure the success of experimental population designations and 
to formally and publicly review these designations. We note that the 
ESA requires that we conduct a status review every 5 years for each 
listed species under our jurisdiction. We intend to use the 5 year 
review process for tracking the status of experimental populations and 
ensuring that experimental population designations further the 
conservation of the species as expected.

Permits To Allow Establishment and Maintenance of an Experimental 
Population

    In their ESA section 10(j) regulations, USFWS notes that they may 
issue a permit under section 10(a)(1)(A) of the ESA, if appropriate 
under the standards set out in subsections 10(d) and (j) of the ESA, to 
allow acts necessary for the establishment and maintenance of an 
experimental population. This provision highlights the intent of 
Congress that experimental populations be implemented through 
provisions of the ESA and provides the relevant mechanism by which this 
would normally occur. Our implementing practices are similar to those 
of USFWS, and we therefore propose to include this provision in our 
regulations, with some edits solely to improve clarity and streamline 
the provision. In the USFWS regulations at 50 CFR 17.81, this provision 
is an un-numbered sentence as part of paragraph (4) under subparagraph 
(b), which otherwise deals with the factors to consider in making a 
determination that an experimental population will further the 
conservation of the species. In order to emphasize the provision as a 
stand-alone provision and to make it easier to directly cite, in our 
proposed rule we place this provision in its own numbered subparagraph 
(d). We also propose to not include the following phrase from the USFWS 
regulations: ``under the standards set out in subsections 10(d) and (j) 
of the ESA,'' because the phrase is unnecessary. Under the provisions 
of the statute, any permit for an experimental population issued under 
ESA section 10(a)(1)(A) would have to meet the standards set out in 
those subsections, so it is not necessary to explicitly list the 
subsections in the regulations. Our proposed regulations will thus 
read, ``The Secretary may issue a permit under section 10(a)(1)(A) of 
the Act, if appropriate, to allow acts necessary for the establishment 
and maintenance of an experimental population.''

[[Page 45928]]

Stakeholder Consultations

    In their regulations implementing ESA section 10(j), USFWS 
establishes that, in the process of developing and implementing 
experimental population rules, they will consult with appropriate State 
fish and wildlife agencies, local governmental entities, affected 
Federal agencies, and affected private landowners, including through 
public meetings, when appropriate (50 CFR 17.81(d)). USFWS further 
establishes in this paragraph that, to the maximum extent practicable, 
any regulation promulgated pursuant to this section shall represent an 
agreement between USFWS, the affected State and Federal agencies, and 
persons holding any interest in land which may be affected by the 
establishment of an experimental population. We strongly believe that 
consultations with affected parties are critical to the success of 
experimental population designations and propose to adopt this language 
in our regulations. We believe that our trust responsibilities with 
regard to tribal governments warrant explicitly including consultation 
with tribes in our ESA section 10(j) regulations. We have therefore 
listed tribal governments in our proposal. This addition is not 
intended to suggest that USFWS's regulations do not allow for 
consultation with tribal governments, and, in fact, USFWS has consulted 
with tribal governments on ESA section 10(j) designations. Therefore, 
listing tribal governments in our regulations would not make our 
provision functionally differ from the corresponding provision in 
USFWS's regulations. We would just like to explicitly list tribal 
governments in our regulations based on our experience with our 
species. In fact, tribal governments have been integral in the 
development of experimental populations we have already designated (see 
above).
    We propose one other addition in this section of our regulations. 
The USFWS regulations at 50 CR 17.81(d) identify persons holding an 
interest in land which may be affected by an experimental population 
designation as a stakeholder group to be consulted. Based on our 
experience and work in aquatic habitat and the fact that all of our 
species are aquatic species, we believe the addition of persons holding 
interests in water (i.e., aquatic habitat), which may be affected by an 
experimental population designation, as an additional stakeholder group 
is warranted and have included that addition in this proposed rule.

Location of Experimental Population Regulations in the Code of Federal 
Regulations

    In their ESA section 10(j) regulations, USFWS provides that special 
rules relating to a designation of an experimental population will be 
published in specific sections of the CFR as appropriate, and that 
experimental populations will be separately listed in the lists of 
threatened and endangered plants and animals in the CFR as appropriate. 
In our proposed regulations, we similarly state that our regulations 
relating to specific experimental populations will continue to be 
published in Title 50, part 223 of the CFR, with our regulations 
related to threatened species, and that our designated experimental 
populations also will be separately listed in the lists of threatened 
and endangered plants and animals in the CFR as appropriate. We note 
that the regulations relating to listing and designation of an 
experimental population that are being proposed in this rulemaking 
would be published in Title 50, part 222 of the CFR, with our other ESA 
implementing regulations.

Critical Habitat for Experimental Populations Determined To Be 
Essential

    The Secretary may designate critical habitat, as defined in section 
(3)(5)(A) of the ESA, for an experimental population determined to be 
essential (but not for populations determined to be nonessential). In 
their ESA section 10(j) regulations, USFWS emphasizes that the 
designation of critical habitat for an essential experimental 
population will be made in accordance with section 4 of the ESA (50 CFR 
17.81(f)). We agree that emphasizing the provisions of ESA section 4 in 
the ESA section 10(j) regulations is useful, and we therefore propose 
to include the same language in our regulations. In our proposed 
regulations, we made two changes from the language in 50 CFR 17.81(f), 
however. First, the USFWS regulations say: ``No designation of critical 
habitat will be made for nonessential populations.'' We add the word 
``experimental'' after ``nonessential,'' to emphasize that the 
nonessential populations are, in fact, ESA section 10(j) experimental 
populations.
    Second, in their regulations, USFWS adds additional language 
regarding critical habitat for experimental populations (50 CFR 
17.81(f)). The language USFWS uses is: ``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 will 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.'' This language is not 
included in the ESA, and in our experience with our species this 
language has been unnecessary to understand and implement the relevant 
provisions of the ESA. We therefore do not include this language in our 
proposed rule.

Prohibitions

    The USFWS ESA section 10(j) regulations at 50 CFR 17.82 reiterate 
the ESA section 10(j) provision that each member of an experimental 
population shall be treated as if it were listed as a threatened 
species and add that this applies for purposes of establishing 
protective regulations under section 4(d) of the ESA. Based on our 
experience with our species, even with the language in 50 CFR 17.82, 
stakeholders still have questions regarding the relationship between 
ESA sections 10(j) and 4(d). Therefore, we propose modified language 
for our regulations to clarify and explain in more detail the 
relationship between these two sections. This modified language is not 
intended to function differently or lead to different outcomes than the 
USFWS language, but is only intended to provide greater explanation 
about the relationship between ESA sections 10(j) and 4(d). The first 
sentence would read the same as 50 CFR 17.82: ``Any population 
determined by the Secretary to be an experimental population shall be 
treated as if it were listed as a threatened species for purposes of 
establishing protective regulations under section 4(d) of the Act with 
respect to such population.'' However, we propose to replace the second 
sentence of the USFWS regulations at 50 CFR 17.82 (``The Special rules 
(protective regulations) adopted for an experimental population under 
Sec.  17.81 will contain applicable prohibitions, as appropriate, and 
exceptions for that population.'') with the following text in our 
regulations: ``Accordingly, when designating, or revising, an 
experimental population under section 10(j) of the Act, the Secretary 
may also exercise his or her authority under section 4(d) of the Act to 
include protective regulations necessary and advisable to provide for 
the conservation of such species as part of the special rule for the 
experimental population. Any protective regulations applicable to the 
species from which the experimental population was sourced do not apply 
to the experimental

[[Page 45929]]

population unless specifically included in the special rule for the 
experimental population.''

Interagency Cooperation

    In their regulations implementing ESA section 10(j), USFWS includes 
a section on provisions related to interagency cooperation under 
section 7 of the ESA (50 CFR 17.83) that describes what types of 
analyses are conducted under ESA section 7 with respect to experimental 
populations. Much of this section reiterates language in section 10(j) 
of the ESA itself (see ESA section 10(j)(2)(C)). However, USFWS does 
include an additional provision that any biological opinion prepared 
pursuant to section 7(b) of the ESA and any agency determination made 
pursuant to section 7(a) of the ESA ``shall consider any experimental 
and nonexperimental populations to constitute a single listed species 
for the purposes of conducting the analyses under such sections.''
    We propose to adopt the language used by USFWS in 50 CFR 17.83(a) 
and (b) in our own regulations, with the addition of citations to the 
relevant parts of ESA section 7 that are referenced in each 
subparagraph (i.e., section 7(a)(4) in subparagraph (a) and section 
7(a)(1) in subparagraph (b)) for ease of reference, to direct the 
reader to the applicable part of the ESA, and with the addition of the 
phrase ``of the Act'' in paragraph (a) to explicitly specify that the 
regulation refers to section 7 of the statute. However, we do not 
propose to include the additional USFWS provision quoted above related 
to ESA section 7, as section 10(j) of the ESA and our proposed 
regulations already describe how ESA section 7 is to be implemented 
with respect to experimental populations, and based on our experience, 
this additional language is unnecessary for our species. None of these 
differences are intended to cause our regulation to functionally differ 
from USFWS's corresponding regulation.

Relationship to Existing Experimental Populations

    We have already designated three experimental populations of 
salmonids (see above). We do not intend the proposed implementing 
regulations herein to require us to review or revise those 
designations. We do not believe the implementing regulations we are 
proposing in this proposed rule would meaningfully alter the findings 
we came to in our prior designations and rulemakings.

Request for Information

    We intend that any rule finally adopted be as effective as possible 
in implementing the ESA. Any final regulation based on this proposal 
will consider information and recommendations timely submitted from all 
interested parties. Therefore, we solicit comments, information, and 
recommendations on this proposed regulation from governmental agencies, 
Native American tribes, the scientific community, industry groups, 
environmental interest groups, and any other interested parties. 
Comments should be as specific as possible and refer to sections and 
paragraphs involved. Specifically we request information and comments 
on:
    (1) The terms we define above and in the proposed regulations, and
    (2) The proposed listing and experimental population designation 
process and considerations.
    This rulemaking does not materially modify our current methods and 
procedures for designating experimental populations.
    You may submit your information concerning this proposed rule by 
one of the methods listed in ADDRESSES. If you submit information via 
http://www.regulations.gov, your entire submission--including any 
personal identifying information--will be posted on the Web site. If 
your submission is made via a hardcopy that includes personal 
identifying information, you may request at the top of your document 
that we withhold this personal identifying information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.

Information Quality Act and Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review pursuant to the 
Information Quality Act (Section 515 of Pub. L. 106-554), which was 
published in the Federal Register on January 14, 2005 (70 FR 2664). The 
Bulletin established minimum peer review standards, a transparent 
process for public disclosure of peer review planning, and 
opportunities for public participation with regard to certain types of 
information disseminated by the Federal Government. The peer review 
requirements of the OMB Bulletin apply to influential or highly 
influential scientific information disseminated on or after June 16, 
2005. There are no documents supporting this proposed rule that meet 
this criteria.

Classification

Executive Order 12866

    This proposed rule has been determined to be not significant under 
E.O. 12866.

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

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
801 et seq.), whenever a Federal agency is required to publish a 
notification of rulemaking for any proposed or final rule, it must 
prepare, and make available for public comment, a regulatory 
flexibility analysis that describes the effect of the rule on small 
entities (i.e., small businesses, small organizations, and small 
government jurisdictions). However, no regulatory flexibility analysis 
is required if the head of an agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. The SBREFA amended the Regulatory Flexibility Act to require 
Federal agencies to provide a statement of the factual basis for 
certifying that a rule will not have a significant economic impact on a 
substantial number of small entities.
    The Chief Counsel for Regulation, Department of Commerce, will 
certify to the Chief Counsel for Advocacy at the Small Business 
Administration that this proposed rule will not have a significant 
economic effect on a substantial number of small entities. The 
following discussion explains our rationale.
    The proposed regulations clarify how we implement the provisions of 
section 10(j) of the ESA. The proposed regulations do not materially 
alter our current practices. The proposed regulations do not expand our 
reach. We are the only entity that is directly affected by this 
proposed rule because we are the only entity that can designate 
experimental populations of threatened or endangered species under NMFS 
jurisdiction. No external entities, including any small businesses, 
small organizations, or small governments, will experience any economic 
impacts from this proposed rule. Therefore, the only potential effect 
on any external entities large or small would likely be positive, 
through reducing any uncertainty on the part of the public about our 
process for designating experimental populations by formalizing our 
practices and procedures.

[[Page 45930]]

Executive Order 12630

    In accordance with E.O. 12630, this proposed rule does not have 
significant takings implications. A takings implication assessment is 
not required because this rulemaking: (1) Would not effectively compel 
a property owner to have the government physically invade property, and 
(2) would not deny all economically beneficial or productive use of the 
land or aquatic resources. This rulemaking would substantially advance 
a legitimate government interest (conservation and recovery of listed 
species) and would not present a barrier to all reasonable and expected 
beneficial use of private property.

Executive Order 13132

    In accordance with E.O. 13132, we have determined that this rule 
does not have federalism implications as that term is defined in E.O. 
13132.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    The Office of Management and Budget (OMB) regulations at 5 CFR part 
1320, which implement provisions of the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.), require that Federal agencies obtain approval 
from OMB before collecting information from the public. A Federal 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number. This proposed rule does not include any new 
collections of information that require approval by OMB under the 
Paperwork Reduction Act.

National Environmental Policy Act

    We have analyzed this proposed rule in accordance with the criteria 
of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(c)), 
the Council on Environmental Quality's Regulations for Implementing the 
Procedural Provisions of NEPA (40 CFR parts 1500-1508), and NOAA's 
Administrative Order regarding NEPA compliance (NAO 216-6 (May 20, 
1999)).
    We have determined that this proposed rule is categorically 
excluded from NEPA documentation requirements, consistent with 40 CFR 
1508.4. We have determined that this action satisfies the standards for 
reliance upon a categorical exclusion under NOAA Administrative Order 
(NAO) 216-6. Specifically, this action fits within the categorical 
exclusion for ``policy directives, regulations and guidelines of an 
administrative, financial, legal, technical or procedural nature.'' NAO 
216-6, section 6.03c.3(i). This action would not trigger an exception 
precluding reliance on the categorical exclusion because it does not 
involve a geographic area with unique characteristics, is not the 
subject of public controversy based on potential environmental 
consequences, will not result in uncertain environmental impacts or 
unique or unknown risks, does not establish a precedent or decision in 
principle about future proposals, will not have significant cumulative 
impacts, and will not have any adverse effects upon endangered or 
threatened species or their habitats (Id. sec. 5.05c). As such, it is 
categorically excluded from the need to prepare an Environmental 
Assessment. In addition, we find that because this proposed rule will 
not result in any effects to the physical environment, much less any 
adverse effects, there would be no need to prepare an Environmental 
Assessment even aside from consideration of the categorical exclusion. 
See, e.g., Oceana, Inc. v. Bryson, 940 F. Supp. 2d 1029 (N.D. Cal. 
April 12, 2013). Issuance of this proposed rule does not alter the 
legal and regulatory status quo in such a way as to create any 
environmental effects. See, e.g., Humane Soc. of U.S. v. Johanns, 520 
F. Supp. 2d. 8 (D.D.C. 2007).

Government-to-Government Relationship With Tribes (E.O. 13175)

    E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments, outlines the responsibilities of the Federal Government in 
matters affecting tribal interests. If we issue a regulation with 
tribal implications (defined as having a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes), we 
must consult with those governments or the Federal Government must 
provide funds necessary to pay direct compliance costs incurred by 
tribal governments.
    We invite all interested tribes to discuss the proposed rule with 
us at their convenience should they choose to have a government-to-
government consultation.

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

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. 
Executive Order 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking any action that promulgates or is expected to 
lead to the promulgation of a final rule or regulation that (1) is a 
significant regulatory action under E.O. 12866 and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.
    This proposed rule has been determined not to be a significant 
regulatory action under E.O. 12866 and is not expected to significantly 
affect energy supplies, distribution, and use. Therefore, this action 
is not a significant energy action and no Statement of Energy Effects 
is required.

References Cited

    A complete list of all references cited in this rule is available 
upon request (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 222

    Endangered and threatened species.

    Dated: July 24, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs,
    National Marine Fisheries Service.

    For the reasons set out in the preamble, part 222, of chapter II, 
title 50 of the Code of Federal Regulations, is proposed to be amended 
as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

0
1. The authority citation for part 222 continues to read as follows:

    Authority:  16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.

0
2. Add subpart E to part 222 to read as follows:
Subpart E--Experimental Populations
Sec.
222.501 Definitions.
222.502 Listing.
222.503 Prohibitions.
222.504 Interagency cooperation.

Subpart E--Experimental Populations


Sec.  222.501  Definitions.

    (a) The term experimental population means any introduced and/or 
designated population (including any off-spring arising solely 
therefrom) that has been so designated in accordance with the 
procedures of this subpart but only when, and at such times as, the 
population is wholly separate 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

[[Page 45931]]

recognized as such while in the area of overlap. That is, experimental 
status will only be recognized outside the areas of overlap. Thus, such 
a population shall be treated as experimental only when the times of 
geographic separation are reasonably predictable; e.g., fixed migration 
patterns, natural or man-made barriers. A population is not treated as 
experimental if total separation will occur solely as a result of 
random and unpredictable events.
    (b) The term essential experimental population means an 
experimental population whose loss would be likely to appreciably 
reduce the likelihood of the survival of the species in the wild. All 
other experimental populations are to be classified as nonessential.


Sec.  222.502  Listing.

    (a) The Secretary may designate as an experimental population a 
population of endangered or threatened species that has been or will be 
released into suitable habitat outside the species' current range, 
subject to the further conditions specified in this section, provided, 
that all designations of experimental populations must proceed by 
regulation adopted in accordance with 5 U.S.C. 553 and the requirements 
of this subpart.
    (b) Before authorizing the release as an experimental population of 
any population (including eggs, propagules, or individuals) of an 
endangered or threatened species, and before authorizing any necessary 
transportation to conduct the release, the Secretary must find by 
regulation that such release will further the conservation of the 
species. In making such a finding, the Secretary shall utilize the best 
scientific and commercial data available to consider:
    (1) Any possible adverse effects on extant populations of a species 
as a result of removal of individuals, eggs, or propagules for 
introduction elsewhere;
    (2) The likelihood that any such experimental population will 
become established and survive in the foreseeable future;
    (3) The effects that establishment of an experimental population 
will have on the recovery of the species; and
    (4) The extent to which the introduced population may be affected 
by existing or anticipated Federal or State actions or private 
activities within or adjacent to the experimental population area.
    (c) Any regulation promulgated under paragraph (a) of this section 
shall provide:
    (1) Appropriate means to identify the experimental population, 
including, but not limited to, its actual or proposed location; actual 
or anticipated migration; number of specimens released or to be 
released, if appropriate; and other criteria appropriate to identify 
the experimental population(s);
    (2) A finding, based solely on the best scientific and commercial 
data available, and the supporting factual basis, on whether the 
experimental population is, or is not, essential to the continued 
existence of the species in the wild;
    (3) Management restrictions, protective measures, or other special 
management concerns of that population, as appropriate, which may 
include, but are not limited to, measures to isolate and/or contain the 
experimental population designated in the regulation from 
nonexperimental populations and protective regulations established 
pursuant to section 4(d) of the Act; and
    (4) A process for periodic review and evaluation of the success or 
failure of the release and the effect of the release on the 
conservation and recovery of the species.
    (d) The Secretary may issue a permit under section 10(a)(1)(A) of 
the Act, if appropriate, to allow acts necessary for the establishment 
and maintenance of an experimental population.
    (e) The National Marine Fisheries Service shall consult with 
appropriate State fish and wildlife agencies, affected tribal 
governments, local governmental entities, affected Federal agencies, 
and affected private landowners in developing and implementing 
experimental population rules. When appropriate, a public meeting will 
be conducted with interested members of the public. Any regulation 
promulgated pursuant to this section shall, to the maximum extent 
practicable, represent an agreement between the National Marine 
Fisheries Service, the affected State and Federal agencies and tribal 
governments, and persons holding any interest in land or water which 
may be affected by the establishment of an experimental population.
    (f) Any population of an endangered species or a threatened species 
determined by the Secretary to be an experimental population in 
accordance with this subpart shall be identified by special rule in 
part 223 as appropriate and separately listed in 50 CFR 17.11(h) 
(wildlife) or 50 CFR 17.12(h) (plants) as appropriate.
    (g) The Secretary may designate critical habitat as defined in 
section (3)(5)(A) of the Act for an essential experimental population 
as determined pursuant to paragraph (c)(2) of this section. Any 
designation of critical habitat for an essential experimental 
population will be made in accordance with section 4 of the Act. No 
designation of critical habitat will be made for nonessential 
experimental populations.


Sec.  222.503  Prohibitions.

    (a) Any population determined by the Secretary to be an 
experimental population shall be treated as if it were listed as a 
threatened species for purposes of establishing protective regulations 
under section 4(d) of the Act with respect to such population.
    (b) Accordingly, when designating, or revising, an experimental 
population under section 10(j) of the Act, the Secretary may also 
exercise his or her authority under section 4(d) of the Act to include 
protective regulations necessary and advisable to provide for the 
conservation of such species as part of the special rule for the 
experimental population. Any protective regulations applicable to the 
species from which the experimental population was sourced do not apply 
to the experimental population unless specifically included in the 
special rule for the experimental population.


Sec.  222.504  Interagency cooperation.

    (a) Any experimental population designated for a listed species 
determined pursuant to Sec.  222.502(c)(2) not to be essential to the 
survival of that species and not occurring within the National Park 
System or the National Wildlife Refuge System, shall be treated for 
purposes of section 7 of the Act (other than this paragraph (a) 
thereof) as a species proposed to be listed under the Act as a 
threatened species, and the provisions of section 7(a)(4) of the Act 
shall apply.
    (b) Any experimental population designated for a listed species 
that either has been determined pursuant to Sec.  222.502(c)(2) to be 
essential to the survival of that species, or occurs within the 
National Park System or the National Wildlife Refuge System as now or 
hereafter constituted, shall be treated for purposes of section 7 of 
the Act as a threatened species, and the provisions of section 7(a)(2) 
of the Act shall apply.

[FR Doc. 2015-18894 Filed 7-31-15; 8:45 am]
BILLING CODE 3510-22-P