Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 61771

understanding this proposed rule so that 

they could better evaluate its effects on 

them and participate in the rulemaking. 

If the rule would affect your small 

business, organization, or governmental 

jurisdiction and you have questions 

concerning its provisions or options for 

compliance, please contact Mr. Roger K. 

Wiebusch, Bridge Administrator, Eighth 

Coast Guard District, Bridge Branch, at 

(314) 539–3900, extension 2378.

Collection of Information 

This proposed rule would call for no 

new collection of information under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3520). 

Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this proposed rule under that Order and 

have determined that it does not have 

implications for federalism. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 or more in any one year. 

Though this proposed rule will not 

result in such an expenditure, we do 

discuss the effects of this rule elsewhere 

in this preamble. 

Taking of Private Property 

This proposed rule will not affect a 

taking of private property or otherwise 

have taking implications under 

Executive Order 12630, Governmental 

Actions and Interference with 

Constitutionally Protected Property 

Rights. 

Civil Justice Reform 

This proposed rule meets applicable 

standards in sections 3(a) and 3(b)(2) of 

Executive Order 12988, Civil Justice 

Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

Protection of Children 

We have analyzed this proposed rule 

under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. This rule is not an economically 

significant rule and does not create an 

environmental risk to health or risk to 

safety that may disproportionately affect 

children. 

Indian Tribal Governments 

This proposed rule does not have 

tribal implications under Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, because it would not have 

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. 

Energy Effects 

We have analyzed this proposed rule 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. It has not been designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. Therefore, it 

does not require a Statement of Energy 

Effects under Executive Order 13211. 

Environment 

We have analyzed this rule under 

Commandant Instruction M16475.lD, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that there are no factors 

in this case that would limit the use of 

a categorical exclusion under section 

2.B.2 of the Instruction. Therefore, this 

rule is categorically excluded, under 

figure 2–1, paragraph (32)(e), of the 

Instruction, from further environmental 

documentation. Paragraph 32(e) 

excludes the promulgation of operating 

regulations or procedures for 

drawbridges from the environmental 

documentation requirements of the 

National Environmental Policy Act 

(NEPA). Since this proposed regulation 

would alter the normal operating 

conditions of the drawbridge, it falls 

within this exclusion. A ‘‘Categorical 

Exclusion Determination’’ is available in 

the docket for inspection or copying 

where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 117 

Bridges.

Regulations 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 117 as follows:

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

1. The authority citation for part 117 

continues to read as follows:

Authority: 33 U.S.C. 499; Department of 

Homeland Security Delegation No. 0170.1; 33 

CFR 1.05–1(g); section 117.255 also issued 

under the authority of Pub. L. 102–587, 106 

Stat. 5039.

2. From 7 a.m., December 15, 2004 

until 8 a.m. March 15, 2005, temporarily 

add new § 117.T394 to read as follows:

§ 117.T394 Upper Mississippi River. 

The Rock Island Railroad and 

Highway Drawbridge, mile 482.9, at 

Rock Island, Illinois, need not open for 

river traffic and may be maintained in 

the closed-to-navigation position.

Dated: October 1, 2004. 

R.F. Duncan, 

Rear Admiral, U.S. Coast Guard, Commander, 

Eighth Coast Guard District.

[FR Doc. 04–23545 Filed 10–20–04; 8:45 am] 

BILLING CODE 4910–15–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs 

Administration 

49 CFR Parts 192 and 195 

[Docket No. RSPA–04–16855; Notice 1] 

RIN 2137–AD97 

Pipeline Safety: Standards for Direct 

Assessment of Gas and Hazardous 

Liquid Pipelines

AGENCY: Research and Special Programs 

Administration (RSPA), DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: This document proposes 

regulations that would require pipeline 

operators to meet certain standards if 

they use direct assessment to evaluate 

the threat of corrosion on regulated 

onshore gas, hazardous liquid, and 

carbon dioxide pipelines. The 

standards, which are already in effect 

for gas transmission lines in highconsequence areas, involve processes of 

data collection, indirect inspection, 

direct examination, and evaluation. 

Congress has directed DOT to prescribe 

standards for inspection of pipelines by 

direct assessment. The proposed 

regulations should advance the use of 

direct assessment as a method of 

61772 Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 

1Pipeline Safety Improvement Act of 2002 (Pub. 

L. 107–355; Dec. 17, 2002), Sec. 14(a).

2 Ibid., Sec. 23.

managing the impact of corrosion on 

regulated pipelines.

DATES: Persons interested in submitting 

written comments on the rules proposed 

in this document must do so by 

December 6, 2004. Late filed comments 

will be considered so far as practicable.

ADDRESSES: You may submit written 

comments to the docket by any of the 

following methods: 

• Mail: Dockets Facility, U.S. 

Department of Transportation, Room 

PL–401, 400 Seventh Street, SW., 

20590–0001. Anyone wanting 

confirmation of mailed comments must 

include a self-addressed stamped 

postcard. 

• Hand delivery or courier: Room PL–

401, 400 Seventh Street, SW., 

Washington, DC. The Dockets Facility is 

open from 10 a.m. to 5 p.m., Monday 

through Friday, except Federal holidays. 

• Web site: Go to http://dms.dot.gov, 

click on ‘‘Comments/Submissions’’ and 

follow instructions at the site. 

All written comments should identify 

the docket number and notice number 

stated in the heading of this notice. 

Docket access. For copies of this 

document or other material in the 

docket, you may contact the Dockets 

Facility by phone (202–366–9329) or 

visit the facility at the above street 

address. For Web access to the dockets 

to read and download filed material, go 

to http://dms.dot.gov/search. Then type 

in the last four digits of the docket 

number shown in the heading of this 

document, and click on ‘‘Search.’’

Anyone can search the electronic 

form of all comments filed in any of our 

dockets by the name of the individual 

submitting the comment (or signing the 

comment, if submitted for an 

association, business, labor union, etc.). 

You may review DOT’s complete 

Privacy Act Statement in the April 11, 

2000 issue of the Federal Register (65 

FR 19477) or go to http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: L. 

M. Furrow by phone at 202–366–4559, 

by fax at 202–366–4566, by mail at U.S. 

Department of Transportation, 400 

Seventh Street, SW., Washington, DC, 

20590, or by e-mail at 

buck.furrow@rspa.dot.gov.

SUPPLEMENTARY INFORMATION: 

Background 

Many operators of gas, hazardous 

liquid, and carbon dioxide pipelines do 

more to assure the integrity of their 

systems than RSPA’s pipeline safety 

regulations in 49 CFR Parts 192 and 195 

require. For example, §§ 192.465 and 

195.573 require operators to use 

electrical tests to identify places where 

buried pipe may not be protected 

adequately from external corrosion. But, 

in addition to electrical tests, many 

operators have historically used internal 

inspection devices or hydrostatic testing 

to find external corrosion. They have 

also used these methods to look for 

other pipeline defects. 

RSPA has long recognized the safety 

and environmental advantages of these 

additional inspection and test methods. 

In recent years, it became apparent that 

they are particularly beneficial when 

used as part of a comprehensive riskbased program to assure system 

integrity.

In 2000, RSPA issued regulations 

requiring hazardous liquid and carbon 

dioxide pipeline operators to conduct 

integrity management programs using 

internal inspection, pressure testing, or 

other equally effective assessment 

means (§ 195.452). 

Congressional Directives 

Congress also saw the need for 

operators to do more to assure the 

integrity of their pipelines. In 2002, 

Congress directed DOT to issue 

regulations on managing gas pipeline 

integrity in high-density population 

areas with a program involving internal 

inspection, pressure testing, and direct 

assessment.1 Congress further directed 

DOT to issue regulations prescribing 

standards for inspecting pipeline 

facilities by direct assessment.2

In the pipeline transportation 

industry, ‘‘direct assessment’’ is a 

process of data gathering, inspection, 

examination, and evaluation used to 

determine if external corrosion, internal 

corrosion, or stress-corrosion cracking is 

adversely affecting the physical integrity 

of ferrous pipelines. The process serves 

not only to locate and repair corrosion 

defects but also to prevent future 

corrosion problems. 

Standards for Direct Assessment 

In response to Congress’ first 

directive, RSPA published regulations 

in Subpart O of Part 192 that require 

operators to follow detailed programs in 

managing the integrity of onshore gas 

transmission lines in high-consequence 

areas (69 FR 69816; Dec. 15, 2003). The 

definition of ‘‘high-consequence area’’

in § 192.903 describes places where 

transmission lines pose an increased 

risk because of their size and operating 

pressure and the nature or density of the 

nearby population. 

The newly published Subpart O 

regulations include standards for using 

direct assessment to evaluate the threats 

of external corrosion, internal corrosion, 

and stress-corrosion cracking. The 

standards are stated in §§ 192.925, 

192.927, and 192.929. The standard on 

external corrosion direct assessment 

(§ 192.925) requires operators to 

integrate data on physical 

characteristics and operating history, 

conduct indirect aboveground 

inspections, directly examine pipe 

surfaces, and evaluate the effectiveness 

of the assessment process. Under the 

standard for direct assessment of 

internal corrosion (§ 192.927), operators 

must predict locations where 

electrolytes may accumulate in 

normally dry-gas pipelines, examine 

those locations, and validate the 

assessment process. The standard for 

direct assessment of stress-corrosion 

cracking (§ 192.929) involves collecting 

data relevant to stress-corrosion 

cracking, assessing the risk of pipeline 

segments, and examining and evaluating 

segments at risk. 

Although these standards only affect 

gas transmission lines included in a 

Subpart O integrity management 

program, RSPA believes they are 

suitable for other gas pipelines that fall 

under Congress’ second directive. Each 

standard incorporates by reference 

relevant provisions of the American 

Society of Mechanical Engineers’

consensus standard, ASME B31.8S–

2001, ‘‘Managing System Integrity of 

Gas Pipelines,’’ which applies to any 

onshore gas pipeline made of ferrous 

material. In addition, § 192.925 

incorporates by reference a consensus 

standard published by NACE 

International, NACE Standard RP0502–

2002, ‘‘Pipeline External Corrosion 

Direct Assessment Methodology.’’ This 

NACE standard applies broadly to 

buried onshore ferrous pipelines. 

Requirements in § 192.925 apart from 

the ASME and NACE standards merely 

assure the use of appropriate decisionmaking criteria. 

In addition, RSPA believes §§ 192.925 

and 192.929 would provide suitable 

standards for direct assessment of 

external corrosion and stress-corrosion 

cracking on hazardous liquid pipelines 

that fall under the second congressional 

directive. Although §§ 192.925 and 

192.929 cross-reference provisions of 

ASME B31.8S–2001, which was 

intended for use on gas pipelines, we 

think the referenced provisions are 

appropriate for pipelines transporting 

hazardous liquid. 

We do not believe, however, that the 

standard in § 192.927 is suitable for 

direct assessment of internal corrosion 

in hazardous liquid pipelines. This 

standard applies specifically to 

pipelines that transport dry gas. 

Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 61773

3 49 U.S.C. 60102(i) (2000).

Therefore, it does not apply to pipelines 

that transport liquids. At present, there 

is no consensus standard available for 

the direct assessment of internal 

corrosion in hazardous liquid pipelines.

Proposed Rules 

Given that RSPA’s existing direct 

assessment standards are suitable for 

pipelines besides gas transmission lines 

in high-consequence areas, RSPA is 

making the following rulemaking 

proposals to meet the second 

congressional directive. For onshore 

ferrous pipelines subject to Part 192, 

proposed § 192.490 would require that if 

operators use direct assessment to 

evaluate the threat of corrosion or to 

meet any requirement of Subpart I—

Requirements for Corrosion Control, the 

direct assessment must be carried out 

according to the applicable standards in 

§§ 192.925, 192.927, and 192.929. A 

similar regulation, proposed § 195.588, 

would be established for hazardous 

liquid pipelines covered by Part 195, 

except that § 192.927 would not apply. 

Because Congress has directed DOT to 

ensure the safe transportation of carbon 

dioxide through standards related to 

hazardous liquid pipelines,3 proposed 

§ 195.588 also applies to carbon dioxide 

pipelines covered by Part 195.

Regulatory Analyses and Notices 

Executive Order 12866 and DOT 

Policies and Procedures. RSPA does not 

consider this proposed rulemaking to be 

a significant regulatory action under 

Section 3(f) of Executive Order 12866 

(58 FR 51735; Oct. 4, 1993). Therefore, 

the Office of Management and Budget 

(OMB) has not received a copy of this 

proposed rulemaking to review. RSPA 

also does not consider this proposed 

rulemaking to be significant under DOT 

regulatory policies and procedures (44 

FR 11034: February 26, 1979). 

RSPA prepared a draft Regulatory 

Evaluation of the proposed rulemaking 

and a copy is in the docket. The 

evaluation concludes operators would 

incur only a minimum amount of cost, 

if any, to comply with the proposed 

rulemaking. If you disagree with this 

conclusion, please provide information 

to the public docket described above. 

Regulatory Flexibility Act. Under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.), RSPA must consider whether 

rulemaking actions would have a 

significant economic impact on a 

substantial number of small entities. 

Based on the facts available about the 

anticipated impacts of this proposed 

rulemaking, I certify that this proposed 

rulemaking will not have a significant 

impact on a substantial number of small 

entities. If you have any information 

that this conclusion about the impact on 

small entities is not correct, please 

provide that information to the public 

docket described above. 

Executive Order 13175. RSPA has 

analyzed this proposed rulemaking 

according to the principles and criteria 

contained in Executive Order 13175, 

‘‘Consultation and Coordination with 

Indian Tribal Governments.’’ Because 

the proposed rulemaking would not 

significantly or uniquely affect the 

communities of the Indian tribal 

governments nor impose substantial 

direct compliance costs, the funding 

and consultation requirements of 

Executive Order 13175 do not apply. 

Paperwork Reduction Act. Operators 

have just recently begun to use direct 

assessment to evaluate the effect of 

corrosion on buried pipelines. Under 

Parts 192 and 195, the use of direct 

assessment is voluntary, except as 

required by the transmission integrity 

management rules. The proposed 

rulemaking would not change this 

status. Because direct assessment is a 

new process and its use is largely 

voluntary, RSPA is unable to develop a 

reasonable estimate of the number of 

operators the proposed rulemaking may 

affect. Therefore, we have not estimated 

the paperwork burden of the proposed 

rulemaking. 

RSPA invites comments on (1) how 

many operators plan to use direct 

assessment, other than to meet the 

transmission integrity management 

rules, and (2) the average paperwork 

burden of complying with the proposed 

rulemaking (in hours and cost per hour). 

In estimating the burden, note that each 

standard requires preparation of plans 

and procedures, and records are 

required by section 7 of NACE Standard 

RP0502–2002. 

Unfunded Mandates Reform Act of 

1995. This proposed rulemaking does 

not impose unfunded mandates under 

the Unfunded Mandates Reform Act of 

1995. It does not result in costs of $100 

million or more to either State, local, or 

tribal governments, in the aggregate, or 

to the private sector, and is the least 

burdensome alternative that achieves 

the objective of the proposed 

rulemaking. 

National Environmental Policy Act.

RSPA has analyzed the proposed 

rulemaking for purposes of the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.). Because the proposed 

rulemaking would affect only those 

operators that voluntarily use direct 

assessment and because it largely 

involves processes of data collection 

and evaluation, we have preliminarily 

determined that the proposed 

rulemaking is unlikely to significantly 

affect the quality of the human 

environment. An environmental 

assessment document is available for 

review in the docket. A final 

determination on environmental impact 

will be made after the end of the 

comment period. If you disagree with 

our preliminary conclusion, please 

submit your comments to the docket as 

described above. 

Executive Order 13132. RSPA has 

analyzed the proposed rulemaking 

according to the principles and criteria 

contained in Executive Order 13132 

(‘‘Federalism’’). None of the proposed 

rules (1) has substantial direct effects on 

the States, the relationship between the 

national government and the States, or 

the distribution of power and 

responsibilities among the various 

levels of government; (2) impose 

substantial direct compliance costs on 

State and local governments; or (3) 

preempt state law. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

Executive Order 13211. This proposed 

rulemaking is not a ‘‘Significant energy 

action’’ under Executive Order 13211. It 

is not a significant regulatory action 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Further, this proposed 

rulemaking has not been designated by 

the Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action.

List of Subjects 

49 CFR Part 192 

Natural gas, Pipeline safety, Reporting 

and recordkeeping requirements. 

49 CFR Part 195 

Ammonia, Carbon dioxide, 

Petroleum, Pipeline safety, Reporting 

and recordkeeping requirements.

In consideration of the foregoing, 

RSPA proposes to amend 49 CFR parts 

192 and 195 as follows: 

1. The authority citation for Part 192 

continues to read as follows:

Authority: 49 U.S.C. 5103, 60102, 60104, 

60108, 60109, 60110, 60113, and 60118; and 

49 CFR 1.53.

2. Add § 192.490 to read as follows:

§ 192.490 Direct assessment. 

Each operator that uses direct 

assessment on an onshore ferrous 

pipeline to evaluate the effects of a 

threat in the first column or to meet any 

requirement of this subpart regarding 

that threat must carry out the direct 

61774 Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 

assessment according to the standard 

listed in the second column.

Threat Standard 

External corrosion ..... § 192.925 

Internal corrosion in 

pipelines that transport dry gas.

§ 192.927 

Stress-corrosion 

cracking.

§ 192.929 

3. The authority citation for Part 195 

continues to read as follows:

Authority: 49 U.S.C. 5103, 60102, 60104, 

60108, 60109, 60118; and 49 CFR 1.53.

4. Add § 195.588 to read a follows:

§ 195.588 What standards apply to direct 

assessment? 

If you use direct assessment on an 

onshore pipeline to evaluate the effects 

of a threat in the first column or to meet 

any requirement of this subpart 

regarding that threat, you must carry out 

the direct assessment according to the 

standard listed in the second column.

Threat Standard 

External corrosion ..... § 192.925 of this 

chapter. 

Stress-corrosion 

cracking.

§ 192.929 of this 

chapter. 

Issued in Washington, DC, on October 14, 

2004. 

Stacey L. Gerard, 

Associate Administrator for Pipeline Safety.

[FR Doc. 04–23551 Filed 10–20–04; 8:45 am] 

BILLING CODE 4910–60–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AH44 

Endangered and Threatened Wildlife 

and Plants; Establishment of a 

Nonessential Experimental Population 

for Two Fishes (Boulder Darter and 

Spotfin Chub) in Shoal Creek, 

Tennessee and Alabama

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), in 

cooperation with the States of 

Tennessee and Alabama and with 

Conservation Fisheries, Inc., a nonprofit 

organization, propose to reintroduce one 

federally listed endangered fish, the 

boulder darter (Etheostoma wapiti), and 

one federally listed threatened fish, the 

spotfin chub (Cyprinella (=Hybopsis) 

monacha), into their historical habitat 

in Shoal Creek, Lauderdale County, 

Alabama, and Lawrence County, 

Tennessee. Based on the evaluation of 

species’ experts, these species currently 

do not exist in this reach or its 

tributaries. These two fish are being 

reintroduced under section 10(j) of the 

Endangered Species Act of 1973, as 

amended (Act), and would be classified 

as a nonessential experimental 

population (NEP). 

The geographic boundaries of the 

proposed NEP would extend from the 

mouth of Long Branch, Lawrence 

County, Tennessee (Shoal Creek mile 

(CM) 41.7 (66.7 kilometers (km)), 

downstream to the backwaters of the 

Wilson Reservoir at Goose Shoals, 

Lauderdale County, Alabama 

(approximately CM 14 (22 km)), and 

would include the lower 5 CM (8 km) 

of all tributaries that enter this reach. 

These proposed reintroductions are 

recovery actions and are part of a series 

of reintroductions and other recovery 

actions that the Service, Federal and 

State agencies, and other partners are 

conducting throughout the species’

historical ranges. This proposed rule 

provides a plan for establishing the NEP 

and provides for limited allowable legal 

taking of the boulder darter and spotfin 

chub within the defined NEP area.

DATES: We will consider comments on 

this proposed rule that are received by 

December 20, 2004. Requests for a 

public hearing must be made in writing 

and received by December 6, 2004.

ADDRESSES: You may submit comments 

and other information, identified by RIN 

1018–AH44, by any of the following 

methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail or Hand Delivery: Field 

Supervisor, U.S. Fish and Wildlife 

Service, Tennessee Field Office, 446 

Neal Street, Cookeville, Tennessee, 

38501. 

• Fax: (931) 528–7075. 

• E-mail: timothy_merritt@fws.gov.

Include ‘‘Attn: Shoal Creek NEP’’ in the 

subject line of the message. 

Instructions: All submissions received 

must include the agency name and 

Regulatory Information Number (RIN) 

for this rulemaking. Please include your 

name and return address in the body of 

your message. Please see the Public 

Comments Solicited section below for 

file format and other information about 

electronic filing. In the event that our 

internet connection is not functional, 

please contact the Service by the 

alternative methods mentioned above. 

The comments and materials we 

receive during the comment period will 

be available for public inspection, by 

appointment, during normal business 

hours at our Tennessee Field Office: 

U.S. Fish and Wildlife Service, 446 Neal 

Street, Cookeville, Tennessee, 38501. If 

you wish to request a public hearing, 

you may mail or hand deliver your 

written request to the above address.

FOR FURTHER INFORMATION CONTACT:

Timothy Merritt, U.S. Fish and Wildlife 

Service, 446 Neal Street, Cookeville, 

Tennessee 28801, telephone (931) 528–

6481, Ext. 211, facsimile (931) 528–

7075, or e-mail at 

timothy_merritt@fws.gov.

SUPPLEMENTARY INFORMATION: 

Background 

1. Legislative 

Congress made significant changes to 

the Act in 1982 with the addition of 

section 10(j), which provides for the 

designation of specific reintroduced 

populations of listed species as 

‘‘experimental populations.’’ Previously, 

we had authority to reintroduce 

populations into unoccupied portions of 

a listed species’ historical range when 

doing so would foster the species’

conservation and recovery. However, 

local citizens often opposed these 

reintroductions because they were 

concerned about the placement of 

restrictions and prohibitions on Federal 

and private activities. Under section 

10(j) of the Act, the Secretary of the 

Department of the Interior can designate 

reintroduced populations established 

outside the species’ current range, but 

within its historical range, as 

‘‘experimental.’’ Based on the best 

scientific and commercial data 

available, we must determine whether 

experimental populations are 

‘‘essential,’’ or ‘‘nonessential,’’ to the 

continued existence of the species. 

Regulatory restrictions are considerably 

reduced under a Nonessential 

Experimental Population (NEP) 

designation. 

Without the ‘‘nonessential 

experimental population’’ designation, 

the Act provides that species listed as 

endangered or threatened are afforded 

protection primarily through the 

prohibitions of section 9 and the 

requirements of section 7. Section 9 of 

the Act prohibits the take of an 

endangered species. ‘‘Take’’ is defined 

by the Act as harass, harm, pursue, 

hunt, shoot, wound, trap, capture, or 

collect, or attempt to engage in any such 

conduct. Service regulations (50 CFR 

17.31) generally extend the prohibitions 

of take to threatened wildlife. Section 7 

of the Act outlines the procedures for