[Federal Register Volume 87, Number 248 (Wednesday, December 28, 2022)]
[Rules and Regulations]
[Pages 79808-79818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27953]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 221219-0278]
RIN 0648-BK00


Endangered and Threatened Species: Designation of a Nonessential 
Experimental Population of Central Valley Spring-Run Chinook Salmon in 
the Upper Yuba River Upstream of Englebright Dam, Authorization for 
Release, and Adoption of Limited Protective Regulations Under the 
Endangered Species Act

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

ACTION: Final rule; notification of availability of a final 
environmental assessment.

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SUMMARY: We, NMFS, designate and authorize the release of a 
nonessential experimental population (NEP or experimental population) 
of Central Valley (CV) spring-run Chinook salmon (Oncorhynchus 
tshawytscha) in the upper Yuba River and its tributaries upstream of 
Englebright Dam, California, and under the Endangered Species Act 
(ESA), establish a limited set of take exceptions for the experimental 
population. Successful reintroduction of a population within the 
species' historical range would contribute to its viability and further 
its conservation. The issuance of limited protective regulations for 
the conservation of the species would provide assurances to the people 
of the upper Yuba River watershed. This document also announces the 
availability of a final environmental assessment (EA) that analyzed the 
environmental impacts of promulgating the experimental population rule 
and associated take exceptions.

[[Page 79809]]


DATES: The final rule is effective January 27, 2023.

ADDRESSES: The Final EA and other reference materials regarding this 
final rule can be obtained at NMFS's National Environmental Policy Act 
(NEPA) website at: https://www.westcoast.fisheries.noaa.gov/publications/nepa/nepa_documents.html. or by submitting a request to 
the Assistant Regional Administrator, California Central Valley Office, 
West Coast Region, NMFS, 650 Capitol Mall, Suite 5-100, Sacramento, CA 
95814.

FOR FURTHER INFORMATION CONTACT: Steve Edmonson, NMFS, 650 Capitol 
Mall, Suite 5-100, Sacramento, CA 95814, 916-930-3600, or Adrienne 
Lohe, NMFS Office of Protected Resources, 301-427-8442.

SUPPLEMENTARY INFORMATION: 

Background Information Relevant to Experimental Population Designation

    On December 11, 2020, NMFS published a proposed rule in the Federal 
Register (85 FR 79980) for the designation of a NEP and authorization 
for release under ESA section 10(j) and the adoption of limited 
protective regulations under ESA section 4(d). The proposed rule also 
announced the availability of a final EA for the proposed rule.
    NMFS listed the CV spring-run Chinook salmon Evolutionarily 
Significant Unit (ESU) \1\ as threatened under the ESA, 16 U.S.C. 1531 
et seq., on September 16, 1999 (64 FR 50394), and reaffirmed this 
status in a final rule on June 28, 2005 (70 FR 37160), and 5-year 
reviews announced on August 15, 2011 (76 FR 50447), and May 26, 2016 
(81 FR 33468). The listed ESU of CV spring-run Chinook salmon currently 
includes all naturally spawned populations of spring-run Chinook salmon 
in the Sacramento River and its tributaries, as well as the Feather 
River Hatchery (FRH) spring-run Chinook salmon program. On January 9, 
2002 (67 FR 1116), NMFS issued protective regulations under section 
4(d) of the ESA for CV spring-run Chinook salmon that apply the take 
prohibitions of section 9(a)(1) of the ESA except for listed exceptions 
(see 50 CFR 223.203). Critical habitat has been designated for CV 
spring-run Chinook salmon (70 FR 52488, September 2, 2005), and 
includes most of the occupied riverine habitat within their extant 
range. CV spring-run Chinook salmon are also listed as a threatened 
species by the State of California under the California Endangered 
Species Act (CESA), California Fish and Game Code, Division 3, Chapter 
1.5.
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    \1\ The ESA defines ``species'' to include ``any distinct 
population segment of any species of vertebrate fish or wildlife 
which interbreeds when mature'' (16 U.S.C. 1532(16); see also 50 CFR 
424.02). For Pacific salmon, NMFS determined that an ESU will be 
considered a distinct population segment and thus a species (56 FR 
58612, November 20, 1991). A group of Pacific salmon is considered 
an ESU if it is substantially reproductively isolated from other 
nonspecific population units, and represents an important component 
in the evolutionary legacy of the species.
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    In 2014, we adopted a final recovery plan for the CV spring-run 
Chinook salmon ESU (79 FR 42504, July 22, 2014). The Central Valley 
recovery plan identifies re-establishing populations of CV spring-run 
Chinook salmon above impassable barriers to unoccupied historical 
habitats as an important recovery action (NMFS 2014). More 
specifically, the Central Valley recovery plan explains that re-
establishing populations above impassable barriers, such as Englebright 
Dam on the Yuba River (Yuba and Nevada Counties, California), would aid 
in recovery of the ESU by increasing abundance, spatial structure and 
diversity and by reducing the risk of extinction to the ESU as a whole.
    NMFS is issuing a rule to (a) designate and authorize the release 
of an experimental population of CV spring-run Chinook salmon pursuant 
to ESA section 10(j) in the upper Yuba River watershed upstream of 
Englebright Dam, and (b) establish take prohibitions for the 
experimental population and exceptions for particular activities.

Supplemental Information

    This is a final rule stemming from a proposed rule that was 
published December 11, 2020 (85 FR 79980). The nonessential 
experimental population (NEP) Area includes the entire upper Yuba River 
watershed, which extends from the crest of the Sierra-Nevada Mountains 
down to Englebright Dam. It is located north of the cities of Grass 
Valley and Nevada City, and east of the cities of Marysville and Yuba 
City, California. The NEP Area is part of the species' historical 
range. The upper Yuba River experimental population is all CV spring-
run Chinook salmon, including fish released or propagated, naturally or 
artificially, within the NEP Area.

Statutory and Regulatory Framework for Experimental Population 
Designation

    Section 10(j) of the ESA (16 U.S.C. 1539(j)) allows the Secretary 
of Commerce to authorize the release of any population of a listed 
species outside their current range if the release ``furthers their 
conservation.'' An experimental population is a population that is 
geographically separate from nonexperimental populations of the same 
species.
    Before authorizing the release of an experimental population, 
section 10(j)(2)(B) requires that the Secretary must ``by regulation 
identify the population and determine, on the basis of the best 
available information, whether or not the population is essential to 
the continued existence of the listed species.
    An experimental population is treated as a threatened species, 
except that non-essential populations do not receive the benefit of 
certain protections normally applicable to threatened species (ESA 
section 10(j)(2)(C)). Below we discuss the impact of treating 
experimental populations as threatened species and of exceptions that 
apply to experimental populations.
    For endangered species, section 9 of the ESA prohibits take of 
those species. For a threatened species, ESA section 9 does not 
specifically prohibit take of those species, but the ESA instead 
authorizes NMFS to adopt regulations under section 4(d) that it deems 
necessary and advisable for species conservation, including prohibiting 
take. The experimental population of CV spring-run Chinook salmon must 
generally be treated as a threatened species. Therefore, we issue 
tailored protective regulations under ESA section 4(d) for the 
experimental population of CV spring-run Chinook salmon to identify 
take prohibitions necessary and advisable to provide for the 
conservation of the species with exceptions for particular activities.
    Section 7 of the ESA provides for Federal interagency cooperation 
and consultation on Federal agency actions. Section 7(a)(1) directs all 
Federal agencies, in consultation with NMFS as applicable depending on 
the species, to use their authorities to further the purposes of the 
ESA by carrying out programs for the conservation of listed species. 
Section 7(a)(2) requires all Federal agencies, in consultation with 
NMFS as applicable depending on the species, to ensure any action they 
authorize, fund or carry out is not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Section 7 applies equally 
to endangered and threatened species.
    Although ESA section 10(j) provides that an experimental population 
must generally be treated as a threatened species, for the purposes of 
ESA section 7, if the experimental population is determined to be a 
NEP, section

[[Page 79810]]

10(j)(C)(i) requires that we treat the experimental population as a 
species proposed to be listed, rather than a species that is listed 
(except when it occurs within a National Wildlife Refuge or National 
Park, in which case it is treated as listed). Section 7(a)(4) of the 
ESA requires Federal agencies to confer (rather than consult under ESA 
section 7(a)(2)) with NMFS on actions likely to jeopardize the 
continued existence of a species proposed to be listed. The results of 
a conference are advisory recommendations, if any, on ways to minimize 
or avoid adverse effects rather than mandatory terms and conditions 
under ESA section 7(a)(2) consultations (compare 50 CFR 402.10(c) with 
50 CFR 402.14(i)(1)(iv)).
    NMFS has designated three experimental populations (78 FR 2893, 
January 15, 2013; 78 FR 79622, December 31, 2013; 79 FR 40004, July 11, 
2014) and promulgated regulations, codified at 50 CFR part 222, subpart 
E, to implement section 10(j) of the ESA (81 FR 33416, May 26, 2016). 
NMFS' implementing regulations include the following provisions:
    The provision at 50 CFR 222.501(b) defines an ``essential 
experimental population'' as an experimental population that if lost, 
the survival of the species in the wild would likely be substantially 
reduced. All other experimental populations are classified as 
nonessential.
    The provision at 50 CFR 222.502(b) provides, before authorizing the 
release of an experimental population, the Secretary must find by 
regulation that such release will further the conservation of the 
species. In addition, 50 CFR 222.502(b) provides that in making such a 
finding, the Secretary shall utilize the best scientific and commercial 
data available to consider:
     Any possible adverse effects on extant populations of a 
species as a result of removal of individuals, eggs, or propagules for 
introduction elsewhere;
     The likelihood that any such experimental population will 
become established and survive in the foreseeable future;
     The effects that establishment of an experimental 
population will have on the recovery of the species; and
     The extent to which the introduced population may be 
affected by existing or anticipated Federal or state actions or private 
activities within or adjacent to the experimental population area.
    The provision 50 CFR 222.502(c) describes 4 components that must be 
provided in any NMFS regulations designating an experimental population 
under ESA section 10(j):
     Appropriate means to identify the experimental population, 
including, but not limited to, its actual or proposed location; actual 
or anticipated migration; number of specimens released or to be 
released; and other criteria appropriate to identify the experimental 
population(s);
     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;
     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 to 
contain the experimental population designated in the regulation from 
nonexperimental populations and protective regulations established 
pursuant to section 4(d) of the ESA; and
     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.
    In addition, as described above, ESA section 10(j)(1) defines an 
``experimental population'' as any population authorized for release 
but only when, and at such times as, the population is wholly separate 
geographically from the non-experimental populations of the same 
species. Accordingly, we must establish that there are such times and 
places when the experimental population is wholly geographically 
separate. Similarly, the statute requires that we identify the 
experimental population; the legislative history indicates that the 
purpose of this requirement is to provide notice as to which 
populations of listed species are experimental (see Joint Explanatory 
Statement of the Committee of Conference, H.R. Conf. Rep No. 97-835, at 
34 (1982)).
    We discuss in more detail below how we considered each of these 
elements.

Status of the Species

    Life history and the historical population trend of CV spring-run 
Chinook salmon are summarized by Healy (1991), United States Fish and 
Wildlife Service (USFWS) (1995), Yoshiyama et al. (1998), Yoshiyama et 
al. (2001), and Moyle (2002). Section 4(f) of the ESA requires the 
Secretary of Commerce to develop recovery plans for all listed species 
unless the Secretary determines that such a plan will not promote the 
conservation of a listed species. Prior to developing the Central 
Valley recovery plan (NMFS 2014), we assembled a team of scientists 
from Federal and state agencies, consulting firms, non-profit 
organizations and academia. This group, known as the Central Valley 
Technical Recovery Team (CVTRT), was tasked with identifying population 
structure and recommending recovery criteria (also known as delisting 
criteria) for ESA-listed salmon and steelhead (O. mykiss) in the 
Sacramento River and San Joaquin Rivers and their tributaries. The 
CVTRT recommended biological viability criteria at the ESU level and 
population level (Lindley et al., 2007) for recovery planning 
consideration. The CVTRT identified the current risk level of each 
population based on the gap between recent abundance and productivity 
and the desired recovery goals. The CVTRT concluded that the greatest 
risk facing the ESUs resulted from the loss of historical diversity 
following the construction of major dams that blocked access to 
historical spawning and rearing habitat (Lindley et al., 2007).
    The CVTRT also recommended spatial structure and diversity metrics 
for each population (Lindley et al., 2004). Spatial structure refers to 
the geographic distribution of a population and the processes that 
affect the distribution. Populations with restricted distribution and 
few spawning areas are at a higher risk of extinction from catastrophic 
environmental events (e.g., wildfire, volcanic eruption, et cetera) 
than are populations with more widespread and complex spatial 
structure. A population with complex spatial structure typically has 
multiple spawning areas, which allows the expression of diverse life 
history characteristics. Diversity is the combination of genetic and 
phenotypic characteristics within and between populations (McElhany et 
al., 2000). Phenotypic diversity allows more diverse populations to use 
a wider array of environments and protects populations against short-
term temporal and spatial environmental changes. Genotypic diversity, 
on the other hand, provides populations with the ability to survive 
long-term changes in the environment by providing genetic variations 
that may prove successful under different situations. The combination 
of phenotypic and genotypic diversity, expressed in a natural setting, 
provides populations with the ability to utilize the full range of 
habitat and environmental conditions and to have the resiliency to 
survive and adapt to long-term changes in the environment.
    In 2016, NMFS completed a periodic review as required by the ESA 
section

[[Page 79811]]

4(c)(2)(A), and concluded that the CV spring-run Chinook salmon ESU 
should remain listed as threatened (81 FR 33468, May 26, 2016). An 
analysis conducted by NMFS' Southwest Fisheries Science Center (Johnson 
and Lindley, 2016) indicated that the extant independent populations of 
the CV spring-run Chinook salmon ESU remained at a moderate to low 
extinction risk since the last status review (Williams et al., 2011). 
The analysis noted some improvements in the viability of the ESU, 
particularly with respect to the increased spatial diversity of the 
dependent Battle Creek and Clear Creek populations. The analysis 
identified as key threats the recent catastrophic declines of many of 
the extant populations, high pre-spawn mortality during the 2012-2015 
drought in California, uncertain juvenile survival due to drought and 
ocean conditions, as well as straying of CV spring-run Chinook salmon 
from the Feather River Hatchery (FRH) (Johnson and Lindley, 2016).

Analysis of the Statutory Requirements

1. Will authorizing release of an experimental population further the 
conservation of the species?
    Section 3(3) of the ESA, 16 U.S.C. 1532(3), defines 
``conservation'' as the use of all methods and procedures that 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. We discuss in more detail below each of the factors 
considered in determining if authorizing release of an experimental 
population in the NEP Area would further the conservation of CV spring-
run Chinook salmon.
    Under 50 CFR 222.502(b), NMFS must consider several factors in 
finding whether authorizing release of an experimental population will 
further the conservation of the species, including any possible adverse 
effects on extant populations of the species as a result of removal of 
individuals for introduction elsewhere; the likelihood that the 
experimental population will become established and survive in the 
foreseeable future; the effects that establishment of the experimental 
population will have on the recovery of the species; and the extent to 
which the experimental populations may be affected by existing or 
anticipated Federal or state actions or private activities within or 
adjacent to the experimental population area.
    Regarding the likelihood that reintroduction efforts will be 
successful in the foreseeable future, an important question is: what 
are the most appropriate sources of broodstock to establish the 
experimental population, and are the sources available? Reintroduction 
efforts have the best chance for success when the donor population has 
life-history characteristics compatible with the anticipated 
environmental conditions of the habitat into which fish will be 
reintroduced (Araki et al., 2008). Populations found in watersheds 
closest to the NEP Area are most likely to have adaptive traits that 
will lead to a successful reintroduction. Therefore, only CV spring-run 
Chinook salmon populations found in the Central Valley will be used in 
establishing the experimental populations in the NEP Area.
    We have preliminarily identified a donor source for reintroduction 
into the upper Yuba River as CV spring-run Chinook salmon produced from 
the FRH. The Yuba River is a tributary to the Feather River and CV 
spring-run Chinook salmon from the FRH are the geographically closest 
donor source that could be used with minimal impact to the wild 
population for reintroduction into the upper Yuba River. The donor 
stock raised at the FRH may include CV spring-run Chinook salmon from 
either the Feather or Yuba River. NMFS, in consultation with the 
California Department of Fish and Wildlife (CDFW), may later consider 
diversifying the donor stock with CV spring-run Chinook salmon from 
other nearby streams if those populations can sustain removal of fish 
without adverse population level effects.
    Use of donor stock from the FRH for the initial phases of a 
reintroduction program will minimize the number of individuals needed 
from existing wild populations. Donor stock supplementation, if 
necessary, would be dependent upon genetic diversity needs and the 
extent of adverse effects to other populations. Although donor stocks 
have not been determined, fish produced from the FRH are expected to be 
the initial source of individuals to establish an experimental 
population of CV spring-run Chinook salmon in the NEP Area. Any 
collection of CV spring-run Chinook salmon would be subject to NMFS's 
approval of a permit under ESA section 10(a)(1)(A), which potentially 
includes a Hatchery Genetic Management Plan (HGMP) in relation to a 
hatchery stock and will include additional analysis under NEPA and ESA 
section 7. Once a self-sustaining population is established, it is 
anticipated that the FRH contribution (and contributions from other 
locations) of CV spring-run Chinook salmon would be phased out.
    We also consider the suitability of habitat available to the 
experimental population. NMFS initiated a habitat assessment of the 
upper Yuba River and determined conditions were suitable for Chinook 
salmon spawning, adult holding, and juvenile rearing (Stillwater 
Sciences 2013). The relative abundance of habitat types, habitat 
quality and environmental conditions vary between the North, Middle, 
and South Yuba Rivers. Under current conditions when compared to one 
another, habitat conditions are most suitable in the North Yuba River. 
The Middle Yuba River maintains significant quantities of suitable 
habitat and habitat conditions are currently less suitable in the South 
Yuba River. Habitat conditions in the Middle and South Yuba Rivers will 
likely improve with additional instream flow releases from dams in the 
upper watersheds as part of the Federal Energy Regulatory Commission's 
(FERC) relicensing process pursuant to the Federal Power Act (FPA).
    In addition, there are Federal and state laws and regulations that 
will help ensure the establishment and survival of the experimental 
population by protecting aquatic and riparian habitat in the NEP Area. 
Section 404 of the Clean Water Act (CWA), 33 U.S.C. 1344, establishes a 
program to regulate the discharge of dredged or fill material into 
waters of the United States, which generally requires avoidance, 
minimization, and mitigation for potential adverse effects of dredge 
and fill activities within the nation's waterways. Under CWA section 
401, 33 U.S.C. 1341, a Federal agency may not issue a permit or license 
to conduct any activity that may result in discharge into waters of the 
United States unless a state or authorized tribe, where the discharge 
would originate, issues a section 401 water quality certification 
verifying compliance with existing water quality requirements or waives 
the certification requirement. In addition, construction and 
operational storm water runoff is subject to restrictions under CWA 
section 402, 33 U.S.C. 1342, which establishes the National Pollutant 
Discharge Elimination System permit program, and state water quality 
laws.
    FERC, pursuant to the FPA and the U.S. Department of Energy 
Organization Act, is authorized to issue licenses for up to 50 years 
for the construction and operation of non-Federal hydroelectric 
developments subject to its jurisdiction. The FPA authorizes NMFS to 
issue mandatory prescriptions for fish passage and recommend other 
measures to

[[Page 79812]]

protect salmon, steelhead, and other anadromous fish.
    The Magnuson-Stevens Fishery Conservation and Management Act (MSA) 
(16 U.S.C. 1801 et seq.) is the principal law governing marine 
fisheries conservation and management in the United States. Chinook 
salmon Essential Fish Habitat (EFH) is identified and described to 
include all water bodies currently or historically occupied by Chinook 
salmon in California, and Chinook salmon EFH was identified for the 
upper Yuba River upstream of Englebright Dam (50 CFR 660.412(a) and 
part 660, subpart H, table 1). Under the MSA, Federal agencies are 
required to determine whether a Federal action they authorize, fund, or 
undertake may adversely affect EFH (16 U.S.C. 1855(b)).
    At the state level, the California Fish and Game Code (CFGC) Fish 
and Wildlife Protection and Conservation provisions (CFGC section 1600, 
et seq.), the CESA (CFGC section 2050, et seq.), and the California 
Environmental Quality Act (CEQA) (Public Resources Code section 21000, 
et seq.) set forth criteria for the incorporation of avoidance, 
minimization, and feasible mitigation measures for on-going activities 
as well as for individual projects. The CFGC Fish and Wildlife 
Protection and Conservation provisions were enacted to provide 
conservation for the state's fish and wildlife resources and include 
requirements to protect riparian habitat resources on the bed, channel, 
or bank of streams and other waterways. CESA prohibits the taking of 
listed species except as otherwise provided in state law. Under the 
CEQA, no public agency shall approve or carry out a project without 
identifying all feasible mitigation measures necessary to reduce 
impacts to a less than significant level, and public agencies shall 
incorporate such measures absent overriding consideration.
    Regarding the effects that establishment of the experimental 
population will have on the recovery of the species, the Central Valley 
recovery plan (NMFS 2014) characterizes the NEP Area as having the 
potential to support a viable population of Chinook salmon. The Central 
Valley recovery plan establishes a framework for reintroduction of 
Chinook salmon and steelhead to historical habitats upstream of dams. 
The framework recommends that a reintroduction program should include 
feasibility studies, habitat evaluations, fish passage design studies, 
and a pilot reintroduction phase prior to implementation of the long-
term reintroduction program. In addition, the Central Valley recovery 
plan contains specific management strategies for recovering CV spring-
run Chinook salmon that include securing existing populations and 
reintroducing this species into historically occupied habitats upstream 
of rim dams in the Central Valley of California (NMFS 2014). The 
Central Valley recovery plan concludes, and we continue to agree, that 
establishing an experimental population in the NEP Area that persists 
into the foreseeable future is expected to reduce extinction risk from 
natural and anthropogenic factors by increasing abundance, 
productivity, spatial structure, and diversity within California's 
Central Valley. These expected improvements in the overall viability of 
CV spring-run Chinook salmon, in addition to other actions being 
implemented throughout the Central Valley, which are described next, 
will contribute to this species' near-term viability and recovery.
    Across the Central Valley, a number of actions are being undertaken 
to improve habitat quality and quantity for CV spring-run Chinook 
salmon. Collectively, implementation of the San Joaquin River 
Restoration Program (https://www.restoresjr.net/), Battle Creek Salmon 
and Steelhead Restoration Project (https://www.usbr.gov/mp/battlecreek/
), and the Central Valley Flood Protection Plan (Department of Water 
Resources--DWR 2011) will result in many projects that will improve 
habitat conditions. The San Joaquin River Restoration Program will 
improve passage survival and spatial distribution for CV spring-run 
Chinook salmon in the San Joaquin River corridor. The Battle Creek 
Salmon and Steelhead Restoration Project will improve passage and 
rearing survival, spawning opportunities and spatial distribution in 
Battle Creek. The Central Valley Flood Protection Plan (DWR 2011) will 
improve juvenile rearing conditions during outmigration by creating and 
improving access to high quality floodplain habitats.
    Climate change is expected to exacerbate existing habitat stressors 
in California's Central Valley and increase threats to Chinook salmon 
and steelhead by reducing the quantity and quality of freshwater 
habitat (Lindley et al., 2007). Significant contraction of thermally 
suitable habitat is predicted, and as cold-water sources contract, 
access to cooler headwater streams is expected to become increasingly 
important for CV spring-run Chinook salmon in the Central Valley 
(Crozier et al., 2018). For this reason and other reasons described 
above, we anticipate reintroduction of CV spring-run Chinook salmon 
into the NEP Area will contribute to their conservation and recovery.
    Existing or anticipated Federal or state actions or private 
activities within or adjacent to the NEP Area may affect the 
experimental population. The NEP Area is sparsely populated and ongoing 
state, Federal and local activities include forest management, limited 
mining, road maintenance, limited residential development, grazing, and 
tourism and recreation. These activities will likely continue into the 
future and are anticipated to have minor impacts to CV spring-run 
Chinook salmon in the NEP Area and adjacent areas. Potential impacts 
from these and other activities are further minimized through 
application of the aforementioned state and Federal regulations. Dams 
and water diversions in the NEP Area currently limit fish populations 
in some parts of the NEP Area. NMFS anticipates releases of CV spring-
run Chinook salmon will be specifically targeted into riverine reaches 
with abundant high-quality habitats that are not blocked by barriers to 
fish passage, impaired by high water temperatures or inadequate flows. 
The habitat improvement actions called for in the Central Valley 
recovery plan, as well as compliance with existing Federal, state, and 
local laws, statutes, and regulations, including those mentioned above, 
are expected to contribute to the establishment and survival of the 
experimental population in the upper Yuba River in the foreseeable 
future. Although the donor source for this reintroduction effort is 
anticipated to include hatchery-origin individuals from the FRH, based 
on the factors discussed above, we conclude it is probable that a self-
sustaining experimental population of CV spring-run Chinook salmon will 
become established and survive in the upper Yuba River. Furthermore, we 
conclude that such a self-sustaining experimental population of 
genetically compatible individuals is likely to further the 
conservation of the species, as discussed above.
2. Identification of the Experimental Population and Geographic 
Separation From the Nonexperimental Populations of the Same Species
    Section 10(j)(2)(B) of the ESA requires we identify experimental 
populations by regulation. ESA section 10(j)(1) also provides that a 
population is considered an experimental population only when, and at 
such times as, it is wholly separate geographically from the 
nonexperimental population of the same species. The NEP Area would 
extend upstream from Englebright Dam and include the North, Middle, and 
South Yuba Rivers and their tributaries up to the ridgeline. The 
experimental

[[Page 79813]]

population will be geographically separated from the extant ESU of CV 
spring-run Chinook salmon while in the NEP Area, but will intermingle 
with other Chinook salmon populations as they migrate downstream of the 
NEP Area, while in the ocean, and on part of their upstream spawning 
migration. The ``experimental'' population designation is 
geographically based and does not travel with the fish outside the NEP 
Area.
    The NEP Area provides the requisite level of geographic separation 
because the extant population of CV spring-run Chinook salmon are 
currently extirpated from this area due to the presence of Englebright 
Dam, which blocks their upstream migration. Straying of fish from other 
spring-run Chinook populations into the NEP Area is currently not 
possible due to the presence of this dam. As a result, the geographic 
description of the extant CV spring-run Chinook ESU does not include 
the NEP Area.
    NMFS anticipates that CV spring-run Chinook salmon used for the 
initial stages of a reintroduction program would be marked, for 
example, with specific fin clips and/or coded-wire tags to evaluate 
stray rates and allow for broodstock collection of returning adults 
that originated from the experimental population. Any marking of 
individuals of the experimental population, such as clips or tags, 
would be for the purpose of evaluating the effectiveness of a near-term 
and long-term fish passage program, and would not be for the purpose of 
identifying fish from the NEP Area other than for broodstock collection 
of returning adults. As discussed above, the experimental population is 
identified based on the geographic location of the fish. Indeed, if the 
reintroduction is successful as expected, and fish begin reproducing 
naturally, their offspring would not be distinguishable from fish from 
other Chinook salmon populations. Outside of the NEP Area, e.g., 
downstream of Englebright Dam in the lower Yuba, lower Feather and 
Sacramento Rivers, or in the ocean, any such unmarked fish (juveniles 
and adults alike) would not be considered members of an experimental 
population. They would be considered part of the CV spring-run Chinook 
salmon ESU currently listed under the ESA. Likewise, any fish that were 
marked for release into the NEP Area would not be considered part of 
the experimental population once they left the NEP Area; rather, they 
would be considered part of the ESU currently listed under the ESA.
3. Is the experimental population essential to the continued existence 
of the species?
    As discussed above, ESA section 10(j)(2)(B) requires the Secretary 
to determine whether experimental populations would be ``essential to 
the continued existence'' of the listed species. The statute does not 
elaborate on how this determination is to be made. However, as noted 
above, Congress gave some further attention to the term when it 
described an essential experimental population as one whose loss 
``would be likely to appreciably reduce the likelihood of survival of 
that species in the wild'' (Joint Explanatory statement, supra, at 34). 
NMFS regulations incorporated this concept into its definition of an 
essential experimental population at 50 CFR 222.501(b), which provides 
an experimental population that if lost, the survival of the species in 
the wild would likely be substantially reduced.
    In determining whether the experimental population of CV spring-run 
Chinook salmon is essential, we used the best available information as 
required by ESA section 10(j)(2)(B). Furthermore, we considered the 
geographic location of the experimental population in relation to other 
populations of CV spring-run Chinook salmon, and the likelihood of 
survival of these populations without the existence of the experimental 
population.
    The CV spring-run Chinook salmon ESU includes four independent 
populations and several dependent or establishing populations. Given 
current protections and restoration efforts, these populations are 
persisting without the presence of a population in the NEP Area. It is 
expected that the experimental population will exist as a separate 
population from those in the Sacramento River basin and will not be 
essential to the survival of those populations. Based on these 
considerations, we conclude the loss of the experimental population of 
CV spring-run Chinook in the NEP Area is not likely to appreciably 
reduce the likelihood of the survival of the species in the wild. 
Accordingly, NMFS is designating this experimental population as 
nonessential. Under section 10(j)(2)(C)(ii) of the ESA we cannot 
designate critical habitat for a nonessential experimental population.

Additional Management Restrictions, Protective Measures, and Other 
Special Management Considerations

    As indicated above, ESA section 10(j)(2)(C) requires that 
experimental populations be treated as threatened species, except, for 
nonessential experimental populations, certain portions of ESA section 
7 do not apply and critical habitat cannot be designated. Congress 
intended that the Secretary would issue regulations deemed necessary 
and advisable to provide for the conservation of experimental 
populations just as he or she does, under ESA section 4(d), for any 
threatened species (Joint Explanatory Statement, supra, at 34). In 
addition, when amending the ESA to add section 10(j), Congress 
specifically intended to provide broad discretion and flexibility to 
the Secretary in managing experimental populations so as to reduce 
opposition to releasing listed species outside their current range 
(H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982)). Therefore, we are 
exercising the authority to issue protective regulations under ESA 
section 4(d) for the experimental population of CV spring-run Chinook 
salmon to identify take prohibitions necessary to provide for the 
conservation of the species and otherwise provide assurances to people 
in the NEP Area.
    The ESA defines ``take'' to mean harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct (16 U.S.C. 1532(19)). Concurrent with the ESA section 
10(j) experimental population designation, we adopt protective 
regulations under ESA section 4(d) for the experimental population that 
would prohibit take of CV spring-run Chinook salmon that are part of 
the experimental population, except in the following circumstances in 
the NEP Area:
    1. Any take by authorized governmental entity personnel acting in 
compliance with 50 CFR 223.203(b)(3) to aid a sick, injured or stranded 
fish; dispose of a dead fish; or salvage a dead fish which may be 
useful for scientific study;
    2. Any take that is incidental \2\ to an otherwise lawful activity 
and is unintentional, not due to negligent conduct. Otherwise lawful 
activities include, but are not limited to, recreation, forestry, water 
management, agriculture, power production, mining, transportation 
management, rural development, or livestock grazing, when such 
activities are in full compliance with all applicable laws and 
regulations; and
---------------------------------------------------------------------------

    \2\ Incidental take refers to takings that result from, but are 
not the purpose of, carrying out an otherwise lawful activity 
conducted by the Federal agency or applicant. 50 CFR 402.02.
---------------------------------------------------------------------------

    3. Any take that is pursuant to a permit issued by NMFS under 
section

[[Page 79814]]

10 of the ESA (16 U.S.C. 1539) and regulations in 50 CFR part 222 
applicable to such a permit.

Process for Periodic Review

    Evaluation of the success of an experimental population release 
will require new monitoring programs developed specifically for this 
purpose. NMFS anticipates monitoring in the NEP Area, including fish 
passage efficiency, spawning success, adult and smolt injury and 
mortality rates, juvenile salmon collection efficiencies, competition 
with resident species, predation, disease and other types of monitoring 
will be necessary to gauge the success of the program. We anticipate 
the status of a reintroduced population of CV spring run Chinook salmon 
in the NEP Area would be evaluated during NMFS' five-year status review 
process under ESA 4(c)(2). During the 5-year status review, NMFS may 
evaluate whether the current designation under ESA section 10(j) as a 
nonessential experimental population is still warranted.

Summary of Comments and Responses

    The public comment period for the proposed rule and draft EA was 
open from December 11, 2020, until March 12, 2021. Public scoping 
meetings were held February 3 and 11, 2021, to provide background on 
the project, answer questions and provide details on how to submit 
written comments. The purpose of the comment period is to help us 
better understand the concerns of the public on the experimental 
population designation, take and take exceptions, and associated draft 
EA. During the comment period, NMFS received 54 written letters with 
comments, germane to the rulemaking, from entities representing various 
agencies, nongovernmental organizations, and individuals.
    In addition, NMFS engaged in prior public outreach since 2009 
including numerous meetings, forums, and discussions regarding 
reintroduction in the upper Yuba River watershed. Outreach included 
multi-stakeholder forums, both federally recognized and non-recognized 
tribes, the Yuba Salmon Forum, the North Yuba Reintroduction 
Initiative, the Yuba Salmon Partnership and the Yuba Salmon 
Reintroduction Working Group. These various groups included a diverse 
array of stakeholders familiar with the Yuba River watershed, including 
water agencies, tribes, county officials, landowners and managers, and 
non-governmental organizations.
    EA Appendix C contains the public comment letters received and EA 
Appendix D contains detailed responses. A summary of the comments and 
our responses to those comments is presented here. Please review EA 
Appendix D for additional comments and responses to comments not 
included herein.
    Comment. Several commenters stated that we needed to be more 
specific regarding what actions would be exempted from ESA Section 9 
liability by the 4(d) rule, that we should have included more specific 
examples of the types activities to be exempted, that we needed to 
consult with affected parties before promulgating a 4(d) rule, and that 
we should extend the 4(d) rule to include downstream areas.
    Response. The limited protective regulations would prohibit take of 
the experimental population of CV spring-run Chinook salmon located 
within the NEP Area, except in certain circumstances as described in 
the EA and proposed rule, which includes any take that is incidental to 
an otherwise lawful activity and is unintentional, and not due to 
negligent conduct. We did not adopt the approach of listing all take 
excepted activities, but we did include some examples of common 
activities likely to occur in the NEP Area.
    Expanding the 4(d) rule to include areas downstream of the NEP Area 
to the current listed range of the CV spring-run Chinook salmon ESU is 
not necessary because an existing 4(d) rule is in place for downstream 
areas. When CV spring-run Chinook salmon that originated from within 
the NEP Area are downstream of Englebright Dam, they will be covered 
under the existing 4(d) rule and will have the same protections as 
individuals in the extant ESU.
    Comment. Commenters stated that the EA was not clear or not 
consistent with the proposed rule with respect to authorization of the 
release of fish into the NEP Area.
    Response. The EA preferred alternative and the proposed rule both 
describe the proposed action as the designation of a nonessential 
experimental population under ESA section 10(j) for any CV spring-run 
Chinook salmon released into the upper Yuba River watershed by a 
permittee, authorization of the release of a nonessential experimental 
population of CV spring-run Chinook salmon into the NEP Area, and 
establishing take prohibitions for CV spring-run Chinook salmon in the 
NEP Area and exceptions under ESA section 4(d).
    NMFS anticipates a reintroduction effort will occur in the upper 
Yuba River with the goal of furthering the conservation and recovery of 
CV Chinook salmon. NMFS' rulemaking designates and authorizes release 
of a nonessential experimental population of CV spring-run Chinook 
salmon, pursuant to ESA section 10(j), in the upper Yuba River and its 
tributaries upstream of Englebright Dam, and establishes take 
prohibitions for the nonessential experimental population and 
exceptions for particular activities under ESA section 4(d). Release of 
fish would not occur until after the completion of additional future 
actions as part of either a pilot reintroduction program and/or a long-
term project-specific reintroduction effort. NMFS' rulemaking is an 
administrative step regarding the NEP designation and authorization for 
release of CV spring-run Chinook salmon. The rulemaking does not 
include or authorize specific actions regarding the capture, transport 
of CV spring-run Chinook salmon individuals or identification of 
precise release locations. These steps are necessary to implement a 
future reintroduction effort. NMFS intends to develop a reintroduction 
plan in cooperation with CDFW and other stakeholders prior to the 
release of CV spring-run Chinook salmon into the NEP Area. The 
reintroduction plan will include details regarding the source 
population, numbers and life stages of fish to be released, methods of 
fish transport, how fish will be marked and release locations within 
the NEP Area. Additionally, threatened CV spring-run Chinook salmon 
individuals from outside the NEP Area will not be captured, transported 
or released into the NEP Area until the necessary State of California 
and Federal permits are acquired by the permittee(s) for either a pilot 
program or long-term project-specific reintroduction effort. For 
example, future permitting under section 10(a)(1)(A) will be required 
once a reintroduction plan is submitted for regulatory review. Any 
collection of CV spring-run Chinook salmon as part of a pilot program 
or a project-specific reintroduction plan would be subject to NMFS's 
approval of a permit under ESA section 10(a)(1)(A), which will require 
additional analyses of the specific plan for capture, transport, and 
release of individuals under the National Environmental Policy Act 
(NEPA) and ESA section 7.
    Comment. Some commenters thought NMFS has not worked cooperatively 
with stakeholders.
    Response. NMFS engaged in numerous meetings, forums, and 
discussions regarding reintroduction in the upper Yuba River watershed 
since at least 2009 including multi-stakeholder forums, federally 
recognized and non-federally recognized tribes, the Yuba Salmon Forum, 
the North Yuba

[[Page 79815]]

Reintroduction Initiative, the Yuba Salmon Partnership, the Sierra 
County Fish and Game Commission, and the Yuba Salmon Reintroduction 
Working Group. These various groups included a diverse array of 
stakeholders familiar with the Yuba River watershed, including water 
agencies, tribes, county officials, landowners and managers, and non-
governmental organizations.
    Comment. We received several comments regarding instream flows that 
expressed concerns related to changes to instream flows and potential 
effects to foothill yellow-legged frogs, FERC licenses, water supply 
and whether baseline flows in the NEP Area would support a reintroduced 
population of CV spring-run Chinook salmon.
    Response. The proposed action does not include changes to instream 
flows including changes to yellow-legged frog habitat or water supply. 
NMFS reviewed the best available scientific and commercial information 
regarding the suitability of habitat in the NEP Area to support key 
life stages of CV spring-run Chinook salmon including a review by the 
Yuba Salmon Forum (2013) and Stillwater (2013). Both reports indicate 
that riverine flows necessary to support the aforementioned life stages 
present in the upper watershed. NMFS recognizes that other agencies 
with authorities under the FPA may request FERC implement flow 
recommendations if anadromous fish are present below FERC regulated 
facilities. NMFS assumes that other agencies will implement laws, 
plans, and policies under their regulatory jurisdiction. NMFS cannot 
predict how other agencies will implement their regulatory framework if 
a nonessential population of CV spring-run Chinook salmon is 
reintroduced into the NEP Area.
    Comment. A few commenters stated that we ignored key components of 
NMFS' recovery plan that provides a framework for reintroduction.
    Response. The NEP Area (the upper Yuba River watershed) was 
identified as a high priority for reintroduction in the NMFS' Central 
Valley recovery plan (NMFS 2014). The recovery plan (Action ID YUR-1.1) 
recommends developing and implementing ``a program to reintroduce 
spring-run Chinook salmon and steelhead to historic(al) habitats 
upstream of Englebright Dam. The program should include feasibility 
studies, habitat evaluations, fish passage design studies, and a pilot 
reintroduction phase prior to implementation of the long-term 
reintroduction program.'' NMFS rulemaking is an initial regulatory step 
towards implementing reintroduction into the upper Yuba River as 
recommended in the recovery plan, by authorizing release of a 
nonessential experimental population into the NEP Area and providing 
substantial regulatory relief through a 4(d) rule.
    Comment. Several commenters stated that we did not comply with 50 
CFR 222.502(b), which requires us to consider four factors: (1) the 
adverse effects on extant populations 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.
    Response. NMFS evaluated all of the factors in the EA: (1) The EA 
describes that donor stock will likely come from the FRH. Other 
potential donor stocks would only be used if those populations could 
sustain the removal of fish without adverse population level effects. 
Any collection of CV spring-run Chinook salmon would be subject to 
NMFS' approval of a permit under ESA section 10(a)(l)(A), which 
includes an HGMP and an analysis under NEPA and ESA section 7. Thus, 
NMFS anticipates that there will be a need for future authorization for 
the collection of CV spring-run Chinook salmon, an HGMP, subsequent 
issuance of a 10(a)(1)(A) permit, and a future analysis under the ESA 
and NEPA when NMFS receives a permit application.
    (2) Re-establishing populations of CV spring-run Chinook salmon 
upstream of California's Central Valley rim dams, including the upper 
Yuba River, would aid in the conservation and recovery of the CV 
spring-run Chinook salmon ESU by increasing abundance and productivity, 
improving spatial structure and diversity, and reducing the risk of 
extinction (see EA section 1.2.5). NMFS' 2014 Central Valley recovery 
plan emphasizes that reintroduction of all ESA listed Central Valley 
salmonids into some of their currently blocked but historically 
accessible habitats is necessary for their conservation and recovery. 
Reintroduction into the upper Yuba River clearly follows recovery plan 
recommendations and is anticipated to directly contribute to the 
conservation of the ESU. In contrast, not moving forward with a 
reintroduction will ensure that the CV spring-run Chinook salmon remain 
at high risk of extinction.
    (3) Included in NMFS 10(j) regulations is the requirement that NMFS 
have 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. The ESA requires that NMFS 
conduct a status review every five years for all listed species under 
its regulatory jurisdiction. These requirements would ensure NMFS 
tracks the status of the experimental population and would develop 
information to assess the effectiveness of the rule, and if necessary, 
would trigger revision to the regulation through the rulemaking 
process. This would ensure that the reintroduction of CV spring-run 
Chinook to the NEP Area is providing for the conservation of the 
species as expected. Also, it would ensure the nonessential designation 
is reviewed periodically, and updated by regulation, if necessary. The 
best available information on habitat in the NEP Area indicates 
suitable habitat exists for CV spring-run Chinook salmon.
    (4) EA Section 7.4 describes the effects of past, present, and 
reasonably foreseeable future actions. EA section 7.5 describes 
incremental impacts when added to other past, present, and reasonably 
foreseeable future actions. Release locations will occur in reaches 
with suitable habitat for the experimental population within the NEP 
Area.
    Comment. Several commenters questioned whether the non-essential 
designation could be changed to an essential designation.
    Response. We concluded that it is appropriate to designate the 
reintroduced population as non-essential after determining that the 
loss of the reintroduced population would be unlikely to appreciably 
reduce the likelihood of the survival of the species in the wild. 
Climate change will likely worsen the status of the extant CV spring-
run Chinook salmon ESU absent significant restoration and enhancement 
actions in both currently accessible and historical but inaccessible 
habitats. The limited, impaired, and stressed conditions of currently 
accessible habitat are anticipated to deteriorate further due to 
climate change, rendering many currently accessible riverine reaches 
unsuitable for migration, holding, spawning, and rearing. Providing 
access to high quality, cold water, historical habitat that is blocked 
by dams will help address and partially offset these impacts. NMFS will 
review the status of CV spring-run Chinook salmon in the NEP Area as 
part of our 5-year review process. During the 5-year

[[Page 79816]]

review NMFS may evaluate whether the current designation under ESA 
section 10(j) as a nonessential experimental population is still 
warranted. To date, none of the NMFS nonessential experimental 
population designations have been changed to an essential experimental 
population status. Furthermore, to our knowledge, none of the USFWS' 
more than 60 nonessential experimental population designations have 
been changed to an essential experimental population status. Congress 
envisioned that in most cases, experimental populations would be 
nonessential.
    Comment. Some commenters requested that we use marks or genetic 
tags to identify the experimental population and to help distinguish 
them from other fish when outside of the NEP Area.
    Response. If and when a permit application for a reintroduction is 
received by NMFS and tagging is determined necessary, methods to mark 
experimental population fish will be identified.
    Comment. Some commenters stated that the NEP Area described in the 
proposed rule and draft EA was too broad. A few commenters wanted the 
NEP Area to be limited to the North Yuba River. Some commenters stated 
that there were inconsistencies between the proposed rule and the draft 
EA relative to where fish would be released in the NEP Area.
    Response. We determined that limiting the release to the North Yuba 
River could unduly constrain future opportunities and limit 
participation from key potential partners with interest in the upper 
Yuba River. Nonetheless, NMFS also acknowledges the high quality and 
quantity of available habitat in the North Yuba River relative to the 
Middle and South Yuba Rivers. A future reintroduction effort in the 
upper watershed, regardless of location, would need to occur in 
locations that provide suitable habitat, in sufficient quantity, for 
establishment of an independent population(s) of CV spring-run Chinook 
salmon into the foreseeable future.
    The NEP Area, as described in the EA and rule, includes the entire 
upper Yuba River watershed, which extends from the crest of the Sierra-
Nevada Mountains down to Englebright Dam. As described in the draft EA 
and proposed rule, the amount of potentially suitable habitat for 
anadromous salmonids in the upper Yuba River varies as a function of 
flow and related environmental conditions such as water temperature. 
Dams and water diversions in the NEP Area currently limit suitable 
habitat in some areas. NMFS anticipates a future reintroduction effort 
would target stream reaches with suitable habitat. The NEP Area 
includes more than the actual riverine areas where habitat could 
support reintroduced fish. The size of the NEP Area was specifically 
designed to account for possible volitional straying of CV spring-run 
Chinook salmon from areas targeted for release as part of a future 
reintroduction effort. The NEP Area also expands beyond riverine areas 
in order to provide ESA section 4(d) coverage for otherwise legal 
activities.
    After review of the comments and further consideration, we have 
decided to adopt the proposed rule that was published in the Federal 
Register (85 FR 79980) on December 11, 2020, with only non-substantive 
editorial changes. Minor modifications were made to remove unnecessary 
regulatory language and provide clarity. The modifications make no 
change to the substance of the rule.

Findings

    Based on the best available information, we determine that the 
designation of and release of a nonessential experimental population of 
CV spring-run Chinook salmon in the upper Yuba River NEP Area will 
further the conservation of CV spring-run Chinook salmon. CV spring-run 
Chinook salmon used to initiate the reintroduction are anticipated to 
come from the FRH using either donor stock from the Feather or Yuba 
Rivers, which is part of the CV spring-run Chinook salmon ESU. The 
collection of donor stock from the FRH will require issuance of a 
permit under section 10(a)(1)(A) of the ESA, which includes analysis 
under NEPA and ESA section 7. The experimental population fish are 
expected to remain geographically separate from the extant CV spring-
run Chinook salmon ESU during the life stages in which they remain in, 
or are returned to, the NEP Area. At all times when members of the 
experimental population are downstream of Englebright Dam, the 
experimental population designation will not apply. Establishing an 
experimental population of CV spring-run Chinook salmon in the NEP Area 
would likely contribute to the viability of the ESU. Authorization for 
the experimental population release is consistent with the 2014 Central 
Valley recovery plan, while at the same time ensuring that a 
reintroduction will not impose undue regulatory restrictions on 
landowners and third parties.
    We further determine, based on the best available scientific 
information, that the experimental population would not be essential to 
the continued existence of the CV spring-run Chinook salmon ESU, 
because absence of the experimental population would not be likely to 
appreciably reduce the likelihood of the survival of the ESU in the 
wild. However, as described above, the experimental population is 
expected to contribute to the recovery of the CV spring-run Chinook 
salmon ESU if reintroduction is successful. We therefore designate the 
population to be released as a nonessential experimental population.

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) 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 rule that meet this criteria.

Classification

Executive Order 12866

    This final rule has been determined by the Office of Management and 
Budget to be not significant under Executive Order 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 notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule

[[Page 79817]]

will not have a significant economic impact on a substantial number of 
small entities.
    The Chief Counsel for Regulation, Department of Commerce, certified 
to the Chief Counsel for Advocacy at the proposed rule stage that this 
rule will not have a significant effect on external entities, including 
small businesses, small organizations, or small governments. No 
comments were received regarding the economic impact of this final rule 
on small entities. The factual basis for this certification was 
published with the proposed rule and is not repeated here. Because this 
rule requires no additional regulatory requirements for activities 
within the affected area, a final regulatory flexibility analysis is 
not required and one was not prepared.

Executive Order 12630

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

Executive Order 13132

    In accordance with Executive Order 13132, we have determined that 
this final rule does not have federalism implications as that term as 
defined in Executive Order 13132.

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

    OMB regulations at 5 CFR 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 final rule does not 
include any new collections of information that require approval by OMB 
under the Paperwork Reduction Act.

National Environmental Policy Act

    In compliance with all provisions of the National Environmental 
Policy Act of 1969 (NEPA), we have analyzed the impact on the human 
environment and considered a reasonable range of alternatives for this 
final rule. We made the draft EA available for public comment along 
with the rule, received 54 letters with comments germane to the rule, 
and responded to those comments in an Appendix to the EA. We have 
prepared a final EA and Finding of No Significant Impact (FONSI) on 
this action and have made these documents available for public 
inspection (see ADDRESSES section).

Government-to-Government Relationship With Tribes (Executive Order 
13175)

    Executive Order 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.
    There are no tribally owned or managed lands in the NEP Area. As 
part of NMFS's obligations under the National Historic Preservation 
Act, NMFS inquired with federally recognized and non-federally 
recognized tribes with potential interest in the NEP Area to inform 
them of the rule and solicit information on cultural resources eligible 
for listing on the National Register of Historic Places (letters dated 
May 23, 2017, from Maria Rea, Central Valley Office Supervisor, NMFS, 
and letters dated May 26, 2020, from Cathy Marcinkevage, Central Valley 
Office Supervisor, NMFS). To date responses have been limited and no 
concerns over the proposed rule have been raised. NMFS invites tribes 
to meet with us to have detailed discussions that could lead to 
government-to-government consultation meetings with tribal governments. 
We will continue to coordinate with the affected tribes.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from National Marine Fisheries Service office 
(see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: December 20, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.102, amend the table in paragraph (e) by adding an 
entry for ``Salmon, Chinook (Central Valley spring-run ESU-XN Yuba)'' 
under ``Fishes'' in alphabetical order by common name to read as 
follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Species \1\
---------------------------------------------------------------------------------------------   Citation(s) for listing      Critical
                                                                     Description of listed         determinations(s)          habitat        ESA rules
              Common name                    Scientific name                 entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
                Fishes
 

[[Page 79818]]

 
                                                                      * * * * * * *
Salmon, Chinook (Central Valley spring- Oncorhynchus tshawytscha.  Central Valley spring-run  [Insert Federal Register                NA         223.301
 run ESU-XN Yuba).                                                  Chinook salmon only        Citation], December 28,
                                                                    when, and at such times    2022.
                                                                    as, they are found in
                                                                    the upper Yuba River
                                                                    watershed, upstream of
                                                                    Englebright Dam.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * *

0
3. In Sec.  223.301, add paragraph (d) to read as follows:


Sec.  223.301  Special rules--marine and anadromous fishes.

* * * * *
    (d) Upper Yuba River Central Valley spring-run Chinook salmon 
experimental population (Oncorhynchus tshawytscha)--(1) Status of Upper 
Yuba River Central Valley spring-run Chinook salmon under the 
Endangered Species Act. The Upper Yuba River Central Valley spring-run 
Chinook salmon population identified in paragraph (d)(2) of this 
section is designated as a nonessential experimental population under 
section 10(j) of the Endangered Species Act (ESA) and shall be treated 
as a ``threatened species'' pursuant to 16 U.S.C. 1539(j)(2)(C).
    (2) Upper Yuba River Central Valley spring-run Chinook salmon 
nonessential experimental population. All Central Valley spring-run 
Chinook salmon within the NEP area in the upper Yuba River watershed 
upstream of Englebright Dam, as defined in this paragraph (d)(2), are 
considered part of the Upper Yuba River Central Valley spring-run 
Chinook salmon nonessential experimental population. The boundaries of 
the NEP area include Englebright Dam and all tributaries draining into 
Englebright Reservoir up to the ridgeline.
    (3) Prohibitions. Except as expressly allowed in paragraph (d)(4) 
of this section, all prohibitions of section 9(a)(1) of the ESA (16 
U.S.C. 1538 (a)(1)) apply to fish that are part of the Upper Yuba River 
Central Valley spring-run Chinook salmon nonessential experimental 
population identified in paragraph (d)(2) of this section.
    (4) Exceptions to the application of section 9 take prohibitions in 
the NEP area. The following forms of take in the NEP area identified in 
paragraph (d)(2) of this section are not prohibited by this section:
    (i) Any taking of Central Valley spring-run Chinook salmon by 
authorized governmental entity personnel acting in compliance with 
Sec.  223.203(b)(3) to aid a sick, injured or stranded fish; dispose of 
a dead fish; or salvage a dead fish which may be useful for scientific 
study;
    (ii) Any taking of Central Valley spring-run Chinook salmon that is 
unintentional, not due to negligent conduct, and incidental to, and not 
the purpose of, the carrying out of an otherwise lawful activity; and
    (iii) Any taking of Central Valley spring-run Chinook salmon 
pursuant to a permit issued by the National Marine Fisheries Service 
(NMFS) under section 10 of the ESA (16 U.S.C. 1539) and regulations in 
part 222 of this chapter applicable to such a permit.

[FR Doc. 2022-27953 Filed 12-27-22; 8:45 am]
BILLING CODE 3510-22-P