[Federal Register Volume 88, Number 92 (Friday, May 12, 2023)]
[Proposed Rules]
[Pages 30690-30699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09967]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 230504-0120]
RIN 0648-BH85


Endangered and Threatened Species: Designation of Nonessential 
Experimental Populations of Chinook Salmon Upstream of Shasta Dam, 
Authorization for Release, and Adoption of Limited Protective 
Regulations Under the Endangered Species Act Sections 10(j) and 4(s)

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

ACTION: Proposed rule; notification of availability of a draft 
environmental assessment; request for comments.

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SUMMARY: We, NMFS, propose a rule to designate and authorize the 
release of nonessential experimental populations (NEPs or experimental 
populations) of Sacramento River (SR) winter-run Chinook salmon 
(Oncorhynchus tshawytscha) and Central Valley (CV) spring-run Chinook 
salmon (O. tshawytscha) in the McCloud and Upper Sacramento Rivers 
upstream of Shasta Dam (the NEP Area), California, and, under the 
Endangered Species Act (ESA), establish a limited set of take 
exceptions for the experimental populations. Successful reintroduction 
of populations within the species' historical ranges would contribute 
to viability and further conservation of these species. The issuance of 
limited protective regulations for the conservation of these species 
would provide regulatory assurances to the people in the Upper 
Sacramento River and McCloud River watersheds. This proposed rule also 
announces the availability for comment of a draft environmental 
assessment (EA) analyzing the environmental impacts of this proposed 
experimental population designation and the associated take exceptions.

DATES: Comments on this proposed rule and EA, must be received no later 
than June 12, 2023.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2018-0052, by the following method:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2018-0052 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are part of the 
public record and will generally be posted to http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only. You may access a 
copy of the draft EA by the following:
     Visit NMFS' National Environmental Policy Act (NEPA) 
website at: https://www.westcoast.fisheries.noaa.gov/publications/nepa/nepa_documents.html.

FOR FURTHER INFORMATION CONTACT: Steve Edmondson, 
[email protected] or by phone at (916) 930-3600, or by mail at 
National Marine Fisheries Service, 650 Capitol Mall, Suite 5-100, 
Sacramento, CA 95814.

SUPPLEMENTARY INFORMATION:

Background Information Relevant to Experimental Population Designation

    NMFS listed the SR winter-run Chinook salmon Evolutionarily 
Significant Unit (ESU) \1\ as endangered under the ESA, 16 U.S.C. 1531 
et seq., on January 4, 1994 (59 FR 440) and reaffirmed this status on 
June 28, 2005 (70 FR 37159), and 5-year reviews announced on August 15, 
2011 (76 FR 50448), April 14, 2014 (79 FR 20802), and May 26, 2016 (81 
FR 33468). Section 9 of the ESA prohibits take of the endangered SR 
winter-run Chinook

[[Page 30691]]

salmon. The State of California listed SR winter-run Chinook salmon as 
endangered in 1989 under the California Endangered Species Act (CESA). 
The federally listed ESU is composed of a single population that 
includes all naturally spawned SR winter-run Chinook salmon in the 
Sacramento River and its tributaries (70 FR 37160, June 28, 2005, as 
well as SR winter-run Chinook salmon that are part of the conservation 
hatchery program at the Livingston Stone National Fish Hatchery (NFH) 
(R. Jones, NMFS, letter to Chris Yates, NMFS, September 28, 2015, 
regarding inclusion of Livingston Stone NFH fish in the ESU; 81 FR 
33468, May 26, 2016). Designated critical habitat of SR winter-run 
Chinook salmon (58 FR 33212, June 16, 1993) includes: (1) the 
Sacramento River from Keswick Dam, Shasta County (River Mile (RM) 302) 
to Chipps Island (RM 0) at the westward margin of the delta; (2) all 
waters from Chipps Island westward to Carquinez Bridge, including 
Honker Bay, Grizzly Bay, Suisun Bay, and Carquinez Strait; (3) all 
waters of San Pablo Bay westward of the Carquinez Bridge; and (4) those 
waters north of San Francisco-Oakland Bay Bridge.
    NMFS listed the CV spring-run Chinook salmon ESU as threatened 
under the ESA 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 spring-run 
Chinook salmon from 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 CESA, 
California Fish and Game Code, Division 3, Chapter 1.5.
    In 2014, we adopted a final recovery plan for the SR winter-run and 
CV spring-run Chinook salmon ESUs (79 FR 42504, July 22, 2014). The 
Central Valley Recovery Plan identifies re-establishing populations of 
SR winter-run and 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 Shasta Dam, would aid in recovery of the ESUs by increasing 
abundance, spatial structure and diversity and by reducing the risk of 
extinction to the ESUs.
    NMFS is proposing this rule to (a) designate and authorize the 
release of NEPs of SR winter-run and CV spring-run Chinook salmon 
pursuant to ESA section 10(j) in the McCloud and Upper Sacramento 
Rivers upstream of Shasta Dam, and (b) establish take prohibitions for 
the NEPs and exceptions for particular activities.
    The NEP Area extends from Shasta Dam up to Pit 7 Dam on the Pit 
River, McCloud Dam on the McCloud River, and Box Canyon Dam on the 
upper Sacramento River. All other tributaries flowing into Shasta 
Reservoir up to the ridge line, including tributaries below Pit 7 Dam, 
McCloud Dam, and Box Canyon Dam, up to the ridge line would be included 
in the NEP Area. All other areas above Pit 7 Dam on the Pit River, 
McCloud Dam on the McCloud River, and Box Canyon Dam on the upper 
Sacramento River would not be part of the NEP Area. The NEP Area 
extends up to the ridgelines to account for watershed processes and 
ends at the aforementioned dams because these dams lack fish passage 
facilities. The NEP Area is part of the species' historical range. The 
NEPs are all SR winter-run and CV spring-run Chinook salmon, including 
fish released or propagated, naturally or artificially, within the NEP 
Area.

Statutory and Regulatory Framework for Experimental Population 
Designations

    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) to prohibit 
take or that it deems necessary and advisable for species conservation. 
If designated, the proposed experimental populations of SR winter-run 
and CV spring-run Chinook salmon must generally be treated as 
threatened species. Therefore, we propose to issue tailored protective 
regulations under ESA section 4(d) for the proposed experimental 
populations of SR winter-run and CV spring-run Chinook salmon to 
identify take prohibitions necessary 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 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

[[Page 30692]]

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 four experimental populations (78 FR 2893, 
January 15, 2013; 78 FR 79622, December 31, 2013; 79 FR 40004, July 11, 
2014; 87 FR 79808, December 28, 2022) 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 that, 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 at 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 trends of SR winter-run 
and CV spring-run Chinook salmon are summarized by Healy (1991), 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 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., a volcanic eruption) 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 ESA 
section 4(c)(2)(A) and on May 26, 2016 (81 FR 33468) announced the SR 
winter-run Chinook salmon ESU would remain listed as endangered. In 
2023, NMFS completed the 2022 review of SR winter-run Chinook salmon 
that indicates the biological status of the SR winter-run Chinook 
salmon ESU has declined since the 2016 viability assessment (Williams 
et al. 2016), with the single spawning population on the mainstem 
Sacramento River now at a high risk of extinction (SWFSC 2022). Updated 
information indicates an increased extinction risk due to the

[[Page 30693]]

larger influence of the hatchery broodstock and low numbers of natural-
origin returns in two consecutive years (SWFSC 2022). Analysis 
identified that the viability of the ESU would be improved by re-
establishing this species in their historical spawning and rearing 
habitats through reintroduction efforts in Battle Creek and upstream 
from Shasta Reservoir.
    In 2016, NMFS completed a periodic review as required by the ESA 
section 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). As 
part of the periodic review, NMFS' Southwest Fisheries Science Center 
conducted an analysis (Johnson and Lindley 2016) that indicated the 
extant independent populations of the CV spring-run Chinook salmon ESU 
remained at a moderate to low extinction risk. The NMFS Southwest 
Fisheries Science Center's recent viability analysis (2022) noted some 
improvements in the viability of the ESU, particularly with the 
increased spatial diversity of the dependent Battle Creek and Clear 
Creek populations. However, the analysis also identified as key threats 
recent catastrophic declines of many of the extant populations, high 
pre-spawn mortality during the 2012-2015 drought in California, 
uncertain juvenile survival as a result of drought and ocean 
conditions, as well as straying of CV spring-run Chinook salmon from 
the Feather River Fish Hatchery.

Analysis of the Statutory Requirements

1. Will authorizing release of experimental populations further the 
conservation of these species?
    Section 3(3) of the ESA, 16 U.S.C. 1532(3), defines 
``conservation'' as ``the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this [Act] are no 
longer necessary.'' We discuss in more detail below each of the factors 
we considered in determining whether authorizing release of 
experimental populations in the NEP Area would further the conservation 
of SR winter-run and 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 SR winter-run 
and CV spring-run Chinook salmon populations found in Central Valley 
would be used in establishing the experimental populations in the NEP 
Area.
    We have preliminarily identified donor sources for reintroduction 
into the NEP Area as SR winter-run from Livingston Stone NFH and CV 
spring-run Chinook salmon produced from the FRH. These fish are the 
geographically closest donor sources that could be used with minimal 
impact to the wild populations for reintroduction into the NEP Area. 
NMFS, in consultation with the California Department of Fish and 
Wildlife (CDFW), may later consider diversifying the donor stocks from 
other nearby streams if those populations can sustain removal of fish. 
Any collection of Chinook salmon would be subject to a Hatchery and 
Genetic Management Plan (HGMP) in relation to a hatchery source and 
approval of a permit under ESA section 10(a)(l)(A), which includes 
analysis under NEPA and ESA section 7.
    Use of donor stocks from Livingston Stone NFH and the FRH for the 
initial phases of a reintroduction program will minimize the number of 
individuals needed from existing populations. Supplementation to the 
donor stock, if necessary, would be dependent upon genetic diversity 
needs and the extent of adverse effects to other populations. It is 
anticipated that over time, the Livingston Stone NFH and FRH would 
produce juveniles and adults in sufficient numbers to enable the return 
of a sufficient number of adults to establish a self-sustaining 
population in the NEP Area. Once self-sustaining populations are 
established, it is anticipated that contributions of SR winter-run 
Chinook salmon from Livingston Stone NFH and CV spring-run Chinook 
salmon from FRH would be phased out.
    We also consider the suitability of habitat available to the 
experimental populations. In 2014, the U.S. Bureau of Reclamation 
initiated a habitat assessment of the NEP Area and found conditions 
were suitable for Chinook salmon spawning, adult holding, and juvenile 
rearing. Habitat conditions in the Upper Sacramento and McCloud Rivers 
are described in the draft EA.
    In addition, there are Federal and state laws and regulations that 
will help ensure the establishment and survival of the experimental 
populations 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 any 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.
    The Federal Energy Regulatory Commission (FERC), pursuant to the 
Federal Power Act (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 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

[[Page 30694]]

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. 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)). Chinook salmon EFH does not occur in the NEP Area.
    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. The 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 experimental 
populations 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 viable populations 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 SR 
winter-run and CV spring-run Chinook salmon that include securing 
existing populations and reintroducing these species into historically 
occupied habitats above rim dams in the Central Valley of California 
(NMFS 2014). The Central Valley Recovery Plan concludes, and we 
continue to agree, that establishing experimental populations in the 
NEP Area that persist 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 SR winter-run and CV spring-run Chinook salmon, in 
addition to other actions being implemented throughout the Central 
Valley, which are described next, will contribute to SR winter-run and 
CV spring-run Chinook salmon near-term viability and recovery.
    Across the Central Valley, a number of actions are being undertaken 
to improve habitat quality and quantity for SR winter-run and CV 
spring-run Chinook salmon. Collectively, implementation of these 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.
    Implementation of the action items identified in NMFS current 2022 
5-year review of the listing factors and in the Species in the 
Spotlight 2021-2025 Priority Action Plan for SR winter-run Chinook 
salmon (NMFS 2021) include improving management of Shasta Reservoir 
cold-water storage to reduce water temperatures and provide flows to 
improve SR winter-run Chinook salmon productivity; restoring Battle 
Creek habitats and reintroducing SR winter-run Chinook salmon to 
historical spawning areas; reintroducing SR winter-run Chinook salmon 
into historical habitats above Shasta Dam; improving Yolo Bypass fish 
habitat and passage to increase juvenile survival and rearing 
opportunities; improving management of winter and early spring Delta 
conditions to improve juvenile survival; and continuing collaboration 
on science and fostering partnerships to build greater capacity to 
address recovery challenges.
    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 SR winter-run and CV spring-run 
Chinook salmon into headwater streams upstream of Shasta Dam 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 populations. The NEP Area is sparsely populated and 
ongoing state, Federal and local activities include forest management, 
limited mining, highways and road maintenance, residential and 
municipal development, grazing, tourism and recreation. These 
activities will likely continue into the future and are anticipated to 
have minor impacts to SR winter-run and 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 SR winter-run and 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, or 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 populations in the NEP Area in the foreseeable future. 
Although the donor sources for reintroduction are anticipated to 
include hatchery-origin individuals from the Livingston Stone NFH and 
FRH, based on the factors discussed above, we conclude it is probable 
that self-sustaining experimental populations of SR winter-run and CV 
spring-run Chinook salmon will become established and survive in the 
NEP Area. Furthermore, we conclude that self-sustaining experimental 
populations of genetically compatible individuals will likely further 
the conservation of these species, as discussed above.

[[Page 30695]]

2. Identification of the Experimental Populations and Geographic 
Separation From Nonexperimental Populations of the Same Species
    ESA section 10(j)(2)(B) requires that 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. NMFS proposes that the 
NEP Area would extend upstream from Shasta Dam in the McCloud and Upper 
Sacramento Rivers as described above. Under this proposed rule, 
experimental populations would be identified as SR winter-run and CV 
spring-run Chinook salmon populations when geographically located 
anywhere in the NEP Area. Reintroduced SR winter-run and CV spring-run 
Chinook salmon would only be part of the experimental populations when 
they are present in the NEP Area, and would not be part of the 
experimental populations when they are outside the NEP Area, even if 
they originated within the NEP Area. When reintroduced juvenile SR 
winter-run and CV spring-run Chinook salmon pass downstream of Shasta 
and Keswick Dams into the Sacramento River, and when they migrate 
further downstream to the Sacramento River Delta and the Pacific Ocean, 
they would no longer be geographically separated from other extant SR 
winter-run and CV spring-run Chinook salmon populations, and thus the 
``experimental population'' designations would not apply, unless and 
until they return as adults and re-enter the NEP Area.
    The proposed NEP Area provides the requisite level of geographic 
separation because SR winter-run and CV spring-run Chinook salmon are 
currently extirpated from this area due to the presence of Shasta and 
Keswick Dams, which block their upstream migration. Straying of fish 
from other Chinook populations into the NEP Area is not possible due to 
the presence of these dams. As a result, the geographic description of 
the extant SR winter-run and CV spring-run Chinook salmon ESUs does not 
include the NEP Area.
    NMFS anticipates that SR winter-run and 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 brood stock collection of returning 
adults that originated from the experimental populations. Any marking 
of individuals of the experimental populations, 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 brood stock 
collection of returning adults. As discussed above, the experimental 
populations are identified based on the geographic location of the 
fish. Indeed, if the reintroductions are 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 Shasta and Keswick Dams in 
the Sacramento River, or in the ocean, any such unmarked fish 
(juveniles and adults alike) would not be considered members of the 
experimental populations. They would be considered part of the SR 
winter-run Chinook salmon ESU or the CV spring-run Chinook salmon ESU 
currently listed under the ESA. Likewise, any fish that were marked for 
reintroduction in the NEP Area would not be considered part of the 
experimental populations once they left the NEP Area; rather, they 
would be considered part of the ESUs 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 is an 
experimental population that, if lost, the survival of the species in 
the wild would likely be substantially reduced.
    In determining whether the experimental populations of SR winter-
run and CV spring-run Chinook salmon are 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 
populations in relation to other populations of SR winter-run and CV 
spring-run Chinook salmon, and the likelihood of survival of these 
populations without the existence of the experimental populations.
    The SR winter-run Chinook salmon ESU consists of a single extant 
population in the Sacramento River downstream of Shasta and Keswick 
Dams. 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 populations will exist as separate 
populations from those in the Sacramento River basin and will not be 
essential to the survival of those populations. Based on these 
considerations, we conclude that the loss of experimental populations 
of SR winter-run or CV spring-run Chinook salmon in the NEP Area is not 
likely to appreciably reduce the likelihood of the survival of these 
species in the wild. Accordingly, NMFS is proposing to designate the 
experimental populations as nonessential. Under section 10(j)(2)(C)(ii) 
of the ESA we cannot designate critical habitat for nonessential 
experimental populations.

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 that, 
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 
propose to exercise the authority to issue protective regulations under 
ESA section 4(d) for the proposed experimental populations of SR 
winter-run and CV spring-run Chinook salmon to identify take 
prohibitions necessary to provide for the conservation of these species 
and otherwise provide assurances to the

[[Page 30696]]

people of the Upper Sacramento and McCloud River watersheds.
    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 proposed ESA 
section 10(j) experimental population designation, we propose 
protective regulations under ESA section 4(d) for the experimental 
populations that would prohibit take of SR winter-run and CV spring-run 
Chinook salmon in the NEP Area that are part of the experimental 
populations, except in the following circumstances:
    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 \1\ 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
---------------------------------------------------------------------------

    \1\ 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 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 experimental populations will require 
new monitoring programs developed specifically for this purpose. To 
gauge the success of the program, NMFS anticipates that it will be 
necessary to monitor in the NEP Area for fish passage efficiency, 
spawning success, adult and smolt injury and mortality rates, juvenile 
salmon collection efficiencies, competition with resident species, 
predation, and disease among other things. We anticipate the status of 
reintroduced populations of SR winter-run and CV spring run Chinook 
salmon in the NEP Area would be evaluated during NMFS' five-year review 
process under ESA 4(c)(2). During the 5-year review, NMFS may evaluate 
whether the current designation under ESA section 10(j) as nonessential 
experimental populations is still warranted.

Proposed Experimental Population Findings

    Based on the best available scientific information, we have 
determined that the designations and authorization for the release of 
NEPs of SR winter-run and CV spring-run Chinook salmon in the NEP Area 
upstream of Shasta Dam will further the conservation of SR winter-run 
and CV spring-run Chinook salmon. SR winter-run Chinook salmon used to 
initiate the reintroduction are anticipated to come from Livingston 
Stone NFH. CV spring-run Chinook salmon used to initiate the 
reintroduction are anticipated to come from the FRH. The collection of 
donor stock will be permitted only after issuance of permits 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 fish in other populations of the SR 
winter-run and CV spring-run Chinook salmon ESUs during the life stages 
in which they remain in, or are returned to, the NEP Area. At all times 
when members of the experimental populations are downstream of Shasta 
and Keswick Dams, the experimental population designations will not 
apply. Establishing experimental populations of SR winter-run and CV 
spring-run Chinook salmon in the NEP Area would likely contribute to 
the viability of the ESUs. Reintroduction is a recommended recovery 
action in the Central Valley Recovery Plan (NMFS 2014). Designation of 
SR winter-run and CV spring-run Chinook salmon in the NEP Area as 
nonessential experimental populations would ensure that their 
reintroduction does not impose undue regulatory restrictions on 
landowners and others because this proposed rule would apply only 
limited take prohibitions as compared to the prohibitions that 
typically apply to SR winter-run and CV spring-run Chinook salmon. In 
particular, this proposed rule expressly provides an exception for take 
of NEP fish in the NEP Area provided that the take is incidental to 
otherwise lawful activities and is unintentional, rather than due to 
negligent conduct.
    We further determine, based on the best available scientific 
information, that the proposed experimental populations would not be 
essential to the continued existence of the SR winter-run Chinook 
salmon ESU or the CV spring-run Chinook salmon ESU, because absence of 
the experimental populations would not be likely to appreciably reduce 
the likelihood of the survival of the ESUs in the wild. However, as 
described above, the experimental populations are expected to 
contribute to the recovery of the SR winter-run and CV spring-run 
Chinook salmon ESUs if reintroduction is successful. We therefore 
propose that the experimental populations would be nonessential 
experimental populations.

Public Comment

    We want the final rule to be as effective and accurate as possible, 
and the final EA to evaluate the potential issues and reasonable range 
of alternatives. Therefore, we invite the public, state, tribal, and 
government agencies, the scientific community, environmental groups, 
industry, local landowners, and all interested parties to provide 
comments on the proposed rule and draft EA (see ADDRESSES section 
above). We request that submitted comments be relevant to the proposed 
designation of the experimental populations in the NEP Area. Comments 
should be as specific as possible, provide relevant information or 
suggested changes, the basis for the suggested changes, and any 
additional supporting information where appropriate. For example, 
comments should tell us the numbers or titles of the sections or 
paragraphs that are unclearly written, which sections or sentences are 
too long, the sections in which lists or tables would be useful, etc.
    Prior to issuing a final rule, we will take into consideration the 
comments and supporting materials received. The final rule may differ 
from the proposed rule based on this information and more recent data 
that becomes available. We are interested in all public comments, but 
are specifically interested in obtaining feedback on:
    (1) The best source of ESA-listed fish for establishing 
experimental populations of SR winter-run and CV spring-run Chinook 
salmon in the NEP Area and the scientific basis for such comments.
    (2) The proposed NEP Area (geographical scope) for the experimental 
population.
    (3) The extent to which the experimental populations would be 
affected by current or future Federal, State, Tribal, or private 
actions within or adjacent to the experimental population area.
    (4) Any necessary management restrictions, protective measures, or 
other management measures that we may not have considered.
    (5) The likelihood that the experimental populations will become 
established in the NEP Area.

[[Page 30697]]

    (6) Whether the proposed experimental populations are essential or 
nonessential.
    (7) Whether the proposed experimental population designations and 
release will further the conservation of the species and whether we 
have used the best available scientific information in making this 
determination.

Information Quality Act and Peer Review

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

Classification

Executive Order 12866

    This proposed rule has been determined to be not significant under 
Executive Order 12866.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    This proposal would designate and authorize the release of 
nonessential experimental populations of SR winter-run and CV spring-
run salmon in the NEP Area. While in the NEP Area, the experimental 
populations would be protected from some types of take, but this 
proposed action would impose no prohibitions on the take of the 
experimental population fish that is incidental to otherwise lawful 
activity and unintentional and not due to negligent conduct. The effect 
of this proposed action would not increase the regulatory burdens 
associated with the ESA on affected entities, including small entities, 
to conduct otherwise lawful activities as a result of reintroduction of 
SR winter-run and CV spring-run Chinook salmon to the NEP Area. If this 
proposed action is adopted, the area affected by this rule includes the 
entire NEP Area. Land ownership includes Federal lands and private 
lands with the primary uses being recreation, forestry, water 
management, power production, mining, transportation management, rural 
and residential development, tourism and recreational fishing, and 
livestock grazing. A substantial portion of both Shasta and Siskiyou 
Counties are under the management of Federal or state resource 
management agencies. Small entities make up a portion of owners using 
the land for these uses and this proposed rule, if implemented, may 
impact those uses for all entities, including small entities.
    However, this proposed rule would apply only limited take 
prohibitions as compared with the prohibitions that typically currently 
apply to listed SR winter-run and CV spring-run Chinook salmon; in 
particular, this proposed rule expressly provides an exception for the 
take of experimental population fish in the NEP Area provided that the 
take is incidental to otherwise lawful activity and unintentional and 
not due to negligent conduct. Based on the nonessential experimental 
population designations under this proposed rule, there would only be 
the requirement under ESA section 7 (other than section (a)(1) 
requiring 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) for Federal agencies to confer with NMFS with respect 
to effects of agency actions on the experimental populations. This 
requirement to confer with NMFS is not as burdensome on Federal 
agencies as the requirement to consult, and no critical habitat could 
be designated for the experimental populations. Due to the minimal 
regulatory overlay provided by the nonessential experimental population 
designations, we do not expect this rule to have any significant effect 
on recreation, forestry, water management, power production, mining, 
transportation management, rural development, tourism and recreational 
fishing, livestock grazing or other lawful activities within the NEP 
Area. As such, we do not expect this rule to have any significant 
effect on any entities, including small entities that engage in these 
activities in the NEP area.
    For the reasons described above, this proposed rule would not have 
a significant economic effect on a substantial number of small 
entities. Accordingly, no initial regulatory flexibility analysis is 
required, and none has been prepared.

Executive Order 12630

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. A takings implication 
assessment is not required because this proposed 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 
proposed 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 proposed rule does not have federalism implications as that term 
is 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 proposed 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 
proposed rule. We have prepared a draft EA on this proposed action and 
have made it available for public inspection (see ADDRESSES section 
above). All appropriate NEPA documents will be finalized before this 
rule is finalized.

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

[[Page 30698]]

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 proposed rule and solicit information on cultural resources 
eligible for listing on the National Register of Historic Places 
(letters dated Feb. 5, July 14, and July 27, 2016, from Maria Rea, 
Central Valley Office Supervisor, NMFS). 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 potentially affected tribes as we gather 
public comment on this proposed rule and consider next steps.

References Cited

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

List of Subjects in 50 CFR Part 223

    Endangered and threatened species.

    Dated: May 5, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 223 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) under the heading 
for ``Fishes'' by adding the entries for ``Salmon, Chinook (Central 
Valley spring-run ESU-XN Shasta)'' and ``Salmon, Chinook (Sacramento 
River winter-run ESU-XN Shasta)'' after the entry for ``Salmon, Chinook 
((Central Valley spring-run ESU-XN Yuba)'' and before the entry for 
``Salmon, Chinook (Lower Columbia River ESU)'' to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Species \1\
----------------------------------------------------------------------------------------- Citation(s) for listing
                                                                Description of listed        determinations(s)        Critical habitat       ESA rules
            Common name                  Scientific name                entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         FISHES
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Salmon, Chinook (Central Valley      Oncorhynchus            Central Valley spring-run    [Federal Register        NA...................
 spring-run ESU-XNShasta).            tshawytscha.            Chinook salmon only when,    citation and date when
                                                              and at such times as, they   published as a final
                                                              are found in the NEP Area    rule].
                                                              (from Shasta Dam up to Pit
                                                              7 Dam on the Pit River,
                                                              McCloud Dam on the McCloud
                                                              River, and Box Canyon Dam
                                                              on the upper Sacramento
                                                              River. All other
                                                              tributaries flowing into
                                                              Shasta Reservoir up to the
                                                              ridge line, including
                                                              tributaries below Pit 7
                                                              Dam, McCloud Dam, and Box
                                                              Canyon Dam, up to the
                                                              ridge line would be
                                                              included in the NEP Area).
Salmon, Chinook (Sacramento winter-  Oncorhynchus            Sacramento winter-run        [Federal Register        NA...................
 run ESU-XNShasta).                   tshawytscha.            Chinook salmon only when,    citation and date when
                                                              and at such times as, they   published as a final
                                                              are found in the NEP Area    rule].
                                                              (from Shasta Dam up to Pit
                                                              7 Dam on the Pit River,
                                                              McCloud Dam on the McCloud
                                                              River, and Box Canyon Dam
                                                              on the upper Sacramento
                                                              River. All other
                                                              tributaries flowing into
                                                              Shasta Reservoir up to the
                                                              ridge line, including
                                                              tributaries below Pit 7
                                                              Dam, McCloud Dam, and Box
                                                              Canyon Dam, up to the
                                                              ridge line would be
                                                              included in the NEP Area).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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).


[[Page 30699]]

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


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

* * * * *
    (e) McCloud and Upper Sacramento Rivers Sacramento River winter-run 
and Central Valley spring-run Chinook Salmon Experimental Populations 
(Oncorhynchus tshawytscha). (1) Status of McCloud and Upper Sacramento 
Rivers Sacramento River winter-run and Central Valley spring-run 
Chinook salmon under the ESA. The McCloud and Upper Sacramento Rivers 
Sacramento River winter-run and Central Valley spring-run Chinook 
salmon populations identified in paragraph (e)(2) of this section are 
designated as nonessential experimental populations under section 10(j) 
of the ESA and shall be treated as a ``threatened species'' pursuant to 
16 U.S.C. 1539(j)(2)(C).
    (2) McCloud and Upper Sacramento Rivers Sacramento River winter-run 
and Central Valley spring-run Chinook Salmon Experimental Populations. 
All Sacramento River winter-run and Central Valley spring-run Chinook 
salmon within the experimental population area in the McCloud and Upper 
Sacramento Rivers upstream of Shasta Dam, as defined here, are 
considered part of the McCloud and Upper Sacramento Rivers Sacramento 
River winter-run and Central Valley spring-run Chinook salmon 
experimental populations. The NEP Area extends from Shasta Dam up to 
Pit 7 Dam on the Pit River, McCloud Dam on the McCloud River, and Box 
Canyon Dam on the upper Sacramento River. All other tributaries flowing 
into Shasta Reservoir up to the ridge line, including tributaries below 
Pit 7 Dam, McCloud Dam, and Box Canyon Dam, up to the ridge line are 
included in the NEP Area. All other areas above Pit 7 Dam on the Pit 
River, McCloud Dam on the McCloud River, and Box Canyon Dam on the 
upper Sacramento River are not part of the NEP Area. The NEP Area 
extends up to the ridgelines to account for watershed processes and 
ends at the aforementioned dams because these dams lack fish passage 
facilities. The NEP Area is part of the species' historical range. The 
NEPs are all SR winter-run and CV spring-run Chinook salmon, including 
fish released or propagated, naturally or artificially, within the NEP 
Area.
    (3) Prohibitions. Except as expressly allowed in paragraph (e)(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 McCloud and 
Upper Sacramento Rivers Sacramento River winter-run and Central Valley 
spring-run Chinook salmon nonessential experimental populations 
identified in paragraph (e)(2) of this section.
    (4) Exceptions to the Application of Section 9 Take Prohibitions in 
the Experimental Population Area. The following forms of take in the 
experimental population area identified in paragraph (e)(2) of this 
section are not prohibited by this section:
    (i) Any taking of experimental populations of Sacramento River 
winter-run or Central Valley spring-run Chinook salmon 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.
    (ii) Any taking of experimental populations of Sacramento River 
winter-run or 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.
    (iii) Any taking of experimental populations of Sacramento River 
winter-run or Central Valley spring-run Chinook salmon pursuant to a 
permit issued by 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. 2023-09967 Filed 5-11-23; 8:45 am]
BILLING CODE 3510-22-P