[Federal Register Volume 88, Number 165 (Monday, August 28, 2023)]
[Rules and Regulations]
[Pages 58511-58521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18474]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 230822-0202]
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(d)

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 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 will contribute to viability and 
further conservation of these species. The issuance of limited 
protective regulations for the conservation of these species will 
provide assurances regarding the regulatory provisions of the ESA as 
they apply to SR winter-run and CV spring-run Chinook salmon to the 
people in the Upper Sacramento River and McCloud River watersheds. This 
final rule 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.

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

ADDRESSES: The final Environmental Assessment and other reference 
materials can be obtained at NMFS' 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 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) 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 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). 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.

[[Page 58512]]

    This rule designates 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 establishes take prohibitions for the NEPs and exceptions for 
particular activities.
    This is a final rule stemming from a proposed rule published on May 
11, 2023 (88 FR 30690). 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.
    Figure 1--The NEP Area above Shasta Dam for SR winter-run and CV 
spring-run Chinook salmon
[GRAPHIC] [TIFF OMITTED] TR28AU23.376


[[Page 58513]]



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 ``will further the 
conservation'' of that species. 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. 
The experimental populations of SR winter-run and CV spring-run Chinook 
salmon we are designating must generally be treated as threatened 
species. Therefore, we issue tailored protective regulations under ESA 
section 4(d) for the 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 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 402.14(i)(1)(iv)).
    NMFS has previously 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 appreciably 
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 
non-experimental 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), U.S. 
Fish

[[Page 58514]]

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 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 (Southwest Fisheries 
Science Center (SWFSC) 2022). Updated information indicates an 
increased extinction risk due to the larger influence of the hatchery 
broodstock and low numbers of natural-origin returns in two consecutive 
years (SWFSC 2022). NMFS determined 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 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 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 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 the 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

[[Page 58515]]

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 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 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 ongoing 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 (California Department of Water Resources 
(DWR) 2011) will improve juvenile rearing conditions during 
outmigration by creating and improving access to high quality 
floodplain habitats.

[[Page 58516]]

    Action items identified in NMFS 2022 5-year review 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. Implementation of these action items will 
advance the conservation of the species.
    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.
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. The NEP Area extends 
upstream from Shasta Dam in the McCloud and Upper Sacramento Rivers as 
described above. Under this rule, experimental populations are 
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 are only 
part of the experimental populations when they are present in the NEP 
Area, and are not 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 re-enter the NEP Area.
    The 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 likely 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 will 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

[[Page 58517]]

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 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 designates 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 have 
exercised that authority to issue protective regulations under ESA 
section 4(d) for the 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 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 ESA section 
10(j) experimental population designation, we are adopting 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' 5-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.

Summary of Comments and Responses

    The draft EA and proposed rule were made available for a 30-day 
public comment period. NMFS received comments on the proposed rule and 
draft EA, which are addressed in Appendix A of the final EA and as 
changes to the final EA as appropriate. The purpose of the comment 
period is to help us better understand the concerns of the public on 
the experimental population designations, take and take exceptions, and 
associated draft EA. During the comment period, NMFS received 6 comment 
letters germane to the proposed rulemaking, from entities representing 
various agencies, nongovernmental organizations, tribes, and 
individuals. Five comment letters were supportive of the proposed rule. 
One letter, from Pacific Gas and Electric Company (PG&E), although 
supportive of designating SR winter-run and CV spring-run Chinook 
salmon as nonessential experimental populations contained several 
criticisms and objections. EA Appendix A contains the public comment 
letters received and our responses. A summary of PG&E's comments and 
our responses to those comments are presented here.
    Comment 1. The proposed exemption from section 9 take prohibitions 
requires additional detail in which PG&E requested specific language 
detailing activities associated with its McCloud-

[[Page 58518]]

Pit Hydroelectric Project (Project, FERC Project No. 2106).
    Response. The examples in the Federal Register notice represent a 
broad, but non-comprehensive subset of the types of otherwise legal 
activities that may occur in the NEP area that are exempted from 
section 9 take prohibitions. The list is intended to be illustrative 
rather than all-inclusive. Regardless of the types of activities listed 
as examples in the 4(d) rule, if a legal activity results in incidental 
take and the take is not due to negligence, then the activity is 
exempted from take prohibitions, even if not included in the list of 
examples.
    Comment 2. PG&E stated that the level of consultation with 
stakeholders was inadequate.
    Response. NMFS disagrees. Over the past 12 years (starting in 2010) 
NMFS' public outreach and engagement strategy for both reintroduction 
and this 10(j) rule has been extensive, comprehensive and sustained. 
This includes public meetings, landowner and stakeholder meetings, 
briefings and updates with tribes, local, State, and Federal government 
representatives and government groups, webinars, podcasts and 
electronically posting web stories, fact sheets, videos and Frequently 
Asked Questions (FAQ) documents on NMFS' website. Further, in response 
to concerns raised by stakeholders as a result of the above outreach 
efforts, NMFS worked with the California Board of Forestry to amend the 
California Forest Practice Rules to better align with the 10(j) rule; 
worked with the CDFW to address concerns over their freshwater fishing 
regulations and the California Endangered Species Act; and entered into 
a formal co-stewardship agreement with CDFW and the Winnemem Wintu 
Tribe to jointly pursue reintroduction. This also includes partnering 
and participation in several multi-agency and multi-stakeholder 
technical committees.
    Comment 3. PG&E requested ``unambiguous exclusion of hydropower'' 
to be consistent with NMFS' 2013 Middle Columbia River Steelhead rule.
    Response. See response to Comment #1. As stated in PG&E's letter, 
``the proposed rule would exclude all lawful activities from the take 
prohibition . . . including the operation and maintenance of 
hydroelectric facilities.'' PG&E also noted that its request would be 
consistent with the Middle Columbia River Steelhead 10(j) and 4(d) rule 
(see 78 FR 2893--2907 (January 15, 2013)). However, in the case of the 
Middle Columbia River Steelhead rule, the inclusion of hydropower was 
explicitly related to a requirement of the new hydropower license for 
the Pelton Round Butte Project stipulating reintroduction. There is no 
similar license requirement or final plan to reintroduce SR winter-run 
Chinook salmon or CV spring-run Chinook salmon upstream of Shasta Dam.
    Comment 4. Regarding the congressional history and intent, PG&E 
claimed that subsequent to the 1982 amendments of the Endangered 
Species Act (ESA), the Secretary is not authorized to reintroduce eggs, 
propagules, or individuals outside of the current range of the species 
without first making the determinations required under section 10(j).
    Response. PG&E's interpretation of section 10(j) of the ESA is 
inconsistent with the statute, congressional history and intent. 
Section 10(j) does not limit or restrict any previously held authority 
on the part of the Secretary to authorize or reintroduce species 
outside their current range. On the contrary, section 10(j) expands the 
Secretaries' authorities, in this case, 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 ESA, 
establish a limited set of take exceptions for the experimental 
populations.
    Comment 5. Regarding the congressional history and intent, PG&E 
claimed that the key mechanism in section 10(j) to afford landowner 
cooperation is the provision providing that endangered experimental 
populations can be treated as threatened species, which consequently 
authorizes NMFS to relax incidental take prohibitions for endangered 
experimental populations. Further, they asserted that this reflects the 
congressional intent that species reintroductions should be 
accomplished with the support of affected stakeholders.
    Response. See response to Comment #2; and section 1.2.4.1. of the 
EA. Further, Congress viewed ESA section 10(j) as an opportunity ``to 
encourage the recovery of species through population re-establishment 
with the cooperation of, not despite, state and local groups'' (Wolok 
1996). Congress intended that regulations promulgated by the Services 
to designate experimental populations ``should be viewed as an 
agreement among the Federal agencies, the state fish and wildlife 
agencies and any landowners involved'' (Wolok 1996 quoting H.R. Rep. 
No. 567, 97th Cong., 2d Sess. 34 (1982)). We note that designation and 
release of NEPs of Sacramento River (SR) winter-run and Central Valley 
(CV) spring-run Chinook salmon in the McCloud and Upper Sacramento 
Rivers above Shasta Dam under section 10(j) of the ESA was formally 
requested by the U.S. Forest Service (primary landowner in the NEP 
area) and generally supported by other landowners.

Findings

    Based on the best available scientific information, we have 
determined that the designations and 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 final 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 
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.

[[Page 58519]]

    We further determine, based on the best scientific and commercial 
data available, that the 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 
designate the released populations as nonessential experimental 
populations.

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 rule that meet these criteria.

Classification

Executive Order 12866

    This final 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 during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a final regulatory 
flexibility analysis was not required and none was 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 is 
defined in Executive Order 13132.

Paperwork Reduction Act of 1995

    OMB regulations at 5 CFR part 1320, which implement provisions of 
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that 
Federal agencies obtain approval from OMB before collecting information 
from the public. A Federal agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number. This 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 and rule available for comments, 
received comments, and responded to those comments. 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 above).

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 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.

References Cited

    A complete list of all references cited in this final 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: August 22, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 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) by adding entries 
for ``Salmon, Chinook (Central Valley spring-run ESU-XN Shasta)'' and 
``Salmon, Chinook (Sacramento winter-run ESU-XN Shasta)'' under 
``Fishes'' in alphabetical order by common name to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

[[Page 58520]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Species \1\
----------------------------------------------------------------------------------------------  Citation(s) for listing      Critical        ESA rules
             Common name                    Scientific name      Description of listed entity      determinations(s)          habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                    * * * * * * * * *
                FISHES
 
                                                                    * * * * * * * * *
Salmon, Chinook (Central Valley        Oncorhynchus tshawytscha  Central Valley spring-run     [INSERT FEDERAL REGISTER               NA  ..............
 spring-run ESU-XN Shasta).                                       Chinook salmon only when,     CITATION], 8/28/2023.
                                                                  and at such times as, they
                                                                  are found in the NEP Area
                                                                  (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 tshawytscha  Sacramento winter-run         [INSERT FEDERAL REGISTER               NA  ..............
 run ESU-XN Shasta).                                              Chinook salmon only when,     CITATION], 8/28/2023.
                                                                  and at such times as, they
                                                                  are found in the NEP Area
                                                                  (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).

* * * * *

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 (the NEP Area), as defined in 
this paragraph (e)(2), 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

[[Page 58521]]

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 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 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. 2023-18474 Filed 8-25-23; 8:45 am]
BILLING CODE 3510-22-P