[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Rules and Regulations]
[Pages 36982-37025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09136]
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Vol. 89
Friday,
No. 87
May 3, 2024
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of Grizzly Bear in the North
Cascades Ecosystem, Washington State; Final Rule
Federal Register / Vol. 89 , No. 87 / Friday, May 3, 2024 / Rules and
Regulations
[[Page 36982]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2023-0074; FXES11130100000-245-FF01E00000]
RIN 1018-BG89
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of Grizzly Bear in the North
Cascades Ecosystem, Washington State
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), establish a
nonessential experimental population (NEP) of the grizzly bear (Ursus
arctos horribilis) within the U.S. portion of the North Cascades
Ecosystem (NCE) in the State of Washington under section 10(j) of the
Endangered Species Act of 1973, as amended (Act or ESA). Establishment
of this NEP is intended to support reintroduction and recovery of
grizzly bears within the NCE and provide the prohibitions and
exceptions under the Act necessary and appropriate to conserve the
species within a defined NEP area. The geographic boundary of the NEP
includes most of the State of Washington except for an area in
northeastern Washington that encompasses the Selkirk Ecosystem Grizzly
Bear Recovery Zone. The best available data indicate that
reintroduction of the grizzly bear to the NCE, within the NEP area, is
biologically feasible and will promote the conservation of the species.
DATES: This rule is effective June 3, 2024.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this rule, please note that the
Office of Management and Budget (OMB) is required to make a decision
concerning the collection of information contained in this rule between
30 and 60 days after the date of publication of this rule in the
Federal Register. Therefore, comments should be submitted to OMB by
June 3, 2024.
ADDRESSES: This final rule, public comments on our September 29, 2023,
proposed rule, a final environmental impact statement, and the record
of decision, are available on the internet at https://www.regulations.gov at Docket No. FWS-R1-ES-2023-0074.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements may be submitted
at any time to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803 (mail); or [email protected] (email).
Please reference ``OMB Control Number 1018-0199'' in the subject line
of your comments.
FOR FURTHER INFORMATION CONTACT: Brad Thompson, State Supervisor, U.S.
Fish and Wildlife Service, Washington Fish and Wildlife Office, 1009
College Street SE, Lacey, WA 98503; telephone 360 753 9440. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of contact in the United States.
SUPPLEMENTARY INFORMATION: The Service is establishing a nonessential
experimental population (NEP) of the grizzly bear (Ursus arctos
horribilis) within the U.S. portion of the North Cascades Ecosystem
(NCE) in the State of Washington under section 10(j) of the Act.
Previous Federal Actions
In November 2022, the National Park Service (NPS) and Service
jointly initiated the process for developing an Environmental Impact
Statement (EIS)/Grizzly Bear Restoration Plan for the North Cascades
Ecosystem. On September 28, 2023, the draft Environmental Impact
Statement (EIS) was published (88 FR 67277). One of three alternatives
assessed in the draft EIS proposed to restore grizzly bears to the NCE
through reintroduction of grizzly bears and designation of an NEP under
the Act. On September 30, 2023, the Service published a proposed rule
pursuant to section 10(j) of the Act (hereafter, a ``10(j) rule'') to
reintroduce grizzly bears to a portion of the NCE in Washington State
as an NEP and manage them in accordance with a proposed zoned
management approach (88 FR 67193). For a description of previous
Federal actions concerning this species, please refer to the proposed
rule or to our Environmental Conservation Online System (ECOS) species
profile for the grizzly bear at https://ecos.fws.gov/ecp/species/7642.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review, we
solicited independent scientific review of the proposed rule (USFWS in
litt. 2016, entire). We invited six independent peer reviewers and
received three responses. The peer reviews can be found at https://www.regulations.gov and https://fws.gov/library/categories/peer-review-plans. In preparing this final rule, we incorporated the results of
these reviews, as appropriate, into this final rule. A summary of the
peer review comments, and our responses can be found in the Summary of
Comments and Recommendations below.
Summary of Changes From the Proposed Rule
As a result of comments, additional data received during the
comment period, and additional analysis, we made several changes to the
rule we proposed on September 29, 2023 (88 FR 67193). In addition to
updating information, correcting errors, clarifying descriptions, and
providing additional details and context in this final rule, we:
Changed the names of Management Zones 1, 2, and 3 to
Management Areas A, B, and C to avoid potential confusion with numbered
management zones in other parts of the species' range.
Specified that, within the NEP boundary, Management Area C
would comprise all non-Federal lands within the NCE Recovery Zone and
all other lands outside of or not otherwise included in proposed
Management Areas A and B.
Specified that should a grizzly bear be found in the NEP
area before our initial translocation of a grizzly bear into the NEP
(e.g., a grizzly bear moving from Canada to the United States), it
would be managed under the grizzly bear section 4(d) rule (50 CFR
17.40(b)).
Added allowance in all Management Areas of the NEP for
preemptive relocation of grizzly bears by authorized agencies to
prevent imminent conflict or habituation.
Added a provision for individuals to lethally take grizzly
bears in Management Area C if the bear is in the act of attacking
livestock (including working dogs) on private lands and added
definitions of ``in the act of attacking'' and ``working dogs.''
Reduced the timeframe for authorization to individuals for
lethal take of a grizzly bear in Management Areas B and C from 2 weeks
to 5 days.
Added definitions for ``demonstrable and ongoing threat,''
``human-occupied areas,'' and ``threat to human safety'' in relation to
provisions for conflict management; added a
[[Page 36983]]
definition of ``lasting bodily injury'' relative to the limits of
actions to deter grizzly bears; and clarified the meaning of ``humane''
when lethally removing a grizzly bear.
Clarified several aspects of the rule, including the
following:
[cir] The `no net loss' of core area requirement for the incidental
take exception applies to U.S. Forest Service (USFS) actions on
National Forest System lands in Management Area A only.
[cir] We will attempt to capture 3 to 7 bears per year (rather than
5 to 7 bears) to establish the initial target population of 25 bears.
[cir] Authorized agencies may relocate bears to a remote area that
is not specific to a certain management area.
[cir] Individuals are authorized to deter grizzly bears to promote
human safety, prevent conflict, or protect property, including
individuals such as forest managers, loggers, and others conducting
otherwise lawful forest management activities.
[cir] Reporting requirements for take do not apply to incidental
take resulting from habitat modification; such reporting may otherwise
be addressed as a result of section 7(a)(2) consultation when
applicable.
[cir] USFS-issued road use permits that include hauling on non-
Federal lands are included in Federal actions that are exempt from
section 7(a)(2) consultation requirements.
Provided clearer definitions or enhanced discussion of the
following terms: ``deterrence,'' ``conflict bears,'' ``humane lethal
take,'' and ``authorized agency.''
Summary of Comments and Recommendations
In the proposed rule published on September 29, 2023 (88 FR 67193),
we requested that all interested parties submit written comments on the
proposal by November 13, 2023. We also contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. We
invited all federally recognized Tribes in the State of Washington to
consult on the development of the 10(j) rule, and this invitation was
also sent to Tribal governments near potential source populations of
grizzly bears in the Northern Continental Divide Ecosystem (NCDE) and
Greater Yellowstone Ecosystem (GYE). An informational virtual
presentation was held online on October 17, 2023, with agency staff
describing the proposed rule and answering questions submitted by the
public. An informational presentation was also posted online for the
public to view. Four in-person public meetings to present information
and obtain feedback were held around the ecosystem between October 30
and November 3, 2023. News releases were published online announcing
the proposal and the public meetings. During the 45-day comment period,
we received over 12,200 comments on the proposed 10(j) rule and over
12,700 comments on the draft EIS.
Below, we summarize the substantive comments pertinent to the
rulemaking and our responses to those comments. We considered
substantive comments to be those that provided information relevant to
our requested action, such as data, pertinent anecdotal information, or
opinions backed by relevant experience or information, and literature
citations. Due to the similarity of many comments, we combined multiple
comments into a single, synthesized comment for many issues. We
considered nonsubstantive those comments that expressed a statement or
opinion without providing supporting information or relevance, or
restated data or information that we already have but without an
alternate perspective to consider. We also considered comments that
sought actions beyond the scope of our proposal or authority to be
nonsubstantive but have provided a response as needed in some instances
to explain our rationale. Substantive comments from peer reviewers,
Federal agencies, congressional representatives, State agencies, and
Tribes are grouped separately. Comments common to multiple groups are
presented first. All substantive information provided during the
comment periods has either been incorporated directly into this final
determination or is addressed below.
Comments Common to Multiple Groups
Comment: One peer reviewer questioned whether the NEP designation
was necessary, and asked whether the Service had a summary of other
species designated as NEPs and whether they were successful. Another
commenter stated that the current 4(d) rule is sufficient as it already
allows for management of bears involved in conflict, noting that the
Service is under no obligation to issue a new rule to expand allowable
take.
Response: Based on our extensive outreach efforts with Federal and
State agencies, Tribes, local governments, and interested parties, as
well as public comments received in the EIS process, we have concluded
that an NEP designation is an important tool in this instance to build
social tolerance and support for grizzly bear conservation in the NCE.
In our experience managing grizzly bears under the 4(d) rule, by
limiting impacts to property and safety and providing more tools to
address threats, the public's receptivity and tolerance to having
grizzly bears on the landscape is likely to improve.
The Service has discretion on whether to designate experimental
populations of listed species, and how to tailor protections and
management of grizzly bears designated as an experimental population.
The Service and NPS considered an alternative in the EIS that would
reintroduce grizzly bears with existing ESA protections under the
current 4(d) rule, but for the reasons discussed further in the final
EIS (NPS and USFWS 2024, entire) and our Record of Decision (e.g.,
likelihood of successful grizzly bear restoration, public safety, long-
term management, and impacts on natural and socioeconomic resources),
we selected Alternative C: Restoration with ESA section 10(j)
designation as preferred over reintroduction under the 4(d) rule.
Comment: Commenters expressed concern about the size and placement
of the NEP boundary and its relation to the NCE Recovery Zone. A
commenter stated that the NEP boundary should be smaller (extending no
more than 25 mi (40 km) beyond the eastern side of the NCE Recovery
Zone) to provide full ESA protections to grizzly bears in the Selkirk
Recovery Zone. Another commenter stated that the NEP boundary should be
larger to include the States of Idaho and Oregon.
Response: Grizzly bear recovery zones were established by the
Service to delineate areas in the lower 48 States that have sufficient
habitat to support recovery for grizzly bear populations. The NCE
Recovery Zone is not a regulatory boundary for the purposes of the
10(j) rule, but is used as a reference for delineating Management Area
A. The NEP boundary encompasses not only the NCE Recovery Zone, but
also areas outside of the NCE Recovery Zone through which reintroduced
grizzly bears may potentially pass or periodically use at some point in
the future, and where their presence may necessitate increased
management flexibility. The NEP boundary and the Management Area
boundaries are clearly identified in figure 2 and in the text of the
final rule. The NCE Recovery Zone is also shown in figure 2 for
context. Based on verified grizzly bear occurrence data and information
on grizzly bear dispersal distances, we anticipate the separation of
the Selkirk Recovery Zone from the NEP boundary (see Where is the
grizzly bear North
[[Page 36984]]
Cascades NEP?, in Sec. 17.84 Species-specific rules--vertebrates in
the rule portion of this document), will be sufficient to protect
grizzly bears from the Selkirk ecosystem. We did not include adjacent
States in the NEP boundary, as reintroduced grizzly bears are unlikely
to disperse as far as Idaho or Oregon in the near future due to limited
habitat connectivity (e.g., human population centers, highways,
Columbia River).
Comment: Commenters recommended various areas be changed to a
different Management Area designation based on perceived importance or
lack of importance to grizzly bears, and based on the perceived default
bear management that would likely follow under a specific Management
Area designation. Commenters, including a peer reviewer, suggested that
State lands (specifically Loomis State Forest, Colockum Wildlife Area,
and Loup Loup State Forest), should be included in Management Areas A
or B, as they contain suitable grizzly bear habitat. One commenter
suggested including a size comparison between the NCE Recovery Zone and
Management Area A to emphasize the limited difference between the two
(i.e., removal of State and private lands had limited impact to the
overall size of the NCE Recovery Zone). One commenter requested all
Management Areas allow for management practices allowed in Management
Area C.
Commenters expressed concern that the characterization of
Management Area B as having limited human influence did not reflect
recreational or other multiple uses on these lands. They also expressed
concern that Management Area B did not appear to be grounded in the
biological needs of grizzly bears. Taken in combination, they expressed
concern that the NEP delineation could be interpreted by the public as
seeking to determine land uses on National Forest System lands, which
could impact social acceptance of expansion of grizzly bear populations
in similar areas outside of the NEP boundary. One commenter stated that
the Management Area descriptions imply recovery and occupancy is
expected only on Federal lands within the NCE Recovery Zone boundary,
and that the Service should be more explicit about how it will manage
for grizzly bears.
A commenter requested clarification for why the Olympic Peninsula
and Columbia Plateau are included in Management Area C.
One commenter requested further information about how the Bear
Management Units informed the designation of Management Area
boundaries, expressed concern about proximity of urban growth areas to
Management Area A, and expressed concern that private lands would
become ecological sinks.
Response: The primary grizzly bear recovery effort within the NCE
Recovery Zone should be focused on Federal lands because these lands
provide adequate secure habitat (large tracts of relatively undisturbed
land), which is the most crucial element in grizzly bear recovery.
Management Area A, which includes NPS and National Forest System lands,
encompasses approximately 85 percent of the NCE Recovery Zone. These
Federal lands support grizzly bear diet, habitat, and reproduction
needs (see Behavior and Life History, below). Federal land protections,
such as motorized restrictions, the Wilderness Act, and Inventoried
Roadless Areas (IRAs) help ensure secure habitat on Federal lands for
grizzly bears into the future (USFWS 2022, p. 8). To successfully
recover and manage reintroduced grizzly bears and their progeny over
time, the rule provides a graduated approach to management flexibility
while focusing recovery efforts for grizzly bears on Federal lands
within the NCE Recovery Zone (see Management Areas, below). Management
Areas are based on suitability for occupancy by grizzly bears and the
likelihood of human-bear conflicts.
Although we acknowledge other landownerships within the NCE
Recovery Zone contain suitable grizzly bear habitat, at least allowing
for greater management flexibility is appropriate on those non-Federal
lands within the NCE Recovery Zone by including those under Management
Area C. However, our State partners or other authorized agencies will
not necessarily act on that greater management flexibility, especially
in areas where suitable habitat could complement recovery efforts for
grizzly bears in the NCE and in areas less likely to result in human-
grizzly bear conflicts. Not all management areas allow for the
management practices that are allowed in Management Area C, as
requested by the commenter, because Management Area A serves as core
habitat for the survival, reproduction, and dispersal of the NEP, and
Management Area B is meant to accommodate natural movement or dispersal
by grizzly bears.
The Service included Federal lands in Management Area B to
acknowledge their greater potential for use by grizzly bears than most
areas in Management Area C and because the Federal lands can complement
the recovery within the NCE Recovery Zone. The primary difference in
management between Management Areas B and C and Management Area A is
the additional allowance of authorized conditioned lethal take by an
individual within Areas B and C.
The delineation of Management Areas does not alter or affect any
National Forest System land management decision or activity. Rather,
the delineation provides different tools in managing grizzly bears in
accordance with the specific Management Area. The 10(j) rule provides
for greater flexibility in management of grizzly bears on these lands
than without the 10(j) rule. The framework of the 10(j) rule is
designed for restoration of grizzly bears in the NCE Recovery Zone and
solely applies to the area within the NEP boundary within Washington
State.
The need for the tools and flexibilities that a 10(j) experimental
population designation provides has been a recurring theme in public
comment and community conversations starting with the previous North
Cascades Grizzly Restoration Plan/EIS process that was terminated in
2020 (85 FR 41624, July 10, 2020). The intent of the 10(j) rule is to
limit the potential impacts of reintroduction of this listed species to
improve tolerance.
Grizzly bears reintroduced into the NCE Recovery Zone are highly
unlikely to disperse to the Olympic Peninsula due to the distance,
geographic barriers, and human population centers. Grizzly bears
similarly would also need to cross significant barriers to reach the
Columbia Plateau. Including these areas in the Management Area C does
not mean that we intend on reintroducing or recovering populations
there. However, including these areas within the NEP boundary and under
Management Area C serves to ensure we account for any unexpected
dispersal of bears to those areas and to allow for the greatest level
of management flexibility should that occur. If those regions of
Washington were not included as part of the NEP area, any grizzly bears
that dispersed to these areas would be managed as threatened under the
4(d) rule.
Bear management units are delineated within recovery zones as part
of recovery planning and used in aid of habitat and population
monitoring; they were not used to designate management areas. All the
bear management units for the NCE Recovery Zone are included in
Management Area A. While management flexibilities available on private
lands may provide for additional lethal take, the Service will monitor
all lethal take and will not consider lethal take a first resort for
conflict
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management particularly on public lands, which comprise the bulk of the
NCE Recovery Zone.
Comment: Commenters, including Representative Dan Newhouse,
expressed concern that the proposed restoration plan does not comply
with Washington State Law (RCW 77.12.035).
Response: Washington State law does not preclude the NPS and the
Service from reintroducing grizzly bear as proposed. The Washington
State Office of the Attorney General has interpreted the provision to
prohibit only the Washington Department of Fish and Wildlife (WDFW)
from transplanting or introducing bears into the State (see Federalism
(E.O. 13132), below, for further discussion of co-management with
Washington).
Comment: Commenters expressed concern about adequate funding for
agency staffing, outreach and education, nonlethal control measures
(e.g., electric fences, bear-resistant garbage containers), conflict
management, livestock depredation compensation, improvements to
sanitation, and food storage infrastructure. One commenter suggested
conservation organizations should be encouraged to provide those funds.
Response: The final EIS (NPS and USFWS 2024) includes further
analysis of costs associated with the restoration of grizzly bear in
the NCE in Appendix C. The Service will develop memorandums of
understanding with Federal, State, and Tribal agency partners to
document roles and responsibilities and identify sources for support in
implementing the rule (see Management Restrictions, Protective
Measures, and Other Special Management, below). Funding for programs,
including outreach and education, nonlethal control measures, conflict
management, livestock depredation compensation, and improvements to
sanitation and food storage infrastructure is often in partnership with
other agencies, States, Tribes, and nongovernmental organizations. The
Service will work with partners to model programs in the NCE after
similar successful programs in other grizzly bear ecosystems. In the
NCE, efforts are ongoing by WDFW, USFS, the North Cascades NPS complex,
and several nongovernmental organizations to provide communities with
resources, technical support, and education. We will work with partner
agencies and nongovernmental organizations to identify funding needs
and priorities, as well as potential sources.
Comment: A commenter expressed concern that the NCE grizzly bear
restoration plan is being proposed despite the need for the Service to
prioritize numerous other species with their limited resources, and
suggested a focus on land protection, habitat restoration, and grants
to enhance species recovery. Commenters also stated that NCE recovery
efforts should not reduce resources supporting current and ongoing
grizzly bear recovery efforts in other ecosystems.
Response: The Service has established recovery plans for multiple
species including grizzly bear and works with partners to implement
recovery actions identified in the recovery plans. Funding of recovery
actions is provided by a combination of Federal appropriations to the
Service and other Federal agencies and from partner contributions. The
Service annually prioritizes and adjusts investment level in recovery
actions across multiple species based on multiple factors including
available Federal and partner funding. The Service seeks to recover
grizzly bears in all six recovery zones consistent with its Grizzly
Bear Recovery Plan (revised, USFWS 1993, entire) (hereafter Recovery
Plan). The NCE Recovery Zone has been managed to protect and secure
habitat for grizzly bears since 1997 (USFWS 1997, entire). Restoration
efforts will be carried out jointly between NPS and the Service and
interested partners. The Service will continue to work with our
Federal, State, Tribal, and other partners to prioritize Service staff
time to conduct grizzly bear outreach and education, provide technical
assistance, and assist with conflict management.
Comment: Multiple commenters expressed concerns about impacts to
the recovery of source populations. The State of Idaho Governor's
Office of Species Conservation (Idaho OSC), the Idaho Department of
Fish and Game (Idaho DFG), and Montana Fish, Wildlife, and Parks
(Montana FWP) stated concerns about impacts to U.S.-based source
populations of NCE and restoration efforts in GYE and NCDE and concerns
about coordination with responsible authorities in areas of potential
source populations. Another commenter suggested that source populations
of bears should not be in the lower 48 States and that bears should not
come from coastal food economies, while another opposed the transfer of
fully protected grizzlies from other States to the NCE, emphasizing the
importance of keeping grizzlies in their native habitats where they are
not yet fully recovered.
Response: As described in the rule, the Service expects to obtain
grizzly bears for reintroduction based on source populations that have
a positive growth rate, could withstand the loss of bears to support
the NCE, and have similar food economies to the NCE. The Service will
consider bears from a number of source populations, including British
Columbia, NCDE, and GYE. Implementation of the rule is not expected to
result in meaningful impacts to source populations (see Effects on Wild
Populations, below). Any bears sourced from the NCDE or GYE Demographic
Monitoring Areas will count against the mortality thresholds addressing
those populations. The Service will contact the relevant authorities to
develop specific plans for bear captures for translocation to the NCE
Recovery Zone before captures are implemented.
Comment: Commenters, including Montana FWP, commented on issues
related to the number of bears in a restoration population. Montana FWP
stated that recovery criteria are not established for the NCE Recovery
Zone and that the 200-400 grizzly bear carrying capacity number cited
in our proposed rule may not be adequate for recovery and delisting in
the NCE Recovery Zone, and questioned whether genetic connectivity or
genetic augmentation will be required. Another commenter stated that
the restoration population of 200 bears in the NCE is too low and
instead should be 1,000 bears to ensure long-term genetic viability.
Response: The section 10(j) rule does not set recovery criteria or
goals for the grizzly bear listed entity, nor is it required to do so.
Rather, the section 10(j) rule helps to implement recovery guidance
contained in the NCE supplement to the Grizzly Bear Recovery Plan
(USFWS 1997, entire), which recommended consideration of translocations
in aid of recovery (see ``Recovery Efforts to Date'' below). The
Service will take into account the need for genetic diversity as part
of the restoration effort starting with selection of source populations
that have high heterozygosity. The restoration plan and 10(j) rule
include monitoring of genetic diversity and adaptive management through
additional translocations if necessary to enhance heterozygosity and
long-term genetic viability of the NEP (see Capture and Release
Procedures, below).
Comment: Many commenters, including Tribes, raised concern over
human safety and the risk grizzly bears may pose for people living,
working, and recreating in the North Cascades. Other commenters
identified the need for additional education and outreach related to
bear safety and conflict
[[Page 36986]]
prevention, with some commenters highlighting the importance of
signage, grant opportunities, and direct engagement with communities.
Response: While grizzly bear attacks on humans are rare, they can
occur and can have serious consequences. While precautions must be
taken, our experience with grizzly bears in other ecosystems
demonstrates that human-bear conflict can be minimized with a variety
of tools, including the securing of attractants and maintaining
awareness of surroundings. Many of the precautions needed for living
and recreating among grizzly bears are also the same as for black
bears, which are already present in the ecosystem. The 10(j) rule
includes provisions affirming the ability of individuals to take bears
in self-defense and to allow individuals to deter bears out of close
proximity to people or property.
The Service will continue to provide information and education for
the public and affected communities about best practices for grizzly
bear safety. Education and outreach about how to minimize conflict is
an important part of project implementation, and we will work with
partners to increase outreach to people who live, work, and recreate in
the NCE and surrounding areas. Outreach and education efforts will be
modeled after similar efforts and practices developed in other grizzly
bear recovery ecosystems over multiple decades.
Comment: Commenters suggested that using grizzly bear forage
estimates from the Cabinet-Yaak Ecosystem (CYE) may be problematic, and
could lead to increased movements, human conflicts, and mortality
resulting from diet limitations. One commenter suggested that British
Columbia would be a better analog for climate and food selection than
the CYE or the diet of males in the NCDE and GYE that were referenced
in the proposed rule.
Response: The EIS includes an analysis of habitat suitability and
grizzly bear foods and vegetation types in the North Cascades. Many of
the vegetation types and available foods in the North Cascades are
similar to the CYE where grizzly bear food habits have been studied.
This makes the CYE a good analog to the NCE for evaluating potential
grizzly bear food use. We have also added a reference to grizzly bear
diets and dominant food sources in British Columbia (see Behavior and
Life History, below).
Comment: Commenters expressed concern over the possible impact that
grizzly bear restoration could have on salmon, game, and listed
species.
Response: Because grizzly bears historically occupied the
ecosystem, other species of fish and wildlife historically coinhabited
the NCE with grizzly bears. Restoring grizzly bears in the NCE will
contribute to restoring missing ecological interactions that help to
shape fish and wildlife habitat through seed dispersal, increasing
nutrient availability, and predator-prey dynamics (see van Manen et al.
2017, pp. 75-90). The final EIS provides a detailed assessment of
habitat suitability, predator-prey interactions, and food and
vegetation types, including elk and other ungulates, salmon, and
federally listed species (NPS and USFWS 2024, chapter 3: ``Grizzly
Bears'' and ``Other Wildlife and Fish'' sections).
In addition, the Service undertook an intra-service consultation
and a consultation with the National Marine Fisheries Service under
section 7(a)(2) and determined that the reintroduction of grizzly bears
under the rule is not likely to jeopardize grizzly bear or any other
ESA-listed species, including whitebark pine and ESA-listed salmon, nor
result in the destruction or modification of any designated critical
habitat for ESA-listed species.
Comment: One commenter stated the Service should consider how the
regulation should adapt as the grizzly bear population grows and
expands. One commenter asked that we consider including specific
triggers, derived from proposed monitoring information, that would
prompt specific changes in program implementation. One peer reviewer
suggested that we more clearly define adaptive management and provide
additional details on how adaptive management will be applied. One
commenter asked for more details on interagency coordination in
implementing monitoring and adaptive management.
Response: We updated the adaptive management section to clarify
that we are using the term adaptive management in the broad sense of
applying management interventions, monitoring outcomes, and modifying
future management actions to achieve grizzly bear restoration
objectives and maximize social tolerance. Based on our experience in
other ecosystems, this flexible approach to adaptive management (for
both management interventions and interagency coordination) is
necessary given that we are working in complex ecological and social
systems where management interventions are often context dependent.
Comment: Commenters stated that the 10(j) rule does not detail
monitoring methods and resources and stated that data sharing in other
recovery zones is helpful for outreach and management.
Response: Below, we describe how we intend to monitor reintroduced
grizzly bears (see Monitoring and Evaluation, below). Prior to
implementation of reintroduction, a strategy for monitoring will be
developed with further details of responsibilities between the Service
and other participating agencies, including how we will manage and
share data.
Comment: We received several comments relating to the 1997
agreement on `No net loss of existing core area within any bear
management unit' (hereafter `no net loss' agreement) with the NPS and
USFS. One commenter stated that the existing habitat protections for
core grizzly bear habitat reflected in the `no net loss' agreement may
not be sufficient. Other commenters noted that the `no net loss'
agreement will require monitoring, that data sets analyzing core
habitat and trail use need to be updated, and that the agencies should
work toward improving habitat connectivity. Several commenters stated
that the `no net loss' agreement should be extended to lands in
Management Area B or beyond to facilitate connectivity or prevent
habitat degradation.
Response: The Service is currently coordinating with the NPS and
USFS through the Interagency Grizzly Bear Committee (IGBC) North
Cascades Subcommittee Technical Team to update the baseline and
memorialize the `no net loss' agreement for the U.S. portion of the NCE
Recovery Zone. We expect the baseline update will include metrics such
as core habitat and trail data. We clarify in the final rule that the
intent is for the `no net loss' agreement as to NPS and National Forest
System lands to apply only within Management Area A, the focal area for
recovery of an NCE grizzly bear population.
Peer Reviewer Comments
As discussed in ``Peer Review'' above, we received comments on our
proposed rule from three peer reviewers. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the contents of the proposed rule. We summarize
substantive peer reviewer comments below that are not included in
``Comments Common to Multiple Groups.'' The peer reviewers generally
concurred with our methods and conclusions and provided additional
literature, information, clarifications, and suggestions to improve the
final rule. For example, all three peer reviewers agreed that our
description and analysis of the biology, habitat,
[[Page 36987]]
population trends, conservation status, and distribution of the species
were accurate and that our conclusions were accurate and supported by
the provided evidence, although one peer reviewer questioned the
exclusion of specific State lands from Management Area B. All three
peer reviewers shared that our proposed rule did not have any
significant oversights, omissions, or inconsistencies. Finally, the
peer reviewers provided additional literature for our consideration,
such as additional citations, and we incorporated the recommended
clarifications and literature, as needed.
Federal Agency Comments
One Federal agency, the Pacific Northwest Region of the USFS,
provided comments on the proposed rule. We summarize substantive
comments below that are not included in ``Comments Common to Multiple
Groups.''
Comment: USFS stated the Service's summary of access management in
the rule is too simplistic and should be deleted or changed.
Response: The access management definitions from the IGBC Task
Force Report on Grizzly Bear/Motorized Access Management (USFS 1997,
entire; IGBC 1998, entire) describe motorized access management across
all grizzly bear recovery zones; revising those definitions is outside
the scope of this rulemaking process. However, the Service has updated
its summary description of `no net loss', which requires maintenance of
the core grizzly bear habitat area and limits net gain of the road
network within the NCE, as recommended.
Comment: The USFS stated that some areas in Management Area B have
not yet adopted measures intended to reduce human-bear conflicts as in
other recovery zones where bears are present. The USFS provided as one
example, the Gifford Pinchot National Forest (NF), which may not have
food storage orders in place. The USFS stated that even on forests
where food storage orders exist, different measures need to be
implemented based on risk.
Response: We clarify that food storage orders are a requirement for
national forests and NPS lands only within Management Area A for the
purpose of incidental take allowance (see Incidental Take, below). Food
storage orders and other methods of securing attractants are important
tools for preventing human-wildlife conflict with many species (e.g.,
black bears), not just grizzly bears. We recognize that improved
sanitation and updated food storage infrastructure will be important
for reducing potential human-bear conflicts in Management Areas B and C
into the future.
Comments From States
We received comments from three State wildlife agencies, one
jointly with the Idaho State Governor's Office of Species Conservation,
which we summarize here and provide detailed responses to below. As
previously noted, the WDFW is a cooperating agency in the planning
process and the Service consulted with WDFW in the development of the
proposed rule. The WDFW expressed that, if an action alternative of the
FEIS is chosen, they support finalizing the rule to designate an NEP
and encouraged NPS and the Service to implement releases only on NPS
lands. Montana FWP expressed concern regarding potential negative
impacts on grizzly bear recovery efforts in other States from grizzly
bear restoration efforts in the NCE and establishing an NEP. Idaho OSC
and Idaho DFG opposed NCE restoration efforts and the establishment of
an NEP. We summarize substantive comments below that are not included
in ``Comments Common to Multiple Groups.''
Comment: Montana FWP commented that the proposed rule was
contradictory in stating that recovery of grizzly bears in each of the
six recovery zones is necessary while also stating that the NCE
population is not essential to the survival of the species in the wild.
Response: Reintroductions are, by their nature, experiments, the
fate of which is uncertain. However, it is always our goal for
reintroductions to be successful and contribute to recovery. The
importance of reintroductions to recovery does not necessarily mean
these populations are ``essential'' under section 10(j) of the Act. In
fact, Congress' expectation was that ``in most cases, experimental
populations will not be essential'' (H.R. Conference Report No. 97-835
at 34). The preamble to our 1984 publication of ESA 10(j) implementing
regulations reflects this understanding, stating that an essential
population will be a special case, and not the general rule (49 FR
33885 at 33888, August 27, 1984). The Service's objective to recover
grizzly bears in each of the six recovery zones is not in conflict with
the Service's determination that the North Cascades NEP will contribute
to that recovery but is not essential for the survival of grizzly bears
in the wild (see Is the Experimental Population Essential to the
Continued Existence of the Species in the Wild?, below).
Comment: Montana FWP disagreed with the use of the phrase
``excessive human-caused mortality'' in the proposed rule and stated
that extensive efforts in Montana and other States have minimized
human-caused mortality to ensure it is not ``excessive.'' Montana FWP
noted that current levels of human-caused mortality of grizzly bears in
the NCDE and GYE are not considered excessive because these mortalities
are below mortality thresholds at sustainable levels.
Response: We revised our discussion of threats to reflect that
while human-caused mortality is a primary threat, mortality thresholds
currently in place have mitigated this threat in those ecosystems such
that grizzly bear populations have increased in number and range (see
Threats, below). Mortality thresholds for the NCDE are documented in
the Recovery Plan (USFWS 1993, pp. 33-34) and in the NCDE Conservation
Strategy (NCDE Subcommittee 2019, entire). Thresholds for the GYE are
documented in the GYE Recovery Plan Supplement: Revised Demographic
Criteria (USFWS 2017, p. 6) and in the 2016 GYE Conservation Strategy
(YES 2016, p. 48).
Comment: Idaho OSC and Idaho DFG stated there was a lack of
coordination with ESA delisting petitions and efforts to develop
conservation strategies in other grizzly bear recovery zones, including
efforts by the Selkirk Cabinet-Yaak Subcommittee of the IGBC, or the
current EIS process considering grizzly bear restoration in the
Bitterroot Ecosystem (BE). Commentors stated the eastern boundary of
the NCE NEP makes unsupported assumptions about these recovery efforts.
Response: We developed the final rule based on the current listed
entity of the grizzly bear under the Act (i.e., as a threatened species
in the lower 48 States). The rule does not preclude the Service from
making future revisions to the listed entity. If the Service revises
the grizzly bear listed entity, the effect on this NEP, if any, would
be addressed at that time. The Service developed the eastern boundary
of the NEP based on grizzly bear data, human populations, and readily
discernable features (e.g., roads, Federal land boundaries). The 10(j)
rule does not interfere with or preclude developing a conservation
strategy by the IGBC Selkirk Cabinet-Yaak Subcommittee or considering
alternatives for addressing grizzly bear restoration to the BE.
Comment: Idaho OSC and Idaho DFG questioned to which listed DPS of
grizzly bear the experimental population belongs and what criteria
would be used to determine whether
[[Page 36988]]
that DPS is recovered. They expressed concerns that the NEP would not
itself qualify as a DPS and that establishing an NEP in the NCE could
preclude determinations regarding delisting of the grizzly bear.
Response: An experimental population is not a separate listed
entity (i.e., a DPS, subspecies, or species), but instead is considered
part of the listed entity (in this case, the grizzly bear lower-48
DPS). The reintroduction of an experimental population is intended to
further the recovery of the listed entity to which it belongs. We
anticipate that a restored grizzly bear population in the NCE will
contribute to the recovery of the listed entity, which includes grizzly
bears throughout the conterminous United States, by providing
additional population redundancy and representation. The NEP is part of
the current listed entity of the grizzly bear and does not preclude the
Service from revising the listed entity in the future, at which time
the effect, if any, on the NCE NEP will be considered. See Recovery
Efforts to Date and Effects of the Experimental Population on Grizzly
Bear Recovery for additional details on the recovery plan and efforts.
If grizzly bears are recovered and delisted under the Act, the
experimental population designation and associated regulation will also
be removed as part of the delisting rulemaking (see Exit Strategy,
below).
Comment: Montana FWP states they are hesitant to support removing
grizzly bears from the NCDE or GYE to support the reintroduction of
bears into the NCE because of the likelihood the bears could come into
conflict due to the NCE's proximity to the large human population of
the Puget Sound and because of the concern that the rule does not
provide adequate support for conflict prevention measures.
Response: We acknowledge that NCE is adjacent to the Puget Sound
region, which is densely populated by humans. However, several factors
support our determination that the NCE can support a viable grizzly
bear population that is no more susceptible to conflict than other
grizzly bear populations. First, the gradual reintroduction of grizzly
bears will provide agencies additional time to further develop conflict
prevention efforts and practices employed in other recovery areas.
Second, even at the eventual restoration population, the NCE will have
substantially lower grizzly bear population densities than either the
GYE or NCDE. Third, the NCE contains sufficient habitat and resources
to support the restoration population and is composed predominantly of
wilderness and IRAs that helps reduce the potential for conflict as
compared with, for example, grizzly bears in areas of subpar habitat
(often on private land, with high road densities). As noted above, we
expect to support the efforts necessary for the successful
reintroduction and management of this grizzly bear NEP through a
combination of resources from the Service and other partner Federal
agencies, WDFW, interested Tribes, and nongovernmental organizations.
Comment: Montana FWP suggested the Service consider more flexible
criteria for determining grizzly bears for translocation to the NCE
Recovery Zone (e.g., bears with some conflict history, bears from
dissimilar food economies).
Response: Translocating grizzly bears with no conflict history and
grizzly bears from similar food economies produces a greater chance of
success in the placement of these animals in the NCE Recovery Zone.
This approach has been successful with augmentation efforts in the
Cabinet Mountains in the CYE and is identical to the Montana FWP
proposal for moving bears with no history of conflicts to the GYE.
Comment: WDFW stated that releasing bears on non-NPS lands (e.g.,
USFS) could be more administratively complex for WDFW than releasing
bears on NPS lands because in WDFW's view the NPS Organic Act provides
clearer Federal support for releasing bears on NPS lands. In the
scenario of releases off NPS lands, WDFW stated it would need to
consider their position regarding RCW 77.12.035 and their role and
responsibility to permit the importation and release of wildlife in the
State of Washington. They encourage NPS and the Service to implement
releases only on NPS lands.
Response: The Service and NPS will prioritize release sites on NPS
lands but retain the option to conduct initial releases of grizzly
bears on National Forest System lands if unforeseen circumstances
prevent access to release sites on NPS lands (e.g., due to aircraft
issues). We will work with WDFW and the associated land management
partner, whether it is NPS or USFS, to avoid administrative
complications as appropriate.
Comments From Tribes
We received comment letters from two Tribes, the Sauk-Suiattle
Indian Tribe and the Upper Skagit Indian Tribe. The Sauk-Suiattle
Indian Tribe expressed general opposition to grizzly bear restoration
efforts as described in the draft EIS. The Upper Skagit Indian Tribe
expressed support for grizzly bear restoration with the designation of
a nonessential experimental population (Alternative C in the draft EIS
(NPS and USFWS 2023)). We summarize substantive comments below that are
not included in ``Comments Common to Multiple Groups.''
Comment: The Sauk-Suiattle Tribe highlighted concerns over the
threats that grizzly bears may pose to treaty rights, especially
regarding resource competition for salmon and berries.
Response: We discuss the potential effects of grizzly bear
restoration specific to Tribal lands and treaty right activities in
chapter 3 of the EIS, in the ``Ethnographic Resources'' section. The
effects on salmon and game are further addressed in chapter 3 of the
final EIS (NPS and USFWS 2024), in the ``Other Wildlife and Fish''
section.
Although grizzly bears forage on foods that the Sauk-Suiattle Tribe
gathers, the low number of grizzly bears spread across the NCE will
have a minimal effect on those food resources, including fish,
wildlife, and roots or berries. Preliminary results from northwest
Montana and north Idaho suggest grizzly bear diets, on average, are
composed of at least 20 percent berries during the summer months (USFWS
2019, p. 15). At that rate, we estimate an adult female grizzly bear
typically consumes an average of 2.5 gallons of huckleberries per day.
The bears, and this level of consumption, are expected to be
distributed across the NCE Recovery Zone rather than concentrated in
one area. Only minimal impacts on berry availability to humans are
anticipated from the consumption of berries by the initial population
levels of 25 bears and the eventual restoration population of 200
bears.
Comment: The Upper Skagit Indian Tribe requested that Tribal
consultation be conducted throughout the reintroduction implementation
process.
Response: The Service and the NPS will engage with and involve
affected Tribes throughout the implementation of grizzly bear
restoration to the NCE. Given the unique responsibility and government-
to-government relationship that the Federal Government has with
individual Tribal nations, Tribal consultation is always an ongoing
process and will continue for the duration of grizzly bear recovery
efforts in the NCE.
Comment: The Upper Skagit Indian Tribe highlighted the traditional
cultural connections between grizzly bears and the Upper Skagit Indian
Tribe and requested consideration of this traditional ecological
knowledge and history in support of draft EIS alternative C, including
designation of an NEP.
[[Page 36989]]
Response: The Service agrees that cultural connections and
traditional ecological knowledge are important considerations and have
factored these into the development of the rule. The traditional
ecological knowledge of Tribes and First Nations has provided some of
the evidence of historical grizzly bear presence in the NCE, and the
important cultural connections underscore the importance of restoring
and conserving a grizzly bear population in the ecosystem.
Congressional Comments
One Federal congressional representative, Congressman Dan Newhouse,
representing the 4th District of Washington, provided comments on the
proposed rule. We summarize substantive comments below that are not
included in ``Comments Common to Multiple Groups.''
Comment: Congressman Newhouse stated that the NPS and the Service
are not taking into the account the concerns of local communities. The
commenter expressed concerns about the format of the October 17, 2023,
virtual public meeting and the information presented in it,
particularly that the Service's and NPS's definition of ``substantive
comments'' limits public comment.
Response: During the public scoping period and comment period on
the proposed rule, nine public meetings took place, both virtually and
in-person, and the public was able to provide comment through a variety
of methods. (See ``Consultation with State, Local, Tribal, Federal, and
Affected Private Landowners,'' below, for more information).
As noted in the proposed rule and in the virtual public meeting,
comments merely stating support for, or opposition to, the action under
consideration without providing supporting information, although noted,
do not provide substantial information necessary to support a
determination or changes to the rule. Similar guidance on what
constitutes substantive comment is included in NEPA handbooks for both
the Service (USFWS 2014, p. 29) and the NPS (NPS 2015, p. 65). While
agencies consider only substantive comments regarding the NEPA document
for formal response, we do not discourage anyone from submitting their
thoughts on the proposed rule. Through the public comment process, the
agencies are made aware of stakeholder sentiment and factor that
perspective into the decision-making process.
Comment: Congressman Newhouse stated the concurrent release of the
draft EIS and proposed 10(j) rule indicates the agencies had already
made a decision.
Response: A decision had not been made with the concurrent release
of the draft EIS and proposed 10(j) rule. The proposed 10(j) rule is a
part of the Federal proposed action to restore grizzly bear to the
North Cascades. As such, the proposed 10(j) rule, and the environmental
effects of that proposed rule, are appropriately considered
concurrently. In the previous North Cascades Grizzly Restoration Plan/
EIS process, stakeholders repeatedly asked for more detailed
information about what possible management under a 10(j) experimental
population designation would entail. The proposed 10(j) rule was
responsive to those concerns and provided a specific framework for what
management of an experimental population could look like. Without both
documents being released simultaneously, the public would not be able
to fully evaluate the alternative in the draft EIS that includes
designation of an experimental population.
Public Comments
We received over 12,200 comments from the public, including
nongovernmental organizations, trade associations on behalf of their
memberships, local governments, and individual members of the public.
Comments included both opposition to and support for grizzly bear
restoration efforts in the NCE Recovery Zone and the designation of an
NEP, as well as specific provisions of the rule. We summarize
substantive comments below that are not included in ``Comments Common
to Multiple Groups.''
Comment: Some commenters were concerned that prevention of human-
bear conflict will result in travel restrictions, bear-proofing
requirements, and permitting requirements. One commenter noted the
possibility of restrictions on National Forest System lands outside of
the NCE Recovery Zone. Another commenter recommended prioritizing
efforts to provide bear-resistant food storage and bear-resistant
garbage containers at NPS and USFS campgrounds.
Response: While short-term closures of areas may occur to prevent
conflict (e.g., trail closure for several days because of a grizzly
bear known to be feeding on a carcass in the area), no long-term
closures or travel restrictions are planned (see Regulatory Planning
and Review--Executive Orders 12866, 13563, and 14094, below). The NPS
and USFS are currently working to improve sanitation and update food
storage infrastructure and implement food storage orders where they are
not already in place (see Management Efforts in the NCE and NCE
Recovery Zone, below). We clarify that food storage is a requirement
for National Forest System lands only within Management Area A for the
purpose of the incidental take exception to the general prohibition
against take (see Incidental Take, below).
Comment: A commenter stated that no bear should be preemptively
relocated if the bear is not a threat to human safety, particularly if
the bear has not become habituated or food-conditioned, or when
nonnatural foods/attractants have not been properly secured. Commenters
suggested that the Service should require the use of nonlethal
conflict-reduction measures, including securing attractants, bear-
resistant garbage containers, bear-resistant food cannisters, electric
fences, use of guard animals or other nonlethal methods for managing
conflict with livestock and domestic animals before bears are relocated
or lethally removed. One commenter suggested livestock owners must be
able to document and demonstrate the use of nonlethal deterrents.
Commenters suggested that relocation or lethal removal of bears should
only be considered after nonlethal management methods have been
exhausted. Commenters stated that lethal removal should not be allowed
for livestock depredations occurring on public lands.
Response: Relocation of bears should and will be a tool only used
when warranted, but bears may be relocated preemptively when
appropriate for recovery purposes. Relocating a bear before they become
habituated, food-conditioned, or a threat to human safety is sometimes
the best course of action to avoid human-bear conflict and improve the
likelihood of grizzly bear survival (see Management Restrictions,
Protective Measures, and Other Special Management, below). Throughout
the NEP area, we will consider lethal removal as a management tool only
when it is not reasonably possible to eliminate the threat through
nonlethal deterrence or live-capture and release of the grizzly bear
unharmed. Lethal take in self-defense or defense of others remains an
exception throughout the NEP area. We will employ methods and tools
developed in other ecosystems to reduce human-grizzly bear conflict
(including depredations) and/or increase the likelihood of finding and
documenting depredation events. Livestock conflicts are not always
preventable. Grizzly bears can cause significant losses in some
instances, but a quick management response can increase social (or
public) tolerance for
[[Page 36990]]
grizzly bears. We will not prohibit lethal removal for livestock
depredation on public lands, but it should not be the first choice.
Comment: One commenter requested a definition for the phrase
``lasting bodily injury'' in reference to injuries a bear might sustain
during deterrence and hazing activities. One commenter requested the 5-
day window for reporting injuries be changed to 24 hours.
Response: We added a definition for ``lasting bodily injury'' to
the final rule. The 5-day reporting window is consistent with our
practices under the existing 4(d) rule for the grizzly bear outside the
NEP, and we retain that reporting window for this NEP. In other grizzly
bear ecosystems with this same 5-day reporting requirement, partners
report this type of injury immediately. We would anticipate the same
response in the NCE but include a 5-day reporting window in recognition
that reporting an injury within 24 hours is not always feasible.
Comment: A commenter expressed concern that unintentional lethal
take may occur when hazing grizzly bears and requested specific
guidance on acceptable and unacceptable hazing methods.
Response: We have added some specific examples of what deterrence
methods are considered acceptable, and which ones are not (see
Deterrence, below).
Comment: One commenter stated that the 10(j) rule does not provide
enough flexibility for agricultural producers. The commenter stated
that requiring confirmation of depredation in Management Area B and
determination of a demonstrable and ongoing threat in Management Area C
will result in harm to producers. Two commenters requested detail on
what an ``ongoing threat'' means in regard to grizzly bear conflict
with livestock.
Response: In the final rule we clarified and defined what we mean
by ``demonstrable and ongoing threat'' and ``in the act of attacking''
(see Sec. 17.84 Species-specific rules--vertebrates, in the rule
portion of this document). The Service or authorized agencies will
respond to conflicts in all Management Areas and will determine the
best management action moving forward, including lethal control. Lethal
take authorization with conditions will be evaluated on a case-by-case
basis. Individuals can also conduct intentional nonlethal deterrence
and employ preventative tools (e.g., electric fences) to prevent
conflicts prior to a confirmed depredation or a human safety threat. In
addition, we added a provision allowing lethal take of bears in the act
of attacking livestock, including working dogs, if it occurs on private
lands in Management Area C (see Management Area Management Actions,
below).
Comment: A commenter requested that forest managers, loggers, and
others conducting otherwise lawful forest management activities be
included in the list of those authorized to conduct nonlethal
deterrence activities.
Response: We updated the rule to confirm that individuals, which
includes forest managers, loggers, and others conducting otherwise
lawful forest management activities, may take nonlethal action to haze,
disrupt, or annoy a grizzly bear out of close proximity to people or
property to promote human safety, prevent conflict, or protect property
(see Management Restrictions, Protective Measures, and Other Special
Management, below).
Comment: One commenter expressed concern that lethal take would
occur near logging operations. Other commenters disagreed with
exemption of incidental take in the 10(j) rule, particularly lethal
incidental take allowed as part of forestry actions, because it could
seemingly affect an unlimited number of bears in a variety of
unspecified scenarios.
Response: Based on our experience in other recovery zones, we
expect lethal take as part of forestry actions to be very rare. The
highest quality grizzly bear habitat and the location of most release
sites are expected to be in wilderness where logging activities do not
occur. If grizzly bears do overlap with logging operations, we expect
most take to be in the form of harassment rather than lethal take. The
Service and NPS considered an alternative in the EIS that would
reintroduce grizzly bears with existing ESA protections, including the
general prohibition against incidental take. As discussed further in
the final EIS and our Record of Decision, we selected Alternative C:
Restoration with ESA section 10(j) designation as the preferred
approach as it allows for take in various circumstances to reduce the
regulatory burden associated with reintroduction. The Grizzly Bear
Recovery Plan calls for maintaining human-caused mortality below 4
percent of the population for all recovery zones (USFWS 1993, pp. 20-
21). Because we anticipate the NCE population to remain low for the
near future, we will attempt to keep human-caused mortality to zero.
However, zero mortalities may not be practical given the need to
protect human safety and property, and due to accidental mortalities
(e.g., vehicle collisions).
Comment: One commenter requested more detail on what ``humane
manner'' means, in terms of lethal removal of grizzly bears. Another
commenter requested we remove the term humane and asserted that it is
not possible to humanely remove, i.e., kill, an animal.
Response: We revised the rule to clarify that ``humane'' means with
compassion and consideration for the bear and minimizing pain and
distress. We consider it possible to humanely treat an animal when
lethally removing it and therefore decline to remove the term or the
requirement.
Comment: A commenter stated that baited foot snares should not be
used to capture bears intended for reintroduction to the NCE. Another
commenter requested that we develop a humane capture and handling
protocol due to the potential for injury and stress, particularly with
foot snare traps.
Response: While trapping is expected to occur largely with culvert
traps, foot snares have been used safely for research captures of
grizzly bears in other areas and may be the source of trapping for some
bears for this restoration effort. Culvert traps are not as portable as
foot snares, which offer more opportunities to trap in remote locations
where we would expect to locate bears without a history of conflicts.
Agencies currently capture and handle grizzly bears humanely using the
techniques such as culvert traps or foot snares followed by
anesthetization and radio collaring (Jonkel 1993, entire).
Comment: Two commenters stated that a quick response is essential
when responding to livestock depredations and expressed concern that
government delays will hamper response. One commenter requested that
authorizing conditioned lethal take should be allowed in all three
management areas. One commenter requested that conditioned lethal take
authorization last 4 weeks rather than 2 weeks. One commenter expressed
concern about the length of time allowed for time-limited
authorization.
Response: A quick response is important when responding to
livestock depredations. We currently work closely and effectively with
authorized agencies in four ecosystems in Idaho, Montana, and Wyoming
to ensure minimal delay. We expect to establish the same relationships
and protocols with authorized agencies in the NCE. Authorized agencies
may remove grizzly bears in conflict in all Management Areas of this
NEP if the bear meets the criteria for removal. However, as Management
Area A is entirely public land and core recovery habitat, we will
[[Page 36991]]
not support authorizing bear removals in Management Area A by
individuals other than the Service or a Federal, State, or Tribal
authority of an authorized agency and expect to work with the affected
Federal land managers to address any conflict concerns.
In response to the comments, we reevaluated the timeframes for
lethal take authorization. In the proposed rule, we proposed a 2-week
timeframe; however, we reconsidered because of the potential for
killing the wrong bear with an extended timeline. With a longer
timeline, the greater the possibility bears may move, and different
bears may enter the area. As a result, we are not extending the
timeline but instead are reducing it to 5 days. The Service may extend
authorization of lethal take to individuals for an additional 5 days if
there are additional grizzly bear depredations or injuries to livestock
and circumstances indicate the offending bear can be identified.
Comment: Several commenters stated the provisions or sideboards
describing when lethal removal of bears involved in conflict is allowed
are unclear, and it is unclear as to when and why it might not be
``reasonably possible to otherwise eliminate the threat by non-lethal
deterrence or live capturing and releasing the grizzly bear unharmed in
a remote area.'' One commenter requested uniformity across all three
Management Areas for decisions about lethal removal.
Response: Determining whether to lethally remove a grizzly bear is
a complex decision process, involving highly variable and fact-specific
situations. As such, it is impossible to identify parameters to account
for and describe all possible scenarios in the rule. Decisions on
lethal removal will be based on many factors, including the ability to
identify a particular bear (e.g., markings, collars, track size, canine
spacing), the individual bear involved (e.g., sex, age, presence of
dependent young, conflict history), relevant conflict history in the
immediate area, and number of bears in the area. The Service has a
history of making well-informed and timely decisions about lethal
removal across four ecosystems with multiple authorized agencies in
Idaho, Montana, and Wyoming. We expect to establish similar practices
and protocols in the NCE. The Service also revised the final rule to
improve clarity regarding the circumstances in which we will authorize
lethal removal but retained the ``not reasonably possible'' language
allowing for appropriate judgment and discretion based on the
circumstances.
Comment: Many commenters opposed lethal control authorizations for
livestock owners or private individuals, citing public safety risks,
likelihood of accidental wounding of bears, and potential for taking
the wrong bear. Commenters stated that lethal control should be
performed only by the Service or authorized agency personnel. One
commenter suggested instead supplying ranchers with tranquilizer darts,
whereby bears would await relocation by Federal officials, if a threat
to livestock were posed.
Response: Nonlethal actions (e.g., relocation, securing
attractants, or deterrence) are always the first options to address
conflicts, and authorization of lethal take for individuals will be
considered only after these options had failed or were deemed nonviable
by the Service or an authorized agency. The two exceptions are when
individuals kill a bear in defense of self or others, or the limited
conditioned exception for take of a bear in the act of attacking
livestock or working dogs on private lands in Management Area C. The
final rule affirms that authorization of lethal take will be issued
only after depredations are confirmed by the Service or an authorized
agency and if the Service or authorized agency concludes an ongoing
threat to human safety, livestock, or other pertinent property exists.
As discussed in the previous response, the Service will authorize
lethal take based on many factors. The Service expects to outline these
factors and communication and coordination support with authorized
agencies in the agency-specific Memoranda of Understanding (MOUs). If
the Service decides to authorize lethal removal, that authorization
will carry clear conditions and be time-limited. Lethal removal for
conflicts (other than in cases of self-defense, or for the limited
exception in Management Area C described) must be performed by the
Service, a Federal, State, or Tribal authority of an authorized agency
in accordance with the Service-agency MOU, or via prior written
authorization to the individual in accordance with the rule.
Comment: Several commenters indicated that the nonlethal incidental
take reporting requirements due to `habitat modification resulting from
otherwise lawful activities' are impractical and should be exempted
from reporting.
Response: We did not intend for the general reporting requirements
for nonlethal take to apply to incidental take in the form of harm via
habitat modification; rather, we require reporting when lethal or
nonlethal take occurs as a result of direct interactions with the
grizzly bear (e.g., through self-defense, deterrence, conflict
management, or vehicle collision, etc.) and clarified the reporting
requirements accordingly. Incidental take of a grizzly bear in the form
of harm via habitat modification is not prohibited within the NEP area.
Habitat modification impacts will still be identified as a result of
Federal actions on NPS or NWRS lands for which section 7(a)(2)
consultation requirements remain. Any recommended reporting of habitat
modification impacts will be part of the associated section 7(a)(2)
biological opinion if applicable. Relatedly, as incidental take is not
prohibited as a result of USFS actions within Management Area A
provided the USFS maintains its `no net loss' agreement as it pertains
to securing grizzly bear habitat, and the USFS is not required to
consult under section 7(a)(2) on its proposed actions in the NEP area,
we expect the USFS will maintain appropriate records on its `no net
loss' agreement to confirm its actions are within the 10(j) rule
incidental take exception.
Comment: A commenter stated that the Service failed to provide any
analysis to explain how lethal take of grizzly bears on Federal public
lands to protect livestock grazing on public lands serves a
conservation purpose. In addition, they stated that the proposed rule
and draft EIS lacked adequate consideration of alternative mechanisms
for Federal lands that would better take into account the authority
that Federal land managers have to protect the reintroduced population,
better fulfill the conservation purpose of section 10(j), and better
align with the duty imposed on such agencies under section 7(a)(1) of
the Act to further conservation of the species.
Response: When we assess the conservation value of designating an
experimental population and reintroducing a listed species, we evaluate
the totality of the conservation and management actions associated with
that designation, recognizing that some flexibility in managing the
reintroduced population may be necessary to build support for the
reintroduction. Lethal take on Federal lands in Management Area A is
limited to the Service and authorized agencies only if it is not
reasonably possible to otherwise eliminate the threat by nonlethal
deterrence or live-capturing and releasing the grizzly bear unharmed
and the taking is done in a humane manner. This is similar to the
management of grizzly bears listed as threatened under the Act in other
[[Page 36992]]
ecosystems under the 4(d) rule. Therefore, the NEP designation does not
represent a substantial change to the way grizzly bears are managed in
relation to grazing allotments on Federal lands under the 4(d) rule.
Comment: One commenter requested that the 10(j) rule authorize a
grizzly bear hunting season.
Response: The rule does not address or authorize grizzly bear
hunting. Hunting regulations in Washington are established by State and
Tribal authorities. Grizzly bears are currently listed as a State
endangered species in Washington, and we do not expect that, even with
this reintroduction, grizzly bear populations will become large enough
to sustain recreational harvest anytime in the near future.
Comment: A commenter noted that in the preamble of the proposed
rule and draft EIS that we specified unintentional incidental take
would be exempted provided such take is nonnegligent but noted that we
did not specify it in the text of the rule itself; they considered this
to misleadingly describe a more protective rule.
Response: We updated the exceptions to the general take prohibition
in the rule to clarify that take must be unintentional and nonnegligent
for the incidental take exception to apply.
Comment: One commenter expressed concern that reintroducing grizzly
bears would require additional regulations that would hamper forestry
activities and wildfire response on Federal and non-Federal lands.
Another commenter recommended clarifying that permissible incidental
take should include any habitat modification from otherwise lawful
forest management activities consistent with the Forest Practices Act
and pursuant to an approved habitat conservation plan, section
10(a)(1)(A) permit, or similar authorization.
Response: The final rule is not expected to hamper forestry
activities or response to wildfires on Federal or non-Federal lands.
Under the 10(j) rule, as with all designated NEPs, consultation under
section 7(a)(2) of the Act is not required for Federal actions if they
do not occur on a National Wildlife Refuge or NPS land. On National
Forest System lands, this means consultation under section 7(a)(2) is
not required, even if the proposed Federal action may affect grizzly
bears of the NEP; however, Federal agencies including the USFS are
still required to confer with the Service, consistent with section
7(a)(4), for any agency action that is likely to jeopardize the
continued existence of the listed species. In addition, provided the
USFS retains its agreement regarding maintaining core secure habitat in
Management Area A, incidental take from a USFS action in Management
Area A is allowed. On all non-Federal land, including State-managed
lands, take of a grizzly bear is allowed if the take is incidental to,
and not the purpose of, an otherwise lawful activity, and reported in
accordance with the rule. Private land and State-managed lands within
the NEP are in Management Area C, with the most flexibility in regard
to grizzly management tools. We do not expect the NEP to hamper or
substantially modify forest health treatments or otherwise lawful
forestry activities, including those consistent with the Forest
Practices Act, on Washington Department of Natural Resources (WDNR) and
National Forest System lands.
Comment: A commenter requested that road use permits granted by the
USFS on non-Federal lands be exempt from section 7(a)(2).
Response: In accordance with our general section 10(j) regulations,
USFS proposed actions, including the proposed issuance of USFS permits,
will not require consultation under section 7(a)(2) within the NEP area
when authorizing activities under USFS permits, which includes road use
permits on non-Federal lands.
Comment: One commenter recommended that section 7(a)(1) be applied
only to the NCE Recovery Zone rather than the entire proposed NEP
boundary, noting that the proposed rule recognized Management Area C as
possibly unsuitable for grizzly bear.
Response: Section 7(a)(1) of the Act requires all Federal agencies
to use their authorities to carry out programs for the conservation of
listed species. Under the Act, section 7(a)(1) remains applicable to
all Federal agencies regardless of an NEP designation (see section
10(j)(2)(C)(i)). However, Federal agencies have broad discretion in how
they fulfill their responsibilities under section 7(a)(1), and for
grizzly bears within the NEP boundary, we anticipate that most agencies
will focus their efforts within the NCE Recovery Zone.
Comment: Two commenters stated that the Service provides no
evidence to the claim that added flexibility under the 10(j) rule would
increase social tolerance and therefore success of the population.
Response: The need for the tools and flexibilities that a 10(j)
experimental population designation provides was a recurring theme in
public comment and community conversations beginning with the previous
North Cascades Grizzly Restoration Plan/EIS process that was terminated
in 2020. In our experience, by limiting impacts to property and safety,
and providing more tools to address threats, the public's receptivity
and tolerance to having grizzly bears on the landscape is likely to
improve.
In the GYE, residents involved in resource extraction industries,
livestock operators, and hunting guides were opposed to land-use
restrictions that were perceived to place the needs of grizzly bears
above human needs (Kellert 1994, p. 48; Kellert et al. 1996, p. 984).
Surveys of these user groups have shown that they tolerate large
predators when they are not seen as direct threats to their economic
stability or personal freedoms (Kellert et al. 1996, p. 985). By
increasing management flexibility, including allowing private citizens
to take bears in certain situations, we believe the 10(j) rule will
reduce conflicts and increase acceptance of grizzly bears.
Comment: Several commenters were concerned about the impacts of
black bear hunting on grizzly bears due to mistaken identification, and
that accidental killing of grizzly bears due to mistaken identity could
result in prosecution under the Act. Other commenters stated that the
10(j) rule should not include a reference to the potential for mistaken
shooting prosecution because of the ``McKittrick Policy.'' Commenters
stated concerns about the potential for hound hunting of black bears
being extended to grizzly bears as allowed by recent legislation in
Montana and Idaho.
Response: The WDFW implemented a regulation that requires black
bear hunters to take and pass a bear identification test when hunting
black bears in specific areas within grizzly bear recovery zones, with
the intent of minimizing the potential for accidental killings of
grizzly bears due to mistaken identification (see Management Efforts in
the NCE and NCE Recovery Zone, below). As to potential prosecution for
mistakenly shooting a grizzly bear, the Service retains the general
prohibitions against take of grizzly bears of the NEP other than as
excepted by the 10(j) rule and retains the language that taking a
grizzly bear that is wrongfully identified as another species is not
considered ``incidental take'' and is not allowed under the rule. The
determination of whether the shooting of a grizzly bear is a mistake is
a fact-specific inquiry subject to investigation, which is not
precluded by the McKittrick Policy (which is addressed to Federal
prosecutors regarding appropriate jury instructions, see WildEarth
Guardians v. U.S. Dep't of Justice, 752 Fed. Appx.
[[Page 36993]]
421 (9th Cir. 2018)). The decision to pursue prosecution is subject to
the discretion of the applicable authority. The McKittrick Policy would
not apply to prosecution determinations by the State of Washington
under State law. As such, we retain the language that prosecution may
result. As to the concern about hound hunting, Washington State law
prohibits the use of hounds for hunting of black bear (see Washington
Administrative Code 220-413-060).
Comment: One commenter suggested tools and actions used to address
future impacts be based on prior large carnivore restoration efforts.
One commenter requested we consider management tools described in the
Colorado gray wolf NEP.
Response: We evaluated a range of management tools, including those
described in the Establishment of a Nonessential Experimental
Population of the Gray Wolf in Colorado (88 FR 77014, November 8,
2023). Grizzly bears present different management challenges than
wolves because of their life-history traits, such as long time to
parturition, slow reproducing, and sensitivity to mortality. The
management tools we selected were chosen to facilitate grizzly bear
recovery in a landscape shared with people.
Comment: A commenter suggested that species protections under a
10(j) rule are not adequate because the rule reduces habitat
protections and may result in more bears being killed than under the
4(d) rule. One commenter stated that the 10(j) rule does not analyze
how much more lethal take will occur under the rule compared to the
4(d) rule. One commenter stated that the Service should not rely on
information from the NCDE and GYE to assess potential impacts to a
reintroduced grizzly bear population in the NCE as the 10(j) regulation
will provide less protection to the NCE population than the NCDE and
GYE populations receive under the 4(d) rule.
Response: As previously noted, the Service is currently
coordinating with the NPS and USFS to update the baseline and
memorialize the `no net loss' agreement for the U.S. portion of the NCE
Recovery Zone, providing for the habitat security needed in support of
grizzly bears in the Management Area A, the focal area for recovery of
an NCE grizzly bear population. It is possible that more grizzly bears
may be killed in the NCE under the 10(j) rule than had the Service
decided to reintroduce grizzly bears to the ecosystem under the current
4(d) rule given the greater restrictions on lethal removal for grizzly
bears under the 4(d) rule, but this is not a certainty. While
designation as an NEP provides greater management flexibility than the
existing 4(d) rule, that greater flexibility does not necessarily mean
increased lethal take of grizzly bear. The management tools of the
10(j) rule are designed in large part to help the Service and
authorized agencies to intervene to avoid situations that are likely to
result in human-bear conflicts in the first place. Also, the additional
management flexibility provided in the 10(j) rule is optional, not
required, and lethal removal in particular is still subject to prior
Service approval, with limited exceptions. In addition, the recovery
plan calls for maintaining human-caused mortality below 4 percent of
the population for all recovery zones (USFWS 1993, p. 20). Because we
anticipate the NCE population to remain low for the near future, we
will attempt to keep human-caused mortality to zero.
In terms of relying on information from the NCDE and GYE to assess
potential impacts to the reintroduced population, the Service has
tailored the 10(j) rule to focus on the NCE Recovery Zone, where
protections similar to the 4(d) rule will apply. Therefore, we can use
our experience managing grizzly bear populations in other ecosystems to
assess potential effects to a reintroduced population in the NCE,
particularly in Management Area A where the recovery effort is
targeted. In addition, our experience managing grizzly bears under the
4(d) rule in the NCDE and GYE helped inform what additional flexibility
for the NEP would be valuable in helping address issues with grizzly
bears on the landscape.
Comment: A commenter stated that the Wildlife Crossings Program
needs to be implemented with any translocation to reduce the threat
that car or train collisions pose to grizzly bears.
Response: Part of what makes the NCE quality grizzly bear habitat
is its large contiguous blocks of wilderness with comparatively few
roads and railways, such that wildlife crossings may be less of an
issue than in other areas, although the threat is not eliminated given
the non-wilderness areas within the NCE. We will use a mortality
management framework to ensure that total mortality rates do not
approach an unsustainable level, and will limit discretionary
mortalities (i.e., management removals) if total mortality numbers
(including any mortalities due to vehicle or train collisions) do not
support an increasing population. Currently, more than 20 crossing
structures over or under highways have been completed in Washington on
the southern edge of the NCE Recovery Zone connecting areas south of I-
90 to the NCE Recovery Zone (WSDOT 2023). Washington State Department
of Transportation, their partners, and working groups continue to
prioritize wildlife connectivity in Washington with special focus on I-
90 and connecting the Cascades to the Kettle Mountain Range and Rocky
Mountains (WSDOT 2023; Conservation Northwest 2023a; Conservation
Northwest 2023b).
Comment: A commenter requested that the EIS and 10(j) rule describe
habitat management components outside of travel management (i.e.,
motorized road management) and should include habitat management
components that support prey species, such as elk and other big game
species. They also recommended that the EIS and 10(j) rule include a
summary of active projects designed to improve habitat for wildlife,
fuels reduction, timber management, etc., within the NCE and proposed
NEP boundary, and an assessment of how grizzly bear restoration will
affect active forest management projects.
Response: Consistent with other recovery areas, the Service's focus
is on securing core habitat for grizzly bears, using motorized road
management as the principal metric. This does not preclude partner
agencies such as the NPS and USFS from providing other habitat
management components, such as for prey species, through their planning
processes, but these are beyond the scope of this rulemaking. The final
EIS includes a cumulative effects analysis which addresses in part
other ongoing and reasonably foreseeable planned projects that may
affect the grizzly bear restoration plan; based on this analysis, we do
not expect this NEP to affect active forest management projects.
Comment: A commenter stated that the EIS and 10(j) rulemaking
process should be delayed allowing for additional modeling of high-
value grizzly bear habitat outside of the NCE Recovery Zone. Several
commenters expressed concerns about the lack of more specific
demographic goals and clear recovery criteria for the NCE Recovery
Zone.
Response: Recovery zones represent the Service's expectation of
core areas for grizzly bear recovery in part because of their high-
value habitat for grizzly bear. At approximately 9,500 mi\2\ (25,000
km\2\) in size, the NCE Recovery Zone is the largest of six recovery
zones and represents an area large enough and of sufficient habitat
quality to support a recovered grizzly bear population. While bears
will likely disperse from and occupy areas outside the NCE
[[Page 36994]]
Recovery Zone in the future, we expect recovery actions to remain
focused there due to the quality and quantity of habitat. The NCE
supplement to the Grizzly Bear Recovery Plan provides general
demographic and habitat assumptions and goals, including that the
population will be considered recovered when it is large enough to
offset human-caused mortality, and when reproducing bears are
distributed throughout the recovery area (potentially between 200-400
grizzly bears) (USFWS 1997, p. 3).
Comment: One commenter questioned the projected annual growth rates
(2-4 percent) for the reintroduced population of grizzly bears in the
rule, particularly with a starting population of only 25 bears.
Response: To estimate the number of reintroduced bears needed to
reach an initial population of 25 bears, we used the survival rates of
bears placed in the CYE through augmentation. This survival rate of CYE
augmented bears is the best available information for the initial phase
of NCE reintroduction. We use the 2-4 percent projected annual growth
rate as only a range of possible growth rates based on other
populations in the CYE, GYE, NCDE, and Selkirk Ecosystem. Once the
population reaches 25 bears, the annual growth rate will be largely
dependent upon reproduction and survival of those 25 bears with
occasional additions to replace bears lost due to mortality or to
maintain genetic diversity.
Comment: A commenter suggested including additional metrics to
emphasize grizzly bear mortality and adaptation resulting from climate-
induced stressors. They suggested the following potential metrics:
availability of food source susceptible to adverse effects due to
climate change such as whitebark pine, body fat composition,
hibernation den entry and exit patterns, length and elevation of
hibernation, and climate-change-induced grizzly bear habitat changes.
Response: We will monitor the reintroduced population (see
Monitoring and Evaluation, below). If we observe changes to bear
mortality rates or other characteristics mentioned in this comment, we
may adjust our management or monitoring accordingly to ensure
conservation of the population (see Adaptive Management, below).
Comment: One commenter stated that the 10(j) rule does not allow
State game agencies to manage the population of grizzly bears from the
time of reintroduction to when population goals are met. They indicated
there is too much time between when the Federal Government releases
control to States and the implementation of a management plan.
Response: The Service retains the lead in management of grizzly
bears in the NEP as they are part of the overall efforts to recover the
federally listed grizzly bear in the United States. The Service will
continue to partner with the WDFW and coordinate with the IGBC as the
Service implements the 10(j) rule. The Service expects this
collaborative management to occur until the grizzly bear is recovered
and no longer requires listing under the Act. States that seek to
manage grizzly bears can speed that timeline to delisting by supporting
recovery efforts, including providing State management plans and
regulations that will protect the grizzly bear in absence of the Act's
protection.
Comment: A commenter suggested that a faster timeline for the
translocation of bears may be better biologically and more cost
effective than the 5-10 years proposed.
Response: The capture of bears within specific sex/age categories
and bears with no history of conflicts limits the number of bears
available or able to be captured in a given year. The adaptive
management framework provides an opportunity to adjust our methods as
results indicate.
Comment: Commenters asked what actions will be taken to ensure that
relocated bears remain in the relocation area, requested more
clarification about agency roles and responsibilities for the
management of grizzly bears that leave the NEP area or Washington
State, and expressed concern about the safety of bears emigrating into
neighboring States in the event of a delisting of other distinct
population segments.
Response: If a grizzly bear needs to be relocated within the NEP,
relocation sites will be identified in remote areas away from homes,
developed areas, and concentrated human use (see Management
Restrictions, Protective Measures, and Other Special Management,
below). Relocated grizzly bears will be able to move freely, and the
location of collared bears will be monitored via radio collars. Grizzly
bears that come into conflict may be relocated to remote locations as
warranted based on the type of conflict involved. Some reintroduced
bears will likely leave the NCE, but due to the large distances and
relatively low landscape permeability of the habitat between
reintroduction areas and surrounding States, we think few bears will
emigrate into adjacent States in the near future. However, if a grizzly
bear from the NCE migrates into adjacent States, it will be managed by
State, Federal, or Tribal authorities based on the listing status of
bears in that location. Grizzly bears from the U.S. portion of the NCE
emigrating into Canada will be managed by Canadian authorities.
Comment: One commenter said the Service should commit to returning
dispersing grizzly bears back to the NEP area and allow other agencies
to facilitate the return of such bears to the NEP area.
Response: Aside from grizzly bears that may move north to the NCE
in Canada, it is unlikely that reintroduced grizzly bears will disperse
outside of the NEP in the near future due to the limited habitat
connections and to human barriers. However, in the Cabinet Mountains
augmentation program, several translocated bears left the target area,
likely in attempt to return home. Some translocated bears in the NCE
will likely attempt to travel home; however, the distance to potential
source populations is much greater than in the Cabinet Mountains
program, which may limit dispersal attempts. The NCE in the United
States contains large blocks of unoccupied suitable habitat with
adequate food resources and relatively low landscape permeability to
areas outside of the NEP area. In the unlikely event that grizzly bears
move outside of the U.S. portion of the NEP during population
establishment, we will work with the relevant authorities to determine
the best course of action given the specific context of the situation.
Comment: Commenters stated that notification on release sites and
dates, and updates on the movement of collared bears, must be shared
with agricultural producers. One commenter expressed concerns about
collar technology not providing real-time data for proactive grizzly
bear management. One commenter provided suggestions on how translocated
bears should be monitored, pairing radio-transmitting Very High
Frequency (VHF) devices with Global Navigation Satellite System Ultra
High Frequency devices. Another commenter asked if translocated bears
would have ear tags.
Response: Prior to releases, the Service will coordinate with
relevant land management agencies, including local staff, to ensure
that no people or livestock are in close proximity to release sites.
The Service will provide periodic updates on bear movements to the
public, and for situations where collared grizzly bears are in areas
likely to result in conflict, the Service or the authorized agency will
work closely with the affected parties to reduce the potential for
conflict. If collar data is available for a bear involved in conflict,
[[Page 36995]]
current technology often allows managers to find the bear from the
ground and track its movements in real time. Remote monitoring is
limited by the frequency of satellite fixes (a tradeoff to battery
life); therefore, bear location information is more delayed. GPS radio
telemetry devices currently used by the Service already have a VHF
component that can provide other means of radio tracking in the event
of a satellite transmission failure. Translocated bears will have ear
tags.
Comment: A commenter stated that a quarantine and decontamination
protocol should be established for any bears considered for
translocation to prevent the spread of noxious weeds.
Response: Grizzly bears selected for translocation will typically
come from backcountry areas that are limited in invasive weed presence.
Bears will be held in a culvert trap after capture and during
transport, which should allow any ingested material to pass through the
gastrointestinal tract and be voided prior to release.
Comment: A commenter requested that a management plan be developed
to ensure a smooth and timely transition from Federal management under
the Act to State management upon reaching grizzly bear population
objectives.
Response: As stated in the final rule, if grizzly bears are
recovered and delisted under the Act, the experimental population
designation and associated regulation will also be removed as part of
the delisting rulemaking. In the event grizzly bears are considered for
delisting due to recovery, we will work with the appropriate States and
Tribes to develop plans for a smooth and timely transition of
management responsibilities.
Comment: A commenter suggested that bears with a history of human
contact may be better suited for translocation than those without.
Response: Bears with a history of human contact may be more prone
to seek out anthropogenic foods and come into conflict. We want to give
reintroduced bears the best chance to act as wild bears and avoid
humans and human-occupied areas. Therefore, we retain the bear
selection criteria described in Effects on Wild Populations.
Comment: Multiple commenters questioned if the NEP might be
modified based on various factors. One commenter asked whether, if
public tolerance rises to sufficient levels over the course of the
restoration, could the ESA listing status of the population be changed.
Another commenter noted that if bear mortality is too high the
population will not be able to recover and suggests a threshold of zero
human-caused mortalities in Management Area A. Yet another commenter
questioned if the reintroduction effort would be stopped or the
population re-designated as essential if the mortality reaches a
certain threshold.
Response: As stated in the final rule, we will consider removing
the NEP designation only if (a) the reintroduction has not been
successful, in which case the NEP boundaries might be altered or the
regulations in the rule might be removed; or (b) the grizzly bear is
recovered and delisted in accordance with the Act (see Exit Strategy,
below). While zero human-caused mortalities is best, zero mortalities
may not be practical given the need to protect human safety and
property, and due to accidental mortalities (e.g., vehicle collisions).
As discussed above, the recovery plan calls for maintaining human-
caused mortality below 4 percent of the population for all recovery
zones. Because we anticipate the NCE population to remain small for the
near future, we will attempt to keep human-caused mortality to zero. If
grizzly bears of the NEP experience unexpectedly high natural
mortality, if donor bears are not available, or if we conclude that we
and our partners have insufficient funding for an extended period to
support management of the NEP, we may consider ending the releases and
removing the NEP designation. This would be done only after
coordination with partners and a new public process where we would
evaluate the NEP designation before making any decisions to exit the
restoration program and remove or revise the 10(j) rule as appropriate.
Comment: One commenter requested that the 10(j) rule include an
``escape clause'' that authorizes the State to lethally remove all
grizzly bears in the NEP if the Service's nonessential determination
for the NEP is at risk due to litigation challenging that
determination.
Response: The Service does not consider an ``escape clause''
appropriate for the NCE grizzly bear NEP. Lethal removal of all grizzly
bears of the NEP is inconsistent with our goal of restoring grizzly
bears to the NCE. If litigation results in the Service being required
to reevaluate its nonessential determination for the NCE experimental
population, we will evaluate our management options at that time.
Comment: Commenters stated that we cannot designate an experimental
population because the NCE is not outside of the current range or
wholly geographically separate from nonexperimental populations. One
commenter cited the possible presence of three female grizzly bears
north of the border in British Columbia. Another commenter stated that
the NCE includes land in Canada and, therefore, introducing an
experimental population of grizzly bears lacks justification under the
Act because it would not be wholly geographically separate from other
populations of the species.
Response: In our most recent status review, we concluded that the
NCE Recovery Zone no longer contains a grizzly bear population (88 FR
41560 at 41579, June 27, 2023). We summarize why this experimental
population designation would be wholly separate from nonexperimental
populations in the Is the Experimental Population Wholly Geographically
Separate from Nonexperimental Populations? section, below).
Comment: One commenter stated that the proposal to make the 10(j)
rule's management provisions effective regardless of whether any
reintroduction of grizzly bears into the NCE has occurred yet is
inconsistent with section 10(j) of the Act and would violate NEPA
because this was not evaluated in the draft EIS.
Response: The 10(j) rule, consistent with the Act, defines how the
NEP can be identified, in this case by geographic area--the NEP area.
This is also consistent with the NEPA analysis, which has an
alternative (Alternative C) that includes restoration of grizzly bears
with a 10(j) nonessential population designation using geographic
location to identify members of the NEP. Nevertheless, in response to
this comment, we carefully reviewed how we will treat any bears in the
NEP area before and after translocation and have determined that it is
appropriate to change our approach.
The Act and our regulations define an experimental population as a
population (and any offspring arising solely therefrom) authorized for
release as experimental, but only when and at such times as the
population is wholly separate geographically from nonexperimental
populations. Likewise, experimental population releases are required to
be outside the current range of the species, and the Act and our
regulations require that we provide a means to identify the
experimental population. The purpose of these provisions is to ensure
that nonexperimental populations do not receive the reduced protections
associated with the NEP designation (49 FR 33885, August 27, 1984).
Based on the Act, our regulations, and the legislative history, we have
determined that the experimental population
[[Page 36996]]
designation should not apply before any individuals are released.
Therefore, the Service has changed its approach in this final rule
to better align with the intent and purpose of identifying the
experimental population, as reflected in our regulations. Any grizzly
bears that are found in the NCE NEP area before the Service has
translocated grizzly bears into the NEP area will be managed in
accordance with the 4(d) rule. However, after our initial release of
one or more grizzly bears into the NEP area, any grizzly bears--
including those moving from Canada into the NEP area--will be treated
as part of the NEP while they are present within the NEP area, with all
of the associated ESA protections and exceptions that apply to the
experimental population. As discussed under Is the Experimental
Population Wholly Geographically Separate from Nonexperimental
Populations?, we have concluded that it is unlikely that bears will
move into the NEP area from other U.S. populations and it is,
therefore, reasonable that any bears found after the initial release
originated from the release.
Comment: One commenter requested that the EIS and 10(j) rulemaking
process be put on hold until 12-month findings are issued by the
Service in response to petitions requesting the Service delist grizzly
bears from the Act in the GYE and NCDE.
Response: The Service's response to petitions requesting that we
remove the grizzly bear from the List of Endangered and Threatened
Wildlife is outside the scope of the rule. The 10(j) rule does not
preclude revisions to the listed entity. If the Service revises the
grizzly bear listed entity, the effect on this NEP, if any, will be
addressed at that time.
Comment: One commenter stated that, during grizzly bear mating
seasons, a moratorium on off-highway vehicle (OHV) use should be
enforced to ensure that the grizzly bears have the best chance of
reproducing.
Response: Management Area A, which is the core area targeted for
recovery of grizzly bears, is already largely composed of designated
wilderness, which precludes motorized access generally. In addition,
for those areas outside of wilderness, the `no net loss' agreement by
NPS and USFS within Management Area A will provide for the habitat
security needed in support of grizzly bears in this portion of the NEP
area. A moratorium on OHV use is not necessary to support the
restoration program in the NCE.
Final Rule Issued Under Section 10(j) of the Act
Background and Biological Information
We provide detailed background information on grizzly bears in a
separate Species Status Assessment (SSA) (USFWS 2022, entire).
Information in the SSA is relevant to reintroduction efforts for
grizzly bears that may be undertaken in Washington, and it can be found
along with this final rule at https://www.regulations.gov in Docket No.
FWS-R1-ES-2023-0074 (see Supporting and Related Material). We summarize
relevant information from the SSA below.
Taxonomy and Species Description
Grizzly bears are a member of the brown bear species (U. arctos)
that occurs in North America, Europe, and Asia. In the lower 48 States,
the grizzly bear subspecies occurs in a variety of habitat types in
portions of Idaho, Montana, Washington, and Wyoming. Grizzly bears
weigh up to 800 pounds (363 kilograms) and live more than 25 years in
the wild. Grizzly bears are light brown to nearly black and are so
named for their ``grizzled'' coats with silver or golden tips (USFWS
2022, p. 40).
Historical and Current Range
Historically, grizzly bears occurred throughout much of the western
half of the lower 48 United States, central Mexico, western Canada, and
most of Alaska. Prior to European settlement, an estimated 50,000
grizzly bears were distributed in one large contiguous area throughout
all or portions of 18 western States (i.e., Washington, Oregon,
California, Idaho, Montana, Wyoming, Nevada, Colorado, Utah, New
Mexico, Arizona, North Dakota, South Dakota, Minnesota, Nebraska,
Kansas, Oklahoma, and Texas). Populations declined in the late 1800s
with the arrival of European settlers, government-funded bounty
programs, and the conversion of habitats to agricultural uses. Grizzly
bears were reduced to less than 2 percent of their former range in the
lower 48 States by the time the species was listed as a threatened
species under the Act in 1975, with an estimated population (in the
lower 48 States) of 700 to 800 individuals (USFWS 2022, p. 4). The
grizzly bear is listed under the Act in the conterminous United States,
which comprises the lower 48 States. Unless specified otherwise, we use
the term ``the grizzly bear in the lower 48 States'' to refer to the
entity currently listed as a threatened species under the Act.
Since their listing under the Act, grizzly bear populations in the
lower 48 States have expanded in number and range. Current populations
combined contain approximately 2,200 bears and occupy portions of
Idaho, Montana, Wyoming, and Washington. Outside the lower 48 States,
approximately 55,000 grizzly bears exist in the largely unsettled areas
of Alaska and western Canada.
Grizzly Bear Ecosystems and Recovery Zones
The recovery plan refers to six grizzly bear ecosystems identified
to target the species' recovery (USFWS 1993, p. 10). Currently,
approximately 2,200 grizzly bears exist primarily in 4 ecosystems in
the lower 48 States: the NCDE, the GYE, the CYE, and the Selkirk
Ecosystem. There are no known grizzly bear populations in the remaining
two ecosystems, the NCE and BE, nor any known populations outside these
ecosystems, although we have documented bears, primarily solitary,
outside the NCE and BE. Current populations in the NCDE, Selkirk
Ecosystem, and CYE extend into Canada to varying degrees. Although
there is currently no known population in the NCE, it constitutes a
large block of contiguous habitat that spans the international border.
The Service has not explicitly defined ecosystem boundaries, but we
have identified recovery zones at the core of each ecosystem (USFWS
2022, p. 56) (figure 1). Therefore, each recovery zone pertains to a
specific area within the larger ecosystem.
At the time of the original recovery plan, grizzly bear
distribution within the lower 48 States was primarily within and around
areas identified as recovery zones (USFWS 1993, pp. 10-13, 17-18). The
Service identified the six recovery zones, which correspond with the
six ecosystems. These recovery zones and the most recent grizzly bear
population estimates for each zone are as follows:
(1) The GYE Recovery Zone in northwestern Wyoming, eastern Idaho,
and southwestern Montana (9,200 mi\2\ (24,000 km\2\)) at approximately
965 individuals inside the Demographic Monitoring Area (Gould et al.
2023, p. 37);
(2) the NCDE Recovery Zone of north-central Montana (9,600 mi\2\
(25,000 km\2\)) at approximately 1,138 individuals (Costello et al.
2023, p. 10);
(3) the NCE Recovery Zone of north-central Washington (9,500 mi\2\
(25,000 km\2\)), although no functional population of grizzly bears
currently exists in the NCE (see Status of Grizzly Bears in the North
Cascades Ecosystem, below);
[[Page 36997]]
(4) the Selkirk Ecosystem Recovery Zone of northern Idaho,
northeastern Washington, and southeastern British Columbia (2,200 mi\2\
(5,700 km\2\)) at approximately 83 individuals (Proctor et al. 2012, p.
31). An updated British Columbia-only estimate of 69 was made in 2022
though it includes some bears with home ranges in the United States
(Proctor et al. 2023 p. 2);
(5) the CYE Recovery Zone of northwestern Montana and northern
Idaho (2,600 mi\2\ (6,700 km\2\)) at approximately 60-65 bears (Kasworm
et al. 2023a, p. 43); and
(6) the BE Recovery Zone of central Idaho and western Montana
(5,830 mi\2\ (15,100 km\2\)), although no functional population of
grizzly bears currently exists in the BE.
NCE and NCE Recovery Zone Relation to the Experimental Population
Although the Service considers the North Cascades Ecosystem to
include areas within Canada, the North Cascades Recovery Zone is a
component of the ecosystem and occurs only within the United States.
Throughout this final rule, we will reference the broader North
Cascades Ecosystem, which includes habitat in Canada, as the ``NCE''
and reference its recovery zone (solely within the United States) as
the ``NCE Recovery Zone.'' The nonessential experimental population
area (see ``Experimental Population'' below) in this rulemaking action
encompasses the entire NCE Recovery Zone and the portion of the larger
NCE within the United States.
[GRAPHIC] [TIFF OMITTED] TR03MY24.001
[[Page 36998]]
Behavior and Life History
Adult grizzly bears are normally solitary except when females have
dependent young, but they are not territorial and home ranges of adult
bears frequently overlap. Home range sizes vary among ecosystems
because of population densities and habitat productivity. Average home
range size for males varies from 183 to 835 mi\2\ (475-2,162 km\2\) and
for females from 50 to 138 mi\2\ (130-358 km\2\) across the recovery
areas in the United States (USFWS 2022, p. 44).
Grizzly bears have a promiscuous mating system. Mating occurs from
May through July with a peak in mid-June. Average age of first
reproduction can vary from 3 to 8 years of age. Litter sizes range from
one to four cubs, although two is the most common. Cubs are typically
born in the den in late January or early February and typically remain
with the female for 2.5 years, making the average time between litters
(i.e., the interbirth interval) approximately 3 years. Grizzly bears
have one of the slowest reproductive rates among terrestrial mammals,
resulting primarily from the late age of first reproduction, small
average litter size, and the long interbirth interval. A population is
made up of numerous overlapping generations. It is possible for
mothers, daughters, and granddaughters to be reproductively active at
the same time. Grizzly bear females typically cease reproducing some
time in their mid-to-late 20s (Schwartz et al. 2003a, pp. 109-110;
USFWS 2022, pp. 44-45).
Grizzly bears hibernate for 4 to 6 months each year in winter to
cope with seasons of low food abundance. Grizzly bears in the lower 48
States typically enter dens between October and December. In the 2 to 4
months before den entry, bears increase their food intake dramatically
during a process called hyperphagia. Grizzly bears must consume foods
rich in protein and carbohydrates during this time (between August and
November) in order to build up fat reserves to survive denning and
post-denning periods. Grizzly bears typically hibernate alone in dens,
except for females with young and subadult siblings who occasionally
hibernate together. Most dens are located at higher elevations, above
8,000 feet (ft) (2,500 meters (m)) in the GYE and above 6,400 ft (1,942
m) in the NCDE and on slopes ranging from 30 to 60 degrees. Grizzly
bears exit their dens between March and May; females with cubs exit
later than other adults (Mace and Waller 1997, p. 37; Haroldson et al.
2002, p. 29; Kasworm et al. 2021a, pp. 51-54; Kasworm et al. 2021b, pp.
33-36; USFWS 2022, pp. 45-46).
When not hibernating, grizzly bears use a variety of cover types to
rest and shelter. Grizzly bears often select bed sites with horizontal
and vertical cover, especially at day bed sites, suggesting that bed
site selection is important for concealment from potential threats. The
relative importance of cover to grizzly bears was documented in a 4-
year study of grizzly bears in the GYE. Of 2,261 aerial radio signals
from 46 instrumented bears, 90 percent were located in forest cover too
dense to observe the bear (Blanchard 1978, pp. 27-29).
Grizzly bears make seasonal movements within their home ranges to
locations where food is abundant (e.g., ungulate winter ranges and
calving areas, talus slopes). They are opportunistic omnivores and
display great diet plasticity, even within a population, shifting their
diet according to foods that are most nutritious (i.e., high in fat,
protein, and/or carbohydrates) and available (USFWS 2022, pp. 47-48).
They will consume almost any food available including living or dead
mammals or fish, insects, worms, plants, human-related foods, garbage,
livestock, and agricultural crops. Cattle and sheep depredation rates
are generally higher where bear densities are higher and in later
summer months (Wells et al. 2018, pp. 5-6). In areas where animal
matter is less available, berries, grasses, roots, bulbs, tubers,
seeds, and fungi are important in meeting protein and caloric
requirements (USFWS 2022, pp. 47-48; LeFranc et al. 1987, pp. 111-114;
Schwartz et al. 2003b, pp. 568-569).
In general, an individual grizzly bear's habitat needs and daily
movements are largely driven by the search for food, water, mates,
cover, security, or den sites. Grizzly bears display dietary
adjustability across ecosystems and exploit a broad diversity of
habitat types. Large intact blocks of land directly influence the
quality and quantity of the species' resource needs, highlighting the
importance of this habitat factor to all life stages. The larger, more
intact, and ecologically diverse the block of land, it follows that
high-caloric foods, dens, and cover would be more readily available to
individuals. Grizzly bears also need large, intact blocks of land with
limited human influence and thus low potential for displacement and
human-bear or livestock-bear conflict that could result in human-caused
mortality. Grizzly bears in the lower 48 States need multiple resilient
ecosystems distributed across a geographical area to reduce the risk of
catastrophic events. A wide distribution of multiple ecosystems ensures
that all ecosystems are not exposed to the same catastrophic event at
the same time, thereby reducing risk to the species. Grizzly bears also
need genetic and ecological diversity across their range in the lower
48 States to adapt to changing environmental conditions (USFWS 2022,
pp. 98-100).
Kasworm et al. (2014, entire) evaluated grizzly bear food data from
the CYE. The CYE has a Pacific maritime climate that may be similar to
the climate in the central and western Cascade Mountains. Therefore, an
evaluation of grizzly bear food selection in the CYE could be useful
for predicting food habits of grizzly bears in the NCE. Huckleberry
(Vaccinium spp.) is an important component of the grizzly bear's diet
in the CYE. Data were collected over several years, using both isotope
analysis on hairs and scat. Isotope analysis showed a highly variable
use of meat (6 percent to 37 percent of diet), and that meat was found
in many scats in some months (40 percent of dry matter in April and
May), including fall (carrion). Overall, mammals and shrubs (berries)
constituted 64 percent of total dry matter annually. In a study
analyzing grizzly bear habitat selection, fitness, and density,
huckleberry patches were the most influential bottom-up factors
(Proctor et al. 2023, p. 48). In a diet study of grizzly bears in
several western ecosystems, researchers found that adult male grizzly
bears were more carnivorous than any other age or sex class, with diets
composed of around 70 percent meat (Jacoby et al. 1999, pp. 924-926).
Other sex and age groups of grizzly bears displayed diets similar to
black bears living in the same areas reflective of diets described by
Kasworm et al. 2014 (Jacoby et al. 1999, pp. 924-926). Grizzly bear
source populations may also include interior British Columbia. Grizzly
bear female diets in the interior of British Columbia were based
largely on plant material (58 percent) and terrestrial meat (31
percent) (Adams et al. 2017, pp. 7-10). Male diets were similar but had
a higher proportion of plants (63 percent) and less terrestrial meat (8
percent). These amounts are similar to those of the CYE diets, which
were largely plants (66 percent) and a lesser amount of terrestrial
meat (26 percent).
Threats
Excessive human-caused mortality, including ``indiscriminate
illegal killing,'' defense of life and property mortality, accidental
mortality, and management removal, was the primary
[[Page 36999]]
factor contributing to rangewide grizzly bear decline during the 19th
and 20th centuries, eventually leading to their listing as a threatened
species in 1975 (40 FR 31734, July 28, 1975). Habitat destruction,
modification, and isolation and conflict resulting from human access to
formerly secure habitat were also identified as threats in the 1975
listing. In the State of Washington, the northwest fur trade was
probably the primary driver of rapid grizzly bear decline in the period
1810-1870. In addition to the influx of trappers, resource extraction
and livestock production fragmented and degraded grizzly bear habitat
in Washington; a mining boom in the early 1800s created a rapid
increase in human activity and habitat alteration to accommodate mining
infrastructure and human settlements. In the NCE, grizzly bears were
also regularly shot and removed by herders of sheep and cattle, and by
the late 1800s habitat fragmentation and isolation of the ecosystem
accelerated due to the dominance of logging, as well as the expansion
of rural development, road and railway access, and orchards (Almack et
al. 1993, p. 3; Rine et al. 2020, pp. 5-13; USFWS 2022, p. 143).
Though human-caused mortality has been greatly reduced since the
1800s, human-caused mortality is still currently the primary factor
affecting grizzly bears at both the individual and ecosystem levels
(USFWS 2022, p. 7). However, mortality thresholds currently in place
have mitigated this threat such that grizzly bear populations have
increased in number and range in the lower 48 States. Human-caused
mortalities of grizzly bears currently include: (1) management
removals; (2) defense-of-life-killings; (3) illegal killings or
poaching; (4) accidental killings; and (5) mistaken-identity killing
(USFWS 2022, pp. 144-145). Human activities are the primary factor
currently impacting habitat security and the ability of bears to find
and access foods, mates, cover, and den sites. Users of public lands
and recreationists in grizzly bear habitat often increase the risk of
human-bear conflict by leaving containers of food, garbage, and other
bear attractants open or unstored (Gunther et al. 2004, pp. 13-14).
However, road access to grizzly bear habitat likely poses the most
imminent current threat to grizzly bears by reducing the availability
of the necessary large, intact blocks of land; increasing disturbance
and displacement of individual bears through increased noise, activity,
or human presence; and increasing mortality of individual bears through
vehicle strikes or other activities associated with human-caused
mortality (Proctor et al. 2019, p. 19; Schwartz et al. 2010, p. 661,
USFWS 2022, p. 117).
While existing motorized access levels are unknown on National
Forest System lands within the NCE (USFWS 2022, p. 212), there have
been prior assessments (Lyons et al. 2018, entire; Gaines et al. 2003,
entire; IGBC-NCE 2001, entire). However, the primary factors related to
past destruction and modification of grizzly bear habitat have been
reduced through changes in management practices that have been formally
incorporated into regulatory documents. In the NCE Recovery Zone,
approximately 64 percent of the public lands are designated Wilderness
Areas or IRAs, and the remaining Federal lands are managed under a `no
net loss' agreement that supports core habitat. Across the grizzly bear
range, all data collected by Federal, State, and Tribal agencies is
used to help identify where human-bear conflicts occur and compare
trends in locations, sources, land ownership, and types of conflicts to
inform proactive management of human-bear conflicts.
Fire is a natural part of all grizzly bear ecosystems, but fire
frequency, severity, and burned area may increase with late-summer
droughts predicted under climate change scenarios (Nitschke and Innes
2008, p. 853; McWethy et al. 2010, p. 55; Halofsky et al. 2020, p. 10;
Whitlock et al. 2017; pp. 123-131, 216, XXXII). In the North Cascades,
wildfire is projected to burn nearly four times more area by the 2080s
compared to the historical period of 1980 to 2006 (Halofsky et al.
2020, p. 10). High-intensity fires may reduce grizzly bear habitat
quality immediately afterwards by decreasing hiding cover, changing
movement patterns, and delaying regrowth of vegetation. Predators with
large territories, like grizzly bears, have more flexibility to exploit
resources in burned and unburned landscapes (as cited in Nimmo et al.
2019, p. 986). Moreover, in conifer-dominated forest ecosystems,
wildfires transition forest to earlier succession stages, which can
increase prey densities due to increases in the availability of
vegetative food resources (Snobl et al. 2022, pp. 14-15; Lyons et al.
2018, p. 10).
Even if cover is lost, movement is changed, and vegetation growth
is delayed, depending on their size and severity, fires may have only
short-term adverse impacts on grizzly bears while providing more long-
term benefits. For example, fire plays an important role in maintaining
an open forest canopy, shrub fields, and meadows that provide for
grizzly bear food resources, such as increased production of forbs,
root crops, and berries (Hamer and Herrero 1987, pp. 183-185; Blanchard
and Knight 1996, p. 121; Apps et al. 2004, p. 148; Pengelly and Hamer
2006, p. 129). Because grizzly bears have shown resiliency to changes
in vegetation resulting from fires, we do not expect altered fire
regimes predicted under most climate change scenarios to have
significant negative impacts on grizzly bear survival or reproduction,
despite the potential short-term effects on vegetation important to
grizzly bears. Climate models predict that the NCE will experience
substantial vegetation changes from longer growing seasons, drier
summer months and wetter winter and spring months, decreased snowpack,
and an increased number of disturbance events that are expected to
improve food resources for grizzly bears and thus increase habitat
quality (Ransom et al. 2018, p. 26). Modeling of grizzly bear habitat
in the North Cascades under various projected climate change scenarios
shows increased carrying capacity and increased potential grizzly bear
density estimates under all scenarios (Ransom et al. 2023, pp. 6-8;
USFWS 2022, table 27, p. 243). The complex relationship between changes
in climate, natural processes, and natural and anthropogenic features
will ultimately determine the future quality of grizzly bear habitat
across the ecosystem (Ransom et al. 2018, entire).
Status of Grizzly Bears in the North Cascades Ecosystem
In the Service's 2023 status review, we determined that the NCE no
longer contained a population of grizzly bears (88 FR 41560 at 41579,
June 27, 2023). We also indicated that we were continuing to evaluate
options for restoring grizzly bears to the NCE (88 FR 41560 at 41580,
June 27, 2023).
Factors contributing to the extirpation of a functional population
of grizzly bears from the NCE include historical habitat loss and
fragmentation and human-caused mortality (USFWS 2022, pp. 49-51).
Historical records indicate that grizzly bears once occurred throughout
the NCE (Bjorklund 1980, p. 7; Sullivan 1983 p. 4; Almack et al. 1993
p. 2, Rine et al. 2020, pp. 10-13). There has been no confirmed
evidence of grizzly bears within the U.S. portion of the NCE since 1996
when an individual grizzly bear was observed on the southeastern side
of Glacier Peak within the Glacier Peak Wilderness Area in the northern
Cascade Mountains of Washington State. The most recent direct evidence
of reproduction in the U.S. portion of the NCE was a confirmed
[[Page 37000]]
observation of a female and cub on Lake Chelan in 1991 (Almack et al.
1993, p. 34).
In the United States, most habitat within the NCE Recovery Zone is
federally owned and managed by the NPS including North Cascades
National Park, Ross Lake National Recreation Area (NRA), and Lake
Chelan NRA, and the USFS including parts of the Mount Baker Snoqualmie
NF and Okanogan-Wenatchee NF. Sixty-four percent of the NCE Recovery
Zone is protected from motorized routes due to designation as
Wilderness or protected from roads due to designation as IRAs. Despite
the lack of recent observations, five studies have evaluated portions
of the NCE for grizzly bear habitat suitability (Agee et al. 1989,
entire; Almack et al. 1993, entire; Gaines et al. 1994, entire; Lyons
et al. 2018, entire; Ransom et al. 2023, entire), and all conclude that
the U.S. portion of the NCE has the habitat resources essential for the
maintenance of a grizzly bear population.
Grizzly bear populations in Canada are not part of the U.S. listed
grizzly bear entity. However, suitable habitat within the NCE spans the
international border. The NCE within Canada is relatively isolated from
other ecosystems with grizzly bear populations in Canada (Morgan et al.
2019, p. 3). The current range of grizzly bears in British Columbia is
divided into 55 grizzly bear population units (GBPUs) that are used for
monitoring and management. The British Columbia North Cascades GBPU is
immediately north of the U.S. portion of the NCE and is isolated and
small, with several surveys (DNA sampling, live-trapping effort, aerial
survey for a helicopter darting attempt) between 1998 and 2003 yielding
only one DNA sample and one sighting that included a female with
offspring (USFWS 2022, appendix E, p. 321). To the north and west of
this GBPU lie the Stein-Nahatlach and Garibaldi-Pit GBPUs, which are
also small and largely isolated with estimated female populations of 12
and 2, respectively (Morgan et al. 2019, p. 19). All three of these
units are ranked as being of extreme management concern (Morgan et al.
2019, p. 21) using the NatureServe methodology, integrating rarity
(e.g., range extent, population size), population trend, and severity
of threats to produce a conservation status rank for discrete
geographical units (Morgan et al. 2019, p. 6). The International Union
for the Conservation of Nature classified these populations as
critically endangered on their Red List due to small size and isolation
(McLellan et al. 2017, p. 2). The Kettle-Granby GBPU lies 60 mi (97 km)
to the northeast of the NCE across the Okanogan River in British
Columbia with an estimated female population of 48 grizzly bears in
2018 (Morgan et al. 2019, p. 19). Based on this information there
appears to be little demographic or genetic connectivity from other
GBPUs to the North Cascades GBPU or to the NCE Recovery Zone.
Recovery Efforts to Date
In accordance with section 4(f)(1) of the Act, the Service
completed the grizzly bear recovery plan in 1982 (USFWS 1982, entire)
and released a revised recovery plan in 1993 (USFWS 1993, entire; other
revisions and supplements affecting other populations can be found in
ECOS). Recovery plans serve as ``road maps'' for species recovery--they
lay out where we need to go and how to get there through specific
actions. Recovery plans are not regulatory documents and are instead
intended to provide guidance to the Service, other Federal agencies,
States, Tribes, and other partners on methods of minimizing threats to
listed species and on criteria that may be used to determine when
recovery is achieved.
In 1993, the Service revised the grizzly bear recovery plan to
include additional tasks and new information that increased the focus
and effectiveness of recovery efforts (USFWS 1993, pp. 41-58). In 1997,
we released a supplemental chapter to the recovery plan to guide
recovery in the NCE Recovery Zone (USFWS 1997, entire). In our recovery
plan supplement for the NCE Recovery Zone, we outlined the following
recovery goals for the U.S. portion of the NCE:
(1) that the population is large enough to offset some level of
human-induced mortality despite foreseeable influences of demographic
and environmental variation; and
(2) reproducing bears are distributed throughout the NCE Recovery
Zone. Such a population may comprise 200-400 grizzly bears in the U.S.
portion of the ecosystem (USFWS 1997, p. 3).
This supplement to the recovery plan supported fostering grizzly
bear restoration in the NCE Recovery Zone, specifically identifying
translocations as an alternative for recovering this population (USFWS
1997, pp. 24-25).
Interagency Grizzly Bear Committee
In 1983, the IGBC was established ``to ensure recovery of viable
grizzly bear populations and restoration of their habitats in the lower
48 States through interagency coordination of policy, planning,
management and research'' (IGBC 1983, entire). The IGBC consists of
representatives from the Service, USFS, NPS, the Bureau of Land
Management, the U.S. Geological Survey, and representatives of the
State wildlife agencies of Idaho, Montana, Washington, and Wyoming. At
the ecosystem level, Native American Tribes that manage grizzly bear
habitat and county governments are represented, along with other
partners.
The IGBC NCE subcommittee guides and coordinates habitat management
and conflict prevention for grizzly bears in the NCE Recovery Zone
(USFWS 1997, p. 8). In 1997, the North Cascades NP Superintendent and
three NF Supervisors (Mount Baker Snoqualmie NF, Okanogan NF, and
Wenatchee NF) agreed to a `no net loss' agreement within any bear
management unit to protect and secure grizzly bear core area habitat in
the NCE Recovery Zone (see USFS 1997, entire), and they have managed
the NPS and National Forest System lands using that guidance since.
Under this approach, ``core area'' is defined as the area more than 0.3
mi (500 m) from any open-motorized access route or high-use
nonmotorized trail (more than 20 parties per week).
Management Efforts in the NCE and NCE Recovery Zone
A number of habitat management measures have been implemented
within the NCE Recovery Zone to improve habitat connectivity, habitat
security, and safety for grizzly bears and humans, in areas where
encounters are likely. These measures include management of human
access to grizzly bear habitat and improved sanitation and food storage
measures to prevent or minimize human-grizzly bear conflict.
Management of human access is one of the most important and
significant management strategies for grizzly bears (Proctor et al.
2019, pp. 22-33). It includes balancing the need for road and motorized
trail access with providing secure areas for grizzly bears. Access
management in the NCE Recovery Zone is guided by the `no net loss'
agreement described above (USFS 1997, entire). In simple terms, this
approach indicates that if a road is constructed or opened to motorized
travel, another road must be closed to motorized use in order to
maintain core habitat. Essentially, the open motorized access network
is managed for `no net loss' of core area habitat, which can entail a
variety of management strategies.
In an effort to minimize the potential for human-caused mortality
of grizzly bears, substantial outreach efforts have been put in place
by the NPS and USFS over the last 30 years to reduce unsecured
attractants (e.g., garbage,
[[Page 37001]]
anthropogenic food) and provide the public with tips on identifying and
managing with grizzly bears on the landscape (e.g., Western Wildlife
Outreach 2023; Braaten et al. 2013, pp. 7-8). The NPS has service-wide
food storage regulations (36 CFR 2.2(a), 2.10(d), and 2.14(a)),
including requiring campers to use food storage canisters or park-
provided food storage lockers at the North Cascades NPS Complex. The
Colville NF has a forest-wide, seasonal (April 1--December 1) food
storage order in place. Mount Baker Snoqualmie NF has a forest-wide,
year-round food storage order. Okanogan-Wenatchee NF does not currently
have food storage restrictions; however, developing a food storage
order is part of its 2024 Program of Work, and NF employees continue to
place bear-resistant facilities, including food storage lockers, at
campgrounds.
It is illegal to negligently feed, attempt to feed, or attract
large carnivores to land or a building in Washington State (see Revised
Code of Washington (RCW) 77.15.790). There are exceptions for
individuals engaging in acceptable practices related to waste disposal,
forestry, wildlife control, and farming or ranching operations. Any
person who intentionally feeds or attempts to feed or attracts large
carnivores to land or a building is guilty of a misdemeanor (see RCW
77.15.792). The WDFW has also implemented a regulation that requires
black bear hunters to take and pass a bear identification test when
hunting black bears in specific areas, with the intent of minimizing
the potential for accidental killings of grizzly bears because of
mistaken identification (WDFW 2023, p. 70).
State and Canadian Protections
Grizzly bears are State-listed as an endangered species in
Washington (RCW 77.12.020; Washington Administrative Code 220-610-010;
Lewis 2019, p. 1). In British Columbia, grizzly bears are ranked as
``Special Concern'' by both the British Columbia Conservation Data
Centre and federally under Canada's Species at Risk Act (B.C.
Conservation Data Centre 2023; SARA 2018). The International Union for
Conservation of Nature (IUCN) identifies four populations within
British Columbia on the IUCN Red List of Threatened Species, including
three that border Washington State with Red List Categories reflecting
heightened extinction risk (North Cascades-Critically Endangered, South
Selkirk-Vulnerable, and the Yahk/Yaak-Endangered, McLellan et al. 2016,
pp. 1-2).
The feasibility of recovering grizzly bears in the Canadian portion
of the NCE is under consideration in British Columbia. First Nations
have declared grizzly bears within the North Cascades GBPU as in
immediate need of restoration and protection (ONA 2014, entire; Piikani
Nation 2018, entire). The British Columbia Government in collaboration
with Canadian First Nations have established a Joint Nation partnership
to outline population recovery objectives and strategies in a North
Cascades Grizzly Bear Stewardship Strategy (in review). The team is
also developing a communication strategy to assess public reception for
recovery in the area. Additionally, the Provincial Government has
identified management options for all grizzly bear populations as
outlined in the British Columbia Grizzly Bear Stewardship Framework (in
review). Should augmentation efforts occur in British Columbia, some
grizzly bears reintroduced into the Canadian portion of the ecosystem
may move into the NEP area in the United States, either as transients
that return to Canada or that ultimately remain in the United States.
Statutory and Regulatory Framework
Section 9 of the Act (16 U.S.C. 1538) sets forth the prohibitions
afforded to species listed under the Act. Section 9 of the Act
prohibits take of endangered wildlife. ``Take'' is defined by the Act
as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or attempt to engage in any such conduct. Section 7 of the Act
outlines the procedures for Federal interagency cooperation to conserve
federally listed species and protect designated critical habitat. It
mandates that all Federal agencies use their existing authorities to
further the purposes of the Act by carrying out programs for the
conservation of listed species. It also requires that Federal agencies,
in consultation with the Service, ensure that 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 of the Act does
not affect activities undertaken on private land unless they are
authorized, funded, or carried out by a Federal agency.
The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included
the addition of section 10(j), which allows for populations of listed
species planned to be reintroduced to be designated as ``experimental
populations.'' The provisions of section 10(j) were enacted to
ameliorate concerns that reintroduced populations will negatively
impact landowners and other private parties by giving the Secretary of
the Interior greater regulatory flexibility and discretion in managing
the reintroduced species to encourage recovery in collaboration with
partners, especially private landowners. The Secretary may designate as
an experimental population a population of endangered or threatened
species that will be released into habitat that is capable of
supporting the experimental population outside the species' current
range. Under section 10(j) of the Act, we must make a determination as
to whether or not an experimental population is essential to the
continued existence of the species based on best available science. Our
regulations define an essential population as one whose loss would be
likely to appreciably reduce the likelihood of the survival of the
species in the wild. All other experimental populations are classified
as nonessential (50 CFR 17.80(b)).
We treat any population determined by the Secretary to be an
experimental population as if we had listed it as a threatened species
for the purposes of establishing protective regulations under section
4(d) of the Act with respect to that population (50 CFR 17.82). We may
apply any of the prohibitions of section 9 of the Act to the members of
an experimental population, including the prohibitions against the sale
or possession, import and export, or ``take'' (50 CFR 17.82). The
designation as an experimental population allows us to develop tailored
``take'' prohibitions that are necessary and advisable to provide for
the conservation of the species. The protective regulations adopted for
an experimental population will contain applicable prohibitions as
appropriate, and exceptions for that population, allowing us discretion
in devising management programs to provide for the conservation of the
species.
Section 7(a)(2) of the Act requires that Federal agencies, in
consultation with the Service, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or adversely modify its critical habitat. We treat
an NEP as a threatened species when the population is located within
the National Wildlife Refuge System (NWRS) or unit of the NPS, and
those programs are required to consult with us under section 7(a)(2) of
the Act (50 CFR 17.83; see 16 U.S.C. 1539 (j)(2)(C)(i)). When NEPs are
located outside of an NWRS or NPS unit, for the purposes of section 7,
we treat the population as proposed for listing and
[[Page 37002]]
only sections 7(a)(1) (50 CFR 17.83) and 7(a)(4) (50 CFR 402.10) of the
Act apply (50 CFR 17.83). In these instances, NEPs allow additional
flexibility in managing the nonessential population because Federal
agencies are not required to consult with us under section 7(a)(2).
Section 7(a)(1) requires all Federal agencies to use their authorities
to carry out programs for the conservation of listed species. Section
7(a)(4) requires Federal agencies to confer (rather than consult) with
the Service on actions that are likely to jeopardize the continued
existence of a species proposed to be listed.
Section 10(j)(2)(C)(ii) of the Act states that critical habitat
shall not be designated for any experimental population that is
determined to be nonessential. Accordingly, we cannot designate
critical habitat in areas where we establish an NEP.
Before authorizing the release as an experimental population of any
population (including eggs, propagules, or individuals) of an
endangered or threatened species, and before authorizing any necessary
transportation to conduct the release, the Service must find by
regulation that such release will further the conservation of the
species. In making such a finding the Service uses the best scientific
and commercial data available to consider:
(1) Any possible adverse effects on extant populations of a species
as a result of removal of individuals, eggs, or propagules for
introduction elsewhere (see Effects on Wild Populations, below);
(2) the likelihood that any such experimental population will
become established and survive in the foreseeable future (see
Likelihood of Population Establishment and Survival, below);
(3) the relative effects that establishment of an experimental
population will have on the recovery of the species (see Effects of the
Experimental Population on Grizzly Bear Recovery, below); and
(4) the extent to which the introduced population may be affected
by existing or anticipated Federal or State actions or private
activities within or adjacent to the experimental population area (see
Actions and Activities in Washington That May Affect Reintroduced
Grizzly Bears, below).
Furthermore, as set forth at 50 CFR 17.81(c), all regulations
designating experimental populations under section 10(j) of the Act
must provide:
(1) appropriate means to identify the experimental population,
including but not limited to its actual or proposed location, actual or
anticipated migration, number of specimens released or to be released,
and other criteria appropriate to identify the experimental population
(see Means To Identify the Experimental Population, below);
(2) a finding, based solely on the best scientific and commercial
data available, and the supporting factual basis, on whether the
experimental population is, or is not, essential to the continued
existence of the species in the wild (see Findings, below);
(3) management restrictions, protective measures, or other special
management concerns for that population, which may include, but are not
limited to, measures to isolate and/or contain the experimental
population designated in the regulation from nonexperimental
populations (see Management Restrictions, Protective Measures, and
Other Special Management, below); and
(4) a process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species (see Review and Evaluation of
the Success or Failure of the NEP, below).
Under 50 CFR 17.81(e), the Service must consult with appropriate
State fish and wildlife agencies, affected Tribal governments, local
government agencies, affected Federal agencies, and affected private
landowners in developing and implementing experimental population
rules. To the maximum extent practicable, rules issued under section
10(j) of the Act represent an agreement between the Service, the
affected State and Federal agencies, Tribal governments, local
governments, and persons holding any interest in land or water that may
be affected by the establishment of an experimental population.
Hereafter in this document, we refer to the regulations for
establishing the NEP of the grizzly bear within the U.S. portion of the
NCE as the ``10(j) rule.''
Experimental Population
Experimental Population Area
The geographic area for the grizzly bear NEP occurs within the U.S.
portion of the NCE and encompasses the entire NCE Recovery Zone. It
also includes all of Washington State except an area in northeastern
Washington around the Selkirk Ecosystem Recovery Zone where there is
currently a population of grizzly bears (see figure 2). The
northeastern boundary of the NEP is defined by the Kettle River from
the international border with Canada, downstream to the Columbia River,
to its confluence with the Spokane River, then upstream on the Spokane
River to the Washington-Idaho border. We are designating an NEP area
beyond the NCE Recovery Zone to allow management of grizzly bears
within the NCE Recovery Zone as well as grizzly bears that move outside
of the NCE Recovery Zone.
In the U.S. portion of the NCE, the majority of land is under
Federal ownership managed primarily by the USFS, including portions of
the Mount Baker Snoqualmie NF and the Okanogan-Wenatchee NF, and the
NPS. The North Cascades NPS complex includes North Cascades NP, Ross
Lake NRA, and Lake Chelan NRA.
In drawing the NEP area and management area boundaries, we
considered the following: Those areas where a population of grizzly
bears could be successfully established; an evaluation of the
opportunities for grizzly bears to move between blocks of high-quality
grizzly bear habitat in Washington (Singleton et al. 2004, p. 96, USFWS
2022, pp. 305-309, Kasworm et al. 2022a, entire); the potential for
human-bear conflicts; grizzly bear movement data from other
populations; the location of the closest existing grizzly bear
populations and historical observations of dispersers from those
populations; ease of implementation (using readily discernible features
for management area boundaries such as roads and Federal land ownership
boundaries); and input from NPS, WDFW, USFS, and the public.
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[GRAPHIC] [TIFF OMITTED] TR03MY24.002
Management Areas
Within the NEP area, we identified three management areas (see
figure 2) based on suitability for occupancy by grizzly bears and the
likelihood of human-bear conflicts, which are often associated with
private lands. We are establishing these management areas to help focus
grizzly bear conservation within the NCE Recovery Zone and to allow
more flexible management in the remaining portion of the NEP. Details
of the management regulations for each management area are provided
below in Management Restrictions, Protective Measures, and Other
Special Management.
Management Area A includes the Mount Baker Snoqualmie NF, Okanogan-
Wenatchee NF, and Colville NF north of Interstate 90 and west of
Washington State Route 97, as well as the North Cascades NPS complex.
To define the Management Area A boundary, we used the NCE Recovery Zone
but then excluded State-owned and private lands so that it is easily
identifiable. Management Area A is the primary area for the
experimental population restoration and serves as core habitat for
survival, reproduction, and dispersal of the NEP. Management Area A
primarily consists of remote Federal lands that support grizzly bear
diet, habitat, and reproduction needs (see Behavior and Life History
section above). Therefore, Management Area A serves as the core habitat
for grizzly bear reintroductions, where all release sites would occur
(see Release Areas, below).
Management Area B includes the Mount Baker Snoqualmie NF and
Okanogan-Wenatchee NF south of Interstate 90, Gifford Pinchot NF, and
Mount Rainier NP. Management Area B also would include the Colville NF
and Okanogan-Wenatchee NF lands east of Washington State Route 97
within the experimental population boundary, though it is less likely
that bears will disperse into this area due to the distance from
Management Area A to the west. Management Area B is meant to
accommodate natural movement or dispersal by grizzly bears. We expect
some level of grizzly bear transience as well as occupancy in
Management Area B because of the existing habitat on public lands with
limited human influence, resulting in lower potential levels of human-
bear conflict (due to food storage regulations and limited human-
attractants).
Management Area C comprises all other lands in the NEP outside of
Management Area A and B, including non-Federal lands within the NCE
Recovery Zone. Although some areas within this management area are
capable of supporting grizzly bears, Management Area C contains large
areas that may be incompatible with grizzly bear presence due to high
levels of private land ownership and associated development and/or
potential for bears to become involved in conflicts and resultant bear
mortality. The intent of Management Area C is to allow more management
flexibility to minimize impacts of grizzly bears on landowners and
other members of the public.
The NEP area contains human infrastructure and activities that pose
some risk to the success of the restoration effort from human-caused
mortality of grizzly bears. These activities include both controllable
and uncontrollable sources of mortality. Controllable sources of
mortality are discretionary, can be limited by the managing agency, and
include authorized take and direct agency
[[Page 37004]]
control. Sources of mortality that will be difficult to limit, or may
be uncontrollable, occur regardless of population size and include
things such as natural mortalities, illegal take, and accidental deaths
(e.g., vehicle collisions, capture-related mortalities, defense-of-life
kills) (USFWS 2022, pp. 144-145). Accidental mortality caused by
vehicle collision is difficult to control but is not anticipated to be
a significant cause of mortality in the NCE. The main types of human-
caused mortality in the GYE, NCDE, CYE, and Selkirk Ecosystem Recovery
Zones result from human site conflicts (e.g., when grizzly bears are
drawn to areas with unsecured chickens, garbage, or bird and livestock
feed where individuals attempt to deter the bear or protect
themselves), self-defense, mistaken-identification kills, and illegal
kills, some of which can be partially mitigated through management
actions (Servheen et al. 2004, p. 21; USFWS 2022, p. 144). We expect
the same types of human-caused mortality identified within other
ecosystems to occur within the NEP.
Despite these human-caused mortalities, grizzly bear populations in
other ecosystems have continued to increase in size and expand their
current distribution (USFWS 2022, pp. 167-168). The NEP would build on
continuing success in recovering grizzly bears through longstanding
cooperative and complementary programs by a number of Federal, State,
and Tribal agencies. In particular, through coordination of policy,
planning, management, and research, and communication between Federal,
State, Tribal and Provincial agencies, the IGBC has proven to be a
successful model for agencies working cooperatively and coordinating
recovery efforts over multiple jurisdictions; substantial progress has
been made toward recovering the species in other ecosystems. With
continued coordination through the IGBC NCE subcommittee, we do not
expect Federal, State, Tribal, or private actions and activities in
Washington to have significant adverse effects on grizzly bears within
the NEP area.
For management of grizzly bears on Tribal lands, we expect to defer
monitoring and management of grizzly bears, consistent with this 10(j)
rule, to the relevant Tribe if they have the interest and capacity to
undertake that management. Otherwise, we expect that the Service and/or
other Federal and/or State bear management staff could assist in
grizzly bear management on these Tribal lands. The Service would
coordinate with the affected Tribe regarding Service grizzly bear
management actions on Tribal lands and could develop a memorandum of
understanding to further document expectations and roles for agency
involvement on Tribal lands if requested.
Grizzly bears in Washington State that are not within the NEP area,
i.e., grizzly bears that are within and around the Selkirk Ecosystem
Recovery Zone (see figure 2), would not be subject to management under
this final rule; they are subject to the existing species-specific rule
for grizzly bears under section 4(d) of the Act, found at 50 CFR
17.40(b).
Release Areas
Grizzly bear release areas would be limited to Federal lands and
include portions of North Cascades NP and Ross Lake NRA, administered
by NPS, and Glacier Peak, Pasayten, and Stephen Mather Wilderness
areas, administered by USFS. The Service will prioritize release sites
on NPS lands but retains the option to conduct initial releases of
grizzly bears on National Forest System lands if unforeseen
circumstances prevent access to release sites on NPS lands (e.g.,
aircraft issues). We will work with WDFW and the associated land
management partner (such as the USFS) to avoid administrative
complications as appropriate. Primary release sites would be remote
areas that could be accessed by helicopter and capable of accommodating
helicopter support staging areas (NPS and FWS 2024, p. 30). Secondary
release sites would be remote areas that could be accessed by vehicle
or boat transportation and capable of accommodating appropriate staging
areas. Secondary release sites would be considered if helicopter sites
were not available due to weather limitations affecting flight safety
or due to other logistical issues. Staging areas would be identified in
previously disturbed areas large enough for the safe landing of a
helicopter, parking for a fuel truck, and any other grizzly bear
transport and handling needs.
Release sites would be chosen based on habitat suitability,
connectivity to other release sites within the NEP, and the need to
have released grizzly bears in close proximity to one another to
facilitate interaction and breeding. Additional criteria for acceptable
release sites include the following:
Areas that consist largely of high-quality seasonal
habitat; specifically, areas that contain readily available berry-
producing plants that are known grizzly bear foods.
Areas that are largely roadless, are an adequate distance
from high visitor use and motorized areas, and have low human use.
Areas with a suitable helicopter landing site or a
suitable vehicle- or boat-accessible site with little public use.
Sites for subsequent releases of grizzly bears would be chosen
based on the criteria listed above and limited to Federal lands, unless
otherwise authorized by relevant authorities and landowners. Future
additional release sites would be informed by grizzly bear resource
selection as determined through monitoring of grizzly bears previously
released into the NEP.
Capture and Release Procedures
Grizzly bears will be captured using culvert traps as a primary
method, but foot snares may be used in some capture locations. Culvert
traps provide the option of releasing non-candidate bears without
anesthetization. All bears will be captured and handled humanely using
established protocols (Jonkel 1993, entire) and with effort to minimize
restraint time (Cattet et al. 2003, 651; Dickens et al. 2010, entire).
Helicopters will be used to transport culvert traps from which grizzly
bears would be released. It is possible that helicopter support will
also be used for the capture of grizzly bears through use of
helicopter-based capture darting. The capture and release of grizzly
bears will take place during the summer (June-September), depending on
the selected capture and release site(s) and food availability. Grizzly
bears will be moved and transported from capture locations to release
staging areas by vehicle. Grizzly bears will then be transported from
staging areas to remote release sites by helicopter or by vehicle or
boat on NPS or National Forest System lands in Management Area A (NPS
and USFWS 2024, pp. 30-31). Each release could take up to 8 hours (1
day) depending on the distance between staging and release areas,
potentially resulting in 5 to 10 days of helicopter use per year for
releases. Helicopters could make up to four round trip flights,
traveling approximately 500 ft (150 m) above the ground, and make up to
four landings in wilderness per release, which would be necessary for
the release of each grizzly bear and drop-off and retrieval of staff
and the culvert trap. All operations would be conducted during daylight
hours.
We will attempt to capture three to seven bears per year. Capture
success and availability of bears will govern the exact annual numbers
captured and source population(s). Additional grizzly bears could be
needed depending on a variety of factors, including human-
[[Page 37005]]
caused mortality, genetic limitations, population trends, and the
population's sex ratio. Population modeling indicates the need for
release of 36 bears into the NEP to obtain an initial population of 25
individuals in approximately 8-9 years (NPS and USFWS 2024, p. 32).
Until a population of 25 individuals is reached, we will capture and
release grizzly bears to replace any previously released grizzly bears
that die. We expect additional releases to maintain genetic diversity
in this population as determined by long-term monitoring. Bears
released would be roughly 60 percent or greater females, and ages of
all released animals (males and females) are expected to be 2-6 years
old.
How does the experimental population contribute to the conservation of
the species?
Under 50 CFR 17.81(b), before authorizing the release as an
experimental population, the Service must find by regulation that such
release will further the conservation of the species. We explain our
rationale for making our finding below. In making such a finding, we
must consider effects on donor populations, the likelihood of
establishment and survival of the experimental population, the effects
that establishment of the experimental population will have on recovery
of the species, and the extent to which the experimental population
will be affected by Federal, State, or private activities.
Effects on Wild Populations
Our regulations at 50 CFR 17.81 require that we 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 preferred donor populations for the reintroduction of
grizzly bears to the NEP occur in south-central British Columbia or in
the United States, such as the NCDE or GYE. We will seek source areas
that have a healthy grizzly bear population so that removal of grizzly
bears would not affect population viability, as the capture and removal
of grizzly bears would be considered a loss for the source population.
Sourcing NEP grizzly bears from NCDE, GYE, and/or south-central
British Columbia populations will not negatively affect the donor
populations for the following reasons. The NCDE and GYE demonstrate
stable to slightly increasing demographic trends with an estimated
1,114 grizzly bears in the NCDE and 965 bears in the GYE in 2021.
Further, grizzly bear distribution has expanded well beyond these
recovery zones (figure 1; USFWS 2022, pp. 63-67). Given the
demonstrated resilience and recovery trajectory of these populations in
the United States and Canada, and the limited number of grizzly bears
that will be translocated (36 grizzly bears to obtain an initial
population of 25 individual bears), we expect the donor populations in
the NCDE and the GYE to remain stable and persist despite the
translocation of these 36 individuals for the NEP. Further, the number
of individuals necessary for the NEP is minimal in relation to the
demographic recovery criteria and the annual mortality of the NCDE and
GYE populations; therefore, we do not expect translocations to the NCE
to cause population-level effects or impede connectivity from the NCDE
to the GYE. Further, the Service will coordinate with States to ensure
NCE translocations are balanced with other management needs (e.g.,
augmentation programs from NCDE to CYE and GYE). South-central British
Columbia has several GBPUs with a sufficient number of bears and
conservation status secure enough to use as sources. Wells Gray, North
Purcells, Central Rockies, and North Selkirk GBPUs have a combined
total estimated grizzly bear population of 1,100, and populations are
stable or increasing (Environmental Reporting BC, 2020, entire).
In addition to sourcing NEP grizzly bears from healthy populations,
we will prioritize source areas that are ecologically similar to the
NCE area and will only select grizzly bears that do not have a history
of coming into conflict with humans. We will attempt to capture grizzly
bears that share a similar ecology and food economy to potential
release areas. Food economy refers to the dominant foods available to
grizzly bears in a given area. Dominant foods in the NCE are expected
to be similar to the west side of the NCDE in northwestern Montana,
adjacent grizzly bear habitat in British Columbia, Canada, and grizzly
bear habitat in south-central interior British Columbia. In these
areas, berries are the dominant food source providing calories and
ultimately fat production necessary for a grizzly bear to successfully
hibernate and reproduce. As a result, these areas will most likely be
selected for capturing grizzly bears for release into the NEP as
compared, for example, to areas where grizzly bears rely predominately
on salmon (Adams et al. 2017, pp. 6-9). However, mortality thresholds
in these source populations may limit the number of grizzly bears
available for the NEP reintroduction effort, and other ecosystems, such
as the GYE, may be considered in those circumstances. If the number of
mortalities in a source population is close to or at the allowable
threshold for that year, we would not take bears from that source
population in that year.
Lastly, the entities managing the source area must also be willing
to donate grizzly bears that meet the selection criteria described
above and allow trapping of an adequate number of grizzly bears. We
will coordinate in advance with the relevant authorities managing the
potential source populations before seeking to capture and translocate
grizzly bears. All applicable regulatory requirements would be
fulfilled prior to translocation of grizzly bears.
Likelihood of Population Establishment and Survival
In our findings for designation of an experimental population, we
must consider if the reintroduced population will become established
and survive in the foreseeable future. In this section of the preamble,
we address the likelihood that populations introduced into the NEP area
will become established and survive. The term ``foreseeable future''
appears in the Act in the statutory definition of ``threatened
species.'' However, the Act does not define the term ``foreseeable
future.'' Similarly, our implementing regulations governing the
establishment of experimental populations under section 10(j) of the
Act use the term ``foreseeable future'' (50 CFR 17.81(b)(2)) but do not
define the term. Our implementing regulations at 50 CFR 424.11(d),
regarding factors for listing, delisting, or reclassifying species, set
forth a framework for evaluating the foreseeable future on a case-by-
case basis. The term foreseeable future extends only so far into the
future as we can reasonably determine that both the future threats and
the species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions as it relates to life history of the species and its
response to threats. While we use the term ``foreseeable future'' here
in a different context (to determine the likelihood of experimental
population establishment and to establish boundaries for identification
of the experimental population), we apply a similar conceptual
framework. Our analysis of the foreseeable future uses the best
scientific and commercial data available and considers the timeframes
applicable to the relevant effects of release and management of the
species and to the species' likely responses in
[[Page 37006]]
view of its life-history characteristics. Data that are typically
relevant to assessing the species' biological response include species-
specific factors such as lifespan, reproductive rates or productivity,
certain behaviors, and other demographic factors.
For the purposes of this final rule, we define the foreseeable
future for our evaluation of the likelihood of survival and
establishment of this NEP as approximately 30-45 years. We selected
this timeframe because it captures approximately two to three
generation intervals for the grizzly bear. A generation interval is the
approximate time that it takes a female grizzly bear to replace herself
in the population. Given the longevity of grizzly bears, two to three
generation intervals represent a time period during which a complete
turnover of the population would have occurred and any positive or
adverse changes in the status of the population would likely be
evident. Additionally, because human-caused mortality is the primary
threat to the species, this timeframe considers the possibility that
USFS land management plans, the primary regulatory mechanism managing
human access to grizzly bear habitat on Federal lands outside of
designated wilderness or NPS lands, could go through at least one
revision.
In evaluating the likelihood of establishment and survival of this
NEP in the foreseeable future, we consider the extent to which causes
of extirpation in the NEP area have been addressed, habitat suitability
and food availability within the NEP area, and existing scientific and
technical expertise and experience with reintroduction efforts. As
discussed below, we expect that grizzly bears will become established
during the foreseeable future.
Addressing the Causes of Extirpation in the Experimental Population
Area
In the NEP, the northwest fur trade was probably the primary driver
of rapid grizzly bear decline, while the effects of mining, logging,
livestock production, agriculture, and development also fragmented and
degraded grizzly bear habitat and increased conflict-related mortality
(Almack et al. 1993, p. 3; Rine et al. 2020, pp. 5-13; USFWS 2022, p.
143). By 1975, grizzly bear populations in the U.S. portion of the NCE
had been reduced in number and restricted largely to remote areas
(USFWS 2022, p. 52). Though the NEP currently contains one of the
largest contiguous blocks of Federal land remaining in the lower 48
States, diminished grizzly bear numbers from past intensive killing and
isolation from other grizzly bear populations contributed to the
extirpation of the historic population and the low likelihood of
natural recolonization (Lewis 2019, p. 7; USFWS 2022, p. 52; 88 FR
41560, June 27, 2023).
Regulation of human-caused mortality has substantially reduced the
number of grizzly bear mortalities caused by humans. Because road
access was identified by the IGBC as one of the most imminent threats
to grizzly bears, the recovery plan recommended that road management be
given the highest priority for grizzly bear recovery (USFWS 1993, pp.
21-22; USFWS 2022, p. 52). Land management agencies across the grizzly
bear range have incorporated habitat management guidance from the
recovery plan (USFWS 1993, entire). In addition to road access, the
IGBC and member entities identified and implemented conflict prevention
measures in the U.S. portion of the NCE including sanitation measures,
signage about grizzly bears and sanitation on NPS and National Forest
System lands, and funding for education and outreach programs (IGBC
2019, p. 9). North Cascades NP and several nonprofit organizations
provide resources, educational material, and workshops to the public to
prevent human-bear conflict in the NCE. Regulating human-caused
mortality through habitat management and conflict prevention are
effective approaches to reduce negative effects to grizzly bear
populations, as evidenced by increasing grizzly bear populations in the
lower 48 States (USFWS 2022, p. 7). We will consider using a range of
conflict prevention efforts, such as securing of attractants (e.g.,
bird feeders, pet food, garbage containers, barbeque grills), electric
fences and electric mats, animal husbandry practices (range riders,
human presence), and bear aware education. The best available data
indicate that, due to ongoing conservation efforts in the GYE, NCDE,
CYE, and Selkirk Ecosystem, grizzly bear population trends in these
ecosystems are stable or increasing, and range extent has continued to
expand (figure 1; USFWS 2022, p. 208). Given the intent to implement
similar conservation efforts in the NCE Recovery Zone as guided by the
IGBC, we can expect human-caused mortality and direct and indirect
effects of human activity for the NEP to be managed in a way so that
these threats would not prevent population growth and stability.
Habitat Suitability
As noted above (in Status of Grizzly Bears in the North Cascades
Ecosystem), five studies conclude that the U.S. portion of the NCE has
the habitat resources essential for the maintenance of a grizzly bear
population (Agee et al. 1989, entire; Almack et al. 1993, entire;
Gaines et al. 1994, entire; Lyons et al. 2018, entire; Ransom et al.
2023, entire). The IGBC NCE Subcommittee had two separate research
teams (Almack et al. 1993, entire; Gaines et al. 1994, entire) evaluate
an area encompassing more than 10,000 mi\2\ (25,900 km\2\) of the NCE
for grizzly bear habitat types and foods. The survey area included all
of the North Cascades NPS complex and most of Mount Baker Snoqualmie NF
and Okanogan-Wenatchee NF. Each team evaluated the survey area for
viable grizzly bear habitat using common criteria, including the
presence, abundance, and diversity of grizzly bear foods; habitats of
seasonal importance and their distribution; and delineation of human
activities (i.e., roads, habitation, timber harvest, recreation). In
addition to these criteria, Almack et al. (1993, p. 22) evaluated the
study area for grizzly bear habitat according to the seven
characteristics identified by Craighead et al. (1982, p. 10): space,
isolation, denning, safety, sanitation, vegetation types, and food.
The results of these surveys were presented to a technical review
team, which ultimately determined based on the available data, that the
U.S. portion of the NCE could support a viable grizzly bear population
of 200 to 400 individuals (Servheen et al. 1991, p. 7). More recent
work using a suite of spatially explicit, individual-based population
models that integrate information on habitat selection, human
activities, and population dynamics estimated a mean carrying capacity
for grizzly bears in the U.S. portion of the NCE between 250 and 300
grizzly bears (Lyons et al. 2018, entire). Using the modeling framework
developed in Lyons et al. (2018, entire), Ransom et al. (2023, entire)
evaluated grizzly bear habitat quality and carrying capacity across a
range of future climate scenarios through 2099. The net amount of high-
quality habitat was shown to increase across all modeled future
scenarios as compared to current conditions. Assuming a home range size
of 108 mi\2\ (280 km\2\), carrying capacity increased from a baseline
of 139 female bears under current conditions to 241-289 female bears
(Ransom et al. 2023, p. 6).
Almack et al. (1993, pp. 7-10) and Gaines et al. (1994, pp. 534-
356) used Landsat multispectral scanner imagery and field observations
to produce vegetation cover maps of the study area according to
vegetation structure (e.g., forest, shrub, and barren rock) and
community composition. The teams also
[[Page 37007]]
identified 124 plant species known to be grizzly bear foods through an
exhaustive review of sighting reports, scat analysis, and studies
conducted on grizzly bears south of Alaska. Analysis of the vegetation
maps indicated that 100 of the 124 identified plant species exist in
the U.S portion of the NCE, and every vegetation cover type contained
some plants that were on the list. The teams also mapped ranges of
wildlife prey species known to occur in the NCE. Salmonid species were
more abundant in streams on the western slope of the NCE, and ungulates
were dispersed relatively evenly throughout. These results led both
teams to conclude that sufficient vegetative grizzly bear foods are
readily available in the U.S. portion of the NCE, and the occurrence of
wildlife prey species can sustain a grizzly bear population (Almack et
al. 1993, pp. 21-22; Gaines et al. 1994, p. 544).
Some developed areas outside of the NCE Recovery Zone but within
the NEP, such as industrial timber lands, agricultural areas, and towns
and cities, contain habitat resources for grizzly bears. Although these
areas may be capable of supporting grizzly bears, human influences may
make those areas not conducive or compatible with persistent grizzly
bear occupation. Our zoned management approach is intended to allow
additional management options for grizzly bears that may move into
these areas.
Translocation Expertise and Experience
Similar grizzly bear translocations to those we will conduct for
the NEP have been conducted in the Cabinet Mountains portion of the CYE
since the 1990s. Specifically, researchers and managers have been
augmenting the CYE's small grizzly bear population by introducing one
to two grizzly bears per year in the period 1990-1994 and from 2005 to
the present. All augmented bears have originated from the NCDE and
British Columbia. The success of the CYE augmentation pilot program of
four bears prompted additional augmentations between populations in the
United States. In the period 2005-2021, in cooperation with Montana
Department of Fish, Wildlife and Parks, 10 female bears and 8 male
bears were moved from the Flathead River to the Cabinet Mountains
(Kasworm et al. 2022b, pp. 25-33). Analysis of DNA from hair corrals
has been occurring since 2000 and from rub trees since 2012. Based on
this analysis, three females and two males are known to have produced
at least 15 first-generation, 23 second-generation, and 4 third-
generation offspring. Of 22 bears released through 2020, 8 are known to
have left the target area (1 was recaptured and brought back, 2
returned in the same year, and 1 returned a year after leaving), 3 were
killed within 4 months of release, and 1 was killed 16 years after
release (Kasworm et al. 2022b, p. 26). Annual survival rates of
augmentation bears (0.784) are lower than native subadult female CYE
bears (0.852) (Kasworm et al. 2022b, pp. 37-38).
Data collected since the 1988 population estimate now suggest the
CYE population may have been even smaller than previously thought with
an estimated 15 or fewer individuals in 1988. However, recent data also
suggest that the number of grizzly bears in the Cabinet portion of the
CYE has increased. Current population size for the CYE is estimated to
be 60-65 bears with approximately half this number in the Cabinet
Mountains (Kasworm et al. 2022b, p. 42). The population increase in the
Cabinet Mountains has occurred almost exclusively through the
augmentation effort and reproduction from those individuals (Kasworm et
al. 2022b, pp. 31-33). Grizzly bears in the CYE are expected to
continue to increase in population and resiliency with ongoing
augmentation efforts (USFWS 2022, pp. 229-242).
These data demonstrate our technical expertise, experience, and
success with grizzly bear translocations. We will rely on the same
measures for the NEP translocations, and we anticipate grizzly bear
translocations in the NEP to be as successful as those conducted in
these other areas. Based on the available data from other grizzly bear
populations, we modeled annual population growth rates of 2 to 4
percent and estimated there will likely be 46-81 grizzly bears (2
percent annual growth) or 62-146 grizzly bears (4 percent annual
growth) in the NEP area 30-45 years after translocations are initiated
(Costello et al. 2023, pp. 10-11; Kasworm et al. 2023b, pp. 41-42;
Kasworm et al. 2023b, pp. 28-29; Haroldson et al. 2022, pp. 12-18).
Summary
The best available scientific data indicate that the restoration of
grizzly bears into the NEP is biologically feasible and would promote
the conservation of the species. Specifically, we anticipate that
grizzly bears can be successfully reestablished in the NEP for the
following reasons:
(1) The reintroduced population will receive ongoing demographic
support (population augmentation) from source populations to replace
bears that die or are killed until a population of 25 individuals is
achieved and to maintain genetic diversity in this population as
determined by long-term monitoring (NPS and USFWS 2024, p. 32).
(2) The primary causes of historical grizzly bear extirpation from
the region (direct killing by humans and habitat loss as a result of
conversion to agriculture and resource extraction) are now regulated to
ensure the population will survive and grow (Lewis 2019, pp. 8-9).
(3) An established IGBC NCE Subcommittee can help guide the
restoration effort. This subcommittee helps coordinate policy,
planning, management, and research with the Federal and State agencies
responsible for grizzly bear recovery and management (IGBC 2019, pp. 9-
10). Tribal governments are also represented on IGBC subcommittees and
engage as desired, although there are no Tribal governments currently
represented on the NCE subcommittee.
(4) Landscape-scale modeling and studies of available habitat and
food resources indicate the NEP area has the capacity to support a
population of grizzly bears (Almack et al. 1993, pp. 21-22; Gaines et
al. 1994, p. 544; Lyons et al. 2018, p. 29; Ransom et al. 2023, p. 6).
(5) We have experience in successfully translocating grizzly bears
in other areas and have established effective protocols (Kasworm et al.
2007, pp. 1262-1265; Kasworm et al. 2022b, pp. 31-33) that we will
apply to NEP reintroductions.
Based on these considerations, we anticipate that the reintroduced
population of grizzly bears is likely to become established and persist
in the NEP.
Effects of the Experimental Population on Grizzly Bear Recovery
Restoring the grizzly bear to the NEP area and establishing the
associated protective measures and management practices under this
final rule would further the conservation of grizzly bears by
establishing another population in a portion of the species' historical
range where the species is presently functionally extirpated. Our
recovery plan includes a recovery objective to recover grizzly bears in
all of the ecosystems known to have suitable space and habitat (USFWS
1993, pp. 15-16). The NEP area contains one of the largest remaining
areas of high-quality habitat for the grizzly bear in the lower 48
United States (USFWS 1997, p. 1). Reintroducing grizzly bears into the
NEP area and establishing a grizzly bear population focused on the NCE
Recovery Zone fulfills an important
[[Page 37008]]
recovery need for the grizzly bear in the lower 48 United States.
We assess species' viability through the lens of the conservation
biology principles of resiliency, redundancy, and representation
(collectively known as the ``3Rs'') (USFWS 2016, entire). Resiliency
describes the ability of the species to withstand stochastic
disturbance events, which is associated with population size, growth
rate, and habitat quality. Redundancy is the ability for the species to
withstand catastrophic events, for which adaptation is unlikely, and is
associated with the number and distribution of populations.
Representation is the ability of a species to adapt to changes in the
environment and is associated with its ecological, genetic, behavioral,
and morphological diversity. Resiliency of grizzly bear ecosystems is
measured using both habitat and demographic factors. Despite the
moderate condition of habitat, without a known population, the NCE
currently has no resiliency, and as a result does not currently
contribute to redundancy and representation of grizzly bears in the
lower 48 United States (USFWS 2022, pp. 10-14). If successful,
reintroduction in the NCE would improve resiliency by reestablishing a
population of the species within its historical range that is
demographically viable. Successful reintroduction would also improve
redundancy by further reducing the likelihood that any one catastrophic
event would affect all populations. It would also increase the
ecological diversity of the habitats occupied by the species and
improve representation by facilitating adaptation to a variety of
ecological settings and potentially increasing the future genetic
diversity of grizzly bears. For these reasons, reestablishment of a
population of grizzly bears in the NCE as an NEP, if implemented and
successful, would increase resiliency, redundancy, and representation,
and hence viability, of the currently listed lower 48 States entity.
Actions and Activities in Washington That May Affect Reintroduced
Grizzly Bears
Although the NEP area contains a variety of land ownership types
(see Experimental Population Area, above), it contains large blocks of
land with limited ongoing human influence, such as remote Federal lands
(including those managed as designated wilderness), some State lands,
and lands acquired for conservation by nongovernmental organizations.
These areas provide sufficient high-quality habitat for grizzly bears,
and low potential for both displacement and human-bear conflict.
However, grizzly bears will likely use other lands within the NEP,
depending on human development and other human activities.
Primary land uses on lands in Management Area A (see Management
Areas, above) include protection and conservation of natural and
cultural resources, non-motorized land-based recreation (hiking,
climbing, skiing, cycling, camping, hunting), motorized land-based
recreation (off-highway vehicle and snowmobile riding), water-based
recreation (boating, fishing), hydropower production, timber harvest,
mineral extraction, livestock grazing, research, and education.
Although much of Management Area A is public land, is largely
unavailable and/or unsuitable for intensive development, and contains
an abundance of wild ungulates, livestock grazing does occur within the
Area, which may increase the potential for mortality of grizzly bears
via lethal control of depredating bears. There are 62 total grazing
allotments representing 19.5 percent of the total acreage in Management
Area A. Of those allotments, 30 are currently active, representing 9
percent of the total acreage in Management Area A. Most of these
permits are for grazing cattle, and five allotments allow for sheep
grazing, all of which are in the southern half of Management Area A
close to Wenatchee and Cle Elum (USDA 2023, entire). Similar land
management practices in the GYE and NCDE, and the expanding grizzly
bear populations in those areas, indicate that livestock allotments and
associated habitat loss are not limiting grizzly bear populations
(USFWS 2022, p. 124).
Primary land uses in Management Area B (see Management Areas,
above) are similar to those in Management Area A. As described in
Management Area A, these activities pose some risk to grizzly bears,
but will not likely preclude grizzly bear presence in Management Area
B.
Management Area C (see Management Areas, above) contains a mixture
of land ownerships and uses, including developed areas, and areas where
agricultural and industrial uses predominate. Large areas in this
management area may be incompatible with grizzly bear presence due to
relatively high amounts of private land ownership and associated
development and/or potential for bears to become involved in conflicts
and resultant bear mortality. Grizzly bears may still occupy portions
of Management Area C, but human activities will limit their presence.
Experimental Population Regulation Requirements
Our regulations at 50 CFR 17.81(c) include a list of what we should
provide in regulations designating experimental populations under
section 10(j) of the Act. We explain what our regulations include and
provide our rationale for those regulations, below.
Means To Identify the Experimental Population
Our regulations require that we provide appropriate means to
identify the experimental population, which may include geographic
locations, number of individuals to be released, anticipated movements,
and other information or criteria. The purpose of this requirement is
to ensure that nonexperimental populations of the same species receive
the appropriate level of protection afforded to the species by its
listing under the Act. In other words, it ensures that the special
regulations issued under section 10(j) apply only to the designated
experimental population and not to other populations of the same
species. We recognize that it would not be possible for members of the
public to determine the origin of any individual grizzly bear. As
discussed below, we conclude that, once we have released a grizzly
bear, it is highly likely that any grizzly bears found in the NEP area
will have originated from and be members of the NEP. Therefore, we will
use geographic location to identify members of the NEP. The NEP area
encompasses the entire State of Washington except for the area within
and around the Selkirk Ecosystem Recovery Zone (figure 2). After we
have released one or more grizzly bears for reintroduction into the NEP
area, any grizzly bear within the NEP area, regardless of origin, will
be treated as part of the experimental population. Any grizzly bears
found in the NCE NEP area before the Service has one or more grizzly
bears into the NEP area will be managed in accordance with the existing
4(d) rule (50 CFR 17.40(b)). After our initial release of one or more
grizzly bears into the NEP area, any grizzly bears, including those
moving from Canada into the NEP area, will be treated as part of the
NEP while they are present within the NEP area, with all the associated
ESA protections and exceptions of the experimental population under
this 10(j) rule. However, currently, no population of grizzly bears
exists within the NEP area, and the likelihood of a grizzly bear moving
into the NEP area from the nearest population of ESA-listed grizzly
[[Page 37009]]
bears in the Selkirk Ecosystem is small (see Is the Experimental
Population Wholly Geographically Separate from Nonexperimental
Populations? below).
We anticipate that eventually some grizzly bears may move between
portions of the NCE in Canada and the United States (see Is the
Experimental Population Wholly Geographically Separate from
Nonexperimental Populations? below). As stated above, bears entering
the NEP area prior to our initial release will be managed in accordance
with the existing 4(d) rule. After our initial release of one or more
grizzly bears into the NEP area, any grizzly bears moving from Canada
to the NEP area will be treated as part of the NEP and addressed under
the 10(j) rule while they are within the NEP area. Likewise, a bear
originating in the NEP but located in the British Columbia portion of
the ecosystem would be managed in accordance with appropriate Canadian
regulations.
Is the experimental population wholly geographically separate from
nonexperimental populations?
Section 10(j) of the Act requires that an experimental population
of a listed species be wholly geographically separate from other
populations of the same listed species. Grizzly bears reintroduced in
the NEP would be separated from the nearest population of bears in the
United States, located in the Selkirk Ecosystem. The NEP is
approximately 100 mi (161 km) to the west of the Selkirk Ecosystem,
which contains approximately 83 individuals, and the NEP is 75 mi (121
km) from any verified grizzly bear observations to the west of the
Selkirk Ecosystem (Proctor et al. 2012, p. 31). The area between the
two populations also contains significant portions of human-altered
landscape (e.g., major roads, agricultural lands, rural/urban
development) or major natural landscape features (e.g., Columbia River)
that reinforce continued geographic separation (Singleton et al. 2004,
pp. 95-101). Due to the highly fragmented landscape between these
areas, as well as the distance between these ecosystems, which is
beyond the average female dispersal distance of 6.1-8.9 mi (9.8-14.3
km) (McLellan and Hovey 2001, p. 842; Proctor et al. 2004, p. 1108), we
conclude the NEP to be wholly separate from all other extant
populations of grizzly bears in the United States. Dispersal between
the NEP and other U.S. populations or the likelihood of overlap is low;
therefore, we do not expect natural recolonization of the NEP area
could happen on its own.
As noted above, the Act requires that an experimental population of
a listed species be wholly geographically separate from other
populations of the same listed species. In this case, the listed
species is the grizzly bear in the lower 48 States, and thus the NEP is
required to be wholly geographically separate only from other
populations of the ESA-listed species, that is, other populations
within the United States. However, the NEP is also currently separated
from any known grizzly bear populations in Canada, which are not part
of the listed species. Connectivity from the east in Canada is unlikely
as the nearest population is over 62 mi (100 km) across the heavily
human-settled Okanagan Valley (North Cascades Grizzly Bear Recovery
Team 2004, p. 7, McLellan et al. 2017, p. 2).
The closest GBPUs to the north include the Canadian North Cascades
GBPU (adjacent to the U.S. portion of the NCE) and the Stein-Nahatlatch
GBPU (22 mi (37 km) from NCE). The North Cascades GBPU grizzly bears
(with no confirmed sighting in over a decade) is isolated from other
populations, and there is no known reproduction. The Stein-Nahatlatch
hosts a very low estimated bear density and very low genetic diversity
(USFWS 2022, appendix E, p. 323). Both units are designated as M1, the
highest level of conservation concern, according to British Columbia's
conservation ranking assessment (Morgan et al. 2020, pp. 19-24) and are
designated as ``Critically Endangered'' by the IUCN Red list (McLellan
et al. 2017, p. 2). While the Stein-Nahatlatch GBPU is within the
dispersal distance of both male (18.6-26 mi (29.9-41.9 km)) and female
(6.1-8.9 mi (9.8-14.3 km)) grizzly bears (McLellan and Hovey 2001, p.
842; Proctor et al. 2004, p. 1108) to the North Cascades GBPU, only the
northern half of the Stein Nahatlatch GBPU is occupied by grizzly bears
(Apps et al. 2008, p. 25; Apps et al. 2014, p. 30). The distance
between the North Cascades GBPU and the occupied portion of the Stein-
Nahatlatch GBPU is significant and consists of the large Fraser River
valley and canyon, the heavily travelled Trans-Canada Highway, two
railways, human settlements, and other developments (USFWS 2022, pp.
321-324; McLellan et al. 2017, entire). Therefore, dispersal of grizzly
bears from the Stein-Nahatlatch GBPU to the NEP is unlikely.
As discussed above, restoring a grizzly bear population in the
Canadian portion of the NCE through augmentation by the Canadian
Government is under consideration. Should those augmentation efforts
occur in British Columbia, some grizzly bears reintroduced into the
Canadian portion of the ecosystem may likely move into the NEP area in
the United States, either as a transient that returns to Canada or that
ultimately remains in the United States. A restored population of
grizzly bears in British Columbia would not affect the designation of a
section 10(j) experimental population of grizzly bear listed in the
United States because the ``wholly geographic'' separation requirement
does not apply to populations that are not a part of the listed
species. After our initial release of one or more grizzly bears into
the NEP, any bears entering the NEP area from Canada will be managed
under this final 10(j) rule.
Is the experimental population essential to the continued existence of
the species in the wild?
When we establish experimental populations under section 10(j) of
the Act, we must determine whether such a population is essential to
the continued existence of the species in the wild. This determination
is based solely on the best scientific and commercial data available.
Our regulations state that an experimental population is considered
essential if its loss would be likely to appreciably reduce the
likelihood of survival of that species in the wild (50 CFR 17.80(b)).
All other populations are considered nonessential. Although the
experimental population in the U.S. portion of the NCE will contribute
to the recovery of the grizzly bear in the United States, several
factors suggest the restored population is not essential to the grizzly
bear's continued existence in the wild:
(1) Approximately 2,200 grizzly bears exist in other ecosystems in
the contiguous United States that are intensively monitored and managed
(USFWS 2022, p. 61, see Historical and Current Range and Grizzly Bear
Ecosystems and Recovery Zones;
(2) We are proposing to capture and translocate a relatively small
number of grizzly bears (up to three to seven per year) from
populations that are demographically healthy and therefore will not be
measurably affected by this removal (see Effects on Wild Populations);
(3) The experimental population is not expected to provide
demographic support to the existing grizzly bear populations in the
lower 48 United States due to geographic distance and existing barriers
to dispersal (see Status of Grizzly Bears in the North Cascades
Ecosystem); and
(4) The experimental population will be established from extant
grizzly bear
[[Page 37010]]
populations (see Effects on Wild Populations) and therefore will not
possess any unique genetic or adaptive traits that are critical to the
survival of the species.
For these reasons, the loss of the experimental population would
not appreciably reduce the likelihood of survival of that species in
the wild. Therefore, as required by 50 CFR 17.81(c)(2), we find that
the experimental population is not essential to the continued existence
of the species in the wild, and we designate the experimental
population in the U.S. portion of the NCE as an NEP.
Management Restrictions, Protective Measures, and Other Special
Management
Authorized Federal, State, and (as desired) Tribal agencies will
manage the reintroduced grizzly bears in the NEP. These entities will
collaborate on monitoring, coordination with landowners and land
managers, public awareness, and other tasks necessary to ensure
successful management of the NEP consistent with a Service-partner
agency MOU specific to implementing this 10(j) rule. Specific
management considerations related to the experimental population,
including prohibitions and exceptions involving the taking of
individual animals, are addressed below. Unless otherwise agreed to by
the Service in the provision of the applicable MOU, management actions
involving capturing, relocating, or lethally taking a grizzly bear must
be approved by the Service with limited exceptions as described in the
rule.
Section 9 of the Act prohibits various actions regarding species
listed as endangered, which may be applied as part of protective
regulations for experimental populations. Section 9 prohibitions
include among other things prohibition against the import or export of
species, restrictions on possession, sale, and transport (whether
commercial or otherwise), and the prohibition against ``take'' of any
such species. Section 3(19) of the Act defines ``take'' as ``to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct.'' Experimental population
rules may contain specific prohibitions and exceptions, including
regarding take; these rules help the reintroduction and management of
an experimental population to be compatible with most routine human
activities in the expected reestablishment area. This section 10(j)
rule generally prohibits the take of any grizzly bear in the NEP area,
with exceptions as follows:
Defense of life--A grizzly bear in the NEP may be taken in self-
defense or in defense of others, based on a good-faith belief that the
actions are necessary to protect any individual from bodily harm.
Deterrence--``Deterrence'' means an intentional, nonlethal action
to haze, disrupt, or annoy a grizzly bear out of close proximity to
people or property to promote human safety, prevent conflict, or
protect property. Any deterrence must not cause lasting bodily injury
to any grizzly bear (i.e., permanent damage or injuries that limit the
bear's ability to effectively move, obtain food, or defend itself for
any length of time), or death to the grizzly bear. Any person who
deters a grizzly bear must use discretion and act safely and
responsibly in confronting grizzly bears. Acceptable deterrence
techniques may include non-projectile auditory deterrents, visual
stimuli/deterrents, vehicle threat pressure, and noise-making
projectiles. Unacceptable deterrence methods include screamers/
whistlers, rubber bullets/batons, and bean bag and aero sock rounds.
For more information about appropriate nonlethal deterrents,
individuals can contact the Service for the most current Service-
approved guidelines. Anyone is allowed to deter a grizzly bear in the
case of self-defense (e.g., using bear spray or loud noises). Bear
spray is an effective deterrent that has a higher success rate at
stopping dangerous bear behavior and preventing human injury compared
to firearms (Smith et al. 2008, p. 645; Smith et al. 2012, p. 12). An
individual may not bait, stalk, or pursue a grizzly bear for the
purposes of deterrence. Pursuit is defined as deterrence carried out
beyond 200 yards (183 m) of a human-occupied area or lawfully present
livestock.
Incidental take--``Incidental take'' is take that is incidental to,
and not the purpose of, the carrying out of an otherwise lawful
activity; it must be unintentional and not due to negligent conduct.
Individuals will not be in violation of the Act for taking a grizzly
bear of the NEP, provided that: (1) the take is incidental to, and not
the purpose of, an otherwise lawful activity; (2) they promptly report
the take to the Service; and (3) if the take occurs due to USFS actions
within National Forest System lands in Management Area A, that the USFS
has maintained its `no net loss' agreement and implemented food storage
restrictions throughout USFS-managed lands in Management Area A. The
`no net loss' agreement is described above under Threats. Given the
importance of maintaining core habitats and restricting human
disturbance in these habitats for grizzly bear population establishment
and persistence, we are tailoring the exception to the prohibition
against incidental take by USFS actions on lands managed by the USFS as
National Forest System lands under this 10(j) rule to be contingent
upon maintenance and implementation of that longstanding approach
within the NCE Recovery Zone. This exception would apply only to
actions authorized, funded, or implemented by the USFS on lands managed
by the USFS as National Forest System lands in Management Area A. We
are currently coordinating with the USFS to memorialize the `no net
loss' agreement for Management Area A in an updated MOU.
Research and recovery actions--Any employee or agent of the
Service, or any employee or agent of another Federal, State, or Tribal
entity defined in a current MOU with the Service who, as part of their
official duties, normally handles large carnivores and is trained and/
or experienced in immobilizing, marking, and handling grizzly bears
(which we define as a Federal, State, or Tribal ``authority''), may,
when acting in the course of official duties and with prior
authorization from the Service, take a grizzly bear in the NEP area
consistent with this rule and the applicable MOU if such action is
necessary for: scientific purposes; to aid a sick or injured grizzly
bear, including euthanasia if it is unlikely to survive or poses an
immediate threat to human safety; to salvage a dead specimen that may
be useful for scientific study; to dispose of a dead specimen; or to
aid in law enforcement investigations involving the grizzly bear.
Relocation and management actions--As detailed more specifically in
the regulation that follows, any employee or agent of the Service, or
any employee or agent of another Federal, State, or Tribal entity
defined in a current MOU with the Service who, as part of their
official duties, normally handles large carnivores and is trained and/
or experienced in immobilizing, marking, and handling grizzly bears
(which we define as a Federal, State, or Tribal ``authority''), may,
when acting in the course of official duties, take a grizzly bear in
the wild in the NEP area with prior authorization from the Service
consistent with this rule and the applicable MOU if such action is
necessary to accomplish the following:
Avoid conflict with human activities;
Prevent a grizzly bear from becoming habituated to humans;
Improve grizzly bear survival;
[[Page 37011]]
Release or relocate nontarget grizzly bears that have been
incidentally trapped;
Aid a law enforcement investigation;
Salvage a dead bear; or
Euthanize a grizzly bear that has been wounded severely
enough such that it is unlikely to survive or poses an immediate threat
to human safety.
Relocation sites will be identified in remote areas away from
homes, developed areas, and concentrated human use. When a grizzly bear
is captured, the employee or agent will consult with the appropriate
land management agency to determine a relocation site that is most
suitable for the bear, considering age/sex of the bear, conflict
history, and current human use at available relocation sites. Such
taking must be coordinated with the Service. Non-Service or other non-
authorized personnel must acquire a permit from the Service for these
activities.
Removal of grizzly bears involved in conflict--Grizzly bears can
cause substantial property damage, including depredation, or pose a
threat to human safety if they become food conditioned, i.e., if they
have learned to associate human presence with anthropogenic food
because of repeatedly being rewarded with food without consequence
(Beausoleil et al. 2022, p. 96). When it is not reasonably possible to
eliminate such threat by securing attractants, nonlethal deterrence, or
relocation, we may allow lethal removal of a grizzly bear involved in
conflict under certain conditions. Lethal removal of grizzly bears
involved in conflict in Management Area A may be conducted by
authorized Federal, State, or Tribal authorities with prior approval by
the Service in accordance with the provisions of this rule and the
applicable MOU. Decisions on lethal removal will be based on many
factors, including the ability to identify a particular bear (e.g.,
markings, collars, track size, canine spacing), the individual bear
involved (e.g., sex, age, presence of dependent young, conflict
history), relevant conflict history in the immediate area, and number
of bears in the area.
To become an ``authorized'' Federal, State, or Tribal authority, we
must have a written agreement, i.e., an MOU, addressing grizzly bear
management roles and responsibilities consistent with this 10(j) rule
between the Service and the other Federal, State, or Tribal agency.
While we may provide for grizzly bear management in the NEP area via
other regulatory processes (such as a conference opinion issued by the
Service to a Federal agency pursuant to section 7(a)(4) of the Act, an
agreement under section 6 of the Act as described in 50 CFR 17.31 for
State game and fish agencies with authority to manage grizzly bears, or
a valid permit issued by the Service pursuant to 50 CFR 17.32), a prior
written agreement is required to be considered an ``authorized''
Federal, State, or Tribal authority under this 10(j) rule.
In Management Areas B and C, the Service may authorize conditioned
lethal take for individuals after a livestock depredation has been
confirmed by the Service or authorized agency and if it is not
reasonably possible to otherwise eliminate the threat through nonlethal
deterrence or live-capturing and releasing the grizzly bear unharmed.
In Management Area C, the Service may authorize conditioned lethal take
to individuals if the Service or an authorized agency determines both
of the following: grizzly bears present a demonstrable and ongoing
threat to human safety or to lawfully present livestock, domestic
animals, crops, beehives, or other property and it is not reasonably
possible to otherwise eliminate the threat through nonlethal deterrence
or live-capturing and releasing the grizzly bear unharmed. Also in
Management Area C, any individual may take (injure or kill) a grizzly
bear in the act of attacking livestock, including working dogs, on
private land under certain conditions.
Management Area Management Actions
Management Area A (see Management Areas above) management actions
include:
Take of bears in self-defense or defense of others;
Take resulting from otherwise lawful activities (e.g.,
timber harvest, road construction, recreation), with the proviso that
take resulting from otherwise lawful USFS activities on National Forest
System lands in Management Area A are contingent on the USFS having
maintained its `no net loss' agreement and implemented food storage
restrictions throughout Management Area A;
Deterrence of bears;
Take associated with research and recovery actions;
Relocation or deterrence of bears by Federal, State, or
Tribal authorities for recovery purposes, including as a preemptive
action to prevent conflict; and
Lethal removal by authorized Federal, State, or Tribal
authorities of grizzly bears involved in conflict as defined in this
10(j) rule, including that it is not reasonably possible to eliminate
the threat through nonlethal deterrence or live-capturing and releasing
the grizzly bear unharmed.
Management Area B (see Management Areas above) management actions
include all actions authorized for Management Area A, plus the ability
for the Service to issue written time-limited conditioned lethal take
authorization to an individual if all the following conditions exist: a
depredation of livestock has been confirmed by the Service or
authorized agency, the Service or authorized agency determine a bear is
a demonstrable and ongoing threat, and it is not reasonably possible to
eliminate the threat through nonlethal deterrence or live-capturing and
releasing the grizzly bear unharmed.
Management Area C (see Management Areas above) management actions
include all actions authorized for Management Areas A and B, plus the
ability for the Service to issue written time-limited conditioned
lethal take authorization to an individual to kill a bear under the
following conditions: the Service or an authorized agency identifies
the bear as an ongoing threat to human safety, livestock, or other
property (e.g., compost, chickens, beehives); and it is not reasonably
possible to eliminate the threat through nonlethal deterrence or live-
capturing and releasing the grizzly bear unharmed. Also in Management
Area C, any individual may take (injure or kill) a grizzly bear in the
act of attacking livestock on private lands under specified conditions,
including the absence of excessive unsecured attractants (e.g.,
carcasses or bone piles), no intentional feeding or baiting of the
grizzly bear or wildlife, prompt reporting of the take, and no
disturbance of the area to allow for review.
Prohibited Activities
This rule prohibits all take of grizzly bear unless expressly
excepted, as well as the possession, sale, delivery, carrying,
transporting, shipping, or exporting, by any means whatsoever, any
grizzly bear or part thereof from the experimental population taken in
violation of the rule or in violation of applicable Tribal or State
laws or regulations or the Act. This rule also makes it unlawful for
individuals to attempt to commit, solicit another to commit, or cause
to be committed, any take of the grizzly bear, except as expressly
allowed in the rule.
To avoid illegally shooting a grizzly bear, persons lawfully
engaged in hunting and shooting activities must correctly identify
their target before shooting. The act of taking a grizzly bear that is
wrongfully identified as another
[[Page 37012]]
species is not considered incidental take and may be referred to
appropriate authorities for prosecution.
Public Awareness and Cooperation
Coinciding with the November 14, 2022, publication in the Federal
Register of the notice of intent to prepare an EIS (87 FR 68190), we
issued a joint news release with the NPS announcing the EIS process and
proposed section 10(j) rulemaking and sought comments as part of the
EIS scoping phase. The news release was shared directly with counties
and municipalities in the NCE, nongovernmental organizations, and other
stakeholders. During the 30-day scoping phase, four informational
virtual public meetings were held, inviting the public to ask questions
about the EIS process, section 10(j) experimental populations, and
grizzly bear recovery. Representatives from the Service and NPS also
participated in numerous news media interviews to raise awareness about
the EIS process, section 10(j) rulemaking, and associated public
comment period.
Similar outreach techniques were used during the 45-day comment
period for the proposed 10(j) rule and draft EIS to increase awareness
and engage the public. These techniques included the distribution of a
news release, participation in media features, and the direct sharing
of information. One informational virtual meeting took place on October
17, 2023, and four in-person public meetings were held, on October 30,
2023, in Okanogan, WA, November 1, 2023, in Newhalem, WA, November 2,
2023, in Darrington, WA, and November 3, 2023, in Winthrop, WA. Video
of an informational presentation was also posted online for the public
to review.
Further public outreach and education will occur, both in the media
and in the community, as grizzly bears are moved into and establish in
the ecosystem. Education and outreach about how to minimize conflict,
for the safety of both humans and bears, will be an important part of
implementation. The Service will work with partners to increase
outreach to people who live, work, and recreate in the NCE and
surrounding areas. Outreach and education efforts will be modeled after
similar efforts and practices developed in other grizzly bear
ecosystems over multiple decades. Direct outreach and briefings to
local governments and community organizations are also anticipated.
Many different Federal, State, Tribal, and local government agencies
and organizations in the State of Washington have wildlife education
programs that can be partnered with and supported.
Interagency Consultation
As stated above under Statutory and Regulatory Framework, for
purposes of section 7(a)(2) of the Act, our section 10(j) regulations
(50 CFR 17.83) provide that NEPs are treated as species proposed for
listing under the Act except when on NPS and NWRS lands, where they are
treated as a threatened species for the purposes of section 7(a)(2)
consultations. Therefore, Federal agency actions not affecting NPS
lands or NWRS lands would be required to confer with the Service under
the terms of section 7(a)(4) of the Act. On the other hand, Federal
agency actions affecting grizzly bears within the experimental
population area on NPS lands or NWRS lands would be required to consult
with the Service under section 7(a)(2) of the Act. The provisions of
section 7(a)(1) of the Act would still apply within the NEP area.
Review and Evaluation of the Success or Failure of the NEP
Monitoring and Evaluation
All translocated grizzly bears will be fitted with global
positioning system (GPS) collars and ear tags prior to release to aid
in monitoring habitat use and spatial distribution, and tissue samples
will be collected to establish baseline information for genetic
monitoring purposes. Monitoring of the releases and subsequent
population monitoring will follow radio collaring and genetic
monitoring techniques used in the Cabinet Mountains grizzly bear
augmentation effort (Kasworm et al. 2022b, pp. 9-16). Periodic
recaptures will be conducted to maintain a GPS-collared sample of the
population. Other monitoring will include habitat and resource
selection, survival metrics, reproductive success, rate of population
growth, genetic composition of the population, and instances of
conflicts between humans and grizzly bears. Radio collars that
communicate locations from satellites to biologists via periodic
downloads will limit the need for aircraft monitoring. However,
periodic use of fixed-wing aircraft will be necessary to determine
reproductive status. Camera stations and hair-snagging corrals will
also be established in remote locations to monitor grizzly bear
presence and gather genetic information that could also be used to
assess reproductive contributions and monitor genetic diversity.
The Service and authorized agencies will monitor the status of
grizzly bears in the NEP annually. The Service will evaluate the status
of grizzly bears in the NEP in conjunction with our species status
assessments and status reviews of the grizzly bear. Evaluations in our
status reviews will include, but not be limited to: a review of
management issues; grizzly bear movements; demographic rates; causes of
mortality; project costs; and progress toward establishing a
population. The recovery plan calls for maintaining human-caused
mortality below 4 percent of the population for all recovery zones
(USFWS 1993, p. 20). Because we anticipate the NCE population to remain
low for the near future, we will attempt to keep human-caused mortality
to zero. However, zero mortalities may not be practical given the need
to protect human safety and property and due to accidental mortalities
(e.g., vehicle collisions).
Adaptive Management
We anticipate that our management of grizzly bears of the NEP will
be adaptive, meaning we will apply management interventions, monitor
outcomes, and incorporate learning from these interventions and
outcomes (Williams and Brown 2012, entire) to achieve grizzly bear
restoration objectives while maximizing social acceptance. If
modifications to grizzly bear monitoring and management are needed, we
will coordinate closely with NPS, WDFW, USFS, Tribal Governments, and
others to ensure progress toward achieving recovery goals while
concurrently minimizing human-grizzly bear conflicts in the NEP area.
Exit Strategy
In light of the Service's positive 90-day finding on two petitions
to delist grizzly bears in the NCDE and the GYE (see ``Previous Federal
Actions,'' above), we acknowledge that the boundaries of the listed
entity of the grizzly bear in the United States may change in the
future. We anticipate leaving this experimental population designation
in place until all grizzly bears have been delisted due to recovery,
regardless of whether the boundaries of the listed entity change.
However, if grizzly bears of the NEP experience unexpectedly high
natural mortality, if donor bears are not available, or if we conclude
that we and our partners have insufficient funding for an extended
period to support management of the NEP, we may consider ending the
releases and removing the NEP designation. This would be done only
after coordination with partners and a new public process where we
would evaluate the NEP designation before making any decisions
[[Page 37013]]
to exit the restoration program and remove or revise the 10(j) rule as
appropriate.
Consultation With State, Local, Tribal, Federal, and Affected Private
Landowners
In April 2018, the Service reached out to more than 90 agencies and
organizations to discuss a potential section 10(j) experimental
population rulemaking and a zoned management approach for possible
grizzly bear restoration efforts in the NCE. These included Federal,
State, and local elected officials; federally recognized Tribes in
Washington and Montana; natural resource and land management agencies;
interest groups (including those representing timber, ranching or
farming, and recreation interests); and environmental and conservation
organizations. Between May and July 2018, the Service held more than 30
meetings with representatives from 49 different agencies and
organizations for receiving feedback on the management framework and
the zoned management approach.
Since the start of the public scoping period in November 2022,
agency representatives have held 28 different meetings with local
governments, State agencies, Tribes (including federally recognized
Tribes in Washington and Tribal governments near potential source
populations in the NCDE and GYE, including in the States of Colorado,
Kansas, Montana, Nebraska, North Dakota, South Dakota, Utah, and
Wyoming), nongovernmental organizations, and congressional staff to
present information and answer questions.
Nine public meetings were also held, both virtually and in-person.
During the comment period for the proposed rule, four in-person
meetings were held in communities on both the east (two) and west (two)
sides of the NCE Recovery Zone. Meeting attendees were able to provide
comments in writing or verbally to a stenographer, with options to do
so privately and/or in front of other meeting attendees. Speakers were
also encouraged to provide written comments by postal mail or online if
2 minutes was not sufficient for their verbal comment. At all four of
these in-person meetings, everyone who requested to provide verbal
comment was provided an opportunity to do so, and at all four meetings
the list of speakers was exhausted, with additional time remaining.
Before the public comment portion of each in-person meeting, attendees
had the opportunity to review informational banners and ask agency
staff questions. Throughout the public comment period, written comments
on the draft EIS and proposed 10(j) rule were accepted online, by
postal mail or hand-delivery, and at the in-person meetings.
Feedback from the dozens of outreach meetings dating back to 2018
were also used in the development of this final rule.
Findings and Regulatory Revisions
Based on the best scientific information available, as described
above and in accordance with 50 CFR 17.81, we find that releasing
grizzly bears into the NCE with the regulatory provisions in this
rulemaking will further the conservation of the species. The NEP status
is appropriate for the introduced population; the potential loss of the
experimental population would not appreciably reduce the likelihood of
the survival of the species.
Therefore, as a result of the findings just described, we are
amending the entry for the grizzly bear on the List of Endangered and
Threatened Wildlife at 50 CFR 17.11(h) to add an entry for the North
Cascades NEP. We are also correcting the entry for the Bitterroot NEP
of the grizzly bear. In the ``Listing citations and applicable rules''
column, the information for the Bitterroot NEP of the grizzly bear
included an error. We are replacing the incorrect Federal Register
citation, 70 FR 69854, 11/17/2005, with the correct citation for the
final rule that established the Bitterroot NEP: 65 FR 69624, 11/17/
2000.
As set forth in the rule portion of this document, we are revising
50 CFR 17.84 to add a new paragraph (y) to establish the North Cascades
NEP of the grizzly bear. For the purpose of clarity, we are also
revising the opening text of the regulations that set forth the
Bitterroot NEP of the grizzly bear at 50 CFR 17.84(l). Currently, the
regulations for the Bitterroot NEP begin with ``Grizzly bear (Ursus
arctos horribilis).'' However, as stated above, through this rule we
are adding another grizzly bear NEP to the regulations at Sec. 17.84.
To differentiate the regulations for the two grizzly bear NEPs in that
section, we are revising the heading for the Bitterroot NEP at
paragraph (l) to read: ``Grizzly bear (Ursus arctos horribilis)--
Bitterroot nonessential experimental population,'' and the heading for
the North Cascades NEP at paragraph (y) will read: ``Grizzly bear
(Ursus arctos horribilis)--North Cascades nonessential experimental
population.''
Required Determinations
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866 and E.O.
13563. Regulatory analysis, as practicable and appropriate, shall
recognize distributive impacts and equity, to the extent permitted by
law. We have developed this final rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rulemaking action is not
significant.
The North Cascades Ecosystem Grizzly Bear Restoration Plan/final
EIS (NPS and USFWS 2024) analyzed the potential impacts of restoration
of grizzly bears to the North Cascades including potential impacts to
visitor use and recreational experience (NPS and USFWS 2024, pp. 115-
130), human safety (NPS and USFWS 2024, pp. 130-139), and socioeconomic
effects of the restoration of grizzly bear on various sectors in a
seven-county area (including gateway communities) (NPS and USFWS 2024,
pp. 139-156). The final EIS evaluation included the impacts of
restoration of grizzly bear as managed under this final section 10(j)
rule, which was the agencies' preferred alternative (NPS and USFWS
2024, pp. 37-50).
The final EIS evaluated impacts to visitor use and recreational use
experience qualitatively. Recreational use of Federal land in the NCE
is estimated to be more than 8 million recreation visitor-days per
year, most of which is associated with dispersed recreation rather than
developed campgrounds or wilderness areas (NPS and USFWS 2024, p. 117).
Potential beneficial and adverse impacts on visitor use and experience
could result from the initial restoration of grizzly bears in the NCE,
and visitation could increase or decrease depending on visitor interest
in or aversion to them (NPS and USFWS 2024, p. 125). Benefits would be
derived from the restoration of the grizzly bear population and the
opportunity provided to visitors to see grizzly bears in their natural
setting. Adverse impacts
[[Page 37014]]
would include the potential for temporary closures lasting from a few
hours to a few days, requiring some visitors to adjust their stay to
avoid closed areas, and noise associated with helicopter operations.
Compared to current conditions, these impacts, in addition to past,
present, and reasonably foreseeable planned actions, would be
beneficial. Restoration under this final rule would allow for greater
wildlife management flexibility that would provide an additional
increment of benefit to the visitor use and recreational experience by
minimizing negative human-bear conflicts (NPS and USFWS 2024, p. 130).
For potential impacts to public and employee safety, the final EIS
qualitatively addressed risks associated with human-grizzly bear
encounters related to employees working to restore and manage bears, as
well as risks to visitors and residents in and around the NCE (NPS and
USFWS 2024, p. 130). Overall, restoration of grizzly bears would have
adverse impacts on public and employee safety in terms of potential
conflicts with grizzly bears. However, the probability of adverse
impacts occurring would be low for a variety of reasons. Restoration
would begin in remote areas and occur in low density, and even as
density increases as the restoration population is achieved, existing
safety and related protocols would be implemented, such as food storage
restrictions, general bear safety education, temporary public closures,
and management protocols for the capture and release of bears. These
tools have been demonstrated to be effective in reducing impacts to
public safety, even in areas with a much higher density of grizzly
bears than projected for the ultimate population targeted in this
proposal (NPS and USFWS 2024, pp. 136-137). With the implementation of
this final section 10(j) rule, additional management measures will be
available to authorized agencies to use lethal and nonlethal measures
to reduce impacts from grizzly bears that move outside the ecosystem,
or to mitigate human-bear conflicts, including those associated with
public safety. These management actions could further reduce the
potential for human-bear conflicts and would contribute a reduced
potential for adverse impacts on visitor and employee safety (NPS and
USFWS 2024, p. 139).
The final EIS evaluated the socioeconomic impacts of the proposed
restoration considering a seven-county region of influence (Chelan,
King, Kittitas, Okanogan, Skagit, Snohomish, and Whatcom Counties) (NPS
and USFWS 2024, p. 139), qualitatively assessing potential impacts to
tourism, agricultural and livestock grazing, and timber harvest and
mining, as well as the effects to employment in each of these
categories. For tourism, occasional localized wilderness closures for
public safety during release activities could occur, but these closures
would be site-specific and short (hours to days). These closures are
not expected to substantially affect tour operators or recreational
visitors, including hunters or horseback riders. Any area closures are
anticipated to be infrequent and small in scope; therefore, revenue and
employment associated with tourism, including hunting, horseback
riding, hiking, sightseeing, and tour operations, would not be
noticeably affected as a result of implementing restoration under this
final section 10(j) rule. Collaboration with potential user groups and
public outreach and education would likely mitigate many potential
tourism-related concerns as wilderness users become accustomed to
backcountry practices that reduce chances for human-bear conflict.
Therefore, potential adverse tourism-related impacts would be mitigated
to the extent that no adverse impacts on tourism are expected (NPS and
USFWS 2024, p. 155).
Agriculture and livestock grazing operations could experience
reduced employment or increased costs of operating cattle ranching
operations. Direct impacts may occur through grizzly bear depredation
of cattle or sheep. Impacts are somewhat less likely to occur given
that no staging or release areas would be near active grazing
allotments; in addition, we provided in the final rule that individuals
such as livestock producers on private lands in Management Area C could
take grizzly bear in the act of attacking livestock under certain
conditions. Specific descriptions of the effects of potential livestock
depredation are described in the final EIS on pages 143-146 and further
analyzed in Regulatory Flexibility Act (5 U.S.C. 601 et seq.), below.
Impacts on timber harvesting and mining from restoration of grizzly
bears are anticipated to be intermittent and short term, lasting
minutes to hours, as workers become aware of grizzly bear presence in
the area, and grizzly bears avoid areas of active timber harvest and
mining (NPS and USFWS 2024, p. 156).
As to employment, restoration of bears could result in impacts on
employment related to tourism (both positive and negative),
agriculture, livestock grazing, mining, timber harvest, wildlife
management, or Federal land management. Wildlife management and Federal
land management may experience increases in employment resulting from
implementation of this final section 10(j) rule as wildlife and Federal
land managers capture and release grizzly bears and educate the public.
As displayed in the final EIS, implementation of a final section
10(j) designation is expected to reduce the potential for any adverse
socioeconomic impacts as compared with other final restoration
alternatives. The final section 10(j) designation allows for additional
management measures for lethal and nonlethal actions to minimize and
prevent human-bear conflicts. Additionally, the section 10(j)
designation eliminates the requirement for Federal agencies to consult
with the Service under section 7(a)(2) of the Act for grizzly bears in
the NEP (except on NPS or NWRS lands). Except for USFS actions on
National Forest System lands in Management Zone A, all take of grizzly
bears that is incidental to otherwise lawful activity is allowed. For
USFS actions on National Forest System lands in Management Zone A, this
final rule excepts all incidental take as long as the U.S. Forest
Service has maintained its `no net loss' agreement and implemented food
storage restrictions throughout National Forest System lands in
Management Area A. As a result, implementation of the final section
10(j) designation for grizzly bears would reduce the potential costs
and operational constraints that may have temporarily affected regular
business operations from the presence of grizzly bear.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any final rule, it must prepare, and make available
for public comment, a regulatory flexibility analysis that describes
the effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
We certify that this final rule would not have a
[[Page 37015]]
significant economic effect on a substantial number of small entities.
The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
considered the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
Importantly, the impacts of a rule must be both significant and
substantial to prevent certification of the rule under the Regulatory
Flexibility Act and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the final rule, but the per-entity economic impact is not
significant, the Service may certify. Likewise, if the per-entity
economic impact is likely to be significant, but the number of affected
entities is not substantial, the Service may also certify.
Because of the regulatory flexibility provided by designating an
NEP in the NCE, we do not expect this rule to have significant effects
on any activities within Federal lands within the experimental
population area. In regard to section 7(a)(2) of the Act, except on NPS
and NWRS lands, the population is treated as proposed for listing;
therefore, Federal action agencies are not required to consult on their
activities. Section 7(a)(4) of the Act requires Federal agencies to
confer (rather than consult) with the Service on actions that are
likely to jeopardize the continued existence of a proposed species.
However, because a nonessential experimental population is, by
definition, not essential to the survival of the species, conferencing
is unlikely to be required within the NEP. The USFS will not be
required to consult under section 7(a)(2) about impacts to the NEP when
authorizing activities under USFS permits, such as for grazing, mining,
and timber harvest activities, including permits for road hauling that
may include travel on non-Federal lands. In addition, section 7(a)(1)
of the Act requires Federal agencies to use their authorities to carry
out programs to further the conservation of listed species, which would
apply on any lands within the experimental population area. As a
result, and in accordance with these regulations and this final rule,
some modifications to the Federal actions within the experimental
population area may occur to benefit the grizzly bear, but we do not
expect projects on Federal lands to be precluded or likely to be
substantially modified as a result of these regulations.
However, this final rule authorizes and governs the management of
reintroduced grizzly bears in the NCE. The presence of reintroduced
grizzly bears has the potential to affect small entities involved in
ranching and livestock production, particularly beef cattle ranching
(business activity code North American Industry Classification System
(NAICS) 112111) and sheep farming (business activity code NAICS
112410). Small businesses involved in ranching and livestock production
may be affected by grizzly bears depredating on domestic animals,
particularly beef cattle and sheep. Direct effects to small businesses
could include forgone calf or cow sales at auctions due to
depredations. Indirect effects could include impacts such as increased
ranch operation costs for surveillance and oversight of the herd.
However, as detailed further below, we do not foresee a significant
economic impact to a substantial number of small entities in the
ranching and livestock production sector; in addition, the final rule
designating the grizzly bears as experimental with this special
management rule under section 10(j) is in part designed to help
minimize the potential for conflicts that could increase costs to
ranching and livestock production.
The small size standard for beef cattle farming entities and sheep
farms as defined by the Small Business Administration are those
entities with less than $2.5 million for beef cattle ranching and $3.5
million for sheep farming in average annual receipts (https://www.sba.gov/document/support-table-size-standards). As of 2017, there
were approximately 9,088 cattle and calf farms and approximately 1,930
sheep farms in Washington (USDA 2019, p. 181). Of these, 13 beef cattle
farms and zero sheep farms had average annual receipts above the Small
Business Administration thresholds for small entities (USDA 2019, p
181). Therefore, we find the vast majority of cattle ranches and sheep
farms in the State of Washington potentially affected by the
reintroduction and management of grizzly bears to be small entities.
Because the reintroduction of grizzly bears will occur only on
Federal lands within Management Area A, the NPS and FWS evaluated
socioeconomic impacts in a seven-county region of influence (ROI),
including Chelan, King, Kittitas, Okanogan, Skagit, Snohomish, and
Whatcom Counties, centered on Management Area A (the focal point for
grizzly bear recovery in the NCE). While these counties contain several
larger cities, including Bellingham, Everett, Seattle, and Wenatchee,
the NCE is located in a predominantly rural area away from large urban
areas. The NCE is approximately 52 percent of the total land area of
the ROI (NPS and USFWS 2024, p. 139). Approximately 25 percent of farms
in the State of Washington occur in the ROI (NPS and USFWS 2024, p.
145). Therefore, we estimate approximately 2,272 cattle and calf farms
and 483 sheep farms in the ROI. The actual number of farms that may be
affected is far less than 25 percent because the grizzly bear release
areas occur on Federal lands and do not overlap with active grazing
allotments, the ROI includes several counties that extend beyond the
borders of the NCE Recovery Zone, and the farms occur in areas where we
do not expect grizzly bear occupancy due to low habitat suitability
(NPS and USFWS 2024, p. 146).
As of 2015, 773,788 acres (313,141 hectares) of land were actively
under permit for cattle and sheep grazing on Okanogan-Wenatchee NF,
with 320,044 acres (129,517 hectares) occurring within the NCE Recovery
Zone. Most of the acreage permitted on Okanogan-Wenatchee NF was for
cattle grazing. There are no grazing permits on Mount Baker Snoqualmie
NF. The 2015 Okanogan-Wenatchee Allotment Information Sheet reports
that there were 4,151 animal unit months (AUMs) of permitted sheep and
47,686 AUMS of permitted cattle grazing on National Forest System lands
within the NCE Recovery Zone. In 2015, 4,100 ewe/lamb pairs were
grazing, and 4,552 cow/calf pairs were authorized to graze during the
summer on USFS allotments within the NCE Recovery Zone. No livestock
were present within the North Cascades
[[Page 37016]]
NPS complex as of 2015 (NPS and USFWS 2024, p. 145).
We assessed whether this final rule would have a significant
economic impact by estimating the annual number of depredations we
expect to occur when the grizzly bear population will be at the
restoration population of 200 (which is not expected for several
decades). Grizzly bear depredation is highly variable between and among
years. Estimates of potential grizzly bear depredation were generated
using grizzly bear population estimates for the NCDE and livestock
losses of cattle and sheep, generating an estimated annual rate of
livestock loss per grizzly bear of 0.093 cattle and 0.019 sheep. When
these rates were applied to an NCE grizzly bear population of 25,
annual livestock loss estimates were two to three cattle and up to one
sheep. When these rates were applied to an NCE grizzly bear restoration
population of 200, annual livestock loss estimates were 18 to 19 cattle
and 3 to 4 sheep. Rates developed with these data may represent
overestimates of expected livestock loss in restored populations of
grizzly bears in the NCE if grizzly bears do not occupy private lands
where more livestock may be present.
It is probable that the actual number of cattle and sheep killed
per year would fall within the range of the 2 estimates (1 to 19 cattle
per year, and 1 to 4 sheep per year). The number would likely fall on
the lower end of the range because of a number of factors, including
juxtaposition of grizzly bear habitat and grazing; type of grazing
operation; distribution and abundance of other predators; and abundance
and distribution of prey. Even with this uncertainty, the total number
of cattle and sheep depredated within the NCE would result in minimal,
adverse impacts on agriculture and the livestock grazing industry,
contributing to less than 0.01 percent of the total number of cattle
and sheep in the ROI.
To the extent that some cattle farms will most likely not be
impacted by grizzly bear recovery because they are not located in
suitable habitat but are included in the total estimate of potentially
affected farms, this estimate could understate the percentage of
livestock potentially affected. However, for other reasons, this
estimate could very well overstate the percentage of farms affected as
we recognize that annual depredation events have not been, and may not
be, uniformly distributed across the farms operating in occupied
grizzly bear range. Rather, grizzly bears seem to concentrate in
particular areas where concentrated attractants occur within productive
grizzly bear habitat (Lamb et al. 2023, pp. 6-12; Wilson et al. 2005,
entire; Wilson et al. 2006, entire). The extent of depredation would be
most influenced by the extent that livestock overlap with grizzly
bears, the size of the grazing operation, and the presence of
attractants. Additionally, these impacts are somewhat less likely to
occur given that no staging or release areas would overlap active
grazing allotments.
As of 2017, 4,100 ewe/lamb pairs and 4,552 cow/calf pairs are
authorized to graze during the summer on USFS allotments within the NCE
Recovery Zone. Few livestock are present within the central portion of
the NCE Recovery Zone because it is a national park. Because only
approximately three to seven bears per year would initially be released
into the NCE, we anticipate depredation events to be rare during the
primary phase; however, depredation is likely to increase in frequency
as the population grows over time during the adaptive management phase.
Based on a weighted average market value for a depredated cow/calf of
$1,021.33 ($2022) and for a depredated sheep of $311.96 ($2022), a
total estimated depredation of 1 to 19 cattle per year and 1 to 4 sheep
per year could result in a loss of revenue at auction ranging from
$1,021.33 to $19,405.29 for cattle and $311.96 to $1,247.84 for sheep.
This final rule is assessed as alternative C in our final EIS, the
preferred alternative for restoring grizzly bears to the NCE. Under
this alternative, the designation of an experimental population with
the special regulations of this final rule would allow several forms of
take of grizzly bears on Federal and non-Federal land to address
conflict situations between grizzly bears and livestock. These forms of
take would generally not be allowed if reintroduced grizzly bears were
not designated as an experimental population (another alternative that
was considered in our final EIS). Additionally, reintroduced grizzly
bears would be released only into Federal lands in Management Area A.
While we anticipate that bears will move into areas within Management
Areas B and C, any grizzly bear in these areas posing a demonstrable
threat to human safety, livestock, or property may be relocated or
removed by the Service or authorized Federal, State, or Tribal
authorities with prior approval by the Service and in accordance with
the process for ``removal of grizzly bears involved in conflict'' as
defined in this10(j) rule. Individuals may also nonlethally take
grizzly bears for the purpose of deterrence to prevent conflict,
provided the deterrence does not cause lasting bodily injury (i.e.,
permanent damage or injuries that limit the bear's ability to
effectively move, obtain food, or defend itself for any length of
time), or death to the grizzly bear. In addition, with the final rule
we authorize individuals to take a grizzly bear in the act of attacking
livestock under certain conditions. These flexibilities further reduce
the impacts to small businesses.
Agriculture and grazing operations located closest to release areas
or high-quality grizzly bear habitat would be the most likely to be
affected. However, adverse impacts on agriculture and livestock grazing
would be limited compared to the total number of livestock present in
or adjacent to the NCE. The potential for impacts would be further
reduced by the implementation of this final rule, including associated
conflict-prevention efforts such as the public outreach on minimizing
unsecured attractants (e.g., Western Wildlife Outreach 2023; Braaten et
al. 2013, pp. 7-8).
Based on the preceding information, we find that the impact of
direct effects of grizzly bear depredations on livestock would not be
significant. That is, less than 0.01 percent of the total number of
cattle and sheep in the ROI could be affected, and the high end of the
annual potential loss of revenue across all farms is estimated at
approximately $22,000. We do not consider either the number of
potential livestock affected nor the potential loss of revenue to be a
significant economic impact. Considering that less than 25 percent of
the total farms in Washington occur within the ROI and no farms occur
within final grizzly bear release areas, far fewer than 25 percent of
farms in Washington would be likely to experience economic impacts.
While we are not able to quantify this number, we do find that there
would not be a substantial number of small entities impacted.
For the above reasons and based on currently available information,
we certify that the final nonessential experimental population
designation of grizzly bears would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(1) This rule would not ``significantly or uniquely'' affect small
governments. We have determined and certify pursuant to the Unfunded
Mandates
[[Page 37017]]
Reform Act, 2 U.S.C. 1502 et seq., that, if adopted, this rulemaking
would not impose a cost of $100 million or more in any given year on
local or State governments or private entities. A small government
agency plan is not required. Small governments would not be affected
because the final NEP designation would not place additional
requirements on any city, county, or other local municipalities.
(2) This rule would not produce a Federal mandate of $100 million
or greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act). This final NEP
designation of the grizzly bear in the NCE would not impose any
additional management or protection requirements on the States or other
entities.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the final rule does not
have significant takings implications. When reintroduced populations of
federally listed species are designated as NEPs, the Act's regulatory
requirements regarding the reintroduced population are significantly
reduced.
A takings implication assessment is not required because this final
rule (1) would not effectively compel a property owner to suffer a
physical invasion of 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 species) and would not present a
barrier to all reasonable and expected beneficial use of private
property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this final rule has significant federalism effects and have
determined that a federalism assessment is not required. This final
rule would not have substantial direct effects on the States, on the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. In keeping with Department of the Interior policy, we
requested information from and coordinated development of this final
rule with the affected resource agencies in Washington. Establishing an
experimental population of grizzly bears in the NCE Recovery Zone would
contribute positively toward the status of the species, which in turn
would be factored into future assessments of the status of grizzly
bears in the lower 48 States.
We acknowledge a Washington State law that addresses grizzly bear
reintroduction in the State. Revised Code of Washington 77.12.035,
Protection of grizzly bears--Limitation on transplantation or
introduction--Negotiations with Federal and State agencies, provides as
follows: ``The commission shall protect grizzly bears and develop
management programs on publicly owned lands that will encourage the
natural regeneration of grizzly bears in areas with suitable habitat.
Grizzly bears shall not be transplanted or introduced into the state.
Only grizzly bears that are native to Washington State may be utilized
by the department for management programs. The department is directed
to fully participate in all discussions and negotiations with Federal
and State agencies relating to grizzly bear management and shall fully
communicate, support, and implement the policies of this section.''
This State law provision governs only the activities of the
Washington Department of Fish and Wildlife (WDFW) and prohibits WDFW
from transplanting or introducing grizzly bears into the State (see
Washington State Office of the Attorney General memorandum to the WDFW
(WA AG in litt. 2017)). Further, the State provision is interpreted to
require WDFW to protect grizzly bears and develop programs that will
encourage their natural regeneration on public lands with suitable bear
habitat, and to allow for WDFW's engagement in monitoring, habitat
enhancement, and response to grizzly bears that are endangering public
safety or damaging private property.
We developed this final rule in cooperation with WDFW, and in
consideration of this Washington State law, grizzly bear reintroduction
would occur on Federal lands administered by the NPS or the USFS, and
efforts from WDFW to transplant or introduce grizzly bears would not be
required. In response to comments from WDFW on the proposed rule, in
this final rule we confirm that we will prioritize reintroduction
releases on NPS lands as encouraged by WDFW and will work with WDFW to
avoid any administrative complications. The final rule provides for the
State's participation in the management of bears introduced by Federal
agencies on Federal lands within the State. For these reasons, no
intrusion on State policy or administration is expected, roles or
responsibilities of Federal or State governments would not change, and
fiscal capacity would not be substantially directly affected. The final
rule would operate to maintain the existing relationship between the
State and the Federal Government and is being undertaken in
coordination with the State of Washington. Therefore, this final rule
does not have significant federalism effects or implications to warrant
the preparation of a federalism assessment pursuant to the provisions
of E.O. 13132.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988 (February 7, 1996; 61 FR
4729), the Office of the Solicitor has determined that this final rule
would not unduly burden the judicial system and meets the requirements
of sections (3)(a) and (3)(b)(2) of the Order.
Paperwork Reduction Act
This final rule contains existing and new collections of
information that require approval by the OMB under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An 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. The OMB has reviewed and approved the information
collection requirements associated with the establishment of an NEP of
the grizzly bear in the State of Washington, under section 10(j) of the
Act, and assigned the OMB Control Number 1018-0199.
Experimental populations established under section 10(j) of the
Act, as amended, require information collection and reporting to the
Service. The Service would collect information on the grizzly bear NEP
to help further the recovery of the species and to assess the success
of the reintroduced populations. There are no forms associated with
this information collection. The respondents would notify the Service
when an incident occurs, so there would be no set frequency for
collecting the information. Federal, State, and participating Tribal
agencies would provide the Service with the vast majority of the
information on grizzly bears within the NEP. However, the public also
would provide some information to the Service. The final new
information collection requirements identified below require approval
by OMB:
1. Reporting requirements--The respondents would notify the Service
when an incident occurs and annually report the number of grizzly bears
relocated and removed. The State and other Federal agencies would
provide the Service with the vast majority of the information on
experimental
[[Page 37018]]
populations under interagency agreements for the conduct of the
recovery programs. However, the public also would provide some
information to the Service. Reporting parties would include, but would
not be limited to, individuals or households, businesses, farms,
nonprofit organizations, and State/Tribal governments. The Service
would collect the information by means of telephone calls from the
public. Standard information collected would include:
a. Name, address, and phone number of reporting party.
b. Species involved.
c. Type of incident.
d. Take (quantity).
e. Location and time of reported incident.
f. Description of the circumstances related to the incident.
Some of these contacts would be necessary followup reports under
where the Service has authorized lethal take of experimental animals
(e.g., livestock depredation). The Service would collect information in
three categories:
i. Lethal take must be reported by individuals within 24 hours to
the Service's Ecological Services point of contact in this rule. Lethal
take must be reported by a Federal, State, or Tribal authority of an
authorized agency within 24 hours by following the reporting
instructions as described in the authorized agency's MOU and included
in an annual report to the Service.
ii. Nonlethal take that results in injury by an individual must be
reported within 5 days to the Service's Ecological Services point of
contact in this rule. Nonlethal take that results in injury by a
Federal, State, or Tribal authority of an authorized agency must be
reported within 5 days by following the reporting instructions as
described in the authorized agency's MOU and included in an annual
report to the Service. Incidental take that results from indirect
activities such as incidental take in the form of harm resulting from
habitat modification does not need to be reported.
iii. Recovery or reporting of dead individuals and specimen
collection from experimental populations. This type of information is
for the purpose of documenting incidental or authorized scientific
collection. Most of the contacts with the public would deal primarily
with the reporting of sightings of experimental population animals, or
the inadvertent discovery of an injured or dead individual.
2. Memorandums of Understanding (MOUs)--The Service would enter
into MOUs with Federal, State, or Tribal agencies to authorize grizzly
bear management consistent with this 10(j) rule. The Service does not
expect to enter into MOUs with local governments or authorities. We are
not reporting burden for Federal agencies as they are exempt from the
requirements of the PRA. The Service would collect information in two
general categories from the relevant agencies in relation to these
MOUs:
a. Relocation of bears. With prior approval from the Service, a
Federal, State, or Tribal authority may live-capture any grizzly bear
occurring in the NEP area and transport and release it in a remote
location agreed to by the Service, the Washington Department of Fish
and Wildlife, and the applicable land-managing agency.
b. Removal of grizzly bears involved in conflict. Authorized
Service, Federal, State, or Tribal authorities may lethally take a
grizzly bear in the NEP area with prior approval from the Service if
the Service or an authorized agency determines it is not reasonably
possible to otherwise eliminate the threat by nonlethal deterrence or
live-capturing and releasing the grizzly bear unharmed, and if the
taking is done in a humane manner. Grizzly bears may be taken in self-
defense or in defense of other persons, based on a good-faith belief
that the actions taken were to protect the person from bodily harm.
3. Written Authorization--conditioned lethal take--With prior
written agreement from the Service, individuals may lethally take a
grizzly bear within 200 yards (183 m) of legally present livestock in
Management Areas B and C if a depredation has been confirmed by the
Service or an authorized agency and it has been determined that it is
not reasonably possible to eliminate the threat through nonlethal
deterrence or live-capturing and releasing the grizzly bear unharmed.
Additionally, the Service may issue written authorization to an
individual to kill a grizzly bear in Management Area C if the Service
or an authorized agency identifies the grizzly bear as an ongoing
threat to human safety, livestock, or other property (e.g., compost,
chickens, beehives), and it is not reasonably possible to eliminate the
threat through nonlethal deterrence or live-capturing and releasing the
grizzly bear unharmed.
This information collection was incorrectly listed as part of the
MOU information collection in the proposed rule submission to OMB. It
is a stand-alone information collection, not related to the MOUs.
4. Recovery or reporting of dead individuals and specimen
collection from experimental populations--This type of information
would be for the purpose of documenting incidental or authorized
scientific collection and surrender of grizzly bear carcasses as the
result of lethal take. Most of the contacts with the public primarily
would be with the reporting of sightings of experimental population
animals, or the inadvertent discovery of an injured or dead individual.
5. Obtaining Landowner/Land Management Entity Authorization--
Individuals requesting the written authorizations mentioned above must
also obtain or confirm authorization from the landowner or land
management entity, where appropriate.
The Service would use the information described above to document
the locations of reintroduced animals, determine causes of mortality
and conflict with human activities so that Service managers could
minimize conflicts with people, and improve management techniques for
reintroduction. The information would help the Service assess the
effectiveness of management activities and develop means to reduce
problems with livestock for those species where depredation is a
problem. Service recovery specialists would use the information to
determine the success of reintroductions in relation to established
recovery plan goals for the threatened and endangered species involved.
Changes Since Submission at the Proposed Rule Stage
We initially proposed the following information collection at the
proposed rule stage. However, we are no longer seeking approval of them
for the reasons stated below:
1. Appointment of Designated Agent--
A designated agent is an employee of a Federal, State, or Tribal
agency that is authorized by the Service to conduct grizzly bear
management. A prospective designated agent would submit a letter to the
Service requesting designated agent status. The letter would include a
proposal for the work to be completed and resume of qualifications for
the work they wish to perform. The Service would then respond to the
requester with a letter authorizing them to complete the work.
Reason for Discontinuance: We removed this information collection
because it is redundant with the information collections for MOUs.
Authorized individuals of an authorized agency would be reporting the
information specified above under their agency-specific MOU.
[[Page 37019]]
2. Memorandums of Understanding--Relocation of Bears (Individual and
Private Sector Respondents)
Reason for Discontinuance: We removed this information collection
for individual and private sector respondent categories as they will
not be authorized to relocate bears. This information collection
applies only to State/Tribal governments.
3. Memorandums of Understanding--Conditioned Lethal Take (State/Local/
Tribal Govt and Private Sector)
Reason for Discontinuance: We removed this information collection
because it is already addressed for State/Tribal government respondents
under the Memorandum of Understanding--Removal of Grizzly Bears
collection, and conditioned lethal take is not authorized for the
private sector. We have also revised the title for information
collection from individuals for conditioned lethal take accordingly.
4. Memorandums of Understanding--Removal of Grizzly Bears (Individuals
and Private Sector)
Reason for Discontinuance: We removed the information collections
for individual and private sector respondent categories as they will
not be authorized to remove bears pursuant to Memorandums of
Understanding. This information collection applies only to State/Tribal
governments.
Title of Collection: Endangered and Threatened Wildlife,
Experimental Populations--Grizzly Bear (50 CFR 17.84).
OMB Control Number: 1018-0199.
Form Numbers: None.
Type of Review: New.
Respondents/Affected Public: Individuals; private sector; and
State/Tribal governments.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: Annually for annual report and on occasion
for other requirements.
Total Estimated Annual Nonhour Burden Cost: None.
----------------------------------------------------------------------------------------------------------------
Number of Total
Number of annual Total Average completion annual
Requirement annual responses annual time burden
respondents each responses hours
----------------------------------------------------------------------------------------------------------------
Notification--Lethal Take:
Individuals................... 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Private Sector................ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
State/Tribal Gov't............ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Notification--Nonlethal Take:
Individuals................... 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Private Sector................ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
State/Tribal Gov't............ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Notification--Recovery or
Reporting of Dead Specimen and
Specimen Collection:
Individuals................... 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Private Sector................ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
State/Tribal Gov't............ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Memorandums of Understanding--
Relocation of Grizzly Bears
State/Tribal Gov't............ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Memorandums of Understanding--
Removal of Grizzly Bears:
State/Tribal Gov't............ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Written Authorization-Conditioned
Lethal Take:
Individuals................... 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Obtaining Landowner/Land
Management Entity Authorization:
Individuals................... 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
Private Sector................ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
State/Tribal Gov't............ 1 1 1 30 min (reporting); 1
30 min
(recordkeeping).
-----------------------------------------------------------------------------
Totals.................... 15 ........... 15 ..................... 15
----------------------------------------------------------------------------------------------------------------
[[Page 37020]]
On September 29, 2023, we published in the Federal Register (88 FR
67193) a proposed rule (RIN 1018-BG89) to establish a nonessential
experimental population (NEP) of the grizzly bear (Ursus arctos
horribilis) in the NCE, under section 10(j) of the ESA. In that
proposed rule, we solicited comments for 60 days on the information
collections in this submission, ending on November 28, 2023. In
response to that proposed rule, we received the following three
comments that addressed the information collection requirements:
Comment 1: Electronic comment submitted via Regulations.gov (FWS-
R1-ES-2023-0074-7310) on November 10, 2023, from the Sierra Club. The
commenter expressed concern regarding the timeframe for reporting
injuries (i.e., nonlethal take) compared to lethal take. The proposed
rule required 24 hours for reporting lethal take and 5 days for
reporting nonlethal take. The commenter recommended that nonlethal take
also have a 24-hour reporting requirement in case the injury ultimately
results in the death of the bear.
Agency Response to Comment 1: The 5-day reporting window is
consistent with our practices under the existing 4(d) rule for the
grizzly bear outside the NEP, and we retain that reporting window for
this NEP. In other grizzly bear ecosystems with this same 5-day
reporting requirement, partners report this type of injury immediately.
We would anticipate the same response in the NCE but include a 5-day
reporting window in recognition that reporting an injury within 24
hours is not always feasible, especially because the areas where bears
are being reintroduced are very remote, and individuals may be in the
backcountry without access to telephones or internet.
Comment 2: Electronic comment submitted via Regulations.gov (FWS-
R1-ES-2023-0074-12199) on November 12, 2023, from the American Forest
Resource Council. The commenter indicated that the nonlethal incidental
take reporting requirements due to `habitat modification resulting from
otherwise lawful activities' are impractical and should be exempted
from reporting.
Agency Response to Comment 2: We did not intend for the general
reporting requirements for nonlethal take to apply to incidental take
in the form of harm via habitat modification; rather, we are requiring
reporting when lethal or nonlethal take occurs as a result of direct
interactions with the grizzly bear (e.g., through self-defense,
deterrence, conflict management, or vehicle collision, etc.) and have
clarified that nonlethal incidental take reporting is not required.
Comment 3: Electronic comment submitted via Regulations.gov (FWS-
R1-ES-2023-0074-12015) on November 12, 2023, from the Washington Forest
Protection Association. The commenter indicated that the nonlethal
incidental take reporting requirements due to `habitat modification
resulting from otherwise lawful activities' are impractical and should
be exempted from reporting.
Agency Response to Comment 3: We did not intend for the general
reporting requirements for nonlethal take to apply to incidental take
in the form of harm via habitat modification; rather, we are requiring
reporting when lethal or nonlethal take occurs as a result of direct
interactions with the grizzly bear (e.g., through self-defense,
deterrence, conflict management, or vehicle collision, etc.) and have
clarified that nonlethal incidental take reporting is not required.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) How the agency might minimize the burden of the collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of response.
Comments that you submit in response to this rulemaking are a
matter of public record. Before including your address, phone number,
email address, or other personal identifying information in your
comment, you should be aware that your entire comment--including your
personal identifying information--may be made publicly available at any
time. While you can ask us in your comment to withhold your personal
identifying information from public review, we cannot guarantee that we
will be able to do so.
Send your written comments and suggestions on this information
collection by the date indicated in DATES to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/
PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
by email to [email protected]. Please reference OMB Control Number
1018-0199 in the subject line of your comments.
National Environmental Policy Act
In compliance with the National Environmental Policy Act of 1969
(NEPA), we have prepared, jointly with NPS, a final EIS to describe the
impacts of restoring grizzly bears to the NCE and establishment of the
restored population as experimental and managed in accordance with this
final rule, see 89 FR 20469 (March 23, 2024). The final EIS evaluated
options for a regulatory framework, including a rule consistent with
section 10(j) of the Act, for the reintroduction and management of
grizzly bears in part of the species' historical range in Washington.
The final EIS analyzed potential environmental impacts that may result
from two action alternatives and the no-action alternative and includes
relevant and reasonable measures that could avoid or mitigate potential
impacts.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate meaningfully with federally recognized Tribes on a
government-to-government basis. In accordance with Secretary's Order
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes.
Throughout the development of this final rule, we sought the input
of Tribal governments near the final release sites as well as Tribal
governments near the potential source populations in the NCDE and GYE.
In collaboration with
[[Page 37021]]
the NPS, we extended an invitation for government-to-government
consultation to all federally recognized Tribes in the NEP area and
formally met with Tribes that requested government-to-government
consultation. Corresponding with the start of the EIS process in
November 2022, all federally recognized Tribes in Washington and the
Nez Perce Tribe in Idaho were invited to consult on grizzly bear
recovery and the draft EIS assessing options to restore grizzly bears
to the NCE. An invitation to consult specifically on the development of
the 10(j) rule was sent to all federally recognized Tribes in
Washington in February 2023. Invitations to consult were also sent in
March 2023 to Tribal governments near potential source populations in
the NCDE and GYE, including in the States of Colorado, Kansas, Montana,
Nebraska, North Dakota, South Dakota, Utah, and Wyoming.
Corresponding with the release of the proposed rule and draft EIS
in September 2023, notification of the publication of the documents and
invitations to consult were sent to all federally recognized Tribes in
Washington, as well as Tribal governments near potential source
populations in the NCDE and GYE, including in the States of Colorado,
Idaho, Kansas, Montana, Nebraska, North Dakota, South Dakota, Utah, and
Wyoming. We remain available to meet with other Tribes that request
government-to-government or informal consultation and will fully
consider information received through the consultation process as we
implement this final rule.
Energy Supply, Distribution, or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. This final rule is not
expected to significantly affect energy supplies, distribution, and
use. Therefore, this action is not a significant energy action, and no
statement of energy effects is required.
References Cited
A complete list of all references cited in this final rule is
available upon request from our Washington Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT) or online at https://www.regulations.gov in Docket No. FWS-R1-ES-2023-0074.
Authors
The primary authors of this final rule are staff of the Service's
Washington Fish and Wildlife Office, along with staff of the Service's
Grizzly Bear Recovery Program (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Final Regulation Promulgation
Accordingly, we hereby amend part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11 paragraph (h) by revising the entry for ``Bear,
grizzly'' under MAMMALS in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Bear, grizzly................... Ursus arctos U.S.A., T 32 FR 4001, 3/11/
horribilis. conterminous 1967;
(lower 48) States, 35 FR 16047, 10/13/
except where 1970;
listed as an 40 FR 31734, 7/28/
experimental 1975;
population. 72 FR 14866, 3/29/
2007;
75 FR 14496, 3/26/
2010;
82 FR 30502, 6/30/
2017;
84 FR 37144, 7/31/
2019;
50 CFR 17.40(b)
\4d\.
Bear, grizzly [Bitterroot XN]... Ursus arctos U.S.A. (portions of XN 65 FR 69624, 11/17/
horribilis. ID and MT; see 2000; 50 CFR
Sec. 17.84(l)). 17.84(l)\10j\.
Bear, grizzly [North Cascades Ursus arctos U.S.A. (WA, except XN 89 FR [INSERT
XN]. horribilis. the portion of Federal Register
northeastern PAGE WHERE THE
Washington defined DOCUMENT BEGINS],
by the Kettle 5/3/2024;
River from the 50 CFR
international 17.84(y)\10j\.
border with
Canada, downstream
to the Columbia
River to its
confluence with
the Spokane River,
then upstream on
the Spokane River
to the WA-ID
border; see Sec.
17.84(y)).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.84 by:
0
a. Revising paragraph (l) introductory text and paragraph (l)(1); and
0
b. Adding paragraph (y).
The revisions and addition read as follows:
Sec. 17.84 Species-specific rules--vertebrates.
* * * * *
(l) Grizzly bear (Ursus arctos horribilis)--Bitterroot nonessential
experimental population.
(1) Where does this rule apply? (i) The rule in this paragraph (l)
applies to the designated Bitterroot Grizzly Bear Experimental
Population Area (Experimental Population Area), which is found within
the species' historic range and is defined in paragraph (l)(1)(ii) of
this section.
[[Page 37022]]
(ii) The boundaries of the Experimental Population Area are
delineated by U.S. 93 from its junction with the Bitterroot River near
Missoula, Montana, to Challis, Idaho; Idaho 75 from Challis to Stanley,
Idaho; Idaho 21 from Stanley to Lowman, Idaho; State Highway 17 from
Lowman to Banks, Idaho; Idaho 55 from Banks to New Meadows, Idaho; U.S.
95 from New Meadows to Coeur d'Alene, Idaho; Interstate 90 from Coeur
d'Alene, Idaho, to its junction with the Clark Fork River near St.
Regis, Montana; the Clark Fork River from its junction with Interstate
90 near St. Regis to its confluence with the Bitterroot River near
Missoula, Montana; and the Bitterroot River from its confluence with
the Clark Fork River to its junction with U.S. Highway 93, near
Missoula, Montana (See map at the end of this paragraph (l)).
* * * * *
(y) Grizzly bear (Ursus arctos horribilis)--North Cascades
nonessential experimental population.
(1) Purpose. The regulations in this paragraph (y) set forth the
provisions of a rule to establish an experimental population of grizzly
bears. The Service finds that establishment of an experimental
population of grizzly bears as described in this paragraph (y) will
further the conservation of the species.
(2) Determinations. The grizzly bears identified in this paragraph
(y) constitute a nonessential experimental population (NEP) under Sec.
17.81(c)(2). These grizzly bears will be managed in accordance with the
provisions of this rule within the boundaries of the NEP area as
identified in paragraph (y)(4) of this section. After our initial
release of one or more grizzly bears into the NEP area, any grizzly
bears found within the NEP area will be considered a member of the NEP.
(3) Definitions. Key terms used in this paragraph (y) have the
following definitions:
Authorized agency means a Federal, State, or Tribal agency
designated by the Service in a memorandum of understanding (MOU) to
assist in implementing all or part of the specified actions in this
paragraph (y).
Demonstrable and ongoing threat refers to a grizzly bear actively
chasing or attacking livestock or lingering in close proximity to
livestock following a depredation.
Depredation means the confirmed killing or wounding of lawfully
present livestock by one or more grizzly bears. The Service or an
authorized agency must confirm grizzly bear depredation on lawfully
present livestock. Livestock trespassing on Federal, State, or private
lands are not considered lawfully present.
Deterrence means an intentional action to haze, disrupt, or annoy a
grizzly bear to move out of close proximity to people or property to
promote human safety, prevent conflict, or protect property and that
does not cause death or lasting bodily injury to the grizzly bear.
Domestic animal means an individual of an animal species that has
been selectively bred over many generations to enhance specific traits
for their use by humans, including for use as a pet or livestock.
Federal, State, or Tribal authority means an employee of a State,
Federal, or federally recognized Indian Tribal government who, as part
of their official duties, normally handles large carnivores and is
trained and/or experienced in immobilizing, marking, and handling
grizzly bears.
Grizzly bear involved in conflict means a grizzly bear that has
caused substantial property damage, obtained anthropogenic foods (e.g.,
pet food, livestock feed, garbage), killed or injured lawfully present
livestock, damaged beehives, breached an intact structure or
electrified perimeter to obtain fruit or crops (e.g., greenhouse,
garden, orchard, field, stackyard or grain bin), shown repeated and
persistent signs of habituation in proximity to human-occupied areas
(e.g., has been repeatedly hazed or previously relocated), exhibited
aggressive behavior (i.e., not acting in defense of offspring or food
or in response to a surprise encounter), or has been involved in a
human-grizzly encounter resulting in substantial human injury or loss
of human life.
Human-occupied areas means any structures or areas currently used
or inhabited by humans (e.g., homes, residential areas, occupied
campgrounds or trailheads, job sites).
In the act of attacking means the actual biting, wounding,
grasping, or killing of livestock (including working dogs) by a grizzly
bear.
Lasting bodily injury refers to any permanent damage or injury that
limits a grizzly bear's ability to effectively move, obtain food, or
defend itself for any length of time.
Livestock means cattle, sheep, pigs, horses, mules, goats, domestic
bison, alpacas, llamas, donkeys, and working dogs but not poultry,
feral dogs, or domestic dogs (working or otherwise) that are not in
close proximity to human-occupied areas or to lawfully present
livestock.
Threat to human safety means a grizzly bear that exhibits
aggressive (i.e., nondefensive) behavior towards humans.
(A) Grizzly bear presence alone does not constitute a threat to
human safety.
(B) Grizzly bears less than 2 years of age with no history of food-
conditioning are not considered a threat to human safety.
Working dog means a herding or guard dog that is actively herding
or guarding in close proximity to human-occupied areas or to lawfully
present livestock.
(4) Where is the grizzly bear North Cascades NEP? (i) The grizzly
bear NEP area includes Washington State except the portion of
northeastern Washington defined by the Kettle River from the
international border with Canada, downstream to the Columbia River, to
its confluence with the Spokane River, then upstream on the Spokane
River to the Washington-Idaho border. The area shown in figure 1 to
paragraph (y)(4) of this section will remain designated as the
experimental population area unless the Service determines in a future
rulemaking that:
(A) The reintroduction has not been successful, in which case the
NEP boundaries might be altered or the regulations in this paragraph
(y) might be removed; or
(B) The grizzly bear is recovered and delisted in accordance with
the Act.
(ii) Management Area A of the grizzly bear North Cascades NEP
includes the Mount Baker Snoqualmie National Forest, Okanogan-Wenatchee
National Forest, and Colville National Forest north of Interstate 90
and west of Washington State Route 97, as well as the North Cascades
National Park Service complex. Management Area A will be the primary
area for restoration of grizzly bears and will serve as core habitat
for survival, reproduction, and dispersal of the NEP.
(iii) Management Area B of the grizzly bear North Cascades NEP
includes the Mount Baker Snoqualmie National Forest and Okanogan-
Wenatchee National Forest south of Interstate 90, Gifford Pinchot
National Forest, and Mount Rainier National Park. Management Area B
also includes the Colville National Forest and Okanogan-Wenatchee
National Forest lands east of Washington State Route 97 within the
experimental population boundary. Management Area B includes areas that
may be used for natural movement and/or dispersal by grizzly bears and
that have a lower potential for human-bear conflicts.
(iv) Management Area C of the grizzly bear North Cascades NEP
comprises all non-Federal lands within the North Cascades Ecosystem
Recovery Zone and
[[Page 37023]]
all other lands outside of or not otherwise included in Management
Areas A and B within the NEP boundary. Management Area C contains large
areas that may be incompatible with grizzly bear presence due to high
levels of private land ownership and associated development and/or
potential for bears to become involved in conflicts with resultant bear
mortality, although some areas within this management area are capable
of supporting grizzly bears and grizzly bears may occur there.
(v) Map of the NEP area and associated management areas for the
grizzly bear in the North Cascades Ecosystem follows:
Figure 1 to Paragraph (y)(4)
[GRAPHIC] [TIFF OMITTED] TR03MY24.003
(5) What take of the grizzly bear is allowed in Management Area A
of the North Cascades NEP area? The exceptions to take prohibitions
described in paragraphs (y)(5)(i) through (viii) of this section apply
in Management Area A:
(i) Defense of life. Any person may take a grizzly bear in self-
defense or in defense of other persons, based on a good-faith belief
that the actions taken were to protect the person from bodily harm.
Such taking must be reported as described in paragraph (y)(8) of this
section.
(ii) Deterrence. Any person may take a grizzly bear for the purpose
of deterrence (see definition in paragraph (y)(3)) of this section,
under the provisions set forth in this paragraph (y)(5)(ii):
(A) Once a grizzly bear has moved out of close proximity,
deterrence is unlikely to be effective and must cease.
(B) Any deterrence action must not cause lasting bodily injury or
death to the grizzly bear.
(C) Deterrence must be by acceptable techniques, which include non-
projectile auditory deterrents, visual stimuli/deterrents, vehicle
threat pressure, and noise-making projectiles. Unacceptable deterrence
methods include screamers/whistlers, rubber bullets/batons, and bean
bag and aero sock rounds. For more information about appropriate
nonlethal deterrents, contact the Service for the most current Service-
approved guidelines.
(D) A person may not bait, stalk, or pursue a grizzly bear for the
purposes of deterrence. Pursuit is defined as deterrence carried out
beyond 200 yards (183 m) of a human-occupied area or lawfully present
livestock.
(E) Any person who deters a grizzly bear must use discretion and
act safely and responsibly.
(iii) Incidental take. (A) Except as provided in paragraph
(y)(5)(iii)(B) of this section, take of a grizzly bear is allowed if it
is incidental to (i.e., unintentional and not the purpose of) an
otherwise lawful activity and is not due to negligent conduct.
(B) Take of a grizzly bear resulting from U.S. Forest Service
actions on National Forest System lands in Management Area A that is
incidental to otherwise lawful activity is allowed if the U.S. Forest
Service has maintained its `no net loss' agreement and implemented food
storage restrictions throughout National Forest System lands in
Management Area A.
(iv) Take under permits. Any person with a valid permit issued
under Sec. 17.32 by the Service may take a grizzly bear pursuant to
the terms of the permit.
(v) Take under section 6 of the Act. Any State conservation agency
may take a grizzly bear under section 6(c) of the Act as described in
Sec. 17.31.
[[Page 37024]]
(vi) Research and recovery actions. With prior approval of the
Service, an authorized agency as defined in paragraph (y)(3) of this
section may take a grizzly bear if such action is necessary:
(A) For scientific purposes;
(B) To aid a sick or injured grizzly bear, including euthanasia if
the grizzly bear is unlikely to survive or poses an immediate threat to
human safety;
(C) To salvage a dead specimen that may be useful for scientific
study;
(D) To dispose of a dead specimen; or
(E) To aid in law enforcement investigations involving the grizzly
bear.
(vii) Removal of grizzly bears involved in conflict. With prior
approval of the Service, a grizzly bear involved in conflict in the NEP
area may be taken by an authorized agency, including by lethal removal,
but only if:
(A) It is not reasonably possible to otherwise eliminate the threat
by nonlethal deterrence or live-capturing and releasing the grizzly
bear unharmed in a remote area agreed to by the Service, the Washington
Department of Fish and Wildlife, and the applicable land management
agency; and
(B) The taking is done in a humane manner (with compassion and
consideration for the bear and minimizing pain and distress) by a
Federal, State, or Tribal authority of an authorized agency.
(viii) Relocation of a grizzly bear. With prior approval from the
Service, an authorized agency may live-capture one or more grizzly
bears and transport and release them in a remote location agreed to by
the Service, the Washington Department of Fish and Wildlife, and the
applicable land managing agency:
(A) For a grizzly bear involved in conflict;
(B) To prevent unnatural use of food materials that have been
reasonably secured from the bear or unnatural use of anthropogenic
foods;
(C) After aggressive (i.e., not defensive) behavior toward humans
results in injury to a human or constitutes a demonstrable immediate or
potential threat to human safety;
(D) As a preemptive action to prevent a conflict that appears
imminent or in an attempt to prevent habituation of bears; or
(E) For any other conservation purpose for the grizzly bear as
determined by the Service.
(ix) Reporting requirements. Any take pursuant to this paragraph
(y)(5) resulting in lasting injury or death of a grizzly bear must be
reported as indicated in paragraph (y)(8) of this section.
(6) What take of the grizzly bear is allowed in Management Area B
of the North Cascades NEP area? Grizzly bears in Management Area B will
be accommodated through take exceptions described in paragraph
(y)(6)(i) of this section, in addition to those take exceptions allowed
in Management Area A as set forth in paragraph (y)(5) of this section.
``Accommodated'' means a grizzly bear in Management Area B will not be
disturbed unless it demonstrates a threat to human safety or to protect
property.
(i) Conditioned lethal take. The Service may issue prior written
authorization allowing an individual to kill a depredating grizzly bear
within 200 yards (183 m) of legally present livestock. Such
authorizations will be valid for 5 days, but the Service may extend the
authorization of lethal take an additional 5 days if additional grizzly
bear depredations or injuries to livestock occur and circumstances
indicate that the offending bear can be identified. Such authorizations
will be issued only if:
(A) A depredation has been confirmed by the Service or authorized
agency;
(B) The Service or an authorized agency determines it is not
reasonably possible to otherwise eliminate the threat by deterrence or
live-capturing and releasing the grizzly bear unharmed;
(C) The taking is done in a humane manner (i.e., showing compassion
and consideration for the bear and minimizing pain and distress);
(D) The taking is reported as indicated in paragraph (y)(8) of this
section; and
(E) The grizzly bear carcass and any associated collars or ear tags
are surrendered to the Service.
(7) What take of the grizzly bear is allowed in Management Area C
of the North Cascades NEP area? In addition to the take exceptions
described in paragraph (y)(7)(i) of this section, all take exceptions
allowed in Management Areas A and B as set forth in paragraphs (y)(5)
and (6) of this section are also allowed in Management Area C of the
NEP.
(i) Conditioned lethal take. (A) The Service may issue prior
written authorization allowing an individual to kill a grizzly bear in
Management Area C when deemed necessary for human safety or to protect
property. Such authorizations will be valid for 5 days, may be reissued
by the Service if deemed warranted, and will be issued only if:
(1) The Service or authorized agency determines that a grizzly bear
presents a demonstrable and ongoing threat to human safety or to
lawfully present livestock, domestic animals, crops, beehives, or other
property and that it is not reasonably possible to otherwise eliminate
the threat by nonlethal deterrence or live-capturing and releasing the
grizzly bear unharmed;
(2) The individual requesting the written authorization is the
landowner, livestock producer, or designee (e.g., an employee or
lessee);
(3) The taking is done in a humane manner;
(4) The taking is reported as indicated in paragraph (y)(8) of this
section; and
(5) The carcass and any associated collars or ear tags are
surrendered to the Service.
(B) Any individual may take (injure or kill) a grizzly bear in the
act of attacking livestock on private lands (i.e., nonpublic lands)
under the provisions set forth in this paragraph (y)(7)(i)(B):
(1) The individual is the landowner or livestock producer or a
designee (e.g., an employee or lessee).
(2) Any grizzly bear taken is reported to the Service or authorized
agency within 24 hours.
(3) The carcass of any grizzly bear and the surrounding area is not
disturbed to preserve physical evidence of the attack.
(4) The Service or authorized agency is able to confirm that the
livestock or working dog was injured or killed by a grizzly bear. The
taking of any grizzly bear without such evidence may be referred to the
appropriate authorities for prosecution.
(5) There is no evidence of excessive unsecured attractants (e.g.,
carcass piles or bone yards) or of intentional feeding or baiting of
grizzly bears or wildlife.
(8) What are the reporting requirements for take of grizzly bears
in the North Cascades NEP? (i) Lethal take. Any grizzly bear that is
killed by an individual under the provisions of this paragraph (y) must
be reported within 24 hours to the Service's Washington Fish and
Wildlife Office special reporting hotline: (360) 800-7960. Any grizzly
bear that is killed by a Federal, State, or Tribal authority of an
authorized agency under the provisions of this paragraph (y) must be
reported within 24 hours by following the reporting instructions as
described in the authorized agency's MOU and included in an annual
report to the Service.
(ii) Nonlethal take resulting in injury. Any direct take of a
grizzly bear by an individual under the provisions of this paragraph
(y) that does not result in death of a grizzly bear but causes lasting
bodily injury must be reported within 5 calendar days of occurrence to
the Service's Washington Fish and Wildlife Office special reporting
hotline: (360) 800-7960. Any direct take of a grizzly bear by a
Federal, State, or Tribal
[[Page 37025]]
authority of an authorized agency under the provisions of this
paragraph (y) that does not result in death of a grizzly bear but
causes lasting bodily injury must be reported within 5 calendar days of
occurrence by following the reporting instructions as described in the
authorized agency's MOU and included in an annual report to the
Service. Indirect incidental take, such as harm to a grizzly bear
resulting from habitat modification, does not need to be reported under
this provision.
(9) What take of the grizzly bear is not allowed in the North
Cascades NEP area? (i) Other than expressly provided by the regulations
in this paragraph (y), all take is prohibited and considered a
violation of section 9 of the Act. Take of a grizzly bear within the
NEP area must be reported as set forth in paragraph (y)(8) of this
section.
(ii) No person shall possess, sell, deliver, carry, transport,
ship, import, or export, by any means whatsoever, any grizzly bear or
part thereof from the NEP taken in violation of this paragraph (y) or
in violation of applicable Tribal or State laws or regulations or the
Act.
(iii) It is unlawful for any person to attempt to commit, solicit
another to commit, or cause to be committed, any take of the grizzly
bear, except as expressly allowed in paragraphs (y)(5) through (7) of
this section.
(iv) To avoid illegally shooting a grizzly bear, persons lawfully
engaged in hunting and shooting activities must correctly identify
their target before shooting. The act of taking a grizzly bear that is
wrongfully identified as another species is not considered incidental
take and is not allowed under this rule and may be referred to
appropriate authorities for prosecution.
(v) Any grizzly bear or grizzly bear part taken legally in
accordance with the regulations in this paragraph (y) must be turned
over to the Service unless otherwise authorized by the Service in
writing.
(10) How will the effectiveness of the grizzly bear restoration
effort be monitored? The Service will monitor grizzly bears in the
North Cascades NEP annually and will evaluate the status of grizzly
bears in the NEP in conjunction with the Service's species status
assessments and status reviews of the grizzly bear. Evaluations in the
Service's status reviews will include, but not be limited to, a review
of management issues, grizzly bear movements, demographic rates, causes
of mortality, project costs, and progress toward establishing a
population.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-09136 Filed 5-2-24; 8:45 am]
BILLING CODE 4333-15-P