79980 Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Proposed Rules 

rules, the issuance of policy statements, 

the waiver or modification of existing 

regulatory requirements, or 

discretionary approvals that do not 

result in significantly increased 

emissions of air or water pollutants or 

noise.’’ 

This proposed rule does not directly 

or indirectly impact any environmental 

resources and will not result in 

significantly increased emissions of air 

or water pollutants or noise. In 

analyzing the applicability of a CE, FRA 

must also consider whether unusual 

circumstances are present that would 

warrant a more detailed environmental 

review. See 23 CFR 771.116(b). FRA has 

concluded that no such unusual 

circumstances exist with respect to this 

proposed regulation and the proposal 

meets the requirements for categorical 

exclusion under 23 CFR 771.116(c)(15). 

Pursuant to Section 106 of the 

National Historic Preservation Act and 

its implementing regulations, FRA has 

determined this undertaking has no 

potential to effect historic properties. 

See 16 U.S.C. 470. FRA has also 

determined that this rulemaking does 

not approve a project resulting in use of 

a resource protected by Section 4(f). See 

Department of Transportation Act of 

1966, as amended (Pub. L. 89–670, 80 

Stat. 931); 49 U.S.C. 303. 

Unfunded Mandates Reform Act of 1995 

Under Section 201 of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1531, each Federal agency ‘‘shall, unless 

otherwise prohibited by law, assess the 

effects of Federal regulatory actions on 

State, local, and tribal governments, and 

the private sector (other than to the 

extent that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act, 2 U.S.C. 

1532, further requires that before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in promulgation of any rule that 

includes any Federal mandate that may 

result in the expenditure by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $100,000,000 

or more (adjusted annually for inflation) 

in any 1 year, and before promulgating 

any final rule for which a general notice 

of proposed rulemaking was published, 

the agency shall prepare a written 

statement detailing the effect on State, 

local, and tribal governments and the 

private sector. The proposed rule would 

not result in the expenditure, in the 

aggregate, of $100,000,000 or more in 

any one year (adjusted annually for 

inflation), and thus preparation of such 

a statement is not required. 

Privacy Act 

In accordance with 5 U.S.C. 553(c), 

DOT solicits comments from the public 

to better inform its rulemaking process. 

DOT posts these comments, without 

edit, to www.regulations.gov, as 

described in the system of records 

notice, DOT/ALL–14 FDMS, accessible 

through www.dot.gov/privacy. To 

facilitate comment tracking and 

response, FRA encourages commenters 

to provide their name, or the name of 

their organization; however, submission 

of names is completely optional. 

Whether or not commenters identify 

themselves, all timely comments will be 

fully considered. If you wish to provide 

comments containing proprietary or 

confidential information, please contact 

the agency for alternate submission 

instructions. 

List of Subjects in 49 CFR Part 214 

Railroad Workplace Safety. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend part 

214 of chapter II, subtitle B of title 49, 

Code of Federal Regulations, as follows: 

PART 214—RAILROAD WORKPLACE 

SAFETY 

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20107, 

21301–21302, 21304, 28 U.S.C. 2461, note; 

and 49 CFR 1.89. 

■ 2. In § 214.322, add paragraph (i) to 

read as follows: 

§ 214.322 Exclusive track occupancy, 

electronic display. 

* * * * * 

(i) For purposes of complying with 

paragraph (h) of this section, electronic 

display systems may use multi-factor 

authentication for digital authentication 

of the subject. 

■ 3. Amend § 214.505 by revising the 

introductory text of paragraph (a) and by 

adding paragraph (i) to read as follows: 

§ 214.505 Required environmental control 

and protection systems for new on-track 

roadway maintenance machines with 

enclosed cabs. 

(a) With the exception of machines 

subject to paragraph (i) of this section, 

the following new on-track roadway 

maintenance machines shall be 

equipped with operative heating 

systems, operative air conditioning 

systems, and operative positive 

pressurized ventilation systems: 

* * * * * 

(i) Paragraph (a) of this section is not 

applicable to machines that are 

incapable of performing work functions 

other than by remote operation and are 

equipped with no operating controls 

(i.e., drone roadway maintenance 

machines) if the following conditions 

are met. 

(1) If a drone roadway maintenance 

machine is operated from the cab of a 

separate machine, that separate machine 

must comply with paragraph (a) of this 

section. 

(2) If a drone roadway maintenance 

machine is operated outside of the main 

cab of the separate machine in a manner 

that will expose the operator to air 

contaminants, as outlined in 29 CFR 

1910.1000, Air contaminants, the 

employee shall be protected in 

compliance with 29 CFR 1910.134, 

Personal respiratory protection. 

(3) No person is permitted on the 

drone roadway maintenance machine 

while the equipment is operating. 

(4) Each drone roadway maintenance 

machine must be clearly identified by 

stenciling, marking, or other written 

notice in a conspicuous location on the 

machine indicating the potential 

hazards of the machine being operated 

from a distance or that the machine may 

move automatically. 

Issued in Washington, DC. 

Quintin C. Kendall, 

Deputy Administrator. 

[FR Doc. 2020–27096 Filed 12–10–20; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 201125–0320] 

RIN 0648–BK00 

Endangered and Threatened Species: 

Designation of Nonessential 

Experimental Population of Central 

Valley Spring-Run Chinook Salmon in 

the Upper Yuba River Upstream of 

Englebright Dam, CA 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; availability of a 

draft environmental assessment; request 

for comments. 

SUMMARY: We, NMFS, propose a rule to 

designate and authorize the release of a 

nonessential experimental population 

(NEP) of Central Valley (CV) spring-run 

Chinook salmon (Oncorhynchus 


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1The ESA defines ‘‘species’’ to include ‘‘any 

distinct population segment of any species of 

vertebrate fish or wildlife which interbreeds when 

mature’’ (16 U.S.C. 1532(16); see also 50 CFR 

424.02). For Pacific salmon, NMFS determined that 

an ESU will be considered a distinct population 

segment and thus a species (56 FR 58612, 

November 20, 1991). A group of Pacific salmon is 

considered an ESU if it (1) is substantially 

reproductively isolated from other nonspecific 

population units; and (2) represents an important 

component in the evolutionary legacy of the 

species. 

tshawytscha) under the Endangered 

Species Act (ESA) in the upper Yuba 

River and its tributaries upstream of 

Englebright Dam, California and 

establish take exceptions for the NEP for 

particular activities. A draft 

environmental assessment (EA) has 

been prepared on this proposed action 

and is available for comment. 

DATES: Comments on this proposed rule 

and EA, must be received no later than 

January 11, 2021. 

ADDRESSES: You may submit comments 

on this proposed rule, identified by 

NOAA–NMFS–2020–0139 by any of the 

following methods: 

• Electronic submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2020- 

0139 click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Submit written comments to 

Jonathan Ambrose, National Marine 

Fisheries Service, 650 Capitol Mall, 

Suite 5–100, Sacramento, California 

95814. 

• Phone: (916) 930–3717; Fax: (916) 

930–3629. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are part of the public record 

and will generally be posted to http:// 

www.regulations.gov without change. 

All personal identifying information 

(e.g., name, address, etc.), confidential 

business information, or otherwise 

sensitive information submitted 

voluntarily by the sender will be 

publicly accessible. NMFS will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, or Adobe PDF file formats 

only. 

You may access a copy of the draft EA 

by the following: 

• Visit NMFS’ National 

Environmental Policy Act (NEPA) 

website at: http://

www.westcoast.fisheries.noaa.gov/ 

publications/nepa/nepa_

documents.html. 

FOR FURTHER INFORMATION CONTACT: 

Jonathan Ambrose, by phone at (916) 

930–3717, or by mail at National Marine 

Fisheries Service, 650 Capitol Mall, 

Suite 5–100, Sacramento, CA 95814; or 

by mail at National Marine Fisheries 

Service, 1315 East-West Highway, Silver 

Spring, MD 20910. 

SUPPLEMENTARY INFORMATION: 

Background Information Relevant to 

Experimental Population Designation 

NMFS listed the CV spring-run 

Chinook salmon Evolutionarily 

Significant Unit (ESU) 1 as threatened 

under the ESA, 16 U.S.C. 1531 et seq., 

on September 16, 1999 (64 FR 50394), 

and reaffirmed this status in a final rule 

on June 28, 2005 (70 FR 37160) and 5- 

year reviews announced on August 15, 

2011 (76 FR 50447) and May 26, 2016 

(81 FR 33468). The listed ESU of CV 

spring-run Chinook salmon currently 

includes all naturally spawned 

populations of spring-run Chinook 

salmon in the Sacramento River and its 

tributaries, as well as the Feather River 

Hatchery (FRH) spring-run Chinook 

salmon program. On January 9, 2002 (67 

FR 1116), NMFS issued protective 

regulations under section 4(d) of the 

ESA for CV spring-run Chinook salmon 

that apply the take prohibitions of 

section 9(a)(1) of the ESA, except for 

listed exceptions (see 50 CFR 223.203). 

Critical habitat has been designated for 

CV spring-run Chinook salmon (70 FR 

52488, September 2, 2005), and includes 

most of the occupied riverine habitat 

within their extant range. CV spring-run 

Chinook salmon are also listed as a 

threatened species by the State of 

California under the California 

Endangered Species Act (CESA), 

California Fish and Game Code, 

Division 3, Chapter 1.5. 

On December 31, 2013, a final rule 

was published in which NMFS 

designated a nonessential experimental 

population of CV spring-run Chinook 

salmon in portions of the San Joaquin 

River, California, under ESA section 

10(j) (78 FR 79622). 

In 2014, we adopted a final recovery 

plan for the CV spring-run Chinook 

salmon ESU (79 FR 42504, July 22, 

2014). The Central Valley Recovery Plan 

identifies re-establishing populations of 

CV spring-run Chinook salmon above 

impassable barriers to unoccupied 

historical habitats as an important 

recovery action (NMFS 2014). More 

specifically, the Central Valley Recovery 

Plan explains that re-establishing 

populations above impassable barriers, 

such as Englebright Dam, would aid in 

recovery of the ESU by increasing 

abundance, spatial structure and 

diversity and by reducing the risk of 

extinction to the ESU as a whole. 

To facilitate and encourage future 

reintroduction efforts into the upper 

Yuba River, NMFS is proposing a rule 

to (a) designate and authorize the 

release of an NEP of CV spring-run 

Chinook salmon pursuant to ESA 

section 10(j) in the upper Yuba River 

and its tributaries upstream of 

Englebright Dam, and (b) establish take 

prohibitions for the NEP and exceptions 

for particular activities. 

Statutory and Regulatory Framework for 

Experimental Population Designation 

Section 10(j) of the ESA (16 U.S.C. 

1539(j)), allows the Secretary of 

Commerce to authorize the release of 

any population of a listed species 

outside their current range if the release 

furthers their conservation. An 

experimental population is a population 

that is geographically separate from 

nonexperimental populations of the 

same species. Before authorizing the 

release of an experimental population 

the Secretary must determine whether 

or not the population is essential to the 

continued existence of the listed 

species. 

An experimental population is treated 

as a threatened species, except that nonessential populations do not receive the 

benefit of certain protections normally 

applicable to threatened species (ESA 

section 10(j)(2)(C)). Below we discuss 

the impact of treating experimental 

populations as threatened species and of 

exceptions that apply to NEPs. 

For endangered species, section 9 of 

the ESA prohibits take of those species. 

For a threatened species, ESA section 9 

does not specifically prohibit take of 

those species, but the ESA instead 

authorizes NMFS to adopt regulations 

under section 4(d) that prohibit take, or 

that it deems necessary and advisable 

for species conservation. The proposed 

experimental population of CV springrun Chinook salmon must generally be 

treated as a threatened species. 

Therefore, we propose to issue tailored 

protective regulations under ESA 

section 4(d) for the proposed 

experimental population of CV springrun Chinook salmon to identify take 

prohibitions to provide for the 

conservation of the species with 

exceptions for particular activities. 

Section 7 of the ESA provides for 

Federal interagency cooperation and 

consultation on Federal agency actions. 

Section 7(a)(1) directs all Federal 

agencies, in consultation with NMFS as 

applicable depending on the species, to 

use their authorities to further the 

purposes of the ESA by carrying out 


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programs for the conservation of listed 

species. Section 7(a)(2) requires all 

Federal agencies, in consultation with 

NMFS as applicable depending on the 

species, to insure any action they 

authorize, fund or carry out is not likely 

to jeopardize the continued existence of 

a listed species or result in the 

destruction or adverse modification of 

designated critical habitat. Section 7 

applies equally to endangered and 

threatened species. 

Although ESA section 10(j) provides 

that an experimental population must 

generally be treated as a threatened 

species, for the purposes of ESA section 

7, if the experimental population is 

determined to be a NEP, section 

10(j)(C)(i) requires that we treat the 

experimental population as a species 

proposed to be listed, rather than a 

species that is listed (except when it 

occurs within a National Wildlife 

Refuge or National Park, in which case 

it is treated as listed). ESA Section 

7(a)(4) requires Federal agencies to 

confer (rather than consult under ESA 

section 7(a)(2)) with NMFS on actions 

likely to jeopardize the continued 

existence of a species proposed to be 

listed. The results of a conference are 

advisory recommendations, if any, on 

ways to minimize or avoid adverse 

effects rather than mandatory terms and 

conditions under ESA section 7(a)(2) 

consultations (compare 50 CFR 

402.10(c) with 50 CFR 402.14(i)(1)(iv)). 

ESA section 7(a)(1) also applies to 

nonessential experimental populations. 

As described above, section 7(a)(1) 

requires Federal agencies, in 

consultation with NMFS as applicable 

depending on the species, to use their 

authorities in furtherance of the 

purposes of the ESA by carrying out 

programs for the conservation of 

threatened and endangered species. ESA 

section 7(a)(2) consultation 

requirements would not apply to any 

Federal agency action affecting a NEP in 

the NEP area, except when the NEP 

occurs within a National Wildlife 

Refuge or National Park. Section 7(a)(2) 

consultation requirements would still 

apply to any Federal agency action in 

the NEP area that may affect CV springrun Chinook salmon or designated 

critical habitat outside of the NEP area 

or other ESA-listed species or 

designated critical habitat for those 

species. 

NMFS has designated three 

experimental populations (78 FR 2893, 

January 15, 2013; 78 FR 79622, 

December 31, 2013; 79 FR 40004, July 

11, 2014) and promulgated regulations, 

codified at 50 CFR part 222, subpart E, 

to implement section 10(j) of the ESA 

(81 FR 33416, May 26, 2016). NMFS’ 

implementing regulations include the 

following provisions. 

50 CFR 222.501(b) defines an 

‘‘essential experimental population’’ as 

a population whose loss would reduce 

the likelihood of the survival of the 

species in the wild.’’All other 

experimental populations are classified 

as nonessential. 

50 CFR 222.502(b) provides, before 

authorizing the release of an 

experimental population, the Secretary 

must find that such release will further 

the conservation of the species. In 

addition, 50 CFR 222.502(b) provides: 

In making such a finding, the 

Secretary shall utilize 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; 

(2) The likelihood that any such 

experimental population will become 

established and survive in the 

foreseeable future; 

(3) The effects that establishment of 

an experimental population will have 

on the recovery of the species; and 

(4) The extent to which the 

introduced population may be affected 

by existing or anticipated Federal or 

State actions or private activities within 

or adjacent to the experimental 

population area. 

50 CFR 222.502(c) describes four 

components that must be provided in 

any NMFS regulations designating an 

experimental population under ESA 

section 10(j): 

(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(s); 

(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; 

(3) Management restrictions, 

protective measures, or other special 

management concerns of that 

population, as appropriate, which may 

include, but are not limited to, measures 

to isolate and/or to contain the 

experimental population designated in 

the regulation from nonexperimental 

populations and protective regulations 

established pursuant to section 4(d) of 

the ESA; and 

(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. 

In addition, as described above, ESA 

section 10(j)(1) defines an 

‘‘experimental population’’ as any 

population authorized for release under 

paragraph (2), when the population is 

separate geographically from the 

nonexperimental populations of the 

same species. Accordingly, we must 

establish that there are such times and 

places when the experimental 

population is wholly geographically 

separate. Similarly, the statute requires 

that we identify the experimental 

population; the legislative history 

indicates that the purpose of this 

requirement is to provide notice as to 

which populations of listed species are 

experimental (see Joint Explanatory 

Statement of the Committee of 

Conference, H.R. Conf. Rep No. 97–835, 

at 34 (1982)). 

Status of the Species 

Life history and the historical 

population trend of CV spring-run 

Chinook salmon are summarized by 

Healy (1991), USFWS (1995), 

Yoshiyama et al., (1998), Yoshiyama et 

al., (2001), and Moyle (2002). Section 

4(f) of the ESA requires the Secretary of 

Commerce to develop recovery plans for 

all listed species unless the Secretary 

determines that such a plan will not 

promote the conservation of a listed 

species. Prior to developing the Central 

Valley Recovery Plan (NMFS 2014), we 

assembled a team of scientists from 

Federal and State agencies, consulting 

firms, non-profit organizations and 

academia. This group, known as the 

Central Valley Technical Recovery 

Team (CVTRT), was tasked with 

identifying population structure and 

recommending recovery criteria (also 

known as delisting criteria) for ESAlisted salmon and steelhead in the 

Sacramento River and San Joaquin 

Rivers and their tributaries. The CVTRT 

recommended biological viability 

criteria at the ESU level and population 

level (Lindley et al., 2007) for recovery 

planning consideration. The CVTRT 

identified the current risk level of each 

population based on the gap between 

recent abundance and productivity and 

the desired recovery goals. The CVTRT 

concluded that the greatest risk facing 

the ESUs resulted from the loss of 

historical diversity following the 

construction of major dams that blocked 

access to historical spawning and 

rearing habitat (Lindley et al., 2007). 

The CVTRT also recommended 

spatial structure and diversity metrics 

for each population (Lindley et al., 

2004). Spatial structure refers to the 


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geographic distribution of a population 

and the processes that affect the 

distribution. Populations with restricted 

distribution and few spawning areas are 

at a higher risk of extinction from 

catastrophic environmental events (e.g., 

a volcanic eruption) than are 

populations with more widespread and 

complex spatial structure. A population 

with complex spatial structure typically 

has multiple spawning areas which 

allows the expression of diverse life 

history characteristics. Diversity is the 

combination of genetic and phenotypic 

characteristics within and between 

populations (McElhany et al., 2000). 

Phenotypic diversity allows more 

diverse populations to use a wider array 

of environments and protects 

populations against short-term temporal 

and spatial environmental changes. 

Genotypic diversity, on the other hand, 

provides populations with the ability to 

survive long-term changes in the 

environment by providing genetic 

variations that may prove successful 

under different situations. The 

combination of phenotypic and 

genotypic diversity, expressed in a 

natural setting, provides populations 

with the ability to utilize the full range 

of habitat and environmental conditions 

and to have the resiliency to survive and 

adapt to long-term changes in the 

environment. 

In 2016, NMFS completed a periodic 

review as required by the ESA section 

4(c)(2)(A), and concluded that the CV 

spring-run Chinook salmon ESU should 

remain listed as threatened (81 FR 

33468, May 26, 2016). An analysis 

conducted by NMFS’ Southwest 

Fisheries Science Center (Johnson and 

Lindley, 2016) indicated that the extant 

independent populations of the CV 

spring-run Chinook salmon ESU 

remained at a moderate to low 

extinction risk since the last status 

review (Williams et al., 2011). The 

analysis noted some improvements in 

the viability of the ESU, particularly 

with respect to the increased spatial 

diversity of the dependent Battle Creek 

and Clear Creek populations. The 

analysis identified as key threats the 

recent catastrophic declines of many of 

the extant populations, high pre-spawn 

mortality during the 2012–2015 drought 

in California, uncertain juvenile 

survival due to drought and ocean 

conditions, as well as straying of CV 

spring-run Chinook salmon from the 

FRH (Johnson and Lindley, 2016). 

Analysis of the Statutory Requirements 

1. Will authorizing release of an 

experimental population further the 

conservation of the species? 

Section 3(3) of the ESA, 16 U.S.C. 

1532(3), defines ‘‘conservation’’ as ‘‘the 

use of all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to this 

[Act] are no longer necessary.’’ We 

discuss in more detail below each of the 

factors we considered in determining if 

authorizing release of an experimental 

population in the upper Yuba River and 

its tributaries upstream of Englebright 

Dam would further the conservation of 

CV spring-run Chinook salmon. 

As described above, under 50 CFR 

222.502(b), NMFS must consider several 

factors in finding whether authorizing 

release of an experimental population 

will further the conservation of the 

species, including any possible adverse 

effects on extant populations of the 

species as a result of removal of 

individuals for introduction elsewhere; 

the likelihood that the experimental 

population will become established and 

survive in the foreseeable future; the 

effects that establishment of the 

experimental population will have on 

the recovery of the species; and the 

extent to which the experimental 

populations may be affected by existing 

or anticipated Federal or State actions or 

private activities within or adjacent to 

the experimental population area. We 

describe authorizing release as 

reintroduction below, because springrun Chinook salmon historically used 

habitat in the upper Yuba River 

upstream of Englebright Dam (NMFS 

2014). 

We discuss possible adverse effects on 

extant populations below in relation to 

a donor source for reintroduction into 

the upper Yuba River. 

Regarding the likelihood that 

reintroduction efforts will be successful 

in the foreseeable future, important 

questions are: What are the most 

appropriate sources of broodstock to 

establish the experimental population, 

and are the sources available? 

Reintroduction efforts have the best 

chance for success when the donor 

population has life-history 

characteristics compatible with the 

anticipated environmental conditions of 

the habitat into which fish will be 

reintroduced (Araki et al., 2008). 

Populations found in watersheds closest 

to the reintroduction area are most 

likely to have adaptive traits that will 

lead to a successful reintroduction. 

Therefore, only CV spring-run Chinook 

salmon populations found in Central 

Valley will be used in establishing the 

experimental populations in the NEP 

area. 

We preliminarily identify a donor 

source for reintroduction into the upper 

Yuba River as CV spring-run Chinook 

salmon produced from the FRH. The 

Yuba River is a tributary to the Feather 

River, and CV spring-run Chinook 

salmon from the FRH are the 

geographically closest donor source that 

could be used with minimal impact to 

the wild population for reintroduction 

into the upper Yuba River. The donor 

stock raised at the FRH may include CV 

spring-run Chinook salmon from either 

the Feather or Yuba River. NMFS, in 

consultation with the California 

Department of Fish and Wildlife, may 

later consider diversifying the donor 

stock with CV spring-run Chinook 

salmon from other nearby streams if 

those populations can sustain removal 

of fish. Any collection of CV spring-run 

Chinook salmon would be subject to a 

Hatchery and Genetic Management Plan 

(HGMP) in relation to a hatchery source 

and approval of a permit under ESA 

section 10(a)(l)(A), which includes 

analysis under NEPA and ESA section 

7. 

Use of donor stock from the FRH for 

the initial phases of a reintroduction 

program will minimize the number of 

individuals needed from existing 

populations. Supplementation to the 

donor stock, if necessary, would be 

dependent upon genetic diversity needs 

and the extent of adverse effects to other 

populations. It is anticipated that over 

time, the FRH would produce juveniles 

and adults for a future reintroduction 

program in sufficient numbers to enable 

the return of a sufficient number of 

adults to establish a self-sustaining 

population in the upper Yuba River. 

Once a self-sustaining population is 

established, it is anticipated that the 

FRH contribution of CV spring-run 

Chinook salmon would be phased out. 

We also consider the suitability of 

habitat available to the experimental 

population. NMFS initiated a habitat 

assessment of the upper Yuba River and 

determined conditions were suitable for 

Chinook salmon spawning, adult 

holding, and juvenile rearing (Stillwater 

Sciences 2013). The relative abundance 

of habitat types, habitat quality and 

environmental conditions vary between 

the North, Middle, and South Yuba 

Rivers. Under current conditions when 

compared to one another, habitat 

suitability is best in the North Yuba 

River. The Middle Yuba River maintains 

significant quantities of suitable habitat 

and habitat conditions are less suitable 

in the South Yuba River. Habitat 

conditions in the Middle and South 

Yuba Rivers could improve with 

anticipated additional instream flow 

releases from dams in the upper 


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watersheds as part of the Federal Energy 

Regulatory Commission’s relicensing 

process pursuant to the Federal Power 

Act. 

In addition, there are Federal and 

State laws and regulations that will help 

ensure the establishment and survival of 

the experimental population by 

protecting aquatic and riparian habitat 

in the NEP area. Section 404 of the 

Clean Water Act (CWA), 33 U.S.C. 1344, 

establishes a program to regulate the 

discharge of dredged or fill material into 

waters of the United States, which 

generally requires avoidance, 

minimization, and mitigation for 

potential adverse effects of dredge and 

fill activities within the nation’s 

waterways. Under CWA section 401, 33 

U.S.C. 1341, a Federal agency may not 

issue a permit or license to conduct any 

activity that may result in any discharge 

into waters of the United States, unless 

a state or authorized tribe where the 

discharge would originate issues a 

section 401 water quality certification 

verifying compliance with existing 

water quality requirements or waives 

the certification requirement. In 

addition, construction and operational 

storm water runoff is subject to 

restrictions under CWA section 402, 33 

U.S.C. 1342, which establishes the 

National Pollutant Discharge 

Elimination System permit program, 

and state water quality laws. 

At the state level, the California Fish 

and Game Code (CFGC) Fish and 

Wildlife Protection and Conservation 

provisions (CFGC section 1600, et seq.), 

the CESA (CFGC section 2050, et seq.), 

and the California Environmental 

Quality Act (CEQA) (Public Resources 

Code section 21000, et seq.) set forth 

criteria for the incorporation of 

avoidance, minimization, and feasible 

mitigation measures for on-going 

activities as well as for individual 

projects. The CFGC Fish and Wildlife 

Protection and Conservation provisions 

were enacted to provide conservation 

for the state’s fish and wildlife resources 

and include requirements to protect 

riparian habitat resources on the bed, 

channel, or bank of streams and other 

waterways. The CESA prohibits the 

taking of listed species except as 

otherwise provided in State law. Under 

the CEQA, no public agency shall 

approve or carry out a project without 

identifying all feasible mitigation 

measures necessary to reduce impacts to 

a less than significant level, and public 

agencies shall incorporate such 

measures absent overriding 

consideration. 

Regarding the effects that 

establishment of the experimental 

population will have on the recovery of 

the species, the Central Valley Recovery 

Plan characterizes the NEP area as 

having the potential to support a viable 

population of Chinook salmon (NMFS 

2014). The Central Valley Recovery Plan 

establishes a framework for 

reintroduction of Chinook salmon and 

steelhead to historical habitats upstream 

of dams. The framework recommends 

that a reintroduction program should 

include feasibility studies, habitat 

evaluations, fish passage design studies, 

and a pilot reintroduction phase prior to 

implementation of the long-term 

reintroduction program. In addition, the 

Central Valley Recovery Plan contains 

specific management strategies for 

recovering CV spring-run Chinook 

salmon that include securing existing 

populations and reintroducing this 

species into historically occupied 

habitats above rim dams in the Central 

Valley of California (NMFS 2014). The 

Central Valley Recovery Plan concludes, 

and we continue to agree, that 

establishing an experimental population 

in the NEP area that persists into the 

foreseeable future is expected to reduce 

extinction risk from natural and 

anthropogenic factors by increasing 

abundance, productivity, spatial 

structure, and diversity within 

California’s Central Valley. These 

expected improvements in the overall 

viability CV spring-run Chinook salmon, 

in addition to other actions being 

implemented throughout the Central 

Valley, which are described next, will 

contribute to this species’ near-term 

viability and recovery. 

Across the Central Valley, a number 

of actions are being undertaken to 

improve habitat quality and quantity for 

CV spring-run Chinook salmon. 

Collectively, implementation of the San 

Joaquin River Restoration Program 

(http://www.restoresjr.net/), Battle Creek 

Salmon and Steelhead Restoration 

Project (http://www.usbr.gov/mp/ 

battlecreek/), and the Central Valley 

Flood Protection Plan (DWR 2011) will 

result in many projects that will 

improve habitat conditions. The San 

Joaquin River Restoration Program will 

improve passage survival and spatial 

distribution for CV spring-run Chinook 

salmon in the San Joaquin River 

corridor. The Battle Creek Salmon and 

Steelhead Restoration Project will 

improve passage and rearing survival, 

spawning opportunities and spatial 

distribution in Battle Creek. The Central 

Valley Flood Protection Plan (DWR 

2011) will improve juvenile rearing 

conditions during outmigration by 

creating and improving access to high 

quality floodplain habitats. 

Climate change is expected to 

exacerbate existing habitat stressors in 

California’s Central Valley and increase 

threats to Chinook salmon and steelhead 

by reducing the quantity and quality of 

freshwater habitat (Lindley et al., 2007). 

Significant contraction of thermally 

suitable habitat is predicted, and as cold 

water sources contract, access to cooler 

headwater streams is expected to 

become increasingly important for CV 

spring-run Chinook salmon in the 

Central Valley (Crozier et al., 2018). For 

this reason and other reasons described 

above, we anticipate reintroduction of 

CV spring-run Chinook salmon into 

headwater streams upstream of 

Englebright Dam will contribute to their 

conservation and recovery. 

Regarding the extent to which the 

experimental populations may be 

affected by existing or anticipated 

Federal or State actions or private 

activities within or adjacent to the 

experimental population area, the NEP 

and adjacent areas are characterized by 

snow-covered subalpine zones near the 

Sierra-Nevada Mountain crest, are 

largely forested, and have been affected 

by mining, logging, dams and water 

diversions, with limited residential 

development. The NEP area is sparsely 

populated and ongoing State, Federal 

and local activities include forest 

management, limited mining, road 

maintenance, limited residential 

development, grazing, and tourism and 

recreation. These activities are 

anticipated to have minor impacts to CV 

spring-run Chinook salmon in the NEP 

and adjacent areas. Potential impacts are 

further minimized through application 

of the aforementioned State and Federal 

regulations. Dams and water diversions 

in the NEP area currently limit fish 

populations in some parts of the NEP 

area. NMFS anticipates a future 

reintroduction project will target stream 

reaches that are not blocked by dams or 

impaired from inadequate flows due to 

water diversions. NMFS further 

anticipates a reintroduction program 

will specifically target river reaches in 

the NEP area with abundant high 

quality habitat. 

The habitat improvement actions 

called for in the Central Valley Recovery 

Plan, in combination with the protective 

measures proposed in this rule, as well 

as compliance with existing Federal, 

State, and local laws, statutes, and 

regulations, including those mentioned 

above, are expected to contribute to the 

establishment and survival of the 

proposed experimental population in 

the upper Yuba River in the foreseeable 

future. Although the donor source for 

this reintroduction effort is anticipated 

to include hatchery-origin individuals 

from the FRH, based on the factors 

discussed above, we conclude it is 


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probable that a self-sustaining 

experimental population of CV springrun Chinook salmon will become 

established and survive in the upper 

Yuba River. Furthermore, we conclude 

that such a self-sustaining experimental 

population of genetically compatible 

individuals is likely to further the 

conservation of the species, as discussed 

above. 

2. Identification of the Experimental 

Population and Geographic Separation 

From the Nonexperimental Populations 

of the Same Species 

ESA section 10(j)(2)(B) requires that 

we identify experimental populations 

by regulation. ESA section 10(j)(1) also 

provides that a population is considered 

an experimental population only when, 

and at such times as, it is wholly 

separate geographically from the 

nonexperimental population of the same 

species. NMFS proposes that the NEP 

area would extend upstream from 

Englebright Dam and include the North, 

Middle, and South Yuba Rivers and 

their tributaries up to the ridgeline. 

Under this proposed rule, the 

experimental population would be 

identified as the CV spring-run Chinook 

salmon population when it is 

geographically located anywhere in the 

NEP area. Reintroduced CV spring-run 

Chinook salmon would only be part of 

the experimental population when they 

are present in the NEP area, and would 

not be part of the experimental 

population when they are outside the 

NEP area, even if they originated within 

the NEP area. When reintroduced 

juvenile CV spring-run Chinook salmon 

pass downstream of Englebright Dam 

into the lower Yuba River, through the 

lower Feather River and Sacramento 

River and when they migrate further 

downstream to the Sacramento River 

Delta and the Pacific Ocean, they would 

no longer be geographically separated 

from other extant CV spring-run 

Chinook salmon populations, and thus 

the ‘‘experimental population’’ 

designation would not apply, unless 

and until they return as adults and reenter the NEP area. 

The proposed NEP area provides the 

requisite level of geographic separation 

because CV spring-run Chinook salmon 

are currently extirpated from this area 

due to the presence of Englebright Dam, 

which blocks their upstream migration. 

Straying of fish from other spring-run 

Chinook populations into the NEP area 

is not possible due to the presence of 

this dam. As a result, the geographic 

description of the CV spring-run 

Chinook ESU does not include the NEP 

area. The ‘‘experimental population’’ 

designation is geographically based and 

does not travel with the fish outside of 

the NEP area. 

NMFS anticipates that CV spring-run 

Chinook salmon used for the initial 

stages of a reintroduction program 

would be marked, for example, with 

specific fin clips and/or coded-wire tags 

to evaluate stray rates and allow for 

brood stock collection of returning 

adults that originated from the 

experimental population. Any marking 

of individuals of the experimental 

population, such as clips or tags, would 

be for the purpose of evaluating the 

effectiveness of a near-term and longterm fish passage program, and would 

not be for the purpose of identifying fish 

from the NEP area other than for brood 

stock collection of returning adults. As 

discussed above, the experimental 

population is identified based on the 

geographic location of the fish. Indeed, 

if the reintroduction is successful as 

expected, and fish begin reproducing 

naturally, their offspring would not be 

distinguishable from fish from other 

Chinook salmon populations. Outside of 

the NEP area, e.g., downstream of 

Englebright Dam in the lower Yuba, 

lower Feather and Sacramento Rivers, or 

in the ocean, any such unmarked fish 

(juveniles and adults alike) would not 

be considered members of an 

experimental population. They would 

be considered part of the CV spring-run 

Chinook salmon ESU currently listed 

under the ESA. Likewise, any fish that 

were marked for reintroduction in the 

NEP area would not be considered part 

of the experimental population once 

they left the NEP area; rather, they 

would be considered part of the ESU 

currently listed under the ESA. 

3. Is the experimental population 

essential to the continued existence of 

the species? 

As discussed above, ESA section 

10(j)(2)(B) requires the Secretary to 

determine whether experimental 

populations would be ‘‘essential to the 

continued existence’’ of the listed 

species. The statute does not elaborate 

on how this determination is to be 

made. However, as noted above, 

Congress gave some further attention to 

the term when it described an essential 

experimental population as one whose 

loss ‘‘would be likely to appreciably 

reduce the likelihood of survival of that 

species in the wild.’’ (Joint Explanatory 

Statement, supra, at 34). NMFS 

regulations incorporated this concept 

into its definition of an essential 

experimental population at 50 CFR 

222.501(b), which provides, in relevant 

part, ‘‘The term essential experimental 

population means an experimental 

population whose loss would be likely 

to appreciably reduce the likelihood of 

the survival of the species in the wild.’’ 

In determining whether the 

experimental population of CV springrun Chinook salmon is essential, we 

used the best available information as 

required by ESA section 10(j)(2)(B). 

Furthermore, we considered the 

geographic location of the experimental 

population in relation to other 

populations of CV spring-run Chinook 

salmon, and the likelihood of survival of 

these populations without the existence 

of the experimental population. 

The CV spring-run Chinook salmon 

ESU includes four independent 

populations and several dependent or 

establishing populations. Given current 

protections and restoration efforts, these 

populations are persisting without the 

presence of a population in the NEP 

area. It is expected that the experimental 

population will exist as a separate 

population from those in the 

Sacramento River basin and will not be 

essential to the survival of those 

populations. Based on these 

considerations, we conclude that the 

loss of the experimental population of 

CV spring-run Chinook in the NEP area 

is not likely to appreciably reduce the 

likelihood of the survival of the species 

in the wild. Accordingly, NMFS is 

proposing to designate this 

experimental population as 

nonessential. Under section 

10(j)(2)(C)(ii) of the ESA, we cannot 

designate critical habitat for a 

nonessential experimental population. 

Additional Management Restrictions, 

Protective Measures, and Other Special 

Management Considerations 

As indicated above, ESA section 

10(j)(2)(C) requires that experimental 

populations be treated as threatened 

species, except that for nonessential 

experimental populations, certain 

portions of ESA section 7 do not apply 

and critical habitat cannot be 

designated. Congress intended that the 

Secretary would issue regulations, 

under ESA section 4(d), deemed 

necessary and advisable to provide for 

the conservation of experimental 

populations as for any threatened 

species (Joint Explanatory Statement, 

supra, at 34). In addition, when 

amending the ESA to add section 10(j), 

Congress specifically intended to 

provide broad discretion and flexibility 

to the Secretary in managing 

experimental populations so as to 

reduce opposition to releasing listed 

species outside their current range (H.R. 

Rep. No. 567, 97th Cong. 2d Sess. 34 

(1982)). Therefore, we propose to 

exercise the authority to issue protective 

regulations under ESA section 4(d) for 


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2 Incidental take refers to takings that result from, 

but are not the purpose of, carrying out an 

otherwise lawful activity conducted by the Federal 

agency or applicant. 50 CFR 402.02 

the proposed experimental population 

of CV spring-run Chinook salmon to 

identify take prohibitions necessary to 

provide for the conservation of the 

species and otherwise provide 

assurances to people in the NEP area. 

The ESA defines ‘‘take’’ to mean 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect, or 

to attempt to engage in any such 

conduct (16 U.S.C. 1532(19)). 

Concurrent with the proposed ESA 

section 10(j) experimental population 

designation, we propose protective 

regulations under ESA section 4(d) for 

the experimental population that would 

prohibit take of CV spring-run Chinook 

salmon that are part of the experimental 

population, except in the following 

circumstances in the NEP area: 

1. Any take by authorized 

governmental entity personnel acting in 

compliance with 50 CFR 223.203(b)(3) 

to aid a sick, injured or stranded fish; 

dispose of a dead fish; or salvage a dead 

fish which may be useful for scientific 

study. 

2. Any take that is incidental 2 to an 

otherwise lawful activity and is 

unintentional, not due to negligent 

conduct. Otherwise lawful activities 

include, but are not limited to, 

recreation, forestry, water management, 

agriculture, power production, mining, 

transportation management, rural 

development, or livestock grazing, when 

such activities are in full compliance 

with all applicable laws and regulations. 

3. Any take that is pursuant to a 

permit issued by NMFS under section 

10 of the ESA (16 U.S.C. 1539) and 

regulations in 50 CFR part 222 

applicable to such a permit. 

Process for Periodic Review 

Evaluation of a future reintroduction 

program is likely to be assessed by 

certain new monitoring programs 

developed specifically for this purpose. 

NMFS anticipates monitoring in the 

NEP area, including fish passage 

efficiency, spawning success, adult and 

smolt injury and mortality rates, 

juvenile salmon collection efficiencies, 

competition with resident species, 

predation, disease and other types of 

monitoring will be necessary to gauge 

the success of the program. As data are 

collected through monitoring efforts, 

NMFS and other partners in a future 

reintroduction project can evaluate the 

success of the program. In addition, 

results of a reintroduction project will 

be evaluated during subsequent 5-year 

status reviews for the CV spring-run 

Chinook salmon ESU under ESA section 

4(c)(2). 

Proposed Experimental Population 

Findings 

Based on the best available scientific 

information, we have determined that 

the designation and authorization for 

the release of a NEP of CV spring-run 

Chinook salmon in the NEP area 

upstream of Englebright Dam will 

further the conservation of CV springrun Chinook salmon. CV spring-run 

Chinook salmon used to initiate the 

reintroduction are anticipated to come 

from the FRH using either donor stock 

from the Feather or Yuba Rivers, which 

is part of the CV spring-run Chinook 

salmon ESU. The collection of donor 

stock from the FRH will be permitted 

only after issuance of a permit under 

section 10(a)(1)(A) of the ESA, which 

includes analysis under NEPA and ESA 

section 7. The experimental population 

fish are expected to remain 

geographically separate from fish in 

other populations of the CV spring-run 

Chinook salmon ESU during the life 

stages in which they remain in, or are 

returned to, the NEP area. At all times 

when members of the experimental 

population are downstream of 

Englebright Dam, the experimental 

population designation will not apply. 

Establishing an experimental population 

of CV spring-run Chinook salmon in the 

NEP area would likely contribute to the 

viability of the ESU as a whole. 

Reintroduction is a recommended 

recovery action in the Central Valley 

Recovery Plan (NMFS 2014). 

Designation of CV spring-run Chinook 

salmon in the NEP area as a 

nonessential experimental population 

would ensure that their reintroduction 

does not impose undue regulatory 

restrictions on landowners and others 

because this proposed rule would apply 

only limited take prohibitions, as 

compared to the prohibitions that 

typically apply to CV spring-run 

Chinook salmon. In particular, the 

proposed rule expressly provides an 

exception for take of NEP fish in the 

NEP area provided that the take is 

incidental to otherwise lawful activity 

and unintentional, not due to negligent 

conduct. 

We further determine, based on the 

best available scientific information, 

that the proposed experimental 

population would not be essential to the 

continued existence of the CV springrun Chinook salmon ESU, because 

absence of the experimental population 

would not be likely to appreciably 

reduce the likelihood of the survival of 

the ESU in the wild. However, as 

described above, the experimental 

population is expected to contribute to 

the recovery of the CV spring-run 

Chinook salmon ESU if reintroduction 

is successful. We therefore propose that 

the experimental population would be a 

nonessential experimental population. 

Public Comment 

We want the final rule to be as 

effective and accurate as possible, and 

the final EA to evaluate the potential 

issues and reasonable range of 

alternatives. Therefore, we invite the 

public, State, Tribal, and government 

agencies, the scientific community, 

environmental groups, industry, local 

landowners, and all interested parties to 

provide comments on the proposed rule 

and draft EA (see ADDRESSES section 

above). We request that submitted 

comments be relevant to the proposed 

designation of an experimental 

population in the NEP area. The most 

helpful comments are as specific as 

possible, provide relevant information 

or suggested changes, the basis for the 

suggested changes, and any additional 

supporting information where 

appropriate. For example, comments 

could tell us the numbers or titles of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, or the sections where lists or 

tables would be useful. 

Prior to issuing a final rule, we will 

take into consideration the comments 

and supporting materials received. We 

are interested in all public comments, 

but are specifically interested in 

obtaining feedback on: 

(1) The best source of ESA-listed fish 

for establishing an experimental 

population of CV spring-run Chinook 

salmon in the NEP area and the 

scientific basis for such comments. 

(2) The proposed NEP area 

(geographical scope) for the 

experimental population. 

(3) The extent to which the 

experimental population would be 

affected by current or future Federal, 

State, Tribal, or private actions within 

or adjacent to the experimental 

population area. 

(4) Any necessary management 

restrictions, protective measures, or 

other management measures that we 

may not have considered. 

(5) The likelihood that the 

experimental population will become 

established in the NEP area. 

(6) Whether the proposed 

experimental population is essential or 

nonessential. 

(7) Whether the proposed 

experimental population designation 

and release will further the conservation 

of the species and whether we have 


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used the best available scientific 

information in making this 

determination. 

Information Quality Act and Peer 

Review 

Pursuant to the Information Quality 

Act (Section 515 of Pub. L. 106–554), 

the Office of Management and Budget 

(OMB) issued a Final Information 

Quality Bulletin for Peer Review, which 

was published in the Federal Register 

on January 14, 2005 (70 FR 2664). The 

Bulletin established minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation with regard to certain 

types of information disseminated by 

the Federal Government. The peer 

review requirements of the OMB 

Bulletin apply to influential or highly 

influential scientific information 

disseminated on or after June 16, 2005. 

There are no documents supporting this 

proposed rule that meet these criteria. 

Classification 

Executive Order 12866 

This proposed rule has been 

determined to be not significant under 

Executive Order 12866. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996; 5 U.S.C. 801 et seq.), 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

The SBREFA amended the Regulatory 

Flexibility Act to require Federal 

agencies to provide a statement of the 

factual basis for certifying that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

We are certifying that this proposed 

rule, if implemented, would not have a 

significant economic effect on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

This proposal would designate and 

authorize the release of a nonessential 

experimental population of CV springrun salmon in the NEP area. While in 

the NEP area, the experimental 

population would be protected from 

some types of take, but we would 

impose no prohibitions on the take of 

the experimental population fish that is 

incidental to otherwise lawful activity 

and unintentional, not due to negligent 

conduct (see below). The effect of the 

proposal would not increase the 

regulatory burdens associated with the 

ESA on affected entities, including 

small entities, to conduct otherwise 

lawful activities as a result of 

reintroduction of CV spring-run 

Chinook salmon to the NEP area. If this 

proposal is adopted, the area affected by 

this rule includes the entire NEP area. 

Land ownership includes Federal lands 

and private lands with the primary uses 

being recreation, forestry, water 

management, power production, 

mining, transportation management, 

rural development, and livestock 

grazing. Accordingly, the rule, if 

implemented, may impact those uses. 

However, this proposed rule would 

apply only limited take prohibitions as 

compared with the prohibitions that 

typically apply to listed CV spring-run 

Chinook salmon. In particular, the 

proposed rule expressly provides an 

exception for the take of experimental 

population fish in the NEP area 

provided that the take is incidental to 

otherwise lawful activity and 

unintentional, not due to negligent 

conduct. Based on the nonexperimental 

population designation under the 

proposed rule, there would only be the 

requirement under ESA section 7 (other 

than section (a)(1) requiring Federal 

agencies, in consultation with NMFS as 

applicable depending on the species, to 

use their authorities to further the 

purposes of the ESA by carrying out 

programs for the conservation of listed 

species) for Federal agencies to confer 

with NMFS. The more burdensome 

requirement to consult, with respect to 

effects of agency actions on the 

experimental population is not 

applicable. Additionally, critical habitat 

cannot be designated for a nonessential 

experimental population. Due to the 

minimal regulatory overlay provided by 

the nonessential experimental 

population designation, we do not 

expect this rule to have any significant 

effect on recreation, forestry, water 

management, power production, 

mining, transportation management, 

rural development, livestock grazing or 

other lawful activities within the NEP 

area. 

Because this proposal would require 

no additional regulatory requirements 

on small entities and would impose 

little to no regulatory requirements for 

activities within the affected area, the 

Chief Council for Regulation certified 

that this proposed rule would not have 

a significant economic effect on a 

substantial number of small entities. 

Accordingly, no initial regulatory 

flexibility analysis is required, and none 

has been prepared. 

Executive Order 12630 

In accordance with Executive Order 

12630, the proposed rule does not have 

significant takings implications. A 

takings implication assessment is not 

required because this proposed rule: (1) 

Would not effectively compel a property 

owner to have the government 

physically invade their property, and (2) 

would not deny all economically 

beneficial or productive use of the land 

or aquatic resources. This proposed rule 

would substantially advance a 

legitimate government interest 

(conservation and recovery of a listed 

fish species) and would not present a 

barrier to all reasonable and expected 

beneficial use of private property. 

Executive Order 13132 

In accordance with Executive Order 

13132, we have determined that this 

proposed rule does not have federalism 

implications as that term is defined in 

Executive Order 13132. 

Executive Order 13771 

This proposed rule is not an 

Executive Order 13771 regulatory action 

because this rule is not significant under 

Executive Order 12866. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

OMB regulations at 5 CFR 1320, 

which implement provisions of the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.), require that Federal 

agencies obtain approval from OMB 

before collecting information from the 

public. A Federal agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

This proposed rule does not include any 

new collections of information that 

require approval by OMB under the 

Paperwork Reduction Act. 

National Environmental Policy Act 

In compliance with all provisions of 

the National Environmental Policy Act 

of 1969 (NEPA), we have analyzed the 

impact on the human environment and 

considered a reasonable range of 

alternatives for this proposed rule. We 

have prepared a draft EA on this 

proposed action and have made it 


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available for public inspection (see 

ADDRESSES section above). All 

appropriate NEPA documents will be 

finalized before this rule is finalized. 

Government-to-Government 

Relationship With Tribes (Executive 

Order 13175) 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments, outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. If we issue a regulation with 

tribal implications (defined as having a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes), 

we must consult with those 

governments or the Federal Government 

must provide funds necessary to pay 

direct compliance costs incurred by 

tribal governments. 

There are no tribally owned or 

managed lands in the NEP area. As part 

of NMFS’s obligations under the 

National Historic Preservation Act, 

NMFS inquired with federally 

recognized and non-federally 

recognized tribes with potential interest 

in the NEP area to inform them of the 

proposed rule and solicit information on 

cultural resources eligible for listing on 

the National Register of Historic Places. 

To date, responses have been limited 

and no concerns over the proposed rule 

have been raised. NMFS invites tribes to 

meet with us to have detailed 

discussions that could lead to 

government-to-government consultation 

meetings with tribal governments. We 

will continue to coordinate with 

potentially affected tribes as we gather 

public comment on this proposed rule 

and consider next steps. 

References Cited 

A complete list of all references cited 

in this proposed rule is available upon 

request from National Marine Fisheries 

Service office (see FOR FURTHER

INFORMATION CONTACT). 

Dated: December 2, 2020. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 223 is proposed 

to be amended as follows: 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 223 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543; subpart 

B, § 223.201–202 is also issued under 16 

U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 

§ 223.206(d)(9). 

■ 2. In § 223.102, amend the table in 

paragraph (e) by adding, in alphabetical 

order, an entry under Fishes for 

‘‘Salmon, Chinook (Central Valley 

spring-run ESU–XN: Yuba)’’ to read as 

follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

(e) * * * 

Species 1

Citation(s) for listing 

determinations(s) 

Critical 

habitat ESA rules 

Common name Scientific name Description of listed entity 

*******

FISHES

* * * * * * * 

Salmon, Chinook (Central 

Valley spring-run ESU– 

XN: Yuba).

Oncorhynchus 

tshawytscha.

Central Valley spring-run Chinook salmon only 

when, and at such times as, they are found in 

the upper Yuba River watershed, upstream of 

Englebright Dam.

[Federal Register citation and date when 

published as a final 

rule].

NA 223.301 

* * * * * * * 

1Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and 

evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 

* * * * * 

■ 3. In § 223.301, add paragraph (d) to 

read as follows: 

§ 223.301 Special rules—marine and 

anadromous fishes. 

* * * * * 

(d) Upper Yuba River Central Valley 

spring-run Chinook Salmon 

Experimental Population 

(Oncorhynchus tshawytscha). (1) The 

Upper Yuba River Central Valley springrun Chinook salmon population 

identified in paragraph (d)(2) of this 

section is designated as a nonessential 

experimental population under section 

10(j) of the ESA and shall be treated as 

a ‘‘threatened species’’ pursuant to 16 

U.S.C. 1539(j)(2)(C). 

(2) Upper Yuba River Central Valley 

spring-run Chinook Salmon 

Experimental Population. All Central 

Valley spring-run Chinook salmon 

within the experimental population area 

in the upper Yuba River watershed 

upstream of Englebright Dam, as defined 

here, are considered part of the Upper 

Yuba River Central Valley spring-run 

Chinook salmon experimental 

population. The boundaries of the 

experimental population area include 

Englebright Dam and all tributaries 

draining into Englebright Reservoir up 

to the ridgeline. 

(3) Prohibitions. Except as expressly 

allowed in paragraph (d)(4) of this 

section, all prohibitions of section 

9(a)(1) of the ESA (16 U.S.C. 1538 (a)(1)) 

apply to fish that are part of the Upper 

Yuba River Central Valley spring-run 

Chinook salmon nonessential 

experimental population identified in 

paragraph (d)(2) of this section. 

(4) Exceptions to the Application of 

Section 9 Take Prohibitions in the 

Experimental Population Area. The 

following forms of take in the 

experimental population area identified 

in paragraph (d)(2) of this section are 

not prohibited by this section: 


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Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Proposed Rules 79989 

(i) Any taking of Central Valley 

spring-run Chinook salmon by 

authorized governmental entity 

personnel acting in compliance with 50 

CFR 223.203(b)(3) to aid a sick, injured 

or stranded fish; dispose of a dead fish; 

or salvage a dead fish which may be 

useful for scientific study. 

(ii) Any taking of Central Valley 

spring-run Chinook salmon that is 

unintentional, not due to negligent 

conduct, and incidental to, and not the 

purpose of, the carrying out of an 

otherwise lawful activity. 

(iii) Any taking of Central Valley 

spring-run Chinook salmon pursuant to 

a permit issued by NMFS under section 

10 of the ESA (16 U.S.C. 1539) and 

regulations in part 222 of this chapter 

applicable to such a permit. 

* * * * * 

[FR Doc. 2020–26946 Filed 12–10–20; 8:45 am] 

BILLING CODE 3510–22–P 


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