[Federal Register Volume 85, Number 239 (Friday, December 11, 2020)]
[Proposed Rules]
[Pages 79980-79989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26946]


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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.

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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

[[Page 79981]]

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:
    <bullet> 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.
    <bullet> Mail: Submit written comments to Jonathan Ambrose, 
National Marine Fisheries Service, 650 Capitol Mall, Suite 5-100, 
Sacramento, California 95814.
    <bullet> 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:
    <bullet> 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.
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    \1\ The ESA defines ``species'' to include ``any distinct 
population segment of any species of vertebrate fish or wildlife 
which interbreeds when mature'' (16 U.S.C. 1532(16); see also 50 CFR 
424.02). For Pacific salmon, NMFS determined that an ESU will be 
considered a distinct population segment and thus a species (56 FR 
58612, November 20, 1991). A group of Pacific salmon is considered 
an ESU if it (1) is substantially reproductively isolated from other 
nonspecific population units; and (2) represents an important 
component in the evolutionary legacy of the species.
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    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 non-essential populations do not receive the benefit of 
certain protections normally applicable to threatened species (ESA 
section 10(j)(2)(C)). Below we discuss the impact of treating 
experimental populations as threatened species and of exceptions that 
apply to 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 spring-run 
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 spring-
run 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

[[Page 79982]]

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 spring-run 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 ESA-listed salmon and steelhead in the 
Sacramento River and San Joaquin Rivers and their tributaries. The 
CVTRT recommended biological viability criteria at the ESU level and 
population level (Lindley et al., 2007) for recovery planning 
consideration. The CVTRT identified the current risk level of each 
population based on the gap between recent abundance and productivity 
and the desired recovery goals. The CVTRT concluded that the greatest 
risk facing the ESUs resulted from the loss of historical diversity 
following the construction of major dams that blocked access to 
historical spawning and rearing habitat (Lindley et al., 2007).
    The CVTRT also recommended spatial structure and diversity metrics 
for each population (Lindley et al., 2004). Spatial structure refers to 
the

[[Page 79983]]

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 
spring-run 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

[[Page 79985]]

probable that a self-sustaining experimental population of CV spring-
run Chinook salmon will become established and survive in the upper 
Yuba River. Furthermore, we conclude that such a self-sustaining 
experimental population of genetically compatible individuals is likely 
to further the conservation of the species, as discussed above.
2. Identification of the Experimental Population and Geographic 
Separation From the Nonexperimental Populations of the Same Species
    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 re-enter 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 long-term fish passage program, and would not be for the purpose of 
identifying fish from the NEP area other than for brood stock 
collection of returning adults. As discussed above, the experimental 
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 spring-run 
Chinook salmon is essential, we used the best available information as 
required by ESA section 10(j)(2)(B). Furthermore, we considered the 
geographic location of the experimental population in relation to other 
populations of CV spring-run Chinook salmon, and the likelihood of 
survival of these populations without the existence of the experimental 
population.
    The CV spring-run Chinook salmon ESU includes four independent 
populations and several dependent or establishing populations. Given 
current protections and restoration efforts, these populations are 
persisting without the presence of a population in the NEP area. It is 
expected that the experimental population will exist as a separate 
population from those in the Sacramento River basin and will not be 
essential to the survival of those populations. Based on these 
considerations, we conclude 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

[[Page 79986]]

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.
---------------------------------------------------------------------------

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

    3. Any take that is pursuant to a permit issued by NMFS under 
section 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 spring-run Chinook 
salmon. CV spring-run Chinook salmon used to initiate the 
reintroduction are anticipated to come from the FRH using either donor 
stock from the Feather or Yuba Rivers, which is part of the CV spring-
run Chinook salmon ESU. The collection of donor stock from the FRH will 
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 spring-run Chinook 
salmon ESU, because absence of the experimental population would not be 
likely to appreciably reduce the likelihood of the survival of the ESU 
in the wild. However, as described above, the experimental population 
is expected to contribute to the recovery of the CV spring-run Chinook 
salmon ESU if reintroduction is successful. We therefore 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

[[Page 79987]]

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 spring-run 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

[[Page 79988]]

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

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

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

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


Sec.  223.102   Enumeration of threatened marine and anadromous 
species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Species \1\
-----------------------------------------------------------------------------------------------   Citation(s) for listing     Critical       ESA rules
             Common name                    Scientific name       Description of listed entity       determinations(s)         habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
                Fishes
 
                                                                      * * * * * * *
Salmon, Chinook (Central Valley        Oncorhynchus tshawytscha  Central Valley spring-run      [Federal Register citation           NA          223.301
 spring-run ESU-XN: Yuba).                                        Chinook salmon only when,      and date when published
                                                                  and at such times as, they     as a final rule].
                                                                  are found in the upper Yuba
                                                                  River watershed, upstream of
                                                                  Englebright Dam.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

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


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

* * * * *
    (d) Upper Yuba River Central Valley spring-run Chinook Salmon 
Experimental Population (Oncorhynchus tshawytscha). (1) The Upper Yuba 
River Central Valley spring-run Chinook salmon population identified in 
paragraph (d)(2) of this section is designated as a nonessential 
experimental population under section 10(j) of the 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:

[[Page 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