Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 58511 

PART 54—UNIVERSAL SERVICE 

■ 1. The authority citation for part 54 

continues to read as follows: 

Authority: 47 U.S.C. 151, 154(i), 155, 201, 

205, 214, 219, 220, 229, 254, 303(r), 403, 

1004, 1302, 1601–1609, and 1752, unless 

otherwise noted. 

■ 2. Revise § 54.1711(d) to read as 

follows: 

§ 54.1711 Emergency Connectivity Fund 

requests for reimbursement. 

* * * * * 

(d) Invoice filing deadline. Invoices 

must be submitted to the Administrator 

within 60 days from the date of a 

funding commitment decision letter; a 

revised funding commitment decision 

letter approving a post-commitment 

change or a successful appeal of a 

previously denied or reduced funding; 

notification by the Administrator of a 

processed returned funds (or refund) 

request; or service delivery date, 

whichever is later. 

* * * * * 

[FR Doc. 2023–18464 Filed 8–25–23; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 230822–0202] 

RIN 0648–BH85 

Endangered and Threatened Species: 

Designation of Nonessential 

Experimental Populations of Chinook 

Salmon Upstream of Shasta Dam, 

Authorization for Release, and 

Adoption of Limited Protective 

Regulations Under the Endangered 

Species Act Sections 10(j) and 4(d) 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notification of 

availability of a final environmental 

assessment. 

SUMMARY: We, NMFS, designate and 

authorize the release of nonessential 

experimental populations (NEPs or 

experimental populations) of 

Sacramento River (SR) winter-run 

Chinook salmon (Oncorhynchus 

tshawytscha) and Central Valley (CV) 

spring-run Chinook salmon (O. 

tshawytscha) in the McCloud and Upper 

Sacramento Rivers upstream of Shasta 

Dam (the NEP Area), California, and, 

under the Endangered Species Act 

(ESA), establish a limited set of take 

exceptions for the experimental 

populations. Successful reintroduction 

of populations within the species’ 

historical ranges will contribute to 

viability and further conservation of 

these species. The issuance of limited 

protective regulations for the 

conservation of these species will 

provide assurances regarding the 

regulatory provisions of the ESA as they 

apply to SR winter-run and CV springrun Chinook salmon to the people in the 

Upper Sacramento River and McCloud 

River watersheds. This final rule also 

announces the availability of a final 

environmental assessment (EA) that 

analyzed the environmental impacts of 

promulgating the experimental 

population rule and associated take 

exceptions. 

DATES: The final rule is effective 

September 27, 2023. 

ADDRESSES: The final Environmental 

Assessment and other reference 

materials can be obtained at NMFS’ 

National Environmental Policy Act 

(NEPA) website at: https://

www.westcoast.fisheries.noaa.gov/ 

publications/nepa/nepa_

documents.html or by submitting a 

request to the Assistant Regional 

Administrator, California Central Valley 

Office, West Coast Region, NMFS, 650 

Capitol Mall, Suite 5–100, Sacramento, 

CA 95814. 

FOR FURTHER INFORMATION CONTACT: 

Steve Edmondson, steve.edmondson@

noaa.gov or by phone at (916) 930–3600, 

or by mail at National Marine Fisheries 

Service, 650 Capitol Mall, Suite 5–100, 

Sacramento, CA 95814. 

SUPPLEMENTARY INFORMATION: 

Background Information Relevant to 

Experimental Population Designation 

NMFS listed the SR winter-run 

Chinook salmon Evolutionarily 

Significant Unit (ESU) as endangered 

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

on January 4, 1994 (59 FR 440) and 

reaffirmed this status on June 28, 2005 

(70 FR 37159), and 5-year reviews 

announced on August 15, 2011 (76 FR 

50448), April 14, 2014 (79 FR 20802), 

and May 26, 2016 (81 FR 33468). 

Section 9 of the ESA prohibits take of 

the endangered SR winter-run Chinook 

salmon. The State of California listed SR 

winter-run Chinook salmon as 

endangered in 1989 under the California 

Endangered Species Act (CESA). The 

federally listed ESU is composed of a 

single population that includes all 

naturally spawned SR winter-run 

Chinook salmon in the Sacramento 

River and its tributaries (70 FR 37160, 

June 28, 2005), as well as SR winter-run 

Chinook salmon that are part of the 

conservation hatchery program at the 

Livingston Stone National Fish 

Hatchery (NFH). Designated critical 

habitat of SR winter-run Chinook 

salmon (58 FR 33212, June 16, 1993) 

includes: (1) the Sacramento River from 

Keswick Dam, Shasta County (River 

Mile (RM) 302) to Chipps Island (RM 0) 

at the westward margin of the delta; (2) 

all waters from Chipps Island westward 

to Carquinez Bridge, including Honker 

Bay, Grizzly Bay, Suisun Bay, and 

Carquinez Strait; (3) all waters of San 

Pablo Bay westward of the Carquinez 

Bridge; and (4) those waters north of 

San Francisco-Oakland Bay Bridge. 

NMFS listed the CV spring-run 

Chinook salmon ESU as threatened 

under the ESA on September 16, 1999 

(64 FR 50394), and reaffirmed this status 

in a final rule on June 28, 2005 (70 FR 

37160), and 5-year reviews announced 

on August 15, 2011 (76 FR 50447), and 

May 26, 2016 (81 FR 33468). The listed 

ESU of CV spring-run Chinook salmon 

currently includes all naturally 

spawned populations of spring-run 

Chinook salmon in the Sacramento 

River and its tributaries, as well as the 

spring-run Chinook salmon from the 

Feather River Hatchery (FRH) springrun Chinook salmon program. On 

January 9, 2002 (67 FR 1116), NMFS 

issued protective regulations under 

section 4(d) of the ESA for CV springrun Chinook salmon that apply the take 

prohibitions of section 9(a)(1) of the 

ESA except for listed exceptions (see 50 

CFR 223.203). Critical habitat has been 

designated for CV spring-run Chinook 

salmon (70 FR 52488, September 2, 

2005), and includes most of the 

occupied riverine habitat within their 

extant range. CV spring-run Chinook 

salmon are also listed as a threatened 

species by the State of California under 

CESA, California Fish and Game Code, 

Division 3, Chapter 1.5. 

In 2014, we adopted a final recovery 

plan for the SR winter-run and CV 

spring-run Chinook salmon ESUs (79 FR 

42504, July 22, 2014). The Central 

Valley Recovery Plan identifies reestablishing populations of SR winterrun and CV spring-run Chinook salmon 

above impassable barriers to 

unoccupied historical habitats as an 

important recovery action (NMFS 2014). 

More specifically, the Central Valley 

Recovery Plan explains that reestablishing populations above 

impassable barriers, such as Shasta 

Dam, would aid in recovery of the ESUs 

by increasing abundance, spatial 

structure and diversity and by reducing 

the risk of extinction to the ESUs. 


lotter on DSK11XQN23PROD with RULES1
58512 Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 

This rule designates and authorize the 

release of NEPs of SR winter-run and CV 

spring-run Chinook salmon pursuant to 

ESA section 10(j) in the McCloud and 

Upper Sacramento Rivers upstream of 

Shasta Dam, and establishes take 

prohibitions for the NEPs and 

exceptions for particular activities. 

This is a final rule stemming from a 

proposed rule published on May 11, 

2023 (88 FR 30690). The NEP Area 

extends from Shasta Dam up to Pit 7 

Dam on the Pit River, McCloud Dam on 

the McCloud River, and Box Canyon 

Dam on the upper Sacramento River. All 

other tributaries flowing into Shasta 

Reservoir up to the ridge line, including 

tributaries below Pit 7 Dam, McCloud 

Dam, and Box Canyon Dam, up to the 

ridge line would be included in the NEP 

Area. All other areas above Pit 7 Dam 

on the Pit River, McCloud Dam on the 

McCloud River, and Box Canyon Dam 

on the upper Sacramento River would 

not be part of the NEP Area. The NEP 

Area extends up to the ridgelines to 

account for watershed processes and 

ends at the aforementioned dams 

because these dams lack fish passage 

facilities. The NEP Area is part of the 

species’ historical range. The NEPs are 

all SR winter-run and CV spring-run 

Chinook salmon, including fish released 

or propagated, naturally or artificially, 

within the NEP Area. 

Figure 1—The NEP Area above Shasta 

Dam for SR winter-run and CV springrun Chinook salmon 


lotter on DSK11XQN23PROD with RULES1ER28AU23.376</GPH>
Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 58513 

Statutory and Regulatory Framework for 

Experimental Population Designations 

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

1539(j)) allows the Secretary of 

Commerce to authorize the release of 

any population of a listed species 

outside their current range if the release 

‘‘will further the conservation’’ of that 

species. An experimental population is 

a population that is geographically 

separate from nonexperimental 

populations of the same species. 

Before authorizing the release of an 

experimental population, section 

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

must ‘‘by regulation identify the 

population and determine, on the basis 

of the best available information, 

whether or not the population is 

essential to the continued existence of 

the listed species.’’ 

An experimental population is treated 

as a threatened species, except that 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 experimental 

populations. 

For endangered species, section 9 of 

the ESA prohibits take of those species. 

For a threatened species, ESA section 9 

does not specifically prohibit take of 

those species, but the ESA instead 

authorizes NMFS to adopt regulations 

under section 4(d) to prohibit take or 

that it deems necessary and advisable 

for species conservation. The 

experimental populations of SR winterrun and CV spring-run Chinook salmon 

we are designating must generally be 

treated as threatened species. Therefore, 

we issue tailored protective regulations 

under ESA section 4(d) for the 

experimental populations of SR winterrun and CV spring-run Chinook salmon 

to identify take prohibitions necessary 

to provide for the conservation of the 

species with exceptions for particular 

activities. 

Section 7 of the ESA provides for 

Federal interagency cooperation and 

consultation on Federal agency actions. 

Section 7(a)(1) directs all Federal 

agencies, in consultation with NMFS as 

applicable depending on the species, to 

use their authorities to further the 

purposes of the ESA by carrying out 

programs for the conservation of listed 

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

Federal agencies, in consultation with 

NMFS as applicable depending on the 

species, to ensure any action they 

authorize, fund or carry out is not likely 

to jeopardize the continued existence of 

a listed species or result in the 

destruction or adverse modification of 

designated critical habitat. Section 7 

applies equally to endangered and 

threatened species. 

Although ESA section 10(j) provides 

that an experimental population must 

generally be treated as a threatened 

species, for the purposes of ESA section 

7, if the experimental population is 

determined to be a NEP, section 

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

experimental population as a species 

proposed to be listed, rather than a 

species that is listed (except when it 

occurs within a National Wildlife 

Refuge or National Park, in which case 

it is treated as listed). Section 7(a)(4) of 

the ESA requires Federal agencies to 

confer (rather than consult under ESA 

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

likely to jeopardize the continued 

existence of a species proposed to be 

listed. The results of a conference are 

advisory recommendations, if any, on 

ways to minimize or avoid adverse 

effects rather than mandatory terms and 

conditions under ESA section 7(a)(2) 

consultations (compare 50 CFR 

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

NMFS has previously designated four 

experimental populations (78 FR 2893, 

January 15, 2013; 78 FR 79622, 

December 31, 2013; 79 FR 40004, July 

11, 2014; 87 FR 79808, December 28, 

2022) and promulgated regulations, 

codified at 50 CFR part 222, subpart E, 

to implement section 10(j) of the ESA 

(81 FR 33416, May 26, 2016). NMFS’ 

implementing regulations include the 

following provisions: 

The provision at 50 CFR 222.501(b) 

defines an ‘‘essential experimental 

population’’ as an experimental 

population that, if lost, the survival of 

the species in the wild would likely be 

appreciably reduced. All other 

experimental populations are classified 

as nonessential. 

The provision at 50 CFR 222.502(b) 

provides that, before authorizing the 

release of an experimental population, 

the Secretary must find by regulation 

that such release will further the 

conservation of the species. In addition, 

50 CFR 222.502(b) provides that, in 

making such a finding, the Secretary 

shall utilize the best scientific and 

commercial data available to consider: 

• Any possible adverse effects on 

extant populations of a species as a 

result of removal of individuals, eggs, or 

propagules for introduction elsewhere; 

• The likelihood that any such 

experimental population will become 

established and survive in the 

foreseeable future; 

• The effects that establishment of an 

experimental population will have on 

the recovery of the species; and 

• The extent to which the introduced 

population may be affected by existing 

or anticipated Federal or state actions or 

private activities within or adjacent to 

the experimental population area. 

The provision at 50 CFR 222.502(c) 

describes 4 components that must be 

provided in any NMFS regulations 

designating an experimental population 

under ESA section 10(j): 

• Appropriate means to identify the 

experimental population, including, but 

not limited to, its actual or proposed 

location; actual or anticipated 

migration; number of specimens 

released or to be released; and other 

criteria appropriate to identify the 

experimental population(s); 

• A finding, based solely on the best 

scientific and commercial data 

available, and the supporting factual 

basis, on whether the experimental 

population is, or is not, essential to the 

continued existence of the species in the 

wild; 

• Management restrictions, protective 

measures, or other special management 

concerns of that population, as 

appropriate, which may include, but are 

not limited to, measures to isolate and/ 

or to contain the experimental 

population designated in the regulation 

from non-experimental populations and 

protective regulations established 

pursuant to section 4(d) of the ESA; and 

• A process for periodic review and 

evaluation of the success or failure of 

the release and the effect of the release 

on the conservation and recovery of the 

species. 

In addition, as described above, ESA 

section 10(j)(1) defines an 

‘‘experimental population’’ as any 

population authorized for release but 

only when, and at such times as, the 

population is wholly separate 

geographically from the 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)). 

We discuss in more detail below how 

we considered each of these elements. 

Status of the Species 

Life history and the historical 

population trends of SR winter-run and 

CV spring-run Chinook salmon are 

summarized by Healy (1991), U.S. Fish 


lotter on DSK11XQN23PROD with RULES1
58514 Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 

and Wildlife Service (USFWS) (1995), 

Yoshiyama et al. (1998), Yoshiyama et 

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

4(f) of the ESA requires the Secretary of 

Commerce to develop recovery plans for 

all listed species unless the Secretary 

determines that such a plan will not 

promote the conservation of a listed 

species. Prior to developing the Central 

Valley Recovery Plan (NMFS 2014), we 

assembled a team of scientists from 

Federal and State agencies, consulting 

firms, non-profit organizations and 

academia. This group, known as the 

Central Valley Technical Recovery 

Team (CVTRT), was tasked with 

identifying population structure and 

recommending recovery criteria (also 

known as delisting criteria) for 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 

geographic distribution of a population 

and the processes that affect the 

distribution. Populations with restricted 

distribution and few spawning areas are 

at a higher risk of extinction from 

catastrophic environmental events (e.g., 

a volcanic eruption) than are 

populations with more widespread and 

complex spatial structure. A population 

with complex spatial structure typically 

has multiple spawning areas which 

allows the expression of diverse life 

history characteristics. Diversity is the 

combination of genetic and phenotypic 

characteristics within and between 

populations (McElhany et al., 2000). 

Phenotypic diversity allows more 

diverse populations to use a wider array 

of environments and protects 

populations against short-term temporal 

and spatial environmental changes. 

Genotypic diversity, on the other hand, 

provides populations with the ability to 

survive long-term changes in the 

environment by providing genetic 

variations that may prove successful 

under different situations. The 

combination of phenotypic and 

genotypic diversity, expressed in a 

natural setting, provides populations 

with the ability to utilize the full range 

of habitat and environmental conditions 

and to have the resiliency to survive and 

adapt to long-term changes in the 

environment. 

In 2016, NMFS completed a periodic 

review as required by ESA section 

4(c)(2)(A) and on May 26, 2016 (81 FR 

33468), announced the SR winter-run 

Chinook salmon ESU would remain 

listed as endangered. In 2023, NMFS 

completed the 2022 review of SR 

winter-run Chinook salmon that 

indicates the biological status of the SR 

winter-run Chinook salmon ESU has 

declined since the 2016 viability 

assessment (Williams et al., 2016), with 

the single spawning population on the 

mainstem Sacramento River now at a 

high risk of extinction (Southwest 

Fisheries Science Center (SWFSC) 

2022). Updated information indicates an 

increased extinction risk due to the 

larger influence of the hatchery 

broodstock and low numbers of naturalorigin returns in two consecutive years 

(SWFSC 2022). NMFS determined that 

the viability of the ESU would be 

improved by re-establishing this species 

in their historical spawning and rearing 

habitats through reintroduction efforts 

in Battle Creek and upstream from 

Shasta Reservoir. 

In 2016, NMFS completed a periodic 

review as required by the ESA section 

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

spring-run Chinook salmon ESU should 

remain listed as threatened (81 FR 

33468, May 26, 2016). As part of the 

periodic review, NMFS’ Southwest 

Fisheries Science Center conducted an 

analysis (Johnson and Lindley 2016) 

that indicated the extant independent 

populations of the CV spring-run 

Chinook salmon ESU remained at a 

moderate to low extinction risk. The 

NMFS Southwest Fisheries Science 

Center’s recent viability analysis (2022) 

noted some improvements in the 

viability of the ESU, particularly with 

the increased spatial diversity of the 

dependent Battle Creek and Clear Creek 

populations. However, the analysis also 

identified as key threats recent 

catastrophic declines of many of the 

extant populations, high pre-spawn 

mortality during the 2012–2015 drought 

in California, uncertain juvenile 

survival as a result of drought and ocean 

conditions, as well as straying of CV 

spring-run Chinook salmon from the 

Feather River Fish Hatchery. 

Analysis of the Statutory Requirements 

1. Will release of experimental 

populations further the conservation of 

these species? 

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

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

use of all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to this 

[Act] are no longer necessary.’’ We 

discuss in more detail below each of the 

factors we considered in determining 

whether release of experimental 

populations in the NEP Area would 

further the conservation of SR winterrun and CV spring-run Chinook salmon. 

Under 50 CFR 222.502(b), NMFS must 

consider several factors in finding 

whether release of an experimental 

population will further the conservation 

of the species, including any possible 

adverse effects on extant populations of 

the species as a result of removal of 

individuals for introduction elsewhere; 

the likelihood that the experimental 

population will become established and 

survive in the foreseeable future; the 

effects that establishment of the 

experimental population will have on 

the recovery of the species; and the 

extent to which the experimental 

populations may be affected by existing 

or anticipated Federal or state actions or 

private activities within or adjacent to 

the experimental population area. 

Regarding the likelihood that 

reintroduction efforts will be successful 

in the foreseeable future, an important 

question is: what are the most 

appropriate sources of broodstock to 

establish the experimental population, 

and are the sources available? 

Reintroduction efforts have the best 

chance for success when the donor 

population has life-history 

characteristics compatible with the 

anticipated environmental conditions of 

the habitat into which fish will be 

reintroduced (Araki et al., 2008). 

Populations found in watersheds closest 

to the NEP Area are most likely to have 

adaptive traits that will lead to a 

successful reintroduction. Therefore, 

only SR winter-run and CV spring-run 

Chinook salmon populations found in 

the Central Valley would be used in 

establishing the experimental 

populations in the NEP Area. 

We have preliminarily identified 

donor sources for reintroduction into 

the NEP Area as SR winter-run from 

Livingston Stone NFH and CV springrun Chinook salmon produced from the 

FRH. These fish are the geographically 

closest donor sources that could be used 

with minimal impact to the wild 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 58515 

populations for reintroduction into the 

NEP Area. NMFS, in consultation with 

the California Department of Fish and 

Wildlife (CDFW), may later consider 

diversifying the donor stocks from other 

nearby streams if those populations can 

sustain removal of fish. Any collection 

of Chinook salmon would be subject to 

a Hatchery and Genetic Management 

Plan (HGMP) in relation to a hatchery 

source and approval of a permit under 

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

analysis under NEPA and ESA section 

7. 

Use of donor stocks from Livingston 

Stone NFH and the FRH for the initial 

phases of a reintroduction program will 

minimize the number of individuals 

needed from existing populations. 

Supplementation to the donor stock, if 

necessary, would be dependent upon 

genetic diversity needs and the extent of 

adverse effects to other populations. It is 

anticipated that over time, the 

Livingston Stone NFH and FRH would 

produce juveniles and adults in 

sufficient numbers to enable the return 

of a sufficient number of adults to 

establish a self-sustaining population in 

the NEP Area. Once self-sustaining 

populations are established, it is 

anticipated that contributions of SR 

winter-run Chinook salmon from 

Livingston Stone NFH and CV springrun Chinook salmon from FRH would 

be phased out. 

We also consider the suitability of 

habitat available to the experimental 

populations. In 2014, the U.S. Bureau of 

Reclamation initiated a habitat 

assessment of the NEP Area and found 

conditions were suitable for Chinook 

salmon spawning, adult holding, and 

juvenile rearing. Habitat conditions in 

the Upper Sacramento and McCloud 

Rivers are described in the EA. 

In addition, there are Federal and 

State laws and regulations that will help 

ensure the establishment and survival of 

the experimental populations by 

protecting aquatic and riparian habitat 

in the NEP Area. Section 404 of the 

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

establishes a program to regulate the 

discharge of dredged or fill material into 

waters of the United States, which 

generally requires avoidance, 

minimization, and mitigation for 

potential adverse effects of dredge and 

fill activities within the Nation’s 

waterways. Under CWA section 401, 33 

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

issue a permit or license to conduct any 

activity that may result in any discharge 

into waters of the United States unless 

a state or authorized tribe where the 

discharge would originate issues a 

section 401 water quality certification 

verifying compliance with existing 

water quality requirements or waives 

the certification requirement. In 

addition, construction and operational 

storm water runoff is subject to 

restrictions under CWA section 402, 33 

U.S.C. 1342, which establishes the 

National Pollutant Discharge 

Elimination System permit program, 

and state water quality laws. 

The Federal Energy Regulatory 

Commission (FERC), pursuant to the 

Federal Power Act (FPA) and the U.S. 

Department of Energy Organization Act, 

is authorized to issue licenses for up to 

50 years for the construction and 

operation of non-Federal hydroelectric 

developments subject to its jurisdiction. 

The FPA authorizes NMFS to issue 

mandatory prescriptions for fish passage 

and recommend other measures to 

protect salmon, steelhead, and other 

anadromous fish. 

The Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA) (16 U.S.C. 1801 et seq.) is the 

principal law governing marine fisheries 

conservation and management in the 

United States. Chinook salmon Essential 

Fish Habitat (EFH) is identified and 

described to include all water bodies 

currently or historically occupied by 

Chinook salmon in California. Under 

the MSA, Federal agencies are required 

to determine whether a Federal action 

they authorize, fund, or undertake may 

adversely affect EFH (16 U.S.C. 1855(b)). 

Chinook salmon EFH does not occur in 

the NEP Area. 

At the State level, the California Fish 

and Game Code (CFGC) Fish and 

Wildlife Protection and Conservation 

provisions (CFGC section 1600, et seq.), 

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

and the California Environmental 

Quality Act (CEQA) (Public Resources 

Code section 21000, et seq.) set forth 

criteria for the incorporation of 

avoidance, minimization, and feasible 

mitigation measures for ongoing 

activities as well as for individual 

projects. The CFGC Fish and Wildlife 

Protection and Conservation provisions 

were enacted to provide conservation 

for the State’s fish and wildlife 

resources and include requirements to 

protect riparian habitat resources on the 

bed, channel, or bank of streams and 

other waterways. The CESA prohibits 

the taking of listed species except as 

otherwise provided in state law. Under 

the CEQA, no public agency shall 

approve or carry out a project without 

identifying all feasible mitigation 

measures necessary to reduce impacts to 

a less than significant level, and public 

agencies shall incorporate such 

measures absent overriding 

consideration. 

Regarding the effects that 

establishment of experimental 

populations will have on the recovery of 

the species, the Central Valley Recovery 

Plan (NMFS 2014) characterizes the 

NEP Area as having the potential to 

support viable populations of Chinook 

salmon. The Central Valley Recovery 

Plan establishes a framework for 

reintroduction of Chinook salmon and 

steelhead to historical habitats upstream 

of dams. The framework recommends 

that a reintroduction program should 

include feasibility studies, habitat 

evaluations, fish passage design studies, 

and a pilot reintroduction phase prior to 

implementation of the long-term 

reintroduction program. In addition, the 

Central Valley Recovery Plan contains 

specific management strategies for 

recovering SR winter-run and CV 

spring-run Chinook salmon that include 

securing existing populations and 

reintroducing these species into 

historically occupied habitats above rim 

dams in the Central Valley of California 

(NMFS 2014). The Central Valley 

Recovery Plan concludes, and we 

continue to agree, that establishing 

experimental populations in the NEP 

Area that persist into the foreseeable 

future is expected to reduce extinction 

risk from natural and anthropogenic 

factors by increasing abundance, 

productivity, spatial structure, and 

diversity within California’s Central 

Valley. These expected improvements 

in the overall viability of SR winter-run 

and CV spring-run Chinook salmon, in 

addition to other actions being 

implemented throughout the Central 

Valley, which are described next, will 

contribute to SR winter-run and CV 

spring-run Chinook salmon near-term 

viability and recovery. 

Across the Central Valley, a number 

of actions are being undertaken to 

improve habitat quality and quantity for 

SR winter-run and CV spring-run 

Chinook salmon. Collectively, 

implementation of these will result in 

many projects that will improve habitat 

conditions. The San Joaquin River 

Restoration Program will improve 

passage survival and spatial distribution 

for CV spring-run Chinook salmon in 

the San Joaquin River corridor. The 

Battle Creek Salmon and Steelhead 

Restoration Project will improve passage 

and rearing survival, spawning 

opportunities and spatial distribution in 

Battle Creek. The Central Valley Flood 

Protection Plan (California Department 

of Water Resources (DWR) 2011) will 

improve juvenile rearing conditions 

during outmigration by creating and 

improving access to high quality 

floodplain habitats. 


lotter on DSK11XQN23PROD with RULES1
58516 Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 

Action items identified in NMFS 2022 

5-year review and in the Species in the 

Spotlight 2021–2025 Priority Action 

Plan for SR winter-run Chinook salmon 

(NMFS 2021) include improving 

management of Shasta Reservoir coldwater storage to reduce water 

temperatures and provide flows to 

improve SR winter-run Chinook salmon 

productivity; restoring Battle Creek 

habitats and reintroducing SR winterrun Chinook salmon to historical 

spawning areas; reintroducing SR 

winter-run Chinook salmon into 

historical habitats above Shasta Dam; 

improving Yolo Bypass fish habitat and 

passage to increase juvenile survival 

and rearing opportunities; improving 

management of winter and early spring 

Delta conditions to improve juvenile 

survival; and continuing collaboration 

on science and fostering partnerships to 

build greater capacity to address 

recovery challenges. Implementation of 

these action items will advance the 

conservation of the species. 

Climate change is expected to 

exacerbate existing habitat stressors in 

California’s Central Valley and increase 

threats to Chinook salmon and steelhead 

by reducing the quantity and quality of 

freshwater habitat (Lindley et al., 2007). 

Significant contraction of thermally 

suitable habitat is predicted, and as 

cold-water sources contract, access to 

cooler headwater streams is expected to 

become increasingly important for CV 

spring-run Chinook salmon in the 

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

this reason and other reasons described 

above, we anticipate reintroduction of 

SR winter-run and CV spring-run 

Chinook salmon into headwater streams 

upstream of Shasta Dam will contribute 

to their conservation and recovery. 

Existing or anticipated Federal or 

State actions or private activities within 

or adjacent to the NEP Area may affect 

the experimental populations. The NEP 

Area is sparsely populated and ongoing 

State, Federal, and local activities 

include forest management, limited 

mining, highways and road 

maintenance, residential and municipal 

development, grazing, tourism, and 

recreation. These activities will likely 

continue into the future and are 

anticipated to have minor impacts to SR 

winter-run and CV spring-run Chinook 

salmon in the NEP Area and adjacent 

areas. Potential impacts from these and 

other activities are further minimized 

through application of the 

aforementioned State and Federal 

regulations. Dams and water diversions 

in the NEP Area currently limit fish 

populations in some parts of the NEP 

Area. NMFS anticipates releases of SR 

winter-run and CV spring-run Chinook 

salmon will be specifically targeted into 

riverine reaches with abundant highquality habitats that are not blocked by 

barriers to fish passage, or impaired by 

high water temperatures or inadequate 

flows. The habitat improvement actions 

called for in the Central Valley Recovery 

Plan, as well as compliance with 

existing Federal, State, and local laws, 

statutes, and regulations, including 

those mentioned above, are expected to 

contribute to the establishment and 

survival of the experimental 

populations in the NEP Area in the 

foreseeable future. Although the donor 

sources for reintroduction are 

anticipated to include hatchery-origin 

individuals from the Livingston Stone 

NFH and FRH, based on the factors 

discussed above, we conclude it is 

probable that self-sustaining 

experimental populations of SR winterrun and CV spring-run Chinook salmon 

will become established and survive in 

the NEP Area. Furthermore, we 

conclude that self-sustaining 

experimental populations of genetically 

compatible individuals will likely 

further the conservation of these 

species, as discussed above. 

2. Identification of the Experimental 

Populations and Geographic Separation 

From Nonexperimental Populations of 

the Same Species 

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

we identify experimental populations 

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

provides that a population is considered 

an experimental population only when, 

and at such times as, it is wholly 

separate geographically from the 

nonexperimental population of the same 

species. The NEP Area extends 

upstream from Shasta Dam in the 

McCloud and Upper Sacramento Rivers 

as described above. Under this rule, 

experimental populations are identified 

as SR winter-run and CV spring-run 

Chinook salmon populations when 

geographically located anywhere in the 

NEP Area. Reintroduced SR winter-run 

and CV spring-run Chinook salmon are 

only part of the experimental 

populations when they are present in 

the NEP Area, and are not part of the 

experimental populations when they are 

outside the NEP Area, even if they 

originated within the NEP Area. When 

reintroduced juvenile SR winter-run 

and CV spring-run Chinook salmon pass 

downstream of Shasta and Keswick 

Dams into the Sacramento River, and 

when they migrate further downstream 

to the Sacramento River Delta and the 

Pacific Ocean, they would no longer be 

geographically separated from other 

extant SR winter-run and CV spring-run 

Chinook salmon populations, and thus 

the ‘‘experimental population’’ 

designations would not apply, unless 

and until they re-enter the NEP Area. 

The NEP Area provides the requisite 

level of geographic separation because 

SR winter-run and CV spring-run 

Chinook salmon are currently extirpated 

from this area due to the presence of 

Shasta and Keswick Dams, which block 

their upstream migration. Straying of 

fish from other Chinook populations 

into the NEP Area is not likely due to 

the presence of these dams. As a result, 

the geographic description of the extant 

SR winter-run and CV spring-run 

Chinook salmon ESUs does not include 

the NEP Area. 

NMFS anticipates that SR winter-run 

and CV spring-run Chinook salmon 

used for the initial stages of a 

reintroduction program would be 

marked, for example, with specific fin 

clips and/or coded-wire tags to evaluate 

stray rates and allow for brood stock 

collection of returning adults that 

originated from the experimental 

populations. Any marking of 

individuals of the experimental 

populations, such as clips or tags, 

would be for the purpose of evaluating 

the effectiveness of a near-term and 

long-term fish passage program, and 

would not be for the purpose of 

identifying fish from the NEP Area other 

than for brood stock collection of 

returning adults. As discussed above, 

the experimental populations are 

identified based on the geographic 

location of the fish. Indeed, if the 

reintroductions are successful as 

expected, and fish begin reproducing 

naturally, their offspring would not be 

distinguishable from fish from other 

Chinook salmon populations. Outside of 

the NEP Area, e.g., downstream of 

Shasta and Keswick Dams in the 

Sacramento River, or in the ocean, any 

such unmarked fish (juveniles and 

adults alike) would not be considered 

members of the experimental 

populations. They would be considered 

part of the SR winter-run Chinook 

salmon ESU or the CV spring-run 

Chinook salmon ESU currently listed 

under the ESA. Likewise, any fish that 

were marked for reintroduction in the 

NEP Area will not be considered part of 

the experimental populations once they 

left the NEP Area; rather, they would be 

considered part of the ESUs currently 

listed under the ESA. 

3. Is the experimental population 

essential to the continued existence of 

the species? 

As discussed above, ESA section 

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

determine whether experimental 

populations would be ‘‘essential to the 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 58517 

1 Incidental take refers to takings that result from, 

but are not the purpose of, carrying out an 

otherwise lawful activity conducted by the Federal 

agency or applicant. 50 CFR 402.02. 

continued existence’’ of the listed 

species. The statute does not elaborate 

on how this determination is to be 

made. However, as noted above, 

Congress gave some further attention to 

the term when it described an essential 

experimental population as one whose 

loss ‘‘would be likely to appreciably 

reduce the likelihood of survival of that 

species in the wild.’’ (Joint Explanatory 

Statement, supra, at 34). NMFS 

regulations incorporated this concept 

into its definition of an essential 

experimental population at 50 CFR 

222.501(b), which is an experimental 

population that, if lost, the survival of 

the species in the wild would likely be 

substantially reduced. 

In determining whether the 

experimental populations of SR winterrun and CV spring-run Chinook salmon 

are essential, we used the best available 

information as required by ESA section 

10(j)(2)(B). Furthermore, we considered 

the geographic location of the 

experimental populations in relation to 

other populations of SR winter-run and 

CV spring-run Chinook salmon, and the 

likelihood of survival of these 

populations without the existence of the 

experimental populations. 

The SR winter-run Chinook salmon 

ESU consists of a single extant 

population in the Sacramento River 

downstream of Shasta and Keswick 

Dams. The CV spring-run Chinook 

salmon ESU includes four independent 

populations and several dependent or 

establishing populations. Given current 

protections and restoration efforts, these 

populations are persisting without the 

presence of a population in the NEP 

Area. It is expected that the 

experimental populations will exist as 

separate populations from those in the 

Sacramento River basin and will not be 

essential to the survival of those 

populations. Based on these 

considerations, we conclude the loss of 

experimental populations of SR winterrun or CV spring-run Chinook salmon in 

the NEP Area is not likely to 

appreciably reduce the likelihood of the 

survival of these species in the wild. 

Accordingly, NMFS designates the 

experimental populations as 

nonessential. Under section 

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

designate critical habitat for 

nonessential experimental populations. 

Additional Management Restrictions, 

Protective Measures, and Other Special 

Management Considerations 

As indicated above, ESA section 

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

populations be treated as threatened 

species, except that, for nonessential 

experimental populations, certain 

portions of ESA section 7 do not apply 

and critical habitat cannot be 

designated. Congress intended that the 

Secretary would issue regulations 

deemed necessary and advisable to 

provide for the conservation of 

experimental populations just as he or 

she does under ESA section 4(d) for any 

threatened species (Joint Explanatory 

Statement, supra, at 34). In addition, 

when amending the ESA to add section 

10(j), Congress specifically intended to 

provide broad discretion and flexibility 

to the Secretary in managing 

experimental populations so as to 

reduce opposition to releasing listed 

species outside their current range (H.R. 

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

(1982)). Therefore, we have exercised 

that authority to issue protective 

regulations under ESA section 4(d) for 

the experimental populations of SR 

winter-run and CV spring-run Chinook 

salmon to identify take prohibitions 

necessary to provide for the 

conservation of these species and 

otherwise provide assurances to the 

people of the Upper Sacramento and 

McCloud River watersheds. 

The ESA defines ‘‘take’’ to mean 

harass, harm, pursue, hunt, shoot, 

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

to attempt to engage in any such 

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

Concurrent with the ESA section 10(j) 

experimental population designation, 

we are adopting protective regulations 

under ESA section 4(d) for the 

experimental populations that would 

prohibit take of SR winter-run and CV 

spring-run Chinook salmon in the NEP 

Area that are part of the experimental 

populations, except in the following 

circumstances: 

1. Any take by authorized 

governmental entity personnel acting in 

compliance with 50 CFR 223.203(b)(3) 

to aid a sick, injured or stranded fish; 

dispose of a dead fish; or salvage a dead 

fish which may be useful for scientific 

study; 

2. Any take that is incidental 1 to an 

otherwise lawful activity and is 

unintentional, not due to negligent 

conduct. Otherwise lawful activities 

include, but are not limited to, 

recreation, forestry, water management, 

agriculture, power production, mining, 

transportation management, rural 

development, or livestock grazing, when 

such activities are in full compliance 

with all applicable laws and regulations; 

and 

3. Any take that is pursuant to a 

permit issued by NMFS under section 

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

regulations in 50 CFR part 222 

applicable to such a permit. 

Process for Periodic Review 

Evaluation of the success of 

experimental populations will require 

new monitoring programs developed 

specifically for this purpose. To gauge 

the success of the program, NMFS 

anticipates that it will be necessary to 

monitor in the NEP Area for fish passage 

efficiency, spawning success, adult and 

smolt injury and mortality rates, 

juvenile salmon collection efficiencies, 

competition with resident species, 

predation, and disease among other 

things. We anticipate the status of 

reintroduced populations of SR winterrun and CV spring-run Chinook salmon 

in the NEP Area would be evaluated 

during NMFS’ 5-year review process 

under ESA 4(c)(2). During the 5-year 

review, NMFS may evaluate whether 

the current designation under ESA 

section 10(j) as nonessential 

experimental populations is still 

warranted. 

Summary of Comments and Responses 

The draft EA and proposed rule were 

made available for a 30-day public 

comment period. NMFS received 

comments on the proposed rule and 

draft EA, which are addressed in 

Appendix A of the final EA and as 

changes to the final EA as appropriate. 

The purpose of the comment period is 

to help us better understand the 

concerns of the public on the 

experimental population designations, 

take and take exceptions, and associated 

draft EA. During the comment period, 

NMFS received 6 comment letters 

germane to the proposed rulemaking, 

from entities representing various 

agencies, nongovernmental 

organizations, tribes, and individuals. 

Five comment letters were supportive of 

the proposed rule. One letter, from 

Pacific Gas and Electric Company 

(PG&E), although supportive of 

designating SR winter-run and CV 

spring-run Chinook salmon as 

nonessential experimental populations 

contained several criticisms and 

objections. EA Appendix A contains the 

public comment letters received and our 

responses. A summary of PG&E’s 

comments and our responses to those 

comments are presented here. 

Comment 1. The proposed exemption 

from section 9 take prohibitions requires 

additional detail in which PG&E 

requested specific language detailing 

activities associated with its McCloudVerDate Sep<11>2014 17:47 Aug 25, 2023 Jkt 259001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\28AUR1.SGM 28AUR1

lotter on DSK11XQN23PROD with RULES1
58518 Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 

Pit Hydroelectric Project (Project, FERC 

Project No. 2106). 

Response. The examples in the 

Federal Register notice represent a 

broad, but non-comprehensive subset of 

the types of otherwise legal activities 

that may occur in the NEP area that are 

exempted from section 9 take 

prohibitions. The list is intended to be 

illustrative rather than all-inclusive. 

Regardless of the types of activities 

listed as examples in the 4(d) rule, if a 

legal activity results in incidental take 

and the take is not due to negligence, 

then the activity is exempted from take 

prohibitions, even if not included in the 

list of examples. 

Comment 2. PG&E stated that the 

level of consultation with stakeholders 

was inadequate. 

Response. NMFS disagrees. Over the 

past 12 years (starting in 2010) NMFS’ 

public outreach and engagement 

strategy for both reintroduction and this 

10(j) rule has been extensive, 

comprehensive and sustained. This 

includes public meetings, landowner 

and stakeholder meetings, briefings and 

updates with tribes, local, State, and 

Federal government representatives and 

government groups, webinars, podcasts 

and electronically posting web stories, 

fact sheets, videos and Frequently 

Asked Questions (FAQ) documents on 

NMFS’ website. Further, in response to 

concerns raised by stakeholders as a 

result of the above outreach efforts, 

NMFS worked with the California Board 

of Forestry to amend the California 

Forest Practice Rules to better align with 

the 10(j) rule; worked with the CDFW to 

address concerns over their freshwater 

fishing regulations and the California 

Endangered Species Act; and entered 

into a formal co-stewardship agreement 

with CDFW and the Winnemem Wintu 

Tribe to jointly pursue reintroduction. 

This also includes partnering and 

participation in several multi-agency 

and multi-stakeholder technical 

committees. 

Comment 3. PG&E requested 

‘‘unambiguous exclusion of 

hydropower’’ to be consistent with 

NMFS’ 2013 Middle Columbia River 

Steelhead rule. 

Response. See response to Comment 

#1. As stated in PG&E’s letter, ‘‘the 

proposed rule would exclude all lawful 

activities from the take prohibition . . . 

including the operation and 

maintenance of hydroelectric facilities.’’ 

PG&E also noted that its request would 

be consistent with the Middle Columbia 

River Steelhead 10(j) and 4(d) rule (see 

78 FR 2893—2907 (January 15, 2013)). 

However, in the case of the Middle 

Columbia River Steelhead rule, the 

inclusion of hydropower was explicitly 

related to a requirement of the new 

hydropower license for the Pelton 

Round Butte Project stipulating 

reintroduction. There is no similar 

license requirement or final plan to 

reintroduce SR winter-run Chinook 

salmon or CV spring-run Chinook 

salmon upstream of Shasta Dam. 

Comment 4. Regarding the 

congressional history and intent, PG&E 

claimed that subsequent to the 1982 

amendments of the Endangered Species 

Act (ESA), the Secretary is not 

authorized to reintroduce eggs, 

propagules, or individuals outside of the 

current range of the species without first 

making the determinations required 

under section 10(j). 

Response. PG&E’s interpretation of 

section 10(j) of the ESA is inconsistent 

with the statute, congressional history 

and intent. Section 10(j) does not limit 

or restrict any previously held authority 

on the part of the Secretary to authorize 

or reintroduce species outside their 

current range. On the contrary, section 

10(j) expands the Secretaries’ 

authorities, in this case, to designate 

and authorize the release of 

nonessential experimental populations 

(NEPs or experimental populations) of 

Sacramento River (SR) winter-run 

Chinook salmon (Oncorhynchus 

tshawytscha) and Central Valley (CV) 

spring-run Chinook salmon (O. 

tshawytscha) in the McCloud and Upper 

Sacramento Rivers upstream of Shasta 

Dam (the NEP Area), California, and, 

under the ESA, establish a limited set of 

take exceptions for the experimental 

populations. 

Comment 5. Regarding the 

congressional history and intent, PG&E 

claimed that the key mechanism in 

section 10(j) to afford landowner 

cooperation is the provision providing 

that endangered experimental 

populations can be treated as threatened 

species, which consequently authorizes 

NMFS to relax incidental take 

prohibitions for endangered 

experimental populations. Further, they 

asserted that this reflects the 

congressional intent that species 

reintroductions should be accomplished 

with the support of affected 

stakeholders. 

Response. See response to Comment 

#2; and section 1.2.4.1. of the EA. 

Further, Congress viewed ESA section 

10(j) as an opportunity ‘‘to encourage 

the recovery of species through 

population re-establishment with the 

cooperation of, not despite, state and 

local groups’’ (Wolok 1996). Congress 

intended that regulations promulgated 

by the Services to designate 

experimental populations ‘‘should be 

viewed as an agreement among the 

Federal agencies, the state fish and 

wildlife agencies and any landowners 

involved’’ (Wolok 1996 quoting H.R. 

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

(1982)). We note that designation and 

release of NEPs of Sacramento River 

(SR) winter-run and Central Valley (CV) 

spring-run Chinook salmon in the 

McCloud and Upper Sacramento Rivers 

above Shasta Dam under section 10(j) of 

the ESA was formally requested by the 

U.S. Forest Service (primary landowner 

in the NEP area) and generally 

supported by other landowners. 

Findings 

Based on the best available scientific 

information, we have determined that 

the designations and release of NEPs of 

SR winter-run and CV spring-run 

Chinook salmon in the NEP Area 

upstream of Shasta Dam will further the 

conservation of SR winter-run and CV 

spring-run Chinook salmon. SR winterrun Chinook salmon used to initiate the 

reintroduction are anticipated to come 

from Livingston Stone NFH. CV springrun Chinook salmon used to initiate the 

reintroduction are anticipated to come 

from the FRH. The collection of donor 

stock will be permitted only after 

issuance of permits under section 

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

analysis under NEPA and ESA section 

7. The experimental population fish are 

expected to remain geographically 

separate from fish in other populations 

of the SR winter-run and CV spring-run 

Chinook salmon ESUs during the life 

stages in which they remain in, or are 

returned to, the NEP Area. At all times 

when members of the experimental 

populations are downstream of Shasta 

and Keswick Dams, the experimental 

population designations will not apply. 

Establishing experimental populations 

of SR winter-run and CV spring-run 

Chinook salmon in the NEP Area would 

likely contribute to the viability of the 

ESUs. Reintroduction is a recommended 

recovery action in the Central Valley 

Recovery Plan (NMFS 2014). 

Designation of SR winter-run and CV 

spring-run Chinook salmon in the NEP 

Area as nonessential experimental 

populations would ensure that their 

reintroduction does not impose undue 

regulatory restrictions on landowners 

and others because this final rule would 

apply only limited take prohibitions as 

compared to the prohibitions that 

typically apply to SR winter-run and CV 

spring-run Chinook salmon. In 

particular, this rule expressly provides 

an exception for take of NEP fish in the 

NEP Area provided that the take is 

incidental to otherwise lawful activities 

and is unintentional, rather than due to 

negligent conduct. 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 58519 

We further determine, based on the 

best scientific and commercial data 

available, that the experimental 

populations would not be essential to 

the continued existence of the SR 

winter-run Chinook salmon ESU or the 

CV spring-run Chinook salmon ESU, 

because absence of the experimental 

populations would not be likely to 

appreciably reduce the likelihood of the 

survival of the ESUs in the wild. 

However, as described above, the 

experimental populations are expected 

to contribute to the recovery of the SR 

winter-run and CV spring-run Chinook 

salmon ESUs if reintroduction is 

successful. We therefore designate the 

released populations as nonessential 

experimental populations. 

Information Quality Act and Peer 

Review 

Pursuant to the Information Quality 

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

Office of Management and Budget 

(OMB) issued a Final Information 

Quality Bulletin for Peer Review, which 

was published in the Federal Register 

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

Bulletin established minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation with regard to certain 

types of information disseminated by 

the Federal Government. The peer 

review requirements of the OMB 

Bulletin apply to influential or highly 

influential scientific information 

disseminated on or after June 16, 2005. 

There are no documents supporting this 

rule that meet these criteria. 

Classification 

Executive Order 12866 

This final rule has been determined to 

be not significant under Executive Order 

12866. 

Regulatory Flexibility Act 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for the 

certification was published in the 

proposed rule and is not repeated here. 

No comments were received regarding 

this certification. As a result, a final 

regulatory flexibility analysis was not 

required and none was prepared. 

Executive Order 12630 

In accordance with Executive Order 

12630, the final rule does not have 

significant takings implications. A 

takings implication assessment is not 

required because this final rule: (1) 

would not effectively compel a property 

owner to have the government 

physically invade their property, and (2) 

would not deny all economically 

beneficial or productive use of the land 

or aquatic resources. This final rule 

would substantially advance a 

legitimate government interest 

(conservation and recovery of a listed 

fish species) and would not present a 

barrier to all reasonable and expected 

beneficial use of private property. 

Executive Order 13132 

In accordance with Executive Order 

13132, we have determined that this 

final rule does not have federalism 

implications as that term is defined in 

Executive Order 13132. 

Paperwork Reduction Act of 1995 

OMB regulations at 5 CFR part 1320, 

which implement provisions of the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.), require that Federal 

agencies obtain approval from OMB 

before collecting information from the 

public. A Federal agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

This final rule does not include any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. 

National Environmental Policy Act 

In compliance with all provisions of 

the National Environmental Policy Act 

of 1969 (NEPA), we have analyzed the 

impact on the human environment and 

considered a reasonable range of 

alternatives for this final rule. We made 

the draft EA and rule available for 

comments, received comments, and 

responded to those comments. We have 

prepared a final EA and Finding of No 

Significant Impact (FONSI) on this 

action and have made these documents 

available for public inspection (see 

ADDRESSES section above). 

Government-to-Government 

Relationship With Tribes (Executive 

Order 13175) 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments, outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. If we issue a regulation with 

tribal implications (defined as having a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes) 

we must consult with those 

governments or the Federal Government 

must provide funds necessary to pay 

direct compliance costs incurred by 

tribal governments. 

There are no tribally owned or 

managed lands in the NEP Area. As part 

of NMFS’s obligations under the 

National Historic Preservation Act, 

NMFS inquired with federally 

recognized and non-federally 

recognized tribes with potential interest 

in the NEP Area to inform them of the 

proposed rule and solicit information on 

cultural resources eligible for listing on 

the National Register of Historic Places 

(letters dated Feb. 5, July 14, and July 

27, 2016, from Maria Rea, Central Valley 

Office Supervisor, NMFS). NMFS 

invites tribes to meet with us to have 

detailed discussions that could lead to 

government-to-government consultation 

meetings with tribal governments. We 

will continue to coordinate with 

potentially affected tribes. 

References Cited 

A complete list of all references cited 

in this final rule is available upon 

request from the National Marine 

Fisheries Service office (see FOR

FURTHER INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 223 

Endangered and threatened species. 

Dated: August 22, 2023. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, NMFS amends 50 CFR part 

223 as follows: 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 223 

continues to read as follows: 

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

B, § 223.201–202 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 entries for 

‘‘Salmon, Chinook (Central Valley 

spring-run ESU–XN Shasta)’’ and 

‘‘Salmon, Chinook (Sacramento winterrun ESU–XN Shasta)’’ under ‘‘Fishes’’ in 

alphabetical order by common name to 

read as follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

(e) * * * 


lotter on DSK11XQN23PROD with RULES1
58520 Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 

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 Shasta).

Oncorhynchus 

tshawytscha.

Central Valley spring-run Chinook salmon only when, and at such times as, 

they are found in the NEP Area (from 

Shasta Dam up to Pit 7 Dam on the 

Pit River, McCloud Dam on the 

McCloud River, and Box Canyon Dam 

on the upper Sacramento River. All 

other tributaries flowing into Shasta 

Reservoir up to the ridge line, including tributaries below Pit 7 Dam, 

McCloud Dam, and Box Canyon Dam, 

up to the ridge line would be included 

in the NEP Area).

[INSERT FEDERAL 

REGISTER CITATION], 8/28/2023.

NA ........................

*******

* * 

Salmon, Chinook 

(Sacramento winter-run ESU–XN 

Shasta).

Oncorhynchus 

tshawytscha.

Sacramento winter-run Chinook salmon 

only when, and at such times as, they 

are found in the NEP Area (from 

Shasta Dam up to Pit 7 Dam on the 

Pit River, McCloud Dam on the 

McCloud River, and Box Canyon Dam 

on the upper Sacramento River. All 

other tributaries flowing into Shasta 

Reservoir up to the ridge line, including tributaries below Pit 7 Dam, 

McCloud Dam, and Box Canyon Dam, 

up to the ridge line would be included 

in the NEP Area).

[INSERT FEDERAL 

REGISTER CITATION], 8/28/2023.

NA ........................

*******

* * 

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 (e) to 

read as follows: 

§ 223.301 Special rules—marine and 

anadromous fishes. 

* * * * * 

(e) McCloud and Upper Sacramento 

Rivers Sacramento River winter-run and 

Central Valley spring-run Chinook 

salmon experimental populations 

(Oncorhynchus tshawytscha)—(1) 

Status of McCloud and Upper 

Sacramento Rivers Sacramento River 

winter-run and Central Valley springrun Chinook salmon under the ESA. 

The McCloud and Upper Sacramento 

Rivers Sacramento River winter-run and 

Central Valley spring-run Chinook 

salmon populations identified in 

paragraph (e)(2) of this section are 

designated as nonessential experimental 

populations under section 10(j) of the 

ESA and shall be treated as a 

‘‘threatened species’’ pursuant to 16 

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

(2) McCloud and Upper Sacramento 

Rivers Sacramento River winter-run and 

Central Valley spring-run Chinook 

salmon experimental populations. All 

Sacramento River winter-run and 

Central Valley spring-run Chinook 

salmon within the experimental 

population area in the McCloud and 

Upper Sacramento Rivers upstream of 

Shasta Dam (the NEP Area), as defined 

in this paragraph (e)(2), are considered 

part of the McCloud and Upper 

Sacramento Rivers Sacramento River 

winter-run and Central Valley springrun Chinook salmon experimental 

populations. The NEP Area extends 

from Shasta Dam up to Pit 7 Dam on the 

Pit River, McCloud Dam on the 

McCloud River, and Box Canyon Dam 

on the upper Sacramento River. All 

other tributaries flowing into Shasta 

Reservoir up to the ridge line, including 

tributaries below Pit 7 Dam, McCloud 

Dam, and Box Canyon Dam, up to the 

ridge line are included in the NEP Area. 

All other areas above Pit 7 Dam on the 

Pit River, McCloud Dam on the 

McCloud River, and Box Canyon Dam 

on the upper Sacramento River are not 

part of the NEP Area. The NEP Area 

extends up to the ridgelines to account 

for watershed processes and ends at the 

aforementioned dams because these 

dams lack fish passage facilities. The 

NEP Area is part of the species’ 

historical range. The NEPs are all SR 

winter-run and CV spring-run Chinook 

salmon, including fish released or 

propagated, naturally or artificially, 

within the NEP Area. 

(3) Prohibitions. Except as expressly 

allowed in paragraph (e)(4) of this 

section, all prohibitions of section 

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

apply to fish that are part of the 

McCloud and Upper Sacramento Rivers 

Sacramento River winter-run and 

Central Valley spring-run Chinook 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Rules and Regulations 58521 

salmon nonessential experimental 

populations identified in paragraph 

(e)(2) of this section. 

(4) Exceptions to the application of 

section 9 take prohibitions in the 

experimental population area. The 

following forms of take in the 

experimental population area identified 

in paragraph (e)(2) of this section are not 

prohibited by this section: 

(i) Any taking of experimental 

populations of Sacramento River winterrun or Central Valley spring-run 

Chinook salmon by authorized 

governmental entity personnel acting in 

compliance with § 223.203(b)(3) to aid a 

sick, injured or stranded fish; dispose of 

a dead fish; or salvage a dead fish which 

may be useful for scientific study. 

(ii) Any taking of experimental 

populations of Sacramento River winterrun or Central Valley spring-run 

Chinook salmon that is unintentional, 

not due to negligent conduct, and 

incidental to, and not the purpose of, 

the carrying out of an otherwise lawful 

activity. 

(iii) Any taking of experimental 

populations of Sacramento River winterrun or Central Valley spring-run 

Chinook salmon pursuant to a permit 

issued by NMFS under section 10 of the 

ESA (16 U.S.C. 1539) and regulations in 

part 222 of this chapter applicable to 

such a permit. 

[FR Doc. 2023–18474 Filed 8–25–23; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 230821–0201] 

RIN 0648–BL61 

Fisheries of the Northeastern United 

States; Improvement and 

Modernization of Atlantic Surfclam and 

Ocean Quahog Vessel Reporting 

Regulations 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is implementing 

regulation changes to integrate the 

vessel reporting requirements for the 

Atlantic surfclam and ocean quahog 

fisheries with the reporting 

requirements for all other commercial 

fisheries in the Greater Atlantic Region. 

These changes are intended to simplify 

the regulations and make it easier for 

surfclam and ocean quahog vessel 

operators to submit the required fishing 

trip reports electronically. This action 

will result in improved administration 

and management of the surfclam and 

ocean quahog fisheries. 

DATES: Effective September 27, 2023. 

ADDRESSES: Written comments 

regarding the burden-hour estimates or 

other aspects of the collection-ofinformation requirements contained in 

this final rule may be submitted to the 

Greater Atlantic Regional Fisheries 

Office and to https://www.reginfo.gov/ 

public/do/PRAMain. Find this 

particular information collection by 

using the search function and entering 

either the title of the collection or the 

Office of Management and Budget 

(OMB) Control Number 0648–0212. 

FOR FURTHER INFORMATION CONTACT: 

Douglas Potts, Fishery Policy Analyst, 

(978) 281–9341, douglas.potts@

noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The Mid-Atlantic Fishery 

Management Council manages the 

Atlantic surfclam and ocean quahog 

fisheries under the Atlantic Surfclam 

and Ocean Quahog Fishery Management 

Plan (FMP). The FMP has included a 

requirement for fishing vessels to 

maintain and submit a log of fishing 

operations since it was first 

implemented (42 FR 60438, November 

25, 1977). Over the years, other species 

also became subject to management 

under the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) and additional 

fishing vessel reporting requirements 

were added to the regulations. To cover 

the reporting requirements of these 

other fisheries, a standardized fishing 

vessel trip report (VTR) form was 

developed. For a number of reasons, 

including the specific requirements of 

the Atlantic Surfclam and Ocean 

Quahog Individual Transferable Quota 

(ITQ) management system, the surfclam 

and ocean quahog vessel reporting 

regulations have remained separate from 

the vessel reporting regulations that 

apply to all other commercial fisheries 

in the Greater Atlantic Region. Surfclam 

and ocean quahog vessels have used a 

form separate from the VTR, often 

referred to as the clam logbook, to report 

fishing trips that specifically target 

surfclam or ocean quahog. 

Detailed information about the 

drawbacks of separate trips reports, the 

benefits of having a single report for all 

fishing trips, and the development of 

electronic VTR (eVTR) in the Greater 

Atlantic Region was provided in the 

proposed rule for this action (88 FR 

20115, April 5, 2023) and is not 

repeated here. 

This action eliminates the 

requirement for a separate surfclam/ 

ocean quahog logbook and requires 

surfclam and ocean quahog vessel 

operators to complete the standard 

eVTR instead. When a fishing trip 

includes surfclams or ocean quahogs, 

the eVTR application will automatically 

present additional fields to collect the 

required information specific to the ITQ 

fishery, including the ITQ allocation 

number, the cage tag numbers for all 

cages being landed, and price per 

bushel. This information has previously 

been reported by the fishery on the 

surfclam/ocean quahog logbook, so 

there is no additional reporting burden 

on fishermen. Overall, the reporting 

burden would decrease because 

surfclam and ocean quahog trips that 

also land other regulated species will no 

longer be required to submit two 

reports, instead fulfilling all reporting 

requirements through a single electronic 

submission. 

Comments 

On April 5, 2023, we published a 

proposed rule (88 FR 20115) requesting 

comments on changes to the regulations 

to eliminate the separate surfclam and 

ocean quahog vessel logbook and 

require all vessels fishing for these 

species to report trips using the 

standard eVTR. The comment period 

was open through May 5, 2023. We 

received no comments on the proposed 

regulatory changes or on the impact of 

those changes on the public reporting 

burden in the existing information 

collection approved under the 

Paperwork Reduction Act (PRA). 

Changes From the Proposed Rule 

There are no changes to the proposed 

regulatory updates. However, this final 

rule corrects a minor typographical error 

in the first sentence of the introductory 

text in 50 CFR 648.7(b)(1), changing the 

word ‘‘and’’ to ‘‘an.’’ 

Classification 

NMFS is issuing this rule pursuant to 

section 305(d) of the Magnuson-Stevens 

Act. Pursuant to that section, this action 

is necessary to carry out the provisions 

of the Atlantic Surfclam and Ocean 

Quahog FMP because the initial 

reporting provisions adopted in 1977 

have become inconsistent with other 

reporting requirements in the Greater 

Atlantic Region. This inconsistency has 

led to an unnecessary additional 

reporting burden on the fishing 

industry. The NMFS Assistant 


lotter on DSK11XQN23PROD with RULES1