[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Proposed Rules]
[Pages 67193-67222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21418]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2023-0074; FXES11130100000-234F1611MD-FF01E00000]
RIN 1018-BG89


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of Grizzly Bear in the North 
Cascades Ecosystem, Washington State

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (USFWS or Service), 
propose to establish a nonessential experimental population (NEP) of 
the grizzly bear (Ursus arctos horribilis) within the U.S. portion of 
the North Cascades Ecosystem (NCE) in the State of Washington under 
section 10(j) of the Endangered Species Act of 1973, as amended (Act or 
ESA). Establishment of this NEP is intended to support reintroduction 
and recovery of grizzly bears within the NCE and provide the 
prohibitions and exceptions under the Act necessary and appropriate to 
conserve the species within a defined NEP area. The proposed NEP area 
includes most of the State of Washington except for an area in 
northeastern Washington that encompasses the Selkirk Ecosystem Grizzly 
Bear Recovery Zone. The best available data indicate that 
reintroduction of the grizzly bear to the NCE, within the NEP area, is 
biologically feasible and will promote the conservation of the species. 
We are seeking comments on this proposed section 10(j) rule.

DATES: We will accept comments received or postmarked on or before 
November 13, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES), must be received by 11:59 p.m. 
eastern time on the closing date.
    Public information sessions and public hearings: In conjunction 
with the National Park Service (NPS), we will hold public information 
meetings and public hearings during the public comment period. The 
public information meetings and hearings address the reintroduction 
proposal by the NPS and USFWS, including this proposed rule and the 
associated draft environmental impact statement (DEIS).
    The dates, times, and specific locations of the meetings will be 
posted on the internet at https://parkplanning.nps.gov/NCEGrizzly. If 
unable to access the internet, please call 360-753-4370 for more 
information about meeting dates, times, and locations. During the 
public hearings we will also take oral comments on this proposed rule. 
The public information meetings and hearings will be physically 
accessible to people with disabilities. Please direct requests for 
reasonable accommodations (e.g., auxiliary aids or sign language 
interpretation) to the person listed in FOR FURTHER INFORMATION CONTACT 
at least 7 working days prior to the date of the meeting you wish to 
attend.
    Information Collection Requirements: In this proposed rule, we 
propose to authorize take of grizzly bears involved in conflict, in 
certain limited situations. Such authorizations may require submittal 
of information to the Service (e.g., information about grizzly bear 
observations or depredation events) and this information collection is 
also subject to public comment. If you wish to comment on the 
information collection requirements in this proposed rule, please note 
that the Office of Management and Budget (OMB) is required to make a 
decision concerning the collection of information contained in this 
proposed rule between 30 and 60

[[Page 67194]]

days after publication of this proposed rule in the Federal Register. 
Therefore, such comments should be submitted to the Service Information 
Collection Clearance Officer, U.S. Fish and Wildlife Service, (see 
``Information Collection'' section below under ADDRESSES) by November 
28, 2023.

ADDRESSES: 
    Comments on the proposed nonessential experimental population: You 
may submit comments regarding this proposed rule by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter Docket No. FWS-R1-ES-
2023-0074, which is the docket number for this rulemaking. Then, click 
on the Search button. On the resulting page, in the Search panel on the 
left side of the screen, under the Document Type heading, click on the 
box next to Proposed Rules to locate this document. You may submit a 
comment by clicking on ``Comment.''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2023-0074, U.S. Fish and Wildlife 
Service, MS: PRB/3W; 5275 Leesburg Pike; Falls Church, VA 22041-3803.
    (3) By oral comments at a public hearing: Although written comments 
are preferred, we will accept oral comments submitted during one of the 
public hearings described above. Oral comments will be transcribed and 
posted as written comments.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information). To 
increase our efficiency in downloading comments, groups providing mass 
submissions should submit their comments in an Excel file.
    Comments on Information Collection Requirements: Send your comments 
on the information collection request to the Service Information 
Collection Clearance Officer, U.S. Fish and Wildlife Service, by email 
to <a href="/cdn-cgi/l/email-protection#e7ae898188b8a4888b8ba7819094c9808891"><span class="__cf_email__" data-cfemail="87cee9e1e8d8c4e8ebebc7e1f0f4a9e0e8f1">[email protected]</span></a>; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/
3W), Falls Church, VA 22041-3803. Please reference OMB Control Number 
1018-BG89 in the subject line of your comments.
    Availability of supporting materials: This proposed rule is 
available at http://www.regulations.gov under Docket No. FWS-R1-ES-
2023-0074. Hardcopies of the documents are also available for public 
inspection at the address shown in FOR FURTHER INFORMATION CONTACT. 
Additional supporting information that we developed for this proposed 
rule is available at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Brad Thompson, State Supervisor, U.S. 
Fish and Wildlife Service, Washington Fish and Wildlife Office, 500 
Desmond Drive, Suite 102, Lacey, WA 98503; telephone 360-753-9440. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of contact in 
the United States. In compliance with the Providing Accountability 
Through Transparency Act of 2023, please see docket FWS-R1-ES-2023-0074 
on https://www.regulations.gov for a document that summarizes this 
proposed rule.

SUPPLEMENTARY INFORMATION: 

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments regarding:
    (1) The proposed NEP area;
    (2) Management zone boundaries;
    (3) Proposed management flexibility within each management zone;
    (4) Proposed measures to prevent and minimize human-grizzly bear 
conflicts;
    (5) Potential adverse effects to the grizzly bear donor 
populations;
    (6) Proposed adaptive management toward achieving population goals; 
and
    (7) The biological or ecological requirements of the grizzly bear 
as related to the proposed NEP area, management zones, or proposed 
regulations.
    Please note that by separate Federal Register notice of 
availability on this same date by the Environmental Protection Agency, 
the NPS and USFWS are also soliciting public comments on the draft 
environmental impact statement (DEIS) (NPS and USFWS 2023) for the 
agencies' proposed reintroduction of grizzly bears to the U.S. portion 
of the NCE. The DEIS analyzes the potential environmental impacts 
associated with the proposed reintroduction and designation of a 
nonessential experimental population. Written comments specific to the 
DEIS should be made to the NPS in accordance with that separate notice; 
more information can be found on the internet at https://parkplanning.nps.gov/NCEGrizzly. Comments specific to this proposed 
section 10(j) rule should be made to the USFWS docket specified in this 
document (see ADDRESSES above). As noted above, while we prefer written 
comments on this proposed rule, we will take oral comments at the 
scheduled public hearings.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include. 
Submissions merely stating support for, or opposition to, the action 
under consideration without providing supporting information, although 
noted, do not provide substantial information necessary to support a 
determination.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
provide comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions as well as written transcripts of 
any oral comments made regarding the proposed rule at a public hearing 
on https://www.regulations.gov.

Peer Review

    In accordance with our Interagency Cooperative Policy for Peer 
Review in Endangered Species Act Activities, which was published on 
July 1, 1994 (59 FR 34270), and the internal memorandum clarifying the 
USFWS's interpretation and implementation of that policy (USFWS in 
litt. 2016), we will seek the expert opinion of at least three 
appropriate independent specialists regarding scientific data and 
interpretations contained in this proposed rule. We will send copies of 
this proposed rule to the peer reviewers immediately following 
publication in the Federal Register. The purpose of such review is to 
ensure that our

[[Page 67195]]

decisions are based on scientifically sound data, assumptions, and 
analysis. Accordingly, the final decision may differ from this 
proposal.

Previous Federal Actions

    The grizzly bear was first federally listed under the Act in 1975 
as a threatened species in the conterminous United States (40 FR 31734, 
July 28, 1975). The listing included special regulations deemed 
necessary and advisable for the conservation of the species in 
accordance with section 4(d) of the Act. The section 4(d) regulations 
for grizzly bear were revised in 1985, 1986, and again in 1992 (50 FR 
35086, August 29, 1985; 51 FR 33753, September 23, 1986; 57 FR 37478, 
August 19, 1992). The USFWS proposed critical habitat for the grizzly 
bear in 1976 (41 FR 48757, November 5, 1976); however, the designation 
was never finalized. On February 6, 2023, we announced positive 90-day 
findings on two petitions to delist the grizzly bear in two specific 
ecosystems, the Northern Continental Divide Ecosystem and the Greater 
Yellowstone Ecosystem (88 FR 7658, February 6, 2023). We subsequently 
initiated a status review to determine whether the petitioned actions 
are warranted. For a full history of actions related to the grizzly 
bear, please see our Environmental Conservation Online System (ECOS) 
species profile at https://ecos.fws.gov/ecp/species/7642.
    The NCE, where we are proposing to reintroduce grizzly bears, is 
one of six recovery zones designated to recover grizzly bears in the 
lower 48 States. We received and reviewed five petitions requesting a 
change in status for the NCE grizzly bear population from a threatened 
to an endangered species since 1990 (55 FR 32103, August 7, 1990; 56 FR 
33892, July 24, 1991; 57 FR 14372, April 20, 1992; 58 FR 43856, August 
18, 1993; and 63 FR 30453, June 4, 1998). In response to these 
petitions, we determined that the NCE grizzly bear population warranted 
a change to endangered status. We continued to find that these 
petitions were warranted but precluded through our annual Candidate 
Notice of Review (CNOR) process through 2022 (87 FR 26152, May 3, 2022; 
88 FR 41560, June 27, 2023). However, we found in our 2023 CNOR that 
the NCE no longer contains a population based on: (1) the amount of 
search effort without finding any evidence of grizzly bears or a 
confirmed population; (2) a limited number of grizzly bear detections 
in the NCE in the past few decades; and (3) the length of time since 
the last confirmed detection in 1996 (88 FR 41560, June 27, 2023).

Background and Biological Information

    We provide detailed background information on grizzly bears in a 
separate Species Status Assessment (SSA) (USFWS 2022, entire). 
Information in the SSA is relevant to reintroduction efforts for 
grizzly bears that may be undertaken in Washington, and it can be found 
along with this proposed rule at https://www.regulations.gov in Docket 
No. FWS-R1-ES-2023-0074 (see Supporting and Related Material). We 
summarize relevant information from the SSA below.

Taxonomy and Species Description

    Grizzly bears are a member of the brown bear species (U. arctos) 
that occurs in North America, Europe, and Asia. In the lower 48 States, 
the grizzly bear subspecies occurs in a variety of habitat types in 
portions of Idaho, Montana, Washington, and Wyoming. Grizzly bears 
weigh up to 800 pounds (363 kilograms) and live more than 25 years in 
the wild. Grizzly bears are light brown to nearly black and are so 
named for their ``grizzled'' coats with silver or golden tips (USFWS 
2022, p. 40).

Historical and Current Range

    Historically, grizzly bears occurred throughout much of the western 
half of the contiguous United States, central Mexico, western Canada, 
and most of Alaska. Prior to European settlement, an estimated 50,000 
grizzly bears were distributed in one large contiguous area throughout 
all or portions of 18 western States (i.e., Washington, Oregon, 
California, Idaho, Montana, Wyoming, Nevada, Colorado, Utah, New 
Mexico, Arizona, North Dakota, South Dakota, Minnesota, Nebraska, 
Kansas, Oklahoma, and Texas). Populations declined in the late 1800s 
with the arrival of European settlers, government-funded bounty 
programs, and the conversion of habitats to agricultural uses. Grizzly 
bears were reduced to less than 2 percent of their former range in the 
lower 48 States by the time the species was listed as threatened under 
the Act in 1975, with an estimated population (in the lower 48 States) 
of 700 to 800 individuals (USFWS 2022, p. 4).
    Grizzly bear populations in the lower 48 States consist of 
approximately 2,000 bears and currently occupy portions of Idaho, 
Montana, Wyoming, and Washington. Outside the lower 48 States, 
approximately 55,000 grizzly bears exist in the largely unsettled areas 
of Alaska and western Canada.

Grizzly Bear Ecosystems and Recovery Zones

    The Grizzly Bear Recovery Plan refers to six grizzly bear 
ecosystems to target species' recovery (Service 1993, p. 10). 
Currently, approximately 2,000 grizzly bears exist primarily in 4 
ecosystems in the lower 48 States: the Northern Continental Divide 
Ecosystem (NCDE), the Greater Yellowstone Ecosystem (GYE), the Cabinet-
Yaak Ecosystem (CYE), and the Selkirk Ecosystem. There are no known 
grizzly bear populations in the remaining two ecosystems: the North 
Cascades Ecosystem (NCE) or Bitterroot Ecosystem (BE), nor any known 
populations outside these ecosystems, although we have documented 
bears, primarily solitary, outside these ecosystems. Current 
populations in the NCDE, Selkirk Ecosystem, and CYE extend into Canada 
to varying degrees. Although there is currently no known population in 
the NCE, it constitutes a large block of contiguous habitat that spans 
the international border. Although the USFWS has not explicitly defined 
ecosystem boundaries, we have identified recovery zones at the core of 
each ecosystem (USFWS 2022, p. 56) (figure 1). Therefore, each recovery 
zone pertains to a specific area within the larger ecosystem.
    At the time of the original recovery plan, grizzly bear 
distribution within the conterminous United States was primarily within 
and around areas identified as recovery zones (USFWS 1993, pp. 10-13, 
17-18). The Service identified the six recovery zones, which correspond 
with the six ecosystems, as follows:
    (1) the GYE Recovery Zone in northwestern Wyoming, eastern Idaho, 
and southwestern Montana (9,200 sq mi (24,000 sq km)) at approximately 
1,063 individuals inside the Demographic Monitoring Area (Haroldson et 
al. 2022, p. 13);
    (2) the NCDE Recovery Zone of north-central Montana (9,600 sq mi 
(25,000 sq km)) at approximately 1,114 individuals (Costello and 
Roberts 2022, p. 10);
    (3) the NCE Recovery Zone of north-central Washington (9,500 sq mi 
(25,000 sq km)), although no functional population of grizzly bears 
currently exists in the NCE (see Status of Grizzly Bears in the North 
Cascades Ecosystem, below);
    (4) the Selkirk Ecosystem Recovery Zone of northern Idaho, 
northeastern Washington, and southeastern British Columbia (2,200 sq mi 
(5,700 sq km)) at approximately 83 individuals (Proctor et al. 2012, p. 
31);

[[Page 67196]]

    (5) the CYE Recovery Zone of northwestern Montana and northern 
Idaho (2,600 sq mi (6,700 sq km)) at approximately 60-65 bears (Kasworm 
et al. 2022a, p. 42); and
    (6) the Bitterroot Recovery Zone of central Idaho and western 
Montana (5,830 sq mi (15,100 sq km)), although no functional population 
of grizzly bears currently exists in the BE.
NCE and NCE Recovery Zone Relation to Proposed Experimental Population
    Although the USFWS considers the North Cascades Ecosystem to 
include areas within Canada, the North Cascades Recovery Zone is a 
component of the ecosystem and occurs only within the United States. 
Throughout this proposed rule, we will reference the broader North 
Cascades Ecosystem, which includes habitat in Canada, as the ``NCE'' 
and reference its recovery zone (solely within the United States) as 
the ``NCE Recovery Zone.'' The proposed nonessential experimental 
population area (see Proposed Experimental Population below) in this 
rulemaking action encompasses the entire NCE Recovery Zone and the 
portion of the larger NCE within the United States.
[GRAPHIC] [TIFF OMITTED] TP29SE23.056

Behavior and Life History

    Adult grizzly bears are normally solitary except when females have 
dependent young, but they are not territorial and home ranges of adult 
bears frequently overlap. Home range sizes vary among ecosystems 
because of population densities and habitat productivity. Average home 
range size for males varies from 183 to 835 square miles (sq mi) (475-
2,162 square kilometers (sq km)) and for females from 50 to 138 sq mi 
(130-358 sq km) across the recovery areas in the United States (USFWS 
2022, p. 44).
    Grizzly bears have a promiscuous mating system. Mating occurs from 
May

[[Page 67197]]

through July with a peak in mid-June. Average age of first reproduction 
can vary from 3 to 8 years of age. Litter sizes range from one to four 
cubs, although two is the most common. Cubs are typically born in the 
den in late January or early February and typically remain with the 
female for 2.5 years, making the average time between litters (i.e., 
the interbirth interval) approximately 3 years. Grizzly bears have one 
of the slowest reproductive rates among terrestrial mammals, resulting 
primarily from the late age of first reproduction, small average litter 
size, and the long interbirth interval. A population is made up of 
numerous overlapping generations. It is possible for mothers, 
daughters, and granddaughters to be reproductively active at the same 
time. Grizzly bear females typically cease reproducing some time in 
their mid-to-late 20s (USFWS 2022, pp. 44-45).
    Grizzly bears hibernate for 4 to 6 months each year in winter to 
cope with seasons of low food abundance. Grizzly bears in the lower 48 
States typically enter dens between October and December. In the 2 to 4 
months before den entry, bears increase their food intake dramatically 
during a process called hyperphagia. Grizzly bears must consume foods 
rich in protein and carbohydrates during this time (between August and 
November) in order to build up fat reserves to survive denning and 
post-denning periods. Grizzly bears typically hibernate alone in dens, 
except for females with young and subadult siblings who occasionally 
hibernate together. Most dens are located at higher elevations, above 
8,000 feet (ft) (2,500 meters (m)) in the GYE and above 6,400 ft (1,942 
m) in the NCDE and on slopes ranging from 30 to 60 degrees. Grizzly 
bears exit their dens between March and May; females with cubs exit 
later than other adults (USFWS 2022, pp. 45-46).
    When not hibernating, grizzly bears use a variety of cover types to 
rest and shelter. Grizzly bears often select bed sites with horizontal 
and vertical cover, especially at day bed sites, suggesting that bed 
site selection is important for concealment from potential threats. The 
relative importance of cover to grizzly bears was documented in a 4-
year study of grizzly bears in the GYE. Of 2,261 aerial radio signals 
from 46 instrumented bears, 90 percent were located in forest cover too 
dense to observe the bear (USFWS 2022, p. 47).
    Grizzly bears make seasonal movements within their home ranges to 
locations where food is abundant (e.g., ungulate winter ranges and 
calving areas, talus slopes). They are opportunistic omnivores and 
display great diet plasticity, even within a population, shifting their 
diet according to foods that are most nutritious (i.e., high in fat, 
protein, and/or carbohydrates) and available. They will consume almost 
any food available including living or dead mammals or fish, insects, 
worms, plants, human-related foods, garbage, livestock, and 
agricultural crops. Cattle and sheep depredation rates are generally 
higher where bear densities are higher and in later summer months. In 
areas where animal matter is less available, berries, grasses, roots, 
bulbs, tubers, seeds, and fungi are important in meeting protein and 
caloric requirements (USFWS 2022, pp. 47-48).
    In general, an individual grizzly bear's habitat needs and daily 
movements are largely driven by the search for food, water, mates, 
cover, security, or den sites. Grizzly bears display dietary 
adjustability across ecosystems and exploit a broad diversity of 
habitat types. Large intact blocks of land directly influence the 
quality and quantity of the species' resource needs, highlighting the 
importance of this habitat factor to all life stages. The larger, more 
intact, and ecologically diverse the block of land, it follows that 
high-caloric foods, dens, and cover would be more readily available to 
individuals. Grizzly bears also need large, intact blocks of land with 
limited human influence and thus low potential for displacement and 
human-bear or livestock-bear interactions that could result in human-
caused mortality. Grizzly bears in the lower 48 States need multiple 
resilient ecosystems distributed across a geographical area to reduce 
the risk of catastrophic events. A wide distribution of multiple 
ecosystems ensures that all ecosystems are not exposed to the same 
catastrophic event at the same time, thereby reducing risk to the 
species. Grizzly bears also need genetic and ecological diversity 
across their range in the lower 48 States to adapt to changing 
environmental conditions (USFWS 2022, pp. 98-100).
    Kasworm et al. (2014, entire) evaluated grizzly bear food data from 
the CYE. The CYE has a Pacific maritime climate that may be similar to 
the climate in the central and western Cascade Mountains. Therefore, an 
evaluation of grizzly bear food selection in the CYE could be useful 
for predicting food habits of grizzly bears in the NCE. Huckleberry 
(Vaccinium spp.) appears to be an important component of the grizzly 
bear's diet in the CYE. Data were collected over several years, using 
both isotope analysis on hairs and scat. Isotope analysis showed a 
highly variable use of meat (6 percent to 37 percent of diet), and that 
meat was found in many scats in some months (40 percent of dry matter 
in April and May), including fall (carrion). Overall, mammals and 
shrubs (berries) constituted 64 percent of total dry matter annually. 
In a diet study of grizzly bears in several western ecosystems, 
researchers found that adult male grizzly bears were more carnivorous 
than any other age or sex class, with diets composed of around 70 
percent meat (Jacoby et al. 1999, pp. 924-926). Other sex and age 
groups of grizzly bears displayed diets similar to black bears living 
in the same areas reflective of diets described by Kasworm et al. 2014 
(Jacoby et al. 1999, pp. 924-926).

Threats

    Excessive human-caused mortality including ``indiscriminate illegal 
killing,'' defense of life and property mortality, accidental 
mortality, and management removal was the primary factor contributing 
to rangewide grizzly bear decline during the 19th and 20th centuries, 
eventually leading to their listing as a threatened species in 1975 (40 
FR 31734, July 28, 1975). Habitat destruction, modification, and 
isolation and conflict resulting from human access to formerly secure 
habitat were also identified as threats in the 1975 listing. In the 
State of Washington, the northwest fur trade was probably the primary 
driver of rapid grizzly bear decline in the period 1810-1870. In 
addition to the influx of trappers, resource extraction and livestock 
production fragmented and degraded grizzly bear habitat in Washington; 
a mining boom in the early 1800s created a rapid increase in human 
activity and habitat alteration to accommodate mining infrastructure 
and human settlements. In the NCE, grizzly bears were also regularly 
shot and removed by herders of sheep and cattle, and by the late 1800s 
habitat fragmentation and isolation of the ecosystem accelerated due to 
the dominance of logging, as well as the expansion of rural 
development, road and railway access, and orchards (Almack et al. 1993, 
p. 3; Rine et al. 2020, pp. 5-13; USFWS 2022, p. 143).
    Though human-caused mortality has been greatly reduced since the 
1800s, excessive human-caused mortality is still currently the primary 
factor affecting grizzly bears at both the individual and ecosystem 
levels (USFWS 2022, p. 7). Human-caused mortalities of grizzly bears 
currently include: (1) accidental killings; (2) management removals; 
(3) mistaken-identity killing; (4) defense-of-life kills; and (5) 
illegal killings or poaching (USFWS 2022, pp. 144-145). Human

[[Page 67198]]

activities are the primary factor currently impacting habitat security 
and the ability of bears to find and access foods, mates, cover, and 
den sites. Users of public lands and recreationists in grizzly bear 
habitat often increase the risk of human-grizzly conflict by leaving 
containers of food, garbage, and other bear attractants open or 
unstored (Gunther et al. 2004, pp. 13-14). However, road access to 
grizzly bear habitat likely poses the most imminent current threat to 
grizzly bears by reducing the availability of the necessary large, 
intact blocks of land; increasing disturbance and displacement of 
individual bears through increased noise, activity, or human presence; 
and increasing mortality of individual bears through vehicle strikes or 
other activities associated with human-caused mortality (USFWS 2022, p. 
117).
    While existing motorized access levels are unknown on U.S. Forest 
Service (USFS) lands (USFWS 2022, p. 212), the primary factors related 
to past destruction and modification of grizzly bear habitat have been 
reduced through changes in management practices that have been formally 
incorporated into regulatory documents. In the NCE, approximately 64 
percent of the public lands are designated Wilderness or Inventoried 
Roadless Areas, and the remaining Federal lands are managed under a 
``no net loss'' approach that supports core habitat. Population 
monitoring data collected by Federal, State, and Tribal agencies is 
used to help identify where human-grizzly bear conflicts occur and 
compare trends in locations, sources, land ownership, and types of 
conflicts to inform proactive management of human-grizzly bear 
conflicts.
    Fire is a natural part of all grizzly bear ecosystems, but fire 
frequency, severity, and burned area may increase with late summer 
droughts predicted under climate change scenarios (Nitschke and Innes 
2008, p. 853; McWethy et al. 2010, p. 55; Halofsky et al. 2020, p. 10; 
Whitlock et al. 2017; pp. 123-131, 216, XXXII). In the North Cascades, 
wildfire is projected to burn nearly four times more area by the 2080s 
compared to the historical period of 1980 to 2006 (Halofsky et al. 
2020, p. 10). High-intensity fires may reduce grizzly bear habitat 
quality immediately afterwards by decreasing hiding cover, changing 
movement patterns, and delaying regrowth of vegetation. Predators with 
large territories, like grizzly bears, have more flexibility to exploit 
resources in burned and unburned landscapes (as cited in Nimmo et al. 
2019, p. 986). Moreover, in conifer-dominated forest ecosystems, 
wildfires transition forest to earlier succession stages, which can 
increase prey densities due to increases in the availability of 
vegetative food resources (Snobl et al. 2022, pp. 14-15; Lyons et al. 
2018, p. 10).
    Even if cover is lost, movement is changed, and vegetation growth 
is delayed, depending on their size and severity, fires may have only 
short-term adverse impacts on grizzly bears while providing more long-
term benefits. For example, fire plays an important role in maintaining 
an open forest canopy, shrub fields, and meadows that provide for 
grizzly bear food resources, such as increased production of forbs, 
root crops, and berries (Hamer and Herrero 1987b, pp. 183-185; 
Blanchard and Knight 1996, p. 121; Apps et al. 2004, p. 148; Pengelly 
and Hamer 2006, p. 129). Because grizzly bears have shown resiliency to 
changes in vegetation resulting from fires, we do not expect altered 
fire regimes predicted under most climate change scenarios to have 
significant negative impacts on grizzly bear survival or reproduction, 
despite the potential short-term effects on vegetation important to 
grizzly bears. Climate models predict that the NCE will experience 
substantial vegetation changes from longer growing seasons, drier 
summer months and wetter winter and spring months, decreased snowpack, 
and an increased number of disturbance events that are expected to 
improve food resources for grizzly bears and thus increase habitat 
quality (Ransom et al. 2018, p. 26). Modeling of grizzly bear habitat 
in the North Cascades under various projected climate change scenarios 
shows increased carrying capacity and increased potential grizzly bear 
density estimates under all scenarios (Ransom et al. 2023, pp. 6-8; 
USFWS 2022, table 27, p. 243). The complex relationship between changes 
in climate, natural processes, and natural and anthropogenic features 
will ultimately determine the future quality of grizzly bear habitat 
across the ecosystem (Ransom et al. 2018, entire).

Status of Grizzly Bears in the North Cascades Ecosystem

    In the Service's 2023 status review, we determined that the NCE no 
longer contained a population of grizzly bears (88 FR 41560 at 41579, 
June 27, 2023). We also indicated that we were continuing to evaluate 
options for restoring grizzly bears to the NCE (88 FR 41560 at 41580, 
June 27, 2023).
    Factors contributing to the extirpation of a functional population 
of grizzly bears from the NCE include historical habitat loss and 
fragmentation and human-caused mortality (USFWS 2022, pp. 49-51). 
Historical records indicate that grizzly bears once occurred throughout 
the NCE (Bjorklund 1980, p. 7; Sullivan 1983 p. 4; Almack et al. 1993 
p. 2, Rine et al. 2020, pp. 10-13). There has been no confirmed 
evidence of grizzly bears within the U.S. portion of the NCE since 1996 
when an individual grizzly bear was observed on the southeastern side 
of Glacier Peak within the Glacier Peak Wilderness Area. The most 
recent direct evidence of reproduction in the U.S. portion of the NCE 
was a confirmed observation of a female and cub on upper Lake Chelan in 
1991 (Almack et al. 1993, p. 34).
    In the United States, most habitat within the NCE is federally 
owned and managed by the NPS including North Cascades National Park 
(NP), Ross Lake National Recreation Area (NRA), and Lake Chelan NRA, 
but some areas are managed by the USFS. Sixty-four percent of the NCE 
Recovery Zone is protected from motorized routes due to designation as 
Wilderness or protected from roads due to designation as Inventoried 
Roadless Areas. Despite the lack of recent observations, five studies 
have evaluated portions of the NCE for grizzly bear habitat suitability 
(Agee et al. 1989, entire; Almack et al. 1993, entire; Gaines et al. 
1994, entire; Lyons et al. 2018, entire; Ransom et al. 2023, entire), 
and all conclude that the U.S. portion of the NCE has the habitat 
resources essential for the maintenance of a grizzly bear population.
    Grizzly bear populations in Canada are not part of the U.S. listed 
grizzly bear entity. However, suitable habitat within the NCE spans the 
international border. The NCE within Canada is relatively isolated from 
other ecosystems with grizzly bear populations in Canada (Morgan et al. 
2019, p. 3). The current range of grizzly bears in British Columbia is 
divided into 55 Grizzly Bear Population Units (GBPUs) that are used for 
monitoring and management. The British Columbia North Cascades GBPU is 
immediately north of the U.S. portion of the NCE and was described as 
isolated and small with possibly three females remaining (Morgan et al. 
2019, p. 19). To the north and west of this GBPU lie the Stein-
Nahatlach and the Garibaldi-Pit GBPUs that are also described as small 
and largely isolated with estimated female populations of 12 and 2, 
respectively (Morgan et al. 2019, p. 19). All three of these units are 
ranked as being of extreme management concern (Morgan et al. 2019, p. 
21) using the NatureServe methodology, integrating rarity (e.g., range 
extent, population size), population trend, and severity of threats

[[Page 67199]]

to produce a conservation status rank for discrete geographical units 
(Morgan et al. 2019, p. 6). The International Union for the 
Conservation of Nature classified these populations as critically 
endangered on their Red List due to small size and isolation (McLellan 
et al. 2017, p. 2). The Kettle-Granby GBPU lies 60 miles to the 
northeast of the NCE across the Okanogan River in British Columbia with 
an estimated female population of 48 grizzly bears in 2018 (Morgan et 
al. 2019, p. 19). Based on this information there appears to be little 
demographic or genetic connectivity from other GBPUs to the North 
Cascades GBPU.

Recovery Efforts to Date

    In accordance with section 4(f)(1) of the Act, the USFWS completed 
a grizzly bear recovery plan in 1982 (USFWS 1982, entire) and released 
a revised recovery plan in 1993 (USFWS 1993, entire; other revisions 
and supplements affecting other populations can be found in ECOS). 
Recovery plans serve as ``road maps'' for species recovery--they lay 
out where we need to go and how to get there through specific actions. 
Recovery plans are not regulatory documents and are instead intended to 
provide guidance to the USFWS, States, and other partners on methods of 
minimizing threats to listed species and on criteria that may be used 
to determine when recovery is achieved.
    In 1993, the USFWS revised the grizzly bear recovery plan 
(hereafter, ``recovery plan'') to include additional tasks and new 
information that increased the focus and effectiveness of recovery 
efforts (USFWS 1993, pp. 41-58). In 1996 and 1997, we released 
supplemental chapters to the recovery plan to direct recovery in the BE 
and NCE Recovery Zones, respectively (USFWS 1996; USFWS 1997). In our 
recovery plan supplement for the NCE Recovery Zone, we outlined the 
following recovery goals for the U.S. portion of the NCE:
    (1) that the population is large enough to offset some level of 
human-induced mortality and be self-sustaining despite foreseeable 
influences of demographic and environmental variation; and
    (2) reproducing bears are distributed through the NCE Recovery 
Zone. Such a population may comprise 200-400 grizzly bears in the U.S. 
portion of the ecosystem (USFWS 1997, p. 3).
    This supplement to the recovery plan supported fostering grizzly 
bear restoration in the NCE, specifically identifying translocations as 
an alternative for recovering this population.
Interagency Grizzly Bear Committee
    In 1983, the Interagency Grizzly Bear Committee (IGBC) was 
established ``to ensure recovery of viable grizzly bear populations and 
restoration of their habitats in the lower 48 States through 
interagency coordination of policy, planning, management and research'' 
(IGBC 1983, entire). The IGBC consists of representatives from the 
Service, USFS, NPS, the Bureau of Land Management, the U.S. Geological 
Survey, and representatives of the State wildlife agencies of Idaho, 
Montana, Washington, and Wyoming. At the ecosystem level, Native 
American Tribes that manage grizzly bear habitat and county governments 
are represented, along with other partners.
    The IGBC NCE subcommittee guides and coordinates habitat management 
and conflict prevention for grizzly bears in the NCE Recovery Zone 
(USFWS 1997, p. 8). In 1997, the North Cascades NP Superintendent and 
three National Forest (NF) Supervisors (Mt. Baker-Snoqualmie NF, 
Okanogan NF, and Wenatchee NF) agreed to a ``no-net-loss of core'' 
approach within any bear management unit to protect and secure grizzly 
bear habitat in the U.S. portion of the NCE (see USFS 1997, entire), 
and they have managed the national park and national forests using that 
guidance since. Under this approach, ``core area'' is defined as the 
area more than 0.3 mi (500 m) from any open-motorized access route or 
high-use nonmotorized trail (more than 20 parties per week).
Management Efforts in the NCE and NCE Recovery Zone
    A number of habitat management measures have been implemented 
within the NCE Recovery Zone to improve habitat connectivity, habitat 
security, and safety for grizzly bears and humans, in areas where 
interactions are likely. These measures include management of human 
access to grizzly bear habitat and improved sanitation and food storage 
measures to prevent or minimize human-grizzly bear interactions.
    Management of human access is one of the most important and 
significant management strategies for grizzly bears. It includes 
balancing the need for road and motorized trail access with providing 
secure areas for grizzly bears. Access management in the NCE Recovery 
Zone is guided by the ``no-net-loss of core'' approach described above 
(USFS 1997, entire). In simplest terms, this approach indicates that if 
a road is constructed or opened to motorized travel, another road must 
be closed to motorized use in order to maintain core habitat.
    In an effort to minimize the potential for human-caused mortality 
of grizzly bears, substantial outreach efforts have been put in place 
by the NPS and USFS over the last 30 years to reduce unsecured 
attractants (e.g., garbage, human food) and provide the public with 
tips on identifying and coexisting with grizzly bears (e.g., Western 
Wildlife Outreach 2023; Braaten et al. 2013, pp. 7-8). The NPS has 
service-wide food storage regulations (36 CFR 2.2(a), 2.10(d), and 
2.14(a)), including requiring campers to use food storage canisters or 
park-provided food storage lockers at the North Cascades NPS Complex. 
In early 2023, Mt. Baker-Snoqualmie NF issued a forest-wide, year-round 
food storage order. The Okanogan-Wenatchee NF does not have food 
storage restrictions but continues to place bear-resistant facilities, 
including food storage lockers, at campgrounds.
    It is illegal to negligently feed, attempt to feed, or attract 
large carnivores to land or a building in Washington State, and doing 
so may result in an infraction (see Revised Code of Washington (RCW) 
77.15.790). There are exceptions for individuals engaging in acceptable 
practices related to waste disposal, forestry, wildlife control, and 
farming or ranching operations. Any person who intentionally feeds or 
attempts to feed or attracts large carnivores to land or a building is 
guilty of a misdemeanor (see RCW 77.15.792). The Washington Department 
of Fish and Wildlife (WDFW) has also implemented a regulation that 
requires black bear hunters to take and pass a bear identification test 
when hunting black bears in specific areas within grizzly bear recovery 
zones, with the intent of minimizing the potential for accidental 
killings of grizzly bears because of mistaken identification (WDFW 
2023, p. 70).
State and Canadian Protections
    Grizzly bears are State-listed as an endangered species in 
Washington (RCW 77.12.020, Washington Administrative Code 220-610-010, 
Lewis 2019, p. 1). In British Columbia, grizzly bears are ranked as 
``Special Concern'' by both the British Columbia Conservation Data 
Centre and federally under Canada's Species at Risk Act (B.C. 
Conservation Data Centre 2023; SARA 2018). The International Union for 
Conservation of Nature (IUCN) identifies four populations within 
British Columbia on the IUCN Red List of Threatened Species, including 
three that border Washington State with Red

[[Page 67200]]

List Categories reflecting heightened extinction risk (North Cascades-
Critically Endangered, South Selkirk-Vulnerable, and the Yahk/Yaak-
Endangered, McLellan et al. 2016, pp. 1-2). Currently, there appears to 
be little to no demographic or genetic connectivity to the NCE from 
other populations in Canada.
    The feasibility of recovering grizzly bears in the Canadian portion 
of the NCE is under consideration in British Columbia. First Nations 
have declared grizzly bears within the North Cascades GBPU as in 
immediate need of restoration and protection (ONA 2014, entire, Piikani 
Nation 2018, entire). The British Columbia Government in collaboration 
with Canadian First Nations have established a Joint Nation partnership 
to outline population recovery objectives and strategies in a North 
Cascades Grizzly Bear Stewardship Strategy (in review). The team is 
also developing a communication strategy to assess public reception for 
recovery in the area. Additionally, the Provincial Government has 
identified management options for all grizzly bear populations as 
outlined in the British Columbia Grizzly Bear Stewardship Framework (in 
review). Should augmentation efforts occur in British Columbia, it is 
likely that some grizzly bears reintroduced into the Canadian portion 
of the ecosystem may move into the proposed NEP area in the United 
States, either as transients that return to Canada or that ultimately 
remain in the United States.

Statutory and Regulatory Framework

    Section 9 of the Act (16 U.S.C. 1538) sets forth the prohibitions 
afforded to species listed under the Act. Section 9 of the Act 
prohibits take of endangered wildlife. ``Take'' is defined by the Act 
as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or attempt to engage in any such conduct. Section 7 of the Act 
outlines the procedures for Federal interagency cooperation to conserve 
federally listed species and protect designated critical habitat. It 
mandates that all Federal agencies use their existing authorities to 
further the purposes of the Act by carrying out programs for the 
conservation of listed species. It also requires that Federal agencies, 
in consultation with the Service, ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Section 7 of the Act does 
not affect activities undertaken on private land unless they are 
authorized, funded, or carried out by a Federal agency.
    The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included 
the addition of section 10(j), which allows for populations of listed 
species planned to be reintroduced to be designated as ``experimental 
populations.'' The provisions of section 10(j) were enacted to 
ameliorate concerns that reintroduced populations will negatively 
impact landowners and other private parties, by giving the Secretary of 
the Interior greater regulatory flexibility and discretion in managing 
the reintroduced species to encourage recovery in collaboration with 
partners, especially private landowners. The Secretary may designate as 
an experimental population a population of endangered or threatened 
species that will be released into habitat that is capable of 
supporting the experimental population outside the species' current 
range. Under section 10(j) of the Act, we must make a determination as 
to whether or not an experimental population is essential to the 
continued existence of the species based on best available science. Our 
regulations define an essential population as one whose loss would be 
likely to appreciably reduce the likelihood of the survival of the 
species in the wild. All other experimental populations are classified 
as nonessential (50 CFR 17.80(b)).
    We treat any population determined by the Secretary to be an 
experimental population as if we had listed it as a threatened species 
for the purposes of establishing protective regulations under section 
4(d) of the Act with respect to that population (50 CFR 17.82). We may 
apply any of the prohibitions of section 9 of the Act to the members of 
an experimental population, including the prohibitions against the sale 
or possession, import and export, or ``take'' (50 CFR 17.82). The 
designation as an experimental population allows us to develop tailored 
``take'' prohibitions that are necessary and advisable to provide for 
the conservation of the species. The protective regulations adopted for 
an experimental population will contain applicable prohibitions as 
appropriate, and exceptions for that population, allowing us discretion 
in devising management programs to provide for the conservation of the 
species.
    Section 7(a)(2) of the Act requires that Federal agencies, in 
consultation with the Service, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or adversely modify its critical habitat. We treat 
an NEP as a threatened species when the population is located within 
the National Wildlife Refuge System (NWRS) or unit of the NPS, and 
those agencies are required to consult with us under section 7(a)(2) of 
the Act (50 CFR 17.83; see 16 U.S.C. 1539 (j)(2)(C)(i)). When NEPs are 
located outside of an NWRS or NPS unit, for the purposes of section 7, 
we treat the population as proposed for listing and only sections 
7(a)(1) (50 CFR 17.83) and 7(a)(4) (50 CFR 402.10) of the Act apply (50 
CFR 17.83). In these instances, NEPs allow additional flexibility in 
managing the nonessential population because Federal agencies are not 
required to consult with us under section 7(a)(2). Section 7(a)(1) 
requires all Federal agencies to use their authorities to carry out 
programs for the conservation of listed species. Section 7(a)(4) 
requires Federal agencies to confer (rather than consult) with the 
Service on actions that are likely to jeopardize the continued 
existence of a species proposed to be listed.
    Section 10(j)(2)(C)(ii) of the Act states that critical habitat 
shall not be designated for any experimental population that is 
determined to be nonessential. Accordingly, we cannot designate 
critical habitat in areas where we establish an NEP.
    Before authorizing the release as an experimental population of any 
population (including eggs, propagules, or individuals) of an 
endangered or threatened species, and before authorizing any necessary 
transportation to conduct the release, the Service must find by 
regulation that such release will further the conservation of the 
species. In making such a finding the Service uses the best scientific 
and commercial data available to consider:
    (1) Any possible adverse effects on extant populations of a species 
as a result of removal of individuals, eggs, or propagules for 
introduction elsewhere (see Effects on Wild Populations, below);
    (2) the likelihood that any such experimental population will 
become established and survive in the foreseeable future (see 
Likelihood of Population Establishment and Survival, below);
    (3) the relative effects that establishment of an experimental 
population will have on the recovery of the species (see Effects of the 
Experimental Population on Grizzly Bear Recovery, below); and
    (4) the extent to which the introduced population may be affected 
by existing or anticipated Federal or State actions or private 
activities within or adjacent to the experimental population area (see

[[Page 67201]]

Actions and Activities in Washington That May Affect Reintroduced 
Grizzly Bears, below).
    Furthermore, as set forth at 50 CFR 17.81(c), all regulations 
designating experimental populations under section 10(j) of the Act 
must provide:
    (1) appropriate means to identify the experimental population, 
including but not limited to its actual or proposed location, actual or 
anticipated migration, number of specimens released or to be released, 
and other criteria appropriate to identify the experimental population 
(see Means To Identify the Experimental Population, below);
    (2) a finding, based solely on the best scientific and commercial 
data available, and the supporting factual basis, on whether the 
experimental population is, or is not, essential to the continued 
existence of the species in the wild (see Findings, below);
    (3) management restrictions, protective measures, or other special 
management concerns for that population, which may include, but are not 
limited to, measures to isolate and/or contain the experimental 
population designated in the regulation from nonexperimental 
populations (see Management Restrictions, Protective Measures, and 
Other Special Management, below); and
    (4) a process for periodic review and evaluation of the success or 
failure of the release and the effect of the release on the 
conservation and recovery of the species (see Review and Evaluation of 
the Success or Failure of the NEP, below).
    Under 50 CFR 17.81(d), the Service must consult with appropriate 
State fish and wildlife agencies, affected Tribal governments, local 
government agencies, affected Federal agencies, and affected private 
landowners in developing and implementing experimental population 
rules. To the maximum extent practicable, rules issued under section 
10(j) of the Act represent an agreement between the Service, the 
affected State and Federal agencies, Tribal governments, local 
governments, and persons holding any interest in land and water that 
may be affected by the establishment of an experimental population. 
Hereafter in this document, we refer to the proposed regulations for 
establishing the NEP of the grizzly bear within the U.S. portion of the 
NCE as the ``10(j) rule.''

Proposed Experimental Population

Experimental Population Area

    The proposed geographic area for the grizzly bear nonessential 
experimental population (NEP) occurs within the U.S. portion of the NCE 
and encompasses the entire NCE Recovery Zone. It also includes all of 
Washington State except an area in northeastern Washington around the 
Selkirk Ecosystem Recovery Zone where there is currently a population 
of grizzly bears (see figure 2). The northeastern boundary of the NEP 
is defined by the Kettle River from the international border with 
Canada, downstream to the Columbia River, to its confluence with the 
Spokane River, then upstream on the Spokane River to the Washington-
Idaho border. We are proposing to designate an NEP area beyond the NCE 
Recovery Zone to allow management of grizzly bears within the NCE 
Recovery Zone as well as grizzly bears that move outside of the NCE 
Recovery Zone.
    In the U.S. portion of the NCE, the majority of land is under 
Federal ownership managed primarily by the NPS, including North 
Cascades National Park (NP), Ross Lake National Recreation Area (NRA), 
and Lake Chelan NRA, with some areas managed by the USFS.
    In drawing our NEP area and management zone boundaries, we 
considered the following data points: Those areas where a population of 
grizzly bears could be successfully established; an evaluation of the 
opportunities for grizzly bears to move between blocks of high-quality 
grizzly bear habitat in Washington (Singleton et al. 2004, p. 96, USFWS 
2022, pp. 305-309, Kasworm et al. 2022b, entire); the potential for 
human-bear conflicts; grizzly bear movement data from other 
populations; the location of the closest existing grizzly bear 
populations and historical observations of dispersers from those 
populations; ease of implementation (using readily discernible features 
for management zone boundaries such as roads and Federal land ownership 
boundaries); and input from NPS, WDFW, USFS, and the public.

[[Page 67202]]

[GRAPHIC] [TIFF OMITTED] TP29SE23.057

Management Zones
    Within the NEP area, we identified three management zones (see 
figure 2) based on suitability for occupancy by grizzly bears and the 
likelihood of human-bear conflicts, which are often associated with 
private lands. We are proposing to establish these management zones to 
help focus grizzly bear conservation within the NCE Recovery Zone and 
to allow more flexible management in the remaining portion of the NEP. 
Details of the management regulations we are proposing within each 
management zone are provided below in Management Restrictions, 
Protective Measures, and Other Management Concerns.
    Management Zone 1 would include the Mt. Baker-Snoqualmie NF and 
Okanogan-Wenatchee NF north of Interstate 90 and west of Washington 
State Route 97, as well as the North Cascades NPS Complex. To define 
the proposed Management Zone 1 boundary, we used the NCE Recovery Zone 
but then excluded State-owned and private lands so that it is easily 
identifiable. Management Zone 1 would be the primary area for the 
experimental population restoration and would serve as core habitat for 
survival, reproduction, and dispersal of the NEP. Management Zone 1 
primarily would consist of remote protected lands that support grizzly 
bear diet, habitat, and reproduction needs (see Behavior and Life 
History section above). Therefore, Management Zone 1 would serve as the 
core habitat for grizzly bear reintroductions, where all release sites 
would occur (see Release Areas, below).
    Management Zone 2 would include the Mt. Baker-Snoqualmie NF and 
Okanogan-Wenatchee NF south of Interstate 90, Gifford Pinchot NF, and 
Mount Rainier National Park. Management Zone 2 also would include the 
Colville NF and Okanogan-Wenatchee NF lands east of Washington State 
Route 97 within the experimental population boundary, though it is less 
likely that bears will disperse into this area due to the distance from 
proposed Management Zone 1 to the west. Management Zone 2 is meant to 
accommodate natural movement or dispersal by grizzly bears. We expect 
some level of grizzly bear transience as well as occupancy in 
Management Zone 2 because of the existing habitat on public lands with 
limited human influence, resulting in lower potential levels of human-
bear conflict (due to food storage regulations and limited human-
attractants).
    Management Zone 3 would comprise all other lands outside of 
proposed Management Zones 1 and 2 within the NEP boundary, and outside 
the area excluded near the Selkirk Ecosystem Recovery Zone. Beyond the 
Selkirk excluded area, the outer boundary of Management Zone 3, and 
thus outer boundary of the NEP area, would be delineated by the 
Washington State border. Management Zone 3 would contain large areas 
that may be incompatible with grizzly bear presence due to high levels 
of private land ownership and associated development and/or potential 
for bears to become involved in conflicts and resultant bear mortality 
(although some areas within this management zone are capable of 
supporting grizzly bears, and some grizzly bears may occur here). The 
intent of Management Zone 3 is to allow more management flexibility to

[[Page 67203]]

minimize impacts of grizzly bears on landowners and other members of 
the public.
    The NEP area contains human infrastructure and activities that pose 
some risk to the success of the restoration effort from human-caused 
mortality of grizzly bears. These activities include both controllable 
and uncontrollable sources of mortality. Controllable sources of 
mortality are discretionary, can be limited by the managing agency, and 
include permitted take and direct agency control. Sources of mortality 
that will be difficult to limit, or may be uncontrollable, occur 
regardless of population size and include things such as natural 
mortalities, illegal take, and accidental deaths (e.g., vehicle 
collisions, capture-related mortalities, defense-of-life kills) (USFWS 
2022, pp. 144-145). Accidental mortality caused by vehicle collision is 
difficult to control but is not anticipated to be a significant cause 
of mortality. The main types of human-caused mortality in the GYE, 
NCDE, CYE, and Selkirk Ecosystem Recovery Zones result from human site 
conflicts (e.g., when grizzly bears are drawn to areas with unsecured 
chickens, garbage, or bird and livestock feed where landowners attempt 
to deter the bear or protect themselves), self-defense, mistaken 
identification kills, and illegal kills, some of which can be partially 
mitigated through management actions (Servheen et al. 2004, p. 21; 
USFWS 2022, p. 144). We expect the same types of human-caused mortality 
identified within other recovery zones to occur within the NEP.
    Despite these human-caused mortalities, grizzly bear populations in 
other recovery zones have continued to increase in size and expand 
their current distribution (USFWS 2022, pp. 167-168). The NEP would 
build on continuing success in recovering grizzly bears through 
longstanding cooperative and complementary programs by a number of 
Federal, State, and Tribal agencies. In particular, through 
coordination of policy, planning, management, and research, and 
communication between Federal, State, Tribal and Provincial agencies, 
the IGBC has proven to be a successful model for agencies working 
cooperatively and coordinating recovery efforts over multiple 
jurisdictions, and substantial progress has been made toward recovering 
the species in other ecosystems. With continued coordination through 
the IGBC NCE subcommittee, we do not expect Federal, State, Tribal, or 
private actions and activities in Washington to have significant 
adverse effects on grizzly bears within the proposed NEP area.
    For management of grizzly bears on Tribal lands, we expect to defer 
monitoring and day- to-day management of grizzly bears to the relevant 
Tribe if they have the interest and capacity to undertake that 
management. Otherwise, we expect that the USFWS and/or other Federal 
and/or State bear management staff could assist in grizzly bear 
management on these Tribal lands per terms in a memorandum of 
understanding (MOU) involving those agencies in coordination with the 
affected Tribe, which would be put in place prior to agency involvement 
on Tribal lands.
    Grizzly bears in Washington State that are not within the NEP area, 
i.e., grizzly bears that are within and around the Selkirk Ecosystem 
Recovery Zone (see figure 2), would not be subject to management under 
this proposed rule; they are subject to the existing special rule for 
grizzly bears under section 4(d) of the Act, found at 50 CFR 17.40(b).
Release Areas
    Proposed grizzly bear release areas would be limited to Federal 
lands and include portions of North Cascades NP and Ross Lake NRA, 
administered by NPS, and Glacier Peak, Pasayten, and Stephen Mather 
Wilderness areas, administered by USFS. Primary release sites would be 
remote areas that could be accessed by helicopter and capable of 
accommodating helicopter support staging areas (NPS and FWS 2023, p. 
29). Secondary release sites would be remote areas that could be 
accessed by vehicle or boat transportation and capable of accommodating 
appropriate staging areas. Secondary release sites would be used only 
if helicopter sites were not available due to weather limitations 
affecting flight safety. Staging areas would be identified in 
previously disturbed areas large enough for the safe landing of a 
helicopter, parking for a fuel truck, and any other grizzly bear 
transport and handling needs.
    Release sites would be chosen based on habitat suitability, 
connectivity to other release sites within the NEP, and the need to 
have released grizzly bears in close proximity to one another to 
facilitate interaction and breeding. Additional criteria for acceptable 
release sites include the following:
    <bullet> Areas that consist largely of high-quality seasonal 
habitat; specifically, areas that contain readily available berry-
producing plants that are known grizzly bear foods.
    <bullet> Areas that are largely roadless, and an adequate distance 
from high visitor use and motorized areas and have low human use.
    <bullet> Areas with a suitable helicopter landing site or a 
suitable vehicle- or boat-accessible site with little public use.
    <bullet> Future additional release sites would be informed by 
grizzly bear resource selection as determined through monitoring of 
grizzly bears previously released into the NEP.

Sites for subsequent releases of grizzly bears would be chosen based on 
the criteria listed above and limited to Federal lands, unless 
otherwise authorized by relevant authorities and landowners.
Capture and Release Procedures
    Grizzly bears will be captured using baited foot snares or culvert 
traps as a primary method. Helicopters will be used to transport 
culvert traps from which grizzly bears would be released. It is 
possible that helicopter support will also be used for the capture of 
grizzly bears through use of helicopter-based capture darting. The 
capture and release of grizzly bears will take place during the summer 
(June-September), depending on the selected capture and release site(s) 
and food availability. Grizzly bears will be moved and transported from 
capture locations to release staging areas by vehicle. Grizzly bears 
will then be transported from staging areas to remote release sites by 
helicopter or by vehicle or boat on NPS or USFS lands in Management 
Zone 1 (NPS and USFWS 2023, p. 29). Each release could take up to 8 
hours (1 day) depending on the distance between staging and release 
areas, potentially resulting in 5 to 10 days of helicopter use per year 
for releases. Helicopters could make up to four round trip flights, 
traveling approximately 500 ft (150 m) above the ground, and make up to 
four landings in wilderness per release, which would be necessary for 
the release of each grizzly bear and dropoff and retrieval of staff and 
the culvert trap. All operations would be conducted during daylight 
hours.
    We will attempt to capture five to seven bears per year. Capture 
success and availability of bears will govern the exact annual numbers 
captured and source population(s). Additional grizzly bears could be 
needed depending on a variety of factors, including human-caused 
mortality, genetic limitations, population trends, and the population's 
sex ratio. Population modeling indicates the need for release of 36 
bears into the NEP to obtain an initial population of 25 individuals in 
approximately 8-9 years (NPS and USFWS 2023, p. 33). Until a population 
of 25 individuals is reached,

[[Page 67204]]

we will capture and release grizzly bears to replace any previously 
released grizzly bears that die. We expect additional releases to 
maintain genetic diversity in this population as determined by long-
term monitoring. Bears released would be roughly 60 percent or greater 
females, and ages of all released animals (males and females) are 
expected to be 2-6 years old.

How does the experimental population contribute to the conservation of 
the species?

    Under 50 CFR 17.81(b), before authorizing the release as an 
experimental population, the Service must find by regulation that such 
release will further the conservation of the species. We explain our 
rationale for making our finding below. In making such a finding, we 
must consider effects on donor populations, the likelihood of 
establishment and survival of the experimental population, the effects 
that establishment of the experimental population will have on recovery 
of the species, and the extent to which the experimental population 
will be affected by Federal, State, or private activities.

Effects on Wild Populations

    Our regulations at 50 CFR 17.81 require that we consider any 
possible adverse effects on extant populations of a species as a result 
of removal of individuals, eggs, or propagules for introduction 
elsewhere. The preferred donor populations for the proposed 
reintroduction of grizzly bears to the NEP occur in south-central 
British Columbia or in the United States, such as the NCDE or GYE. We 
will seek source areas that have a healthy grizzly bear population so 
that removal of grizzly bears would not affect population viability, as 
the capture and removal of grizzly bears would be considered a loss for 
the source population.
    Sourcing NEP grizzly bears from NCDE, GYE, and/or south-central 
British Columbia populations will not negatively affect the donor 
populations for the following reasons. The NCDE and GYE demonstrate 
stable to slightly increasing demographic trends with an estimated 
1,114 grizzly bears in the NCDE and 1,069 bears in the GYE in 2021. 
Further, grizzly bear distribution has expanded well beyond these 
recovery zones (figure 1; USFWS 2022, pp. 63-67). Given the 
demonstrated resilience and recovery trajectory of these populations in 
the United States and Canada, and the limited number of grizzly bears 
that will be translocated (36 grizzly bears to obtain an initial 
population of 25 individual bears), we expect the donor populations in 
the NCDE and the GYE to remain stable and persist despite the 
translocation of these 36 individuals for the NEP. Further, the number 
of individuals necessary for the NEP is minimal in relation to the 
demographic recovery criteria and the annual mortality of the NCDE and 
GYE populations. South-central British Columbia has several GBPUs with 
a sufficient number of bears and conservation status secure enough to 
use as sources. Wells Gray, North Purcells, Central Rockies, and North 
Selkirk GBPUs have a combined total estimated grizzly bear population 
of 1,100, and populations are stable or increasing (Environmental 
Reporting BC, 2020, entire).
    In addition to sourcing NEP grizzly bears from healthy populations, 
we will prioritize source areas that are ecologically similar to the 
NCE area and will prioritize capturing grizzly bears that do not have a 
history of coming into conflict with humans. We will attempt to capture 
grizzly bears that share a similar ecology and food economy to 
potential release areas. Food economy refers to the dominant foods 
available to grizzly bears in a given area. Dominant foods in the NCE 
are expected to be similar to the west side of the NCDE in northwestern 
Montana, adjacent grizzly bear habitat in British Columbia, Canada, and 
grizzly bear habitat in south-central interior British Columbia. In 
these areas, berries are the dominant food source providing calories 
and ultimately fat production necessary for a grizzly bear to survive 
hibernation and reproduce. As a result, these areas will most likely be 
selected for capturing grizzly bears for release into the NEP as 
compared, for example, to areas where grizzly bears rely predominately 
on salmon. However, mortality thresholds in these source populations 
may limit the number of grizzly bears available for the NEP 
reintroduction effort, and other ecosystems, such as the GYE, may be 
considered in those circumstances.
    Lastly, the entities managing the source area must also be willing 
to donate grizzly bears that meet the selection criteria and allow 
trapping of an adequate number of grizzly bears. We will coordinate in 
advance with the relevant authorities managing the potential source 
populations before seeking to capture and translocate grizzly bears. 
All applicable regulatory requirements would be fulfilled prior to 
translocation of grizzly bears.

Likelihood of Population Establishment and Survival

    In our findings for designation of an experimental population, we 
must consider if the reintroduced population will become established 
and survive in the foreseeable future. In this section of the preamble, 
we address the likelihood that populations introduced into the proposed 
NEP area will become established and survive. The term ``foreseeable 
future'' appears in the Act in the statutory definition of ``threatened 
species.'' However, the Act does not define the term ``foreseeable 
future.'' Similarly, our implementing regulations governing the 
establishment of experimental populations under section 10(j) of the 
Act use the term ``foreseeable future'' (50 CFR 17.81(b)(2)) but do not 
define the term. Our implementing regulations at 50 CFR 424.11(d), 
regarding factors for listing, delisting, or reclassifying species, set 
forth a framework for evaluating the foreseeable future on a case-by-
case basis. The term foreseeable future extends only so far into the 
future as we can reasonably determine that both the future threats and 
the species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions as it relates to life history of the species and its 
response to threats. While we use the term ``foreseeable future'' here 
in a different context (to determine the likelihood of experimental 
population establishment and to establish boundaries for identification 
of the experimental population), we apply a similar conceptual 
framework. Our analysis of the foreseeable future uses the best 
scientific and commercial data available and considers the timeframes 
applicable to the relevant effects of release and management of the 
species and to the species' likely responses in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    For the purposes of this proposed rule, we define the foreseeable 
future for our evaluation of the likelihood of survival and 
establishment of this proposed NEP as approximately 30-45 years. We 
selected this timeframe because it captures approximately two to three 
generation intervals for the grizzly bear. A generation interval is the 
approximate time that it takes a female grizzly bear to replace herself 
in the population. Given the longevity of

[[Page 67205]]

grizzly bears, two to three generation intervals represent a time 
period during which a complete turnover of the population would have 
occurred and any positive or adverse changes in the status of the 
population would likely be evident. Additionally, because human-caused 
mortality is the primary threat to the species, this timeframe 
considers the possibility that USFS land management plans, the primary 
regulatory mechanism managing human access to grizzly bear habitat, 
could go through at least one revision.
    In evaluating the likelihood of establishment and survival of this 
proposed NEP in the foreseeable future, we consider the extent to which 
causes of extirpation in the NEP area have been addressed, habitat 
suitability and prey availability within the NEP area, and existing 
scientific and technical expertise and experience with reintroduction 
efforts. As discussed below, we expect that grizzly bears will become 
established during the foreseeable future.
Addressing the Causes of Extirpation in the Experimental Population 
Area
    In the NEP, the northwest fur trade was probably the primary driver 
of rapid grizzly bear decline, while the effects of mining, logging, 
livestock production, agriculture, and development also fragmented and 
degraded grizzly bear habitat and increased conflict-related mortality 
(Almack et al. 1993, p. 3; Rine et al. 2020, pp. 5-13; USFWS 2022, p. 
143). By 1975, grizzly bear populations in the U.S. portion of the NCE 
had been reduced in number and restricted largely to remote areas 
(USFWS 2022, p. 52). Though the NEP currently contains one of the 
largest contiguous blocks of Federal land remaining in the lower 48 
States, diminished grizzly bear numbers from past intensive killing and 
isolation from other grizzly bear populations contributed to the 
extirpation of the historic population and the low likelihood of 
natural recolonization (Lewis 2019, p. 7; USFWS 2022, p. 52; 88 FR 
41560, June 27, 2023).
    Regulation of human-caused mortality has substantially reduced the 
number of grizzly bear mortalities caused by humans. Because road 
access was identified by the IGBC as one of the most imminent threats 
to grizzly bears, the recovery plan recommended that road management be 
given the highest priority for grizzly bear recovery (USFWS 1993, pp. 
21-22; USFWS 2022, p. 52). Land management agencies across grizzly bear 
range have incorporated habitat management guidance from the recovery 
plan (USFWS 1993, entire). In addition to road access, the IGBC has 
identified and implemented conflict prevention measures in the U.S. 
portion of the NCE including sanitation measures, signage about grizzly 
bears and sanitation in the national park and the national forests, and 
funding for education and outreach programs (IGBC 2019, p. 9). North 
Cascades NP and several nonprofit organizations provide resources, 
educational material, and workshops to the public to prevent bear 
conflict in the NCE. Regulating human-caused mortality through habitat 
management and conflict prevention are effective approaches to reduce 
negative effects to grizzly bear populations, as evidenced by 
increasing grizzly bear populations in the lower 48 States (USFWS 2022, 
p. 7). The best available data indicate that, due to ongoing 
conservation efforts in the GYE, NCDE, CYE, and Selkirk Ecosystem, 
grizzly bear population trends in these ecosystems are stable or 
increasing, and range extent has continued to expand (figure 1; USFWS 
2022, p. 208). Given that the intent is to implement similar 
conservation efforts in the NCE Recovery Zone as guided by the IGBC, we 
can expect human-caused mortality and direct and indirect effects of 
human activity for the NEP to be reduced to a level such that these 
threats would not prevent population growth and stability.
Habitat Suitability
    As noted above (in Status of Grizzly Bears in the North Cascades 
Ecosystem), five studies conclude that the U.S. portion of the NCE has 
the habitat resources essential for the maintenance of a grizzly bear 
population (Agee et al. 1989, entire; Almack et al. 1993, entire; 
Gaines et al. 1994, entire; Lyons et al. 2018, entire; Ransom et al. 
2023, entire). The IGBC NCE Subcommittee had two separate research 
teams (Almack et al. 1993, entire; Gaines et al. 1994, entire) evaluate 
an area encompassing more than 10,000 sq mi (25,900 sq km) of the NCE 
for grizzly bear habitat types and foods. The survey area included all 
the National Park complex and most of Mt. Baker-Snoqualmie NF and 
Okanogan-Wenatchee NF. Each team evaluated the survey area for viable 
grizzly bear habitat using common criteria, including the presence, 
abundance, and diversity of grizzly bear foods; habitats of seasonal 
importance and their distribution; and delineation of human activities 
(i.e., roads, habitation, timber harvest, recreation). In addition to 
these criteria, Almack et al. (1993, p. 22) evaluated the study area 
for grizzly bear habitat according to the seven characteristics 
identified by Craighead et al. (1982, p. 10): space, isolation, 
denning, safety, sanitation, vegetation types, and food.
    The results of these surveys were presented to a technical review 
team, which ultimately determined based on the available data, that the 
U.S. portion of the NCE could support a viable grizzly bear population 
of 200 to 400 individuals (Servheen et al. 1991, p. 7). More recent 
work using a suite of spatially explicit, individual-based population 
models that integrate information on habitat selection, human 
activities, and population dynamics estimated a mean carrying capacity 
for grizzly bears in the U.S. portion of the NCE between 250 and 300 
grizzly bears (Lyons et al. 2018, entire). Using the modeling framework 
developed in Lyons et al. (2018, entire), Ransom et al. (2023, entire) 
evaluated grizzly bear habitat quality and carrying capacity across a 
range of future climate scenarios through 2099. The net amount of high-
quality habitat was shown to increase across all modeled future 
scenarios as compared to current conditions. Assuming a home range size 
of 108 sq mi (280 sq km), carrying capacity increased from a baseline 
of 139 female bears under current conditions to 241-289 female bears 
(Ransom et al. 2023, p. 6).
    Almack et al. (1993, pp. 7-10) and Gaines et al. (1994, pp. 534-
356) used Landsat multispectral scanner imagery and field observations 
to produce vegetation cover maps of the study area according to 
vegetation structure (e.g., forest, shrub, and barren rock) and 
community composition. The teams also identified 124 plant species 
known to be grizzly bear foods through an exhaustive review of sighting 
reports, scat analysis, and studies conducted on grizzly bears south of 
Alaska. Analysis of the vegetation maps indicated that 100 of the 124 
identified plant species exist in the U.S portion of the NCE, and every 
vegetation cover type contained some plants that were on the list. The 
teams also mapped ranges of wildlife prey species known to occur in the 
NCE. Salmonid species were more abundant in streams on the western 
slope of the NCE, and ungulates were dispersed relatively evenly 
throughout. These results led both teams to conclude that sufficient 
vegetative grizzly bear foods are readily available in the U.S. portion 
of the NCE, and the occurrence of wildlife prey species can sustain a 
grizzly bear population (Almack et al. 1993, pp. 21-22; Gaines et al. 
1994, p. 544).
    Some developed areas outside of the NCE Recovery Zone but within 
the NEP, such as industrial timber lands,

[[Page 67206]]

agricultural areas, and towns and cities, contain habitat resources for 
grizzly bears. Although these areas may be capable of supporting 
grizzly bears, human influences may make those areas not conducive or 
compatible with persistent grizzly bear occupation. Our zoned 
management approach is intended to allow additional management options 
for grizzly bears that may move into these areas.
Translocation Expertise and Experience
    Similar grizzly bear translocations to those we will conduct for 
the proposed NEP have been conducted in the Cabinet Mountains portion 
of the CYE since the 1990s. Specifically, researchers and managers have 
been augmenting the CYE's small grizzly bear population by introducing 
one to two grizzly bears per year in the period 1990-1994 and from 2005 
to the present. All augmented bears have originated from the NCDE and 
British Columbia. The success of the CYE augmentation pilot program 
prompted additional augmentations between populations in the United 
States. Beginning in 2005, in cooperation with Montana Department of 
Fish, Wildlife and Parks, 10 female bears and 8 male bears were moved 
from the Flathead River to the Cabinet Mountains during 2005-2021 
(Kasworm et al. 2022a, pp. 25-33). DNA analysis from hair corrals has 
been occurring since 2000 and from rub trees since 2012. Based on this 
analysis, 3 females and 2 males are known to have produced at least 15 
first-generation, 23 second-generation, and 4 third-generation 
offspring. Of 22 bears released through 2020, 8 are known to have left 
the target area (1 was recaptured and brought back, 2 returned in the 
same year, and 1 returned a year after leaving), 3 were killed within 4 
months of release, and 1 was killed 16 years after release (Kasworm et 
al. 2022a, p. 26). Annual survival rates of augmentation bears (0.784) 
are lower than native subadult female CYE bears (0.852) (Kasworm et al. 
2022a, pp. 37-38).
    Data collected since the 1988 population estimate now suggest the 
CYE population may have been even smaller than the previously thought 
estimate of 15 or fewer individuals in 1988. However, recent data also 
suggest that the number of grizzly bears in the Cabinet portion of the 
CYE has increased. Current population size for the CYE is estimated to 
be 60-65 bears with approximately half this number in the Cabinet 
Mountains (Kasworm et al. 2022a, p. 42). The population increase in the 
Cabinet Mountains has occurred almost exclusively through the 
augmentation effort and reproduction from those individuals (Kasworm et 
al. 2022a, pp. 31-33). Grizzly bears in the CYE are expected to 
continue to increase in population and resiliency with ongoing 
augmentation efforts (USFWS 2022, pp. 229-242).
    These data demonstrate our technical expertise, experience, and 
success with grizzly bear translocations. We will be relying on the 
same measures for the NEP translocations. Therefore, we anticipate 
grizzly bear translocations in the NEP to be as successful as those 
conducted in these other areas. Based on the available data from other 
grizzly bear populations, we modeled annual population growth rates of 
2 to 4 percent and estimated there are likely to be 46-81 grizzly bears 
(2 percent annual growth) or 62-146 grizzly bears (4 percent annual 
growth) in the NEP area 30-45 years after translocations are initiated.
Summary
    The best available scientific data indicate that the restoration of 
grizzly bears into the NEP is biologically feasible and would promote 
the conservation of the species. Specifically, we anticipate that 
grizzly bears can be successfully reestablished in the NEP for the 
following reasons:
    (1) The reintroduced population will receive ongoing demographic 
support (population augmentation) from source populations to replace 
bears that die or are killed until a population of 25 individuals is 
achieved and to maintain genetic diversity in this population as 
determined by long-term monitoring (NPS and USFWS 2023, p. 33).
    (2) The primary causes of historical grizzly bear extirpation from 
the region (direct killing by humans and habitat loss as a result of 
conversion to agriculture and resource extraction) are now regulated to 
ensure the population will survive and grow (Lewis 2019, pp. 8-9).
    (3) An established IGBC NCE Subcommittee can help guide the 
restoration effort. This subcommittee helps coordinate policy, 
planning, management, and research with the Federal and State agencies 
responsible for grizzly bear recovery and management (IGBC 2019, pp. 9-
10); Tribal governments are also represented on IGBC subcommittees and 
engage as desired.
    (4) Landscape-scale modeling and studies of available habitat and 
food resources indicate the NEP area has the capacity to support a 
self-sustaining population of grizzly bears (Almack et al. 1993, pp. 
21-22; Gaines et al. 1994, p. 544; Lyons et al. 2018, p. 29; Ransom et 
al. 2023, p. 6).
    (5) We have experience in successfully translocating grizzly bears 
in other areas and have established effective protocols (Kasworm et al. 
2007, pp. 1262-1265; Kasworm et al. 2022a, pp. 31-33) that we will 
apply to NEP reintroductions.
    Based on these considerations, we anticipate that the reintroduced 
population of grizzly bears is likely to become established and persist 
in the proposed NEP.

Effects of the Experimental Population on Grizzly Bear Recovery

    Restoring the grizzly bear to the NEP area and establishing the 
associated protective measures and management practices under this 
proposed rule would further the conservation of grizzly bears by 
establishing another population in a portion of the species' historical 
range where the species is presently functionally extirpated. Our 
recovery plan includes a recovery objective to recover grizzly bears in 
all of the ecosystems known to have suitable space and habitat (USFWS 
1993, pp. 15-16). The NEP area contains one of the largest remaining 
areas of high-quality habitat for the grizzly bear in the contiguous 
United States (USFWS 1997, p. 1). Reintroducing grizzly bears into the 
NEP area and establishing a self-sustaining grizzly bear population 
focused on the NCE fulfills an important recovery need for the grizzly 
bear in the contiguous United States.
    We assess species' viability through the lens of the conservation 
biology principles of resiliency, redundancy, and representation 
(collectively known as the ``3Rs'') (USFWS 2016, entire). Resiliency 
describes the ability of the species to withstand stochastic 
disturbance events, which is associated with population size, growth 
rate, and habitat quality. Redundancy is the ability for the species to 
withstand catastrophic events, for which adaptation is unlikely, and is 
associated with the number and distribution of populations. 
Representation is the ability of a species to adapt to changes in the 
environment and is associated with its ecological, genetic, behavioral, 
and morphological diversity. Resiliency of grizzly bear ecosystems is 
measured using both habitat and demographic factors. Despite the 
moderate condition of habitat, without a known population the NCE 
currently has no resiliency, and as a result does not currently 
contribute to redundancy and representation of grizzly bears in the 
contiguous United States (USFWS 2022, p. 10-14). If successful, 
reintroduction in the NCE

[[Page 67207]]

would improve resiliency by reestablishing a population of the species 
within its historical range that is demographically viable. Successful 
reintroduction would also improve redundancy by further reducing the 
likelihood that any one catastrophic event would affect all 
populations. It would also increase the ecological diversity of the 
habitats occupied by the species and improve representation by 
facilitating adaptation to a variety of ecological settings and 
potentially increasing the future genetic diversity of grizzly bears. 
For these reasons, reestablishment of a population of grizzly bears in 
the NCE as a NEP, if implemented and successful, would increase 
resiliency, redundancy, and representation, and hence viability, of the 
currently listed lower 48 States entity.

Actions and Activities in Washington That May Affect Reintroduced 
Grizzly Bears

    Although the proposed NEP area contains a variety of land ownership 
types (see Experimental Population Area, above), it contains large 
blocks of land with limited ongoing human influence, such as remote 
Federal lands (including those managed as designated wilderness), some 
State lands, and lands acquired for conservation by nongovernmental 
organizations. These areas provide sufficient high-quality habitat for 
grizzly bears, and low potential for both displacement and human-bear 
interactions. However, grizzly bears will likely use other lands within 
the NEP, depending on human development and other human activities.
    Primary land uses on lands in Management Zone 1 (see Management 
Zones, above) include protection and conservation of natural and 
cultural resources, non-motorized land-based recreation (hiking, 
climbing, skiing, cycling, camping, hunting), motorized land-based 
recreation (off-highway vehicle and snowmobile riding), water-based 
recreation (boating, fishing), hydropower production, timber harvest, 
mineral extraction, livestock grazing, research, and education. 
Although much of Management Zone 1 is public land, is largely 
unavailable and/or unsuitable for intensive development, and contains 
an abundance of wild ungulates, livestock grazing does occur within the 
zone on public lands, which may increase the potential for mortality of 
grizzly bears via lethal control of depredating bears. Grazing 
allotments make up 17 percent of Management Zone 1; however, only 8 
percent of the grazing allotments are currently active. Most of these 
permits are for grazing cattle, and five allotments allow for sheep 
grazing, all of which are in the southern half of Management Zone 1 
close to Wenatchee and Cle Elum (USDA 2023, entire). Similar land 
management practices in the GYE and NCDE, and the expanding grizzly 
bear populations in those areas, indicate that livestock allotments and 
associated habitat loss are not limiting grizzly bear populations 
(USFWS 2022, p. 124).
    Primary land uses in Management Zone 2 (see Management Zones, 
above) are similar to those in Management Zone 1: Protection and 
conservation of natural and cultural resources, non-motorized and 
motorized land-based recreation, water-based recreation, timber 
harvest, mineral extraction, livestock grazing, research and education. 
As described in Management Zone 1, these activities pose some risk to 
grizzly bears, but will not likely preclude grizzly bear presence in 
Management Zone 2.
    Management Zone 3 (see Management Zones, above) contains mostly 
private land, including developed areas, and areas where agricultural 
and industrial uses predominate. Large areas in this management zone 
may be incompatible with grizzly bear presence due to relatively high 
amounts of private land ownership and associated development and/or 
potential for bears to become involved in conflicts and resultant bear 
mortality. Grizzly bears may still occupy portions of Management Zone 
3, but human activities will limit their presence.

Experimental Population Regulation Requirements

    Our regulations at 50 CFR 17.81(c) include a list of what we should 
provide in regulations designating experimental populations under 
section 10(j) of the Act. We explain what our proposed regulations 
include and provide our rationale for those regulations, below.

Means To Identify the Experimental Population

    Our regulations require that we provide appropriate means to 
identify the experimental population, which may include geographic 
locations, number of individuals to be released, anticipated movements, 
and other information or criteria. The proposed NEP area encompasses 
the entire State of Washington except for the area within and around 
the Selkirk Ecosystem Recovery Zone (figure 3). As discussed below, we 
conclude that, after initial releases, any grizzly bears found in the 
NEP area will, with a high degree of likelihood, have originated from 
and be members of the NEP. However, we recognize that it would not be 
possible for members of the public to determine the origin of any 
individual grizzly bear. Therefore, we propose to use geographic 
location to identify members of the NEP. As such, any grizzly bear 
within the NEP area, regardless of origin, will be treated as part of 
the experimental population. Individual grizzly bears dispersing into 
or out of the experimental population area will assume the status of 
grizzly bears within the geographic area in which they are found. 
However, currently, no population of grizzly bears exists within the 
NEP area, and the likelihood of a grizzly bear moving into the NEP area 
from the nearest population of ESA-listed grizzly bears in the Selkirk 
Ecosystem is small (see Is the Proposed Experimental Population Wholly 
Geographically Separate from Nonexperimental Populations? below).
    We anticipate that eventually some grizzly bears may move between 
portions of the NCE in Canada and the United States (see Is the 
Proposed Experimental Population Wholly Geographically Separate from 
Nonexperimental Populations? below). Any grizzly bears moving from 
Canada to the NEP area will be treated as part of the NEP while in the 
NEP area, with all the associated ESA protections and exceptions of the 
experimental population. Thus, a grizzly bear originating in Canada but 
located in the NEP area in the United States would be managed in 
accordance with the 10(j) rule. Likewise, a bear originating in the NEP 
but located in the British Columbia portion of the ecosystem would be 
managed in accordance with appropriate Canadian regulations.

Is the proposed experimental population wholly geographically separate 
from nonexperimental populations?

    Section 10(j) of the Act requires that an experimental population 
of a listed species be wholly geographically separate from other 
populations of the same listed species. Grizzly bears reintroduced in 
the NEP would be separated from the nearest population of bears in the 
United States, located in the Selkirk Ecosystem. The NEP is 
approximately 100 mi (161 km) to the west of the Selkirk Ecosystem, 
which contains approximately 83 individuals, and the NEP is 75 mi (121 
km) from any verified grizzly bear observations to the west of the 
Selkirk Ecosystem (Proctor et al. 2012, p. 31). The area between the 
two populations also contains significant portions of human-altered 
landscape (e.g., major roads, agricultural

[[Page 67208]]

lands, rural/urban development) or major natural landscape features 
(e.g., Columbia River) that reinforce continued geographic separation. 
Due to the highly fragmented landscape between these areas, as well as 
the distance between these ecosystems, which is beyond the average 
female dispersal distance of 6.1-8.9 miles (9.8-14.3 km) (McLellan and 
Hovey 2001, p. 842; Proctor et al. 2004, p. 1108), we conclude the 
proposed NEP to be wholly separate from all other extant populations of 
grizzly bears in the United States. Dispersal between the NEP and other 
populations or the likelihood of overlap is low; therefore, we do not 
expect natural recolonization of the NEP area could happen on its own.
    As noted above, the Act requires that an experimental population of 
a listed species be wholly geographically separate from other 
populations of the same listed species. In this case, the listed 
species is the grizzly bear in the lower 48 States, and thus the NEP is 
required to be wholly geographically separate only from other 
populations of the ESA-listed species, that is, other populations 
within the United States. However, the NEP is also currently separated 
from any known grizzly bear populations in Canada, which are not part 
of the listed species. Connectivity from the east in Canada is unlikely 
as the nearest population is over 100 km across the heavily human-
settled Okanagan Valley (North Cascades Grizzly Bear Recovery Team 
2004, p. 7, McLellan et al. 2017, p. 2).
    The closest GBPUs to the north include the Canadian North Cascades 
GBPU (adjacent to the U.S. portion of the NCE), estimated in 2018 to 
have 6 grizzly bears, and the Stein-Nahatlatch GBPU (37 km from NCE), 
estimated to have 22 grizzly bears (Environmental Reporting B.C. 2020, 
p. 13). Both units are designated as M1, the highest level of 
conservation concern, according to British Columbia's conservation 
ranking assessment (Morgan et al. 2020, pp. 19-24) and are designated 
as ``Critically Endangered'' by the IUCN Red list (McLellan et al. 
2017, p. 2). While the Stein-Nahatlatch GBPU is within the dispersal 
distance of both male (29.9-41.9 km) and female (9.8-14.3 km) grizzly 
bears (McLellan and Hovey 2001, p. 842; Proctor et al. 2004, p. 1108) 
to the North Cascades GBPU, only the northern half of the Stein 
Nahatlatch GBPU is occupied by grizzly bears (Apps et al. 2008, p. 25; 
Apps et al. 2014, p. 30). The distance between the North Cascades GBPU 
and the occupied portion of the Stein-Nahatlatch GBPU is significant 
and consists of the large Fraser River valley and canyon, the heavily 
travelled Trans-Canada Highway, two railways, human settlements, and 
other developments (USFWS 2022, pp. 321-324). Therefore, dispersal of 
grizzly bears from the Stein-Nahatlatch GBPU to the NEP is unlikely. As 
discussed above, restoring a grizzly bear population in the Canadian 
portion of the NCE through augmentation is under consideration. Should 
augmentation efforts occur in British Columbia, some grizzly bears 
reintroduced into the Canadian portion of the ecosystem may likely move 
into the proposed NEP area in the United States, either as a transient 
that returns to Canada or that ultimately remains in the United States.
    A restored population of grizzly bears in British Columbia would 
not affect the designation of a section 10(j) experimental population 
of grizzly bear listed in the United States because the ``wholly 
geographic'' separation requirement does not apply. For this reason, we 
also propose that, upon finalization of the NEP (i.e., on the effective 
date of the final 10(j) rule), any bears entering the NEP area from 
Canada would be managed under the final 10(j) rule even if we have not 
yet implemented the NEP introduction. This would include any of the six 
current bears in the Canadian portion of the NCE and any bears 
reintroduced by Canada that travel into the U.S. portion of the NCE 
before we implement reintroduction of grizzly bears. In other words, if 
we determine to reintroduce bears to the U.S. portion of the NCE with a 
final 10(j) rule, but we are not able to implement that reintroduction 
before grizzly bears are reintroduced in the Canadian portion of the 
NCE and travel into the NEP area, any grizzly bears entering the NEP 
from Canada would still be managed pursuant to the 10(j) rule, assuming 
it is made final and effective.

Is the experimental population essential to the continued existence of 
the species in the wild?

    When we establish experimental populations under section 10(j) of 
the Act, we must determine whether such a population is essential to 
the continued existence of the species in the wild. This determination 
is based solely on the best scientific and commercial data available. 
Our regulations state that an experimental population is considered 
essential if its loss would be likely to appreciably reduce the 
likelihood of survival of that species in the wild (50 CFR 17.80(b)). 
All other populations are considered nonessential. Although the 
experimental population in the U.S. portion of the NCE will contribute 
to the recovery of the grizzly bear in the United States, several 
factors suggest the restored population is not essential to the grizzly 
bear's continued existence in the wild:
    (1) Approximately 2,000 grizzly bears exist in other ecosystems in 
the contiguous United States that are intensively monitored and managed 
(USFWS 2022, p. 61, see Historical and Current Range and Grizzly Bear 
Ecosystems and Recovery Zones;
    (2) We are proposing to capture and translocate a relatively small 
number of grizzly bears (up to 5-7 per year) from populations that are 
demographically healthy and therefore will not be measurably affected 
by this removal (see Effects on Wild Populations);
    (3) The experimental population is not expected to provide 
demographic support to the existing grizzly bear populations in the 
contiguous United States due to geographic distance and existing 
barriers to dispersal (see Status of Grizzly Bears in the North 
Cascades Ecosystem); and
    (4) The experimental population will be established from extant 
grizzly bear populations (see Effects on Wild Populations) and 
therefore will not possess any unique genetic or adaptive traits that 
are critical to the survival of the species.
    For these reasons, the loss of the experimental population would 
not appreciably reduce the likelihood of survival of that species in 
the wild. Therefore, as required by 50 CFR 17.81(c)(2), we find that 
the proposed experimental population is not essential to the continued 
existence of the species in the wild, and we propose to designate the 
experimental population in the U.S. portion of the NCE as an NEP.

Management Restrictions, Protective Measures, and Other Special 
Management

    Federal, State, and Tribal authorities will manage the reintroduced 
grizzly bears in the NEP. These entities will collaborate on 
monitoring, coordination with landowners and land managers, public 
awareness, and other tasks necessary to ensure successful management of 
the NEP consistent with a USFWS-partner agency MOU specific to 
implementing the 10(j) rule. Specific management considerations related 
to the experimental population, including prohibitions and exceptions 
involving the taking of individual animals, are addressed below.
    Section 9 of the Act prohibits various actions regarding species 
listed as endangered, which may be applied as part of protective 
regulations for

[[Page 67209]]

experimental populations. Section 9 prohibitions include among other 
things prohibition against the import or export of species, 
restrictions on possession, sale, and transport (whether commercial or 
otherwise), and the prohibition against ``take'' of any such species. 
Section 3(19) of the Act defines ``take'' as ``to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to 
engage in any such conduct.'' Experimental population rules may contain 
specific prohibitions and exceptions, including regarding take; these 
rules help the reintroduction and management of an experimental 
population to be compatible with most routine human activities in the 
expected reestablishment area. The proposed prohibitions and exceptions 
for grizzly bears in the NEP area are as follows:
    Defense of life--Grizzly bears in the NEP may be taken in self-
defense or in defense of others, based on a good-faith belief that the 
actions are necessary to protect any individual from bodily harm.
    Deterrence--Livestock owners, beekeepers, orchardists, farmers, or 
other individuals are authorized to conduct deterrence of grizzly bears 
for the purposes of avoiding human-bear conflicts or to discourage 
bears from using areas near homes and other human-occupied areas. 
Individuals may deter grizzly bears away from the immediate vicinity 
200 yards (yd) (182 meters (m)) of a human-occupied residence or 
potential conflict area, such as a barn, livestock corral, chicken 
coop, grain bin, or schoolyard. Once bears have moved beyond the 
immediate vicinity 200 yd (182 m), hazing is unlikely to be effective 
and should cease. Any deterrence must not cause lasting bodily injury 
or death to the grizzly bear. Any person who deters a grizzly bear must 
use discretion and act safely and responsibly in confronting nuisance 
grizzly bears. The USFWS provides guidelines for safe and responsible 
hazing of grizzly bears in the USFWS Grizzly Bear Hazing Guidelines 
(USFWS 2020, entire).
    Incidental take--``Incidental take'' is take that is incidental to, 
and not the purpose of, the carrying out of an otherwise lawful 
activity; it must be unintentional and not due to negligent conduct. 
Individuals will not be in violation of the Act for taking a grizzly 
bear of the NEP, provided: (1) the take is incidental to, and not the 
purpose of, an otherwise lawful activity; (2) they promptly report the 
take to the USFWS; and (3) if the take occurs on National Forest System 
lands within the NEP area, that the USFS has maintained its ``no net-
loss of core'' approach and implemented food storage restrictions 
throughout Management Zone 1. To avoid illegally shooting a grizzly 
bear, persons lawfully engaged in hunting and shooting activities must 
correctly identify their target before shooting. The act of taking a 
grizzly bear that is wrongfully identified as another species is not 
considered incidental take and may be referred to appropriate 
authorities for prosecution.
    The ``no net-loss of core'' approach is described above under 
Threats. Given the importance of maintaining core habitats and 
restricting human disturbance in these habitats for grizzly bear 
population establishment and persistence, we are proposing that the 
exception to the prohibition against incidental take on lands managed 
by the USFS as National Forest System lands under this 10(j) rule is 
contingent upon maintenance and implementation of that longstanding 
approach within the NCE Recovery Zone. This exception would apply to 
lands managed by the USFS as National Forest System lands throughout 
the NEP, contingent on the continued use of the ``no-net-loss-of-core'' 
approach on USFS lands in Management Zone 1. We are currently 
coordinating with the USFS to memorialize the ``no-net-loss of core'' 
approach for the U.S. portion of the NCE in an updated MOU.
    Research, recovery actions, and relocation--If we adopt the 10(j) 
rule as proposed, any employee or agent of the USFWS, and any employee 
or agent of another Federal, State, or Tribal entity who, as part of 
their official duties, normally handles large carnivores and is trained 
and/or experienced in immobilizing, marking, and handling grizzly bears 
(which we define as a Federal, State, or Tribal ``authority''), may, 
when acting in the course of official duties, take a grizzly bear in 
the wild in the NEP area without a permit if such action is necessary 
for scientific purposes, to aid a law enforcement investigation, to 
euthanize an injured individual, to dispose of or salvage a dead 
individual for scientific purposes, or to relocate a grizzly bear to 
enhance conservation, including to avoid conflict with human 
activities, to prevent a grizzly bear from becoming habituated to 
humans, to improve grizzly bear survival and recovery prospects or for 
genetic purposes, or to relocate nontarget grizzly bears that have been 
incidentally trapped. Relocation sites will be identified in remote 
areas away from homes, developed areas, and concentrated human use. 
When a grizzly bear is captured, the employee or agent will consult 
with the appropriate land management agency to determine a relocation 
site that is most suitable for the bear, considering age/sex of the 
bear, conflict history, and current human use at available relocation 
sites. Such taking must be coordinated with the USFWS. Non-USFWS or 
other non-authorized personnel must acquire a permit from the USFWS for 
these activities.
    Removal of grizzly bears involved in conflict--Grizzly bears can 
cause significant property damage, including depredation, or pose a 
threat to human safety if they become food conditioned, i.e., if they 
have learned to associate human presence with anthropogenic food 
because of repeatedly being rewarded with food without consequence 
(Beausoleil et al. 2022, p. 96). When it is not reasonably possible to 
eliminate such threat by securing attractants, less-than-lethal 
deterrence, or relocation, we propose to allow lethal removal of a 
grizzly bear involved in conflict under certain conditions. Lethal 
removal of grizzly bears involved in conflict in Management Zone 1 may 
be conducted by authorized Federal, State, or Tribal authorities in 
accordance with Service-approved interagency guidelines.
    To become an ``authorized'' Federal, State, or Tribal authority, we 
must have a written agreement addressing grizzly bear management, such 
as: an MOU specific to implementing this proposed 10(j) rule; a 
conference opinion issued by the USFWS to a Federal agency pursuant to 
section 7(a)(4) of the Act; an agreement under section 6 of the Act as 
described in 50 CFR 17.31 for State game and fish agencies with 
authority to manage grizzly bears; or a valid permit issued by the 
USFWS pursuant to Sec.  17.32. In addition, conditioned lethal take for 
livestock owners may be authorized by the USFWS after a confirmed 
livestock depredation in Management Zone 2. Management Zone 3 will also 
allow conditioned lethal take authorization for landowners if the USFWS 
or an authorized agency determines that grizzly bears present a 
demonstrable and ongoing threat to human safety or to lawfully present 
livestock, domestic animals, crops, beehives, or other property, and 
that it is not reasonably possible to otherwise eliminate the threat by 
live-capturing and releasing the grizzly bear unharmed.
Management Zone Proposed Management Actions
    Management Zone 1 (see Management Zones above) proposed management 
actions include: take of bears in self-defense or defense of others; 
exemption of take resulting from otherwise lawful activities (e.g., 
timber harvest, road

[[Page 67210]]

construction, recreation); intentional deterrence of bears for the 
purposes of avoiding human-bear conflict and that does not cause harm 
or death; exemption of take associated with research and recovery 
actions; relocation or deterrence of bears by Federal, State, or Tribal 
authorities for recovery purposes; and lethal removal by Federal, 
State, or Tribal authorities of grizzly bears involved in conflict if a 
``conflict bear'' determination has been made according to Service-
approved interagency guidelines that it is not reasonably possible to 
eliminate the threat through nonlethal means.
    Management Zone 2 (see Management Zones above) proposed management 
actions include all actions authorized for Management Zone 1, plus: the 
ability for Federal, State, or Tribal authorities to relocate bears for 
single-conflict incidents and the ability for USFWS to issue written 
time-limited conditioned lethal take authorization to a livestock owner 
if a depredation of livestock has been confirmed.
    Management Zone 3 (see Management Zones above) proposed management 
actions include all actions authorized for Management Zones 1 and 2, 
plus: the ability for Federal, State, or Tribal authorities to relocate 
any bear as a preemptive action to prevent conflict and the ability for 
USFWS or an authorized agency to issue written time-limited conditioned 
lethal take authorization to a private landowner to kill a bear 
presenting an ongoing threat to human safety, livestock, or other 
property (e.g., compost, chickens, beehives) if there is a demonstrable 
and ongoing threat and when it is not reasonably possible to eliminate 
the threat through nonlethal means.
Prohibited Activities
    The proposed 10(j) rule would prohibit individuals to possess, 
sell, deliver, carry, transport, ship, import, or export, by any means 
whatsoever, any grizzly bear or part thereof from the experimental 
population taken in violation of the 10(j) rule or in violation of 
applicable Tribal or State laws or regulations or the Act. The proposed 
10(j) rule would also make it unlawful for individuals to attempt to 
commit, solicit another to commit, or cause to be committed, any take 
of the grizzly bear, except as expressly allowed in the 10(j) rule.
Public Awareness and Cooperation
    Coinciding with the November 14, 2022, publication in the Federal 
Register of the notice of intent to prepare an EIS (87 FR 68190), we 
issued a joint news release with the NPS announcing the EIS process and 
proposed section 10(j) rulemaking and seeking comments as part of the 
EIS scoping phase. The news release was shared directly with counties 
and municipalities in the ecosystem, nongovernmental organizations, and 
other stakeholders. During the 30-day scoping phase, four informational 
virtual public meetings were held, inviting the public to ask questions 
about the EIS process, section 10(j) experimental populations, and 
grizzly bear recovery. Representatives from the Service and NPS also 
participated in numerous news media interviews to raise awareness about 
the EIS process, section 10(j) rulemaking, and associated public 
comment period.
    Similar techniques will be used during the comment period for the 
proposed 10(j) rule and DEIS to increase awareness and engage the 
public, including the distribution of a news release, virtual and in-
person public meetings, media features, and the direct sharing of 
information. If the USFWS decides to designate grizzly bears 
reintroduced to the U.S. portion of the NCE as a nonexperimental 
population with the 10(j) rule, further public outreach and education 
will occur, both in the media and in the community. This may take the 
form of educational programs in local communities on the topics of bear 
conflict prevention and the management tools available under the 10(j) 
rule. Direct outreach and briefings to local governments and community 
organizations are also anticipated. Many different Federal, State, 
Tribal, and local government agencies and organizations in the State of 
Washington have wildlife education programs that can be partnered with 
and supported.
Interagency Consultation
    As stated above under Statutory and Regulatory Framework, for 
purposes of section 7(a)(2) of the Act, our section 10(j) regulations 
(50 CFR 17.83) provide that NEPs are treated as species proposed for 
listing under the Act except on NPS and NWRS lands, where they are 
treated as a threatened species for the purposes of section 7(a)(2) 
consultations. Therefore, Federal agency actions not affecting NPS 
lands or NWRS lands would be required only to confer with the USFWS 
under the terms of section 7(a)(4) of the ESA. On the other hand, 
Federal agency actions affecting grizzly bears within the experimental 
population area on NPS lands or NWRS lands would be required to consult 
with the USFWS under section 7(a)(2) of the ESA. The provisions of 
section 7(a)(1) of the ESA would still apply within the NEP area.

Review and Evaluation of the Success or Failure of the NEP

Monitoring and Evaluation
    All translocated grizzly bears will be fitted with global 
positioning system (GPS) collars prior to release to aid in monitoring 
habitat use and spatial distribution, and tissue samples will be 
collected to establish baseline information for genetic monitoring 
purposes. Monitoring of the releases and subsequent population 
monitoring will follow radio collaring and genetic monitoring 
techniques used in the Cabinet Mountains grizzly bear augmentation 
effort (Kasworm et al. 2022a, pp. 9-16). Periodic recaptures will be 
conducted to maintain a GPS-collared sample of the population. Other 
monitoring is likely to include habitat and resource selection, 
reproductive success and rate of population growth, genetic composition 
of the population, and instances of conflicts between humans and 
grizzly bears. Radio collars that communicate locations from satellites 
to biologists via periodic downloads will limit the need for aircraft 
monitoring. However, periodic use of fixed-wing aircraft will be 
necessary to determine reproductive status. Camera stations and hair-
snagging corrals will also be established in remote locations to 
monitor grizzly bear presence and gather genetic information that could 
also be used to assess reproductive contributions and monitor genetic 
diversity.
    The USFWS will monitor the status of grizzly bears in the NEP 
annually and will evaluate the status of grizzly bears in the NEP in 
conjunction with our species status assessments and status reviews of 
the grizzly bear. Evaluations in our status reviews will include, but 
not be limited to: a review of management issues; grizzly bear 
movements; demographic rates; causes of mortality; project costs; and 
progress toward establishing a self-sustaining population.
Adaptive Management
    We anticipate that our management will be adaptive, in that we will 
incorporate new information during the restoration effort. If 
modifications to grizzly bear monitoring and management are needed, we 
will coordinate closely with NPS, WDFW, USFS, Tribal Governments, and 
others to ensure progress toward achieving recovery goals while 
concurrently minimizing human-grizzly bear conflicts in the NEP area.

[[Page 67211]]

Exit Strategy
    In light of the positive 90-day finding on two petitions to delist 
grizzly bears in the NCDE and the GYE (see Previous Federal Actions, 
above), we acknowledge that the boundaries of the listed entity may 
change in the future. We anticipate leaving the experimental population 
designation in place until all grizzly bears have been delisted due to 
recovery, regardless of whether the boundaries of the listed entity 
change. However, if grizzly bears experience unexpectedly high natural 
mortality, if donor bears are not available, or if we conclude that we 
and our partners have insufficient funding for an extended period to 
support management of the NEP, we may consider ending the releases and 
repealing the NEP designation. This would be done only after close 
coordination with partners and a new public process where we would 
propose to repeal the NEP before making any decisions to exit the 
restoration program.

Consultation With State, Local, Tribal, Federal, and Affected Private 
Landowners

    In April 2018, the USFWS reached out to more than 90 agencies and 
organizations, including Federal, State, and local elected officials; 
federally recognized Tribes in Washington and Montana; natural resource 
and land management agencies; interest groups (including those 
representing timber, ranching or farming, and recreation interests), 
and environmental and conservation organizations to discuss a potential 
section 10(j) experimental population rulemaking and a zoned management 
approach for possible grizzly bear restoration efforts in the NCE. 
Between May and July 2018, the USFWS held more than 30 meetings with 
representatives from 49 different agencies and organizations for 
receiving feedback on the management framework and the zoned management 
approach.
    In addition, as noted above, the NPS and USFWS provided an 
opportunity for the public to submit scoping comments on the potential 
inclusion of a 10(j) rule as part of alternatives to be described 
through the EIS process. Public scoping meetings were held in November 
2022, and the public scoping comment period concluded in December 2022. 
Feedback from the 2018 outreach meetings and the 2022 EIS scoping 
period specific to the 10(j) rule were used in the development of this 
proposed rule.

Findings

    Based on the best scientific information available, as described 
above and in accordance with 50 CFR 17.81, we find that releasing 
grizzly bears into the NCE would further the conservation of the 
species, but that this population is not essential to the continued 
existence of the species in the wild.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866, 13563, and 
14094

    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. We have developed this proposed rule in a 
manner consistent with these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this rulemaking action is significant.
    The North Cascades Ecosystem Grizzly Bear Restoration Plan/DEIS 
analyzes the potential impacts of restoration of grizzly bears to the 
North Cascades including potential impacts to visitor use and 
recreational experience (NPS and USFWS 2023, pp. 110-123), human safety 
(NPS and USFWS 2023, pp. 124-132), and socioeconomic effects of the 
restoration of grizzly bear on various sectors in a seven-county area 
(including gateway communities) (NPS and USFWS 2023, pp. 133-148). The 
DEIS evaluation includes the impacts of restoration of grizzly bear as 
managed under this proposed section 10(j) rule, which is the agencies' 
preferred alternative (NPS and USFWS 2023, pp. 35-46). As stated above 
under Information Requested, the DEIS is available for comment from the 
NPS,
    The DEIS evaluates impacts to visitor use and recreational use 
experience qualitatively. Recreational use of Federal land in the NCE 
is estimated to be more than 8 million recreation visitor-days per 
year, most of which is associated with dispersed recreation rather than 
developed campgrounds or wilderness areas (NPS and USFWS 2023, p. 111). 
Potential beneficial and adverse impacts on visitor use and experience 
could result from the initial restoration of grizzly bears in the NCE, 
and visitation could increase or decrease depending on visitor interest 
in or aversion to them (NPS and USFWS 2023, p. 119). Benefits would be 
derived from the restoration of the grizzly bear population and the 
opportunity provided to visitors to see grizzly bears in their natural 
setting. Adverse impacts would include the potential for temporary 
closures lasting from a few hours to a few days, requiring some 
visitors to adjust their stay to avoid closed areas, and noise 
associated with helicopter operations. Compared to current conditions, 
these impacts, in addition to past, present, and reasonably foreseeable 
planned actions, would be beneficial. Restoration under this proposed 
rule would allow for greater wildlife management flexibility that would 
provide an additional increment of benefit to the visitor use and 
recreational experience by minimizing negative human-bear conflicts 
(NPS and USFWS 2023, pp. 123-124).
    For potential impacts to public and employee safety, the DEIS 
qualitatively addresses risks associated with human-grizzly bear 
encounters related to employees working to restore and manage bears, as 
well as risks to visitors and residents in and around the NCE (NPS and 
USFWS 2023, p. 127). Overall, restoration of grizzly bears would have 
adverse impacts on public and employee safety in terms of potential 
conflicts with grizzly bears. However, the probability of adverse 
impacts occurring would be low for a variety of reasons. Restoration 
would begin in remote areas and occur in low density, and even as 
density increases as the target population is achieved, existing safety 
and related protocols would be implemented, such as food storage 
restrictions, general bear safety education, temporary public closures, 
and management protocols for the capture and release of bears. These 
tools have been demonstrated to be effective in reducing impacts to 
public safety, even in areas with a much higher density of grizzly 
bears than projected for the ultimate population targeted in this 
proposal (NPS and USFWS 2023, pp. 130-131). With the implementation of 
this proposed section 10(j) rule, additional management measures would 
be available to authorized agencies to use lethal and nonlethal 
measures to reduce impacts from grizzly bears that move outside the 
ecosystem, or to mitigate human-grizzly bear conflicts,

[[Page 67212]]

including those associated with public safety. These management actions 
could further reduce the potential for human-bear conflicts and would 
contribute a reduced potential for adverse impacts on visitor and 
employee safety (NPS and USFWS 2023, p. 133).
    The DEIS evaluates the socioeconomic impacts of the proposed 
restoration considering a seven-county region of influence (Chelan, 
King, Kittitas, Okanogan, Skagit, Snohomish, and Whatcom Counties) (NPS 
and USFWS 2023, p. 133), qualitatively assessing potential impacts to 
tourism, agricultural and livestock grazing, and timber harvest and 
mining, as well as the effects to employment in each of these 
categories. For tourism, occasional localized wilderness closures for 
public safety during release activities could occur, but these closures 
would be site-specific and short (hours to days). These closures are 
not expected to substantially affect tour operators or recreational 
visitors, including hunters or horseback riders. Any area closures are 
anticipated to be infrequent and small in scope; therefore, revenue and 
employment associated with tourism, including hunting, horseback 
riding, hiking, sightseeing, and tour operations, would not be 
noticeably affected as a result of implementing restoration under this 
proposed section 10(j) rule. Collaboration with potential user groups 
and public outreach and education would likely mitigate many potential 
tourism-related concerns as wilderness users become accustomed to 
backcountry practices that reduce chances for negative interactions 
with grizzly bears. Therefore, potential adverse tourism-related 
impacts would be mitigated to the extent that no adverse impacts on 
tourism are expected (NPS and USFWS 2023, p. 148).
    Agriculture and livestock grazing operations could experience 
reduced employment or increased costs of operating cattle ranching 
operations. Direct impacts may occur through grizzly bear depredation 
of cattle or sheep. Impacts are somewhat less likely to occur given 
that no staging or release areas would be near active grazing 
allotments. Specific descriptions of the effects of potential livestock 
depredation are described in the DEIS on pages 143-146 and further 
analyzed in Regulatory Flexibility Act (5 U.S.C. 601 et seq.), below. 
Impacts on timber harvesting and mining from restoration of grizzly 
bears are anticipated to be intermittent and short term, lasting 
minutes to hours, as workers become aware of grizzly bear presence in 
the area, and grizzly bears avoid areas of active timber harvest and 
mining (NPS and USFWS, p. 148).
    As to employment, restoration of bears could result in impacts on 
employment related to tourism (both positive and negative), 
agriculture, livestock grazing, mining, timber harvest, wildlife 
management, or Federal land management. Wildlife management and Federal 
land management may experience increases in employment resulting from 
implementation of this proposed section 10(j) rule as wildlife and 
Federal land managers capture and release grizzly bears and educate the 
public.
    As displayed in the DEIS, implementation of a proposed section 
10(j) designation is expected to reduce the potential for any adverse 
socioeconomic impacts as compared with other proposed restoration 
alternatives. The proposed section 10(j) designation allows for 
additional management measures for lethal and nonlethal actions to 
minimize and prevent human-grizzly bear conflicts. Additionally, the 
section 10(j) designation eliminates the requirement for Federal 
agencies to consult with the Service under section 7(a)(2) of the ESA 
(except on National Park System or National Wildlife Refuge System 
lands) for livestock grazing, timber harvest, and mining operations on 
Federal lands, and under this proposed section 10(j) rule, incidental 
take of grizzly bear could occur on USFS lands within the NEP area 
under certain circumstances. As a result, implementation of the 
proposed section 10(j) designation for grizzly bears would reduce the 
potential costs and operational constraints that may have temporarily 
affected regular business operations from the presence of grizzly bear.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any 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. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. We certify that this proposed rule would not have a 
significant economic effect on a substantial number of small entities. 
The following discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
considered the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the impacts of a rule must be both significant and 
substantial to prevent certification of the rule under the Regulatory 
Flexibility Act and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed rule, but the per-entity economic impact is 
not significant, the USFWS may certify. Likewise, if the per-entity 
economic impact is likely to be significant, but the number of affected 
entities is not substantial, the USFWS may also certify.
    Because of the regulatory flexibility provided by designating an 
NEP in the NCE, we expect this rule not to have significant effects on 
any activities within Federal lands within the experimental population 
area. In regard to section 7(a)(2) of the Act, except on National Park 
Service and National Wildlife Refuge System lands, the population is 
treated as proposed for listing, and Federal action agencies are not 
required to consult on their activities. Section 7(a)(4) of the Act

[[Page 67213]]

requires Federal agencies to confer (rather than consult) with the 
Service on actions that are likely to jeopardize the continued 
existence of a proposed species. However, because a nonessential 
experimental population is, by definition, not essential to the 
survival of the species, conferencing is unlikely to be required within 
the NEP. State or private entities pursuing actions with a Federal 
nexus, such as for grazing permits, timber harvest, or mining claims on 
USFS lands, will experience no consultation requirements under section 
7(a)(2) of the Act (NPS and USFWS 2023, p. 148). In addition, section 
7(a)(1) of the ESA requires Federal agencies to use their authorities 
to carry out programs to further the conservation of listed species, 
which would apply on any lands within the experimental population area. 
As a result, and in accordance with these regulations, if we adopt this 
rule as proposed, some modifications to the Federal actions within the 
experimental population area may occur to benefit the grizzly bear, but 
we do not expect projects on Federal lands to be precluded or likely to 
be substantially modified as a result of these regulations.
    However, this proposed rule, if finalized, would govern the 
management of reintroduced grizzly bears in the NCE. The presence of 
reintroduced grizzly bears has the potential to affect small entities 
involved in ranching and livestock production, particularly beef cattle 
ranching (business activity code North American Industry Classification 
System (NAICS) 112111) and sheep farming (business activity code NAICS 
112410).
    Small businesses involved in ranching and livestock production may 
be affected by grizzly bears depredating on domestic animals, 
particularly beef cattle and sheep. Direct effects to small businesses 
could include forgone calf or cow sales at auctions due to 
depredations. Indirect effects could include impacts such as increased 
ranch operation costs for surveillance and oversight of the herd. 
However, as detailed further below, we do not foresee a significant 
economic impact to a substantial number of small entities in the 
ranching and livestock production sector; in addition, the proposed 
rule designating the grizzly bears as experimental with this special 
management rule under section 10(j) is in part designed to help 
minimize the potential for conflicts that could increase costs to 
ranching and livestock production.
    The small size standard for beef cattle farming entities and sheep 
farms as defined by the Small Business Administration are those 
entities with less than $2.5 million for beef cattle ranching and $3.5 
million for sheep farming in average annual receipts (https://www.sba.gov/document/support-table-size-standards). As of 2017, there 
were approximately 9,088 cattle and calf farms and approximately 1,930 
sheep farms in Washington (USDA 2019, p. 181). Of these, 13 beef cattle 
farms and zero sheep farms had average annual receipts above the Small 
Business Administration thresholds for small entities (USDA 2019, p. 
181). Therefore, we find the vast majority of cattle ranches and sheep 
farms in the State of Washington potentially affected by the 
reintroduction and management of grizzly bears to be small entities.
    Because the reintroduction of grizzly bears will primarily occur 
only on Federal lands within Management Zone 1, the DEIS evaluates a 
seven-county region of influence (ROI) that includes Chelan, King, 
Kittitas, Okanogan, Skagit, Snohomish, and Whatcom Counties. While 
these counties contain several larger cities, including Bellingham, 
Everett, Seattle, and Wenatchee, the NCE is located in a predominantly 
rural area away from large urban areas. The area that covers the NCE 
makes up approximately 52 percent of the total land area of the ROI 
(NPS and USFWS, p. 133). Approximately 25 percent of farms in the State 
of Washington occur in the ROI (NPS and USFWS, p. 138). Therefore, we 
estimate approximately 2,272 cattle and calf farms and 483 sheep farms 
in the ROI. The actual number of farms that may be affected is far less 
than 25 percent because the grizzly bear release areas primarily occur 
on Federal lands and do not overlap with active grazing allotments, the 
ROI includes several counties that extend beyond the borders of the NCE 
Recovery Zone, and the farms occur in areas where we do not expect 
grizzly bear occupancy due to low habitat suitability (NPS and USFWS, 
p. 145).
    As of 2015, 773,788 acres of land were actively under permit for 
cattle and sheep grazing on Okanogan-Wenatchee National Forest, with 
320,044 acres occurring within the NCE. Most of the acreage permitted 
on Okanogan-Wenatchee National Forest was for cattle grazing. There are 
no grazing permits on Mt. Baker-Snoqualmie National Forest. The 2015 
Okanogan-Wenatchee Allotment Information Sheet reports that there were 
4,151 animal unit months (AUMs) of permitted sheep and 47,686 AUMS of 
permitted cattle grazing on national forests within the NCE. In 2015, 
4,100 ewe/lamb pairs were grazing, and 4,552 cow/calf pairs were 
authorized to graze during the summer on national forest service 
allotments within the NCE. No livestock were present within the 
national park complex as of 2015 (NPS and USFWS, p. 138).
    We assessed whether this proposed rule would have a significant 
economic impact by estimating the annual number of depredations we 
expect to occur when the grizzly bear population will be at the 
population goal of 200 (which is not expected for several decades). 
Grizzly bear depredation is highly variable between and among years. 
Estimates of potential grizzly bear depredation were generated using 
grizzly bear population estimates for the NCDE and livestock losses of 
cattle and sheep, generating an estimated annual rate of livestock loss 
per grizzly bear of 0.093 cattle and 0.019 sheep. When these rates were 
applied to an NCE grizzly bear population of 25, annual livestock loss 
estimates were 2 to 3 cattle and up to 1 sheep. When these rates were 
applied to an NCE grizzly bear population goal of 200, annual livestock 
loss estimates were 18 to 19 cattle and 3 to 4 sheep. Rates developed 
with these data may represent overestimates of expected livestock loss 
in restored populations of grizzly bears in the NCE if grizzly bears do 
not occupy private lands where more livestock may be present.
    It is probable that the actual number of cattle and sheep killed 
per year would fall within the range of the two estimates (1-19 cattle 
per year and 1-4 sheep per year). The number would likely fall on the 
lower end of the range because of a number of factors, including 
juxtaposition of grizzly bear habitat and grazing; type of grazing 
operation; distribution and abundance of other predators; and abundance 
and distribution of prey. Even with this uncertainty, the total number 
of cattle and sheep depredated within the NCE would result in minimal, 
adverse impacts on agriculture and the livestock grazing industry, 
contributing to less than 0.01% of the total number of cattle and sheep 
in the ROI.
    To the extent that some cattle farms will most likely not be 
impacted by grizzly bear recovery because they are not located in 
suitable habitat but are included in the total estimate of potentially 
affected farms, this estimate could understate the percentage of 
livestock potentially affected. However, for other reasons, this 
estimate could very well overstate the percentage of farms affected as 
we recognize that annual depredation events have not

[[Page 67214]]

been, and may not be, uniformly distributed across the farms operating 
in occupied grizzly bear range. Rather, grizzly bears seem to 
concentrate in particular areas where concentrated attractants occur 
within productive grizzly bear habitat. The extent of depredation would 
be most influenced by the extent that livestock overlap with grizzly 
bears, the size of the grazing operation, and the presence of 
attractants. Additionally, these impacts are somewhat less likely to 
occur given that no staging or release areas would overlap active 
grazing allotments.
    As of 2017, 4,100 ewe/lamb pairs and 4,552 cow/calf pairs are 
authorized to graze during the summer on USFS allotments within the 
NCE. Few livestock are present within the central portion of the NCE 
because it is a national park. Because only approximately 3 to 7 bears 
per year would initially be released into the NCE, it is highly 
unlikely that depredation would occur during the primary phase; 
however, depredation is likely to increase in frequency as the 
population grows over time during the adaptive management phase.
    Based on a weighted average market value for a depredated cow/calf 
of $1,021.33 ($2022) and for a depredated sheep of $311.96 ($2022), a 
total estimated depredation of 1-19 cattle per year and 1-4 sheep per 
year could result in a loss of revenue at auction ranging from 
$1,021.33 to $19,405.29 for cattle and $311.96 to $1,247.84 for sheep.
    This proposed rule is assessed as alternative C in our DEIS, the 
preferred alternative for restoring grizzly bears to the North Cascades 
Ecosystem. Under this alternative, the designation of an experimental 
population with the special regulations of this proposed rule would 
allow several forms of take of grizzly bears on Federal and non-Federal 
land to address conflict situations between grizzly bears and 
livestock. These forms of take would generally not be allowed were 
reintroduced grizzly bears not designated as an experimental 
population, another alternative being considered in our DEIS. 
Additionally, grizzly bears would be released only into Federal lands 
in Management Zone 1, and while we anticipate that bears will move into 
areas within Management Zones 2 and 3, in these zones, any grizzly bear 
posing a demonstrable threat to human safety, livestock, or property 
may be relocated or removed by Federal, State, or Tribal authorities, 
or with prior written authorization from the USFWS, and any grizzly 
bear may be deterred to prevent conflict, provided the deterrence does 
not cause lasting bodily injury or death to the grizzly bear. These 
flexibilities further reduce the impacts to small businesses.
    Agriculture and grazing operations located closest to release areas 
or high-quality grizzly bear habitat would be the most likely to be 
affected. However, adverse impacts on agriculture and livestock grazing 
would be limited compared to the total number of livestock present in 
or adjacent to the NCE. The potential for impacts would be further 
reduced by the implementation of this proposed rule, including 
associated conflict prevention efforts, including the public outreach 
on minimizing unsecured attractants (e.g., Western Wildlife Outreach 
2023; Braaten et al. 2013, pp. 7-8).
    Based on the preceding information, we find that the impact of 
direct effects of grizzly bear depredations on livestock would not be 
significant. That is, less than 0.01% of the total number of cattle and 
sheep in the ROI could be affected, and the high end of the annual 
potential loss of revenue across all farms is estimated at 
approximately $22,000. We do not consider either the number of 
potential livestock affected nor the potential loss of revenue to be a 
significant economic impact. Considering that less than 25 percent of 
the total farms in Washington occur within the ROI and no farms occur 
within proposed grizzly bear release areas, far fewer than 25 percent 
of farms in Washington would be likely to experience economic impacts. 
While we are not able to quantify this number, we do find that there 
would not be a substantial number of small entities impacted.
    For the above reasons and based on currently available information, 
we certify that, if adopted as proposed, the proposed nonessential 
experimental population designation of grizzly bears would not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (1) This rule would not ``significantly or uniquely'' affect small 
governments. We have determined and certify pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that, if adopted, this 
rulemaking would not impose a cost of $100 million or more in any given 
year on local or State governments or private entities. A small 
government agency plan is not required. Small governments would not be 
affected because the proposed NEP designation would not place 
additional requirements on any city, county, or other local 
municipalities.
    (2) This rule would not produce a Federal mandate of $100 million 
or greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This proposed NEP 
designation of the grizzly bear in the NCE would not impose any 
additional management or protection requirements on the States or other 
entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. When reintroduced 
populations of federally listed species are designated as NEPs, the 
Act's regulatory requirements regarding the reintroduced population are 
significantly reduced.
    A takings implication assessment is not required because this 
proposed rule (1) would not effectively compel a property owner to 
suffer a physical invasion of property, and (2) would not deny all 
economically beneficial or productive use of the land or aquatic 
resources. This proposed rule would substantially advance a legitimate 
government interest (conservation and recovery of a listed species) and 
would not present a barrier to all reasonable and expected beneficial 
use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule has significant federalism effects and have 
determined that a federalism assessment is not required. This proposed 
rule would not have substantial direct effects on the States, on the 
relationship between the Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposed 
rule with the affected resource agencies in Washington. Establishing an 
experimental population of grizzly bears in the NCE Recovery Zone would 
contribute positively toward the status of the species, which in turn 
would be factored into future assessments of the status of grizzly 
bears in the lower 48 States.
    We acknowledge a Washington State law that addresses grizzly 
reintroduction in the State. Revised

[[Page 67215]]

Code of Washington 77.12.035, Protection of grizzly bears--Limitation 
on transplantation or introduction--Negotiations with federal and state 
agencies, provides as follows:

    The commission shall protect grizzly bears and develop 
management programs on publicly owned lands that will encourage the 
natural regeneration of grizzly bears in areas with suitable 
habitat. Grizzly bears shall not be transplanted or introduced into 
the state. Only grizzly bears that are native to Washington State 
may be utilized by the department for management programs. The 
department is directed to fully participate in all discussions and 
negotiations with federal and state agencies relating to grizzly 
bear management and shall fully communicate, support, and implement 
the policies of this section.

    This State law provision governs only the activities of the 
Washington Department of Fish and Wildlife (WDFW) and prohibits WDFW 
from transplanting or introducing grizzly bears into the State (see 
Washington State Office of the Attorney General memorandum to the WDFW 
(WA AG in litt. 2017)). Further, the State provision is interpreted to 
require WDFW to protect grizzly bears and develop programs that will 
encourage their natural regeneration on public lands with suitable bear 
habitat, and to allow for WDFW's engagement in monitoring, habitat 
enhancement, and to respond to grizzly bears that are endangering 
public safety or damaging private property. Id.
    We developed this proposed rule in cooperation with WDFW, and in 
consideration of this Washington State law; grizzly bear reintroduction 
would occur on Federal lands administered by the NPS or the USFS, and 
efforts from WDFW to transplant or introduce grizzly bears would not be 
required. The proposed rule would provide for the State's participation 
in the management of bears introduced by Federal agencies on Federal 
lands within the State. For these reasons, no intrusion on State policy 
or administration is expected, roles or responsibilities of Federal or 
State governments would not change, and fiscal capacity would not be 
substantially directly affected. The proposed rule would operate to 
maintain the existing relationship between the State and the Federal 
Government and is being undertaken in coordination with the State of 
Washington. Therefore, this proposed rule does not have significant 
federalism effects or implications to warrant the preparation of a 
federalism assessment pursuant to the provisions of E.O. 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988 (February 7, 1996; 61 FR 
4729), the Office of the Solicitor has determined that this proposed 
rule would not unduly burden the judicial system and would meet the 
requirements of sections (3)(a) and (3)(b)(2) of the Order.

Paperwork Reduction Act

    This proposed rule contains existing and new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number. The Service will ask OMB to 
review and approve the new information collection requirements 
contained in this rulemaking related to the establishment of an NEP of 
the grizzly bear in the State of Washington, under section 10(j) of the 
ESA. OMB has previously approved the information collection 
requirements associated with permitting requirements associated with 
native endangered and threatened species, and experimental populations, 
and assigned OMB Control Number 1018-0094, ``Federal Fish and Wildlife 
Permit Applications and Reports--Native Endangered and Threatened 
Species; 50 CFR parts 10, 13, and 17'' (expires January 31, 2024).
    Experimental populations established under section 10(j) of the 
Act, as amended, require information collection and reporting to the 
Service. The Service would collect information on the grizzly bear NEP 
to help further the recovery of the species and to assess the success 
of the reintroduced populations. There are no forms associated with 
this information collection. The respondents would notify the Service 
when an incident occurred, so there would be no set frequency for 
collecting the information. Other Federal agencies would provide the 
Service with the vast majority of the information on experimental 
populations under cooperative agreements for the conduct of the 
recovery programs. However, the public also would provide some 
information to the Service. The proposed new information collection 
requirements identified below require approval by OMB:
    1. Appointment of designated agent--A designated agent is an 
employee of a Federal, State, or Tribal agency that is authorized by 
the Service to conduct grizzly bear management. A prospective 
designated agent would submit a letter to the Service requesting 
designated agent status. The letter would include a proposal for the 
work to be completed and resume of qualifications for the work they 
wish to perform. The Service would then respond to the requester with a 
letter authorizing them to complete the work.
    2. Reporting requirements--The respondents would notify the Service 
when an incident occurred, so there would be no set frequency for 
collecting the information. Other Federal agencies would provide the 
Service with the vast majority of the information on experimental 
populations under cooperative agreements for the conduct of the 
recovery programs. However, the public also would provide some 
information to the Service. Reporting parties would include, but would 
not be limited to, individuals or households, businesses, farms, 
nonprofit organizations, and State/local/Tribal governments. The 
Service would collect the information by means of telephone calls or 
emails from the public to Service offices specified in the individual 
regulations. Standard information collected would include:
    a. Name, address, and phone number of reporting party.
    b. Species involved.
    c. Type of incident.
    d. Take (quantity).
    e. Location and time of reported incident.
    f. Description of the circumstances related to the incident.
    3. Some of these contacts would be necessary follow-up reports 
under rules where the Service has authorized deterrence or lethal take 
of experimental animals (e.g., livestock depredation or in defense of 
human life). The Service would collect information in three categories:
    a. General take or removal. This type of information relates to 
nonlethal take that does not result in the death of a grizzly bear, as 
well as human-related mortality including unintentional taking 
incidental to otherwise lawful activities (e.g., highway mortalities), 
animal husbandry actions authorized to manage the populations (e.g., 
translocation or providing aid to sick, injured, or orphaned 
individuals), take in defense of human life, take related to defense of 
property (if authorized), or take in the form of authorized deterrence.
    <bullet> Lethal take must be reported within 24 hours to both the 
Resident Agent in Charge and either the Service's Grizzly Bear Recovery 
Coordinator or the Service's Washington Fish and Wildlife Office.
    <bullet> Nonlethal take must be reported within 5 days to either 
the Service's

[[Page 67216]]

Grizzly Bear Recovery Coordinator or the Service's Washington Fish and 
Wildlife Office.
    b. Depredation-related take. This type of reporting involves take 
for management purposes where depredation of livestock or guard dogs is 
documented and may include authorized deterrence or authorized lethal 
take of experimental animals in the act of attacking livestock or guard 
dogs.
    c. Recovery or reporting of dead individuals and specimen 
collection from experimental populations. This type of information is 
for the purpose of documenting incidental or authorized scientific 
collection. Most of the contacts with the public would deal primarily 
with the reporting of sightings of experimental population animals, or 
the inadvertent discovery of an injured or dead individual.
    4. Memorandums of Understanding (MOUs)--The Service would establish 
MOUs with Federal, State, or Tribal authorities related to the 
necessary relocation of bears, authorize lethal take of bears within 
100 yards (91 m) of legally present livestock or guard dogs if 
depredation has been confirmed by the Service or Washington Department 
of Fish and Wildlife (WDFW), when necessary for public safety, or to 
protect property. The Service would collect information in three 
categories:
    a. Relocation of bears. Authorized Service, Federal, State, or 
Tribal authorities may live-capture any grizzly bear occurring in the 
NEP area to improve grizzly bear survival or recovery. Authorized 
Service, Federal, State, or Tribal authorities may live-capture grizzly 
bears in proposed Management Zones 2 or 3 and transport and release 
those grizzly bears in a remote area (1) if they depredate legally 
present livestock, (2) if necessary to prevent unnatural use of food 
materials that have been reasonably secured from the bear, or (3) after 
aggressive (not defensive) behavior toward humans that constitutes a 
demonstrable immediate or potential threat to human safety and/or that 
results in a human injury. Additionally, authorized Service, Federal, 
State, or Tribal authorities may live-capture any grizzly bear 
occurring in proposed Management Zone 3 and transport and release bears 
as a preemptive action to prevent a conflict that appears imminent or 
in an attempt to break habituated behavior of bears lingering near 
human-occupied areas.
    b. Conditioned lethal take. With prior written agreement from the 
Service, livestock owners may lethally take a grizzly bear within 100 
yards (91 m) of legally present livestock in proposed Management Zones 
2 and 3 if a depredation has been confirmed by the Service or an 
authorized agency. Additionally, the Service, or its designated agents, 
are authorized to issue prior written authorization to any individual 
to kill a grizzly bear in proposed Management Zone 3 when necessary for 
public safety or to protect property.
    c. Removal of grizzly bears involved in conflict. Authorized 
Service, Federal, State, or Tribal authorities may lethally take a 
grizzly bear in the NEP area if is not reasonably possible to otherwise 
eliminate the threat by non-lethal deterrence or live capturing and 
releasing the grizzly bear unharmed in a remote area agreed to by FWS, 
WDFW, and the applicable land management agency and if the taking is 
done in a humane manner. Grizzly bears may be taken in self-defense or 
in defense of other persons, based on a good-faith belief that the 
actions taken were to protect the person from bodily harm.
    5. Recovery or reporting of dead individuals and specimen 
collection from experimental populations--This type of information 
would be for the purpose of documenting incidental or authorized 
scientific collection and surrender of grizzly bear carcasses as the 
result of lethal take. Most of the contacts with the public deal 
primarily would be with the reporting of sightings of experimental 
population animals, or the inadvertent discovery of an injured or dead 
individual.
    6. Obtaining Landowner/Land Management Entity Authorization--
Individuals requesting the written authorizations mentioned above must 
obtain authorization from the landowner or land management entity, 
where appropriate.
    The Service would use the information described above to document 
the locations of reintroduced animals, determine causes of mortality 
and conflict with human activities so that Service managers could 
minimize conflicts with people, and improve management techniques for 
reintroduction. The information would help the Service assess the 
effectiveness of control activities and develop means to reduce 
problems with livestock for those species where depredation is a 
problem. Service recovery specialists would use the information to 
determine the success of reintroductions in relation to established 
recovery plan goals for the threatened and endangered species involved.
    Title of Collection: Endangered and Threatened Wildlife, 
Experimental Populations--Grizzly Bear (50 CFR 17.84).
    OMB Control Number: 1018-New.
    Form Numbers: None.
    Type of Review: New.
    Respondents/Affected Public: Individuals; private sector; and 
State/local/Tribal governments.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: Annually for annual report and on occasion 
for other requirements.
    Total Estimated Annual Nonhour Burden Cost: None.

----------------------------------------------------------------------------------------------------------------
                                   Number of       Number of
          Requirement               annual          annual       Total annual        Average       Total annual
                                  respondents   responses each     responses     completion time   burden hours
----------------------------------------------------------------------------------------------------------------
Appointment of Designated
 Agent:
    Individuals...............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    Private Sector............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    State/Local/Tribal Gov't..               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
Notification--General Take or
 Removal (Lethal Take):
    Individuals...............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    Private Sector............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).

[[Page 67217]]

 
    State/Local/Tribal Gov't..               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
Notification--General Take or
 Removal (Nonlethal Take):
    Individuals...............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    Private Sector............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    State/Local/Tribal Gov't..               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
Notification--Recovery or
 Reporting of Dead Specimen
 and Specimen Collection:
    Individuals...............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    Private Sector............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    State/Local/Tribal Gov't..               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
Memorandums of Understanding--
 Relocation of Bears:
    Individuals...............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    Private Sector............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    State/Local/Tribal Gov't..               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
Memorandums of Understanding--
 Conditioned Lethal Take:
    Individuals...............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    Private Sector............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    State/Local/Tribal Gov't..               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
Memorandums of Understanding--
 Removal of Bears:
    Individuals...............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    Private Sector............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    State/Local/Tribal Gov't..               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
Obtaining Landowner/Land
 Management Entity
 Authorization:
    Individuals...............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    Private Sector............               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
    State/Local/Tribal Gov't..               1               1               1  30 min                         1
                                                                                 (reporting); 30
                                                                                 min
                                                                                 (recordkeeping).
                               ---------------------------------------------------------------------------------
        Totals:...............              24  ..............              24  ................              24
----------------------------------------------------------------------------------------------------------------

    Send your written comments and suggestions on this information 
collection by the date indicated in DATES to the Service Information 
Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/
PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or 
by email to <a href="/cdn-cgi/l/email-protection#7e37101811213d1112123e18090d50191108"><span class="__cf_email__" data-cfemail="226b4c444d7d614d4e4e624455510c454d54">[email protected]</span></a>. Please reference OMB Control Number 
1018--Grizzly in the subject line of your comments.

National Environmental Policy Act

    In compliance with the National Environmental Policy Act of 1969 
(NEPA), we have analyzed the environmental impacts of this proposed 
rule. We have prepared, jointly with NPS, a DEIS to describe the 
impacts of restoring grizzly bears to the NCE and establishment of the 
restored population as experimental and managed in accordance with this 
proposed rule. The DEIS evaluates options for a regulatory framework, 
including a rule consistent with section 10(j) of the Act, for the 
reintroduction and management of grizzly bears in part of the species' 
historical range in Washington. The DEIS analyzes potential 
environmental impacts that may result from two action alternatives and 
the no-action alternative and includes relevant and reasonable measures 
that could avoid or mitigate potential impacts. The DEIS is available 
for public review and comment by the NPS as described above in 
Information Requested. We will

[[Page 67218]]

complete our NEPA analysis and take that information into consideration 
in determining whether to finalize and implement this proposed rule.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination 
with Indian Tribal Governments), and the Department of the Interior's 
manual at 512 DM 2, we readily acknowledge our responsibility to 
communicate meaningfully with federally recognized Tribes on a 
government-to-government basis. In accordance with Secretary's Order 
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes.
    Throughout the development of this proposed rule, we have sought 
the input of Tribal governments near the proposed release site as well 
as Tribal governments near the potential source populations in the NCDE 
and GYE. In collaboration with the NPS, we extended an invitation for 
government-to-government consultation to all federally recognized 
Tribes in the proposed NEP area and formally met with Tribes that have 
requested government-to-government consultation. Corresponding with the 
start of the EIS process in November 2022, all Tribes in Washington, 
and the Nez Perce Tribe in Idaho were invited to consult on grizzly 
bear recovery and the DEIS assessing options to restore grizzly bears 
to the NCE. An invitation to consult specifically on the development of 
the 10(j) rule was also sent to all Tribes in Washington in February 
2023. Invitations to consult were also sent in March 2023 to Tribal 
governments near the potential source populations in the NCDE and GYE, 
including in the States of Colorado, Kansas, Montana, Nebraska, North 
Dakota, South Dakota, Utah, and Wyoming. We are available to meet with 
other Tribes that request government-to-government or informal 
consultation and will fully consider information and comments received 
through the consultation process. We will also consider all comments 
received from Tribes and Tribal members during the public comment 
period on this proposed rule.

Energy Supply, Distribution, or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare statements of 
energy effects when undertaking certain actions. This proposed rule is 
not expected to significantly affect energy supplies, distribution, and 
use. Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

Clarity of This Regulation (E.O. 12866)

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:

    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from our Washington Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT) or online at https://www.regulations.gov in Docket No. FWS-R1-ES-2023-0074.

Authors

    The primary authors of this proposed rule are staff of the USFWS 
Washington Fish and Wildlife Office, along with staff of the Grizzly 
Bear Recovery Program (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.
0
2. Amend Sec.  17.11 in paragraph (h) by revising the entry for ``Bear, 
grizzly'' under MAMMALS in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
                                                     Mammals
 
                                                  * * * * * * *
Bear, grizzly...................  Ursus arctos        U.S.A.,             T              32 FR 4001, 3/11/1967;
                                   horribilis.         conterminous                       35 FR 16047, 10/13/
                                                       (lower 48)                         1970; 40 FR 31734, 7/
                                                       States, except                     28/1975; 72 FR 14866,
                                                       where listed as                    3/29/2007; 75 FR
                                                       an experimental                    14496, 3/26/2010; 82
                                                       population.                        FR 30502, 6/30/2017;
                                                                                          84 FR 37144, 7/31/
                                                                                          2019; 50 CFR
                                                                                          17.40(b).\4d\
Bear, grizzly [Bitterroot XN]...  Ursus arctos        U.S.A. (portions    XN             65 FR 69624, 11/17/
                                   horribilis.         of ID and MT; see                  2000; 50 CFR
                                                       Sec.   17.84(l))..                 17.84(l).\10j\

[[Page 67219]]

 
Bear, grizzly [North Cascades     Ursus arctos        U.S.A. (WA, except  XN             [Federal Register
 XN].                              horribilis.         the portion of                     citation of the final
                                                       northeastern                       rule]; 50 CFR
                                                       Washington                         17.84(y).\10j\
                                                       defined by the
                                                       Kettle River from
                                                       the international
                                                       border with
                                                       Canada,
                                                       downstream to the
                                                       Columbia River to
                                                       its confluence
                                                       with the Spokane
                                                       River, then
                                                       upstream on the
                                                       Spokane River to
                                                       the WA-ID border;
                                                       see Sec.
                                                       17.84(y))..
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.84 by:
0
a. Revising paragraph (l) introductory text and paragraph (l)(1); and
0
b. Adding paragraph (y).
    The revisions and addition read as follows:


Sec.  17.84  Species-specific rules--vertebrates.

* * * * *
    (l) Grizzly bear (Ursus arctos horribilis)--Bitterroot nonessential 
experimental population.
    (1) Where does this rule apply? (i) The rule in this paragraph (l) 
applies to the designated Bitterroot Grizzly Bear Experimental 
Population Area (Experimental Population Area), which is found within 
the species' historic range and is defined in paragraph (l)(1)(ii) of 
this section.
    (ii) The boundaries of the Experimental Population Area are 
delineated by U.S. 93 from its junction with the Bitterroot River near 
Missoula, Montana, to Challis, Idaho; Idaho 75 from Challis to Stanley, 
Idaho; Idaho 21 from Stanley to Lowman, Idaho; State Highway 17 from 
Lowman to Banks, Idaho; Idaho 55 from Banks to New Meadows, Idaho; U.S. 
95 from New Meadows to Coeur d'Alene, Idaho; Interstate 90 from Coeur 
d'Alene, Idaho, to its junction with the Clark Fork River near St. 
Regis, Montana; the Clark Fork River from its junction with Interstate 
90 near St. Regis to its confluence with the Bitterroot River near 
Missoula, Montana; and the Bitterroot River from its confluence with 
the Clark Fork River to its junction with U.S. Highway 93, near 
Missoula, Montana (See map at the end of this paragraph (l)).
* * * * *
    (y) Grizzly bear (Ursus arctos horribilis)--North Cascades 
nonessential experimental population.
    (1) Definitions. Key terms used in this paragraph (y) have the 
following definitions:
    Authorized agency means a Federal, State, or Tribal agency 
designated by the Service in:
    (A) A memorandum of understanding to assist in implementing all or 
in part the specified actions in this paragraph (y);
    (B) A conference opinion issued by the Service to a Federal agency 
pursuant to section 7(a)(4) of the Act;
    (C) Section 6 of the Act as described in Sec.  17.31 for State game 
and fish agencies with authority to manage grizzly bears; or
    (D) A valid permit issued by the Service pursuant to Sec.  17.32.
    Depredation means the confirmed killing or wounding of lawfully 
present livestock by one or more grizzly bears. The Service or an 
authorized agency must confirm grizzly bear depredation on lawfully 
present livestock. Livestock trespassing on Federal lands are not 
considered lawfully present.
    Deterrence means an intentional action to haze, disrupt, or annoy a 
grizzly bear away from the immediate vicinity (200 yards (182 meters)) 
of a human-occupied residence or potential conflict area with humans, 
such as a barn, livestock corral, chicken coop, grain bin, or 
schoolyard.
    (A) Once bears have moved beyond the immediate vicinity, hazing is 
unlikely to be effective and should cease.
    (B) Any such action must not cause lasting bodily injury or death 
to the grizzly bear; refer to current Service grizzly bear hazing 
guidelines for appropriate methods.
    (C) Persons may not attract, track, wait for, or search out a 
grizzly bear for the purposes of deterrence.
    (D) Any person who deters a nuisance grizzly bear must use 
discretion and act safely and responsibly in confronting the grizzly 
bear.
    Domestic animal means an individual of an animal species that has 
been selectively bred over many generations to enhance specific traits 
for their use by humans, including for use as pets. Domestic animal 
includes livestock.
    Federal, State, or Tribal authority means an employee or designee 
of a State, Federal, or Indian Tribal government who, as part of their 
official duties, normally handles large carnivores and is trained and/
or experienced in immobilizing, marking, and handling grizzly bears.
    Grizzly bear involved in conflict means a grizzly bear that has 
caused depredation to lawfully present livestock; used foods that are 
unnatural for grizzly bear consumption and that had been reasonably 
secured; displayed toward humans aggressive behavior that constitutes a 
demonstrable or potential threat to human safety; or has had an 
encounter with people resulting in a substantial human injury or loss 
of human life.
    Livestock means cattle, sheep, pigs, horses, mules, goats, domestic 
bison, alpacas, llamas, donkeys, and herding and guarding animals 
(e.g., dogs used for herding or guarding livestock). Livestock excludes 
poultry. Livestock also excludes nonferal dogs that are not being used 
for livestock guarding or herding.
    (2) Where is the grizzly bear designated as a nonessential 
experimental population (NEP)? (i) The grizzly bear NEP includes 
Washington State except the portion of northeastern Washington defined 
by the Kettle River from the international border with Canada, 
downstream to the Columbia River, to its confluence with the Spokane 
River, then upstream on the Spokane River to the Washington-Idaho 
border. As provided by 16 U.S.C. 1539(j)(2)(C)(ii), the NEP does not 
include critical habitat under the Act. The area shown in figure 1 to 
paragraph (y)(2) of this section will remain designated as an 
experimental

[[Page 67220]]

population unless future rulemaking determines:
    (A) The reintroduction has not been successful, in which case the 
NEP boundaries might be altered or the regulations in this paragraph 
(y) might be removed; or
    (B) The grizzly bear is recovered and delisted in accordance with 
the Act.
    (ii) Management Zone 1 includes the Mt. Baker-Snoqualmie National 
Forest and Okanogan-Wenatchee National Forest north of Interstate 90 
and west of Washington State Route 97, as well as the North Cascades 
National Park Service complex. Management Zone 1 will be the primary 
area for restoration of grizzly bears and will serve as core habitat 
for survival, reproduction, and dispersal of the NEP.
    (iii) Management Zone 2 includes the Mt. Baker-Snoqualmie National 
Forest and Okanogan-Wenatchee National Forest south of Interstate 90, 
Gifford Pinchot National Forest, and Mount Rainier National Park. 
Management Zone 2 also includes the Colville National Forest and 
Okanogan-Wenatchee National Forest lands east of Washington State Route 
97 within the experimental population boundary. Management Zone 2 
includes areas that may be used for natural movement and/or dispersal 
by grizzly bears and that have a lower potential for human-bear 
conflicts.
    (iv) Management Zone 3 comprises all other lands outside of 
Management Zones 1 and 2 within the NEP boundary. Management Zone 3 
contains large areas that may be incompatible with grizzly bear 
presence due to high levels of private land ownership and associated 
development and/or potential for bears to become involved in conflicts 
with resultant bear mortality, although some areas within this 
management zone are capable of supporting grizzly bears and grizzly 
bears may occur there.
    (v) Map of the NEP area and associated management zones for the 
grizzly bear in the North Cascades Ecosystem follows:

Figure 1 to paragraph (y)(2)
[GRAPHIC] [TIFF OMITTED] TP29SE23.058

    (3) What take of the grizzly bear is allowed in Management Zone 1 
of the NEP area? The exceptions to take described in paragraphs 
(y)(3)(i) through (vi) of this section apply in Management Zone 1:
    (i) Defense of life. Grizzly bears may be taken in self-defense or 
in defense of other persons, based on a good-faith belief that the 
actions taken were to protect the person from bodily harm. Such taking 
must be reported as described in paragraph (y)(6) of this section.
    (ii) Deterrence. Livestock owners, beekeepers, orchardists, 
farmers, or other individuals are authorized to conduct deterrence of 
grizzly bears for the purposes of avoiding human-bear conflicts.
    (iii) Incidental take. Take of a grizzly bear is allowed if:
    (A) The take is incidental to, and not the purpose of, an otherwise 
lawful activity and the take is reported as soon as possible as 
provided under paragraph (y)(6) of this section; or
    (B) The take occurs on National Forest System lands and the U.S. 
Forest Service has maintained its ``no-net-loss-of-core'' approach and 
implemented food storage restrictions throughout Management Zone 1.
    (C) Persons lawfully engaged in hunting and shooting activities 
must correctly identify their target before shooting to avoid illegally 
shooting a grizzly bear. The act of taking a grizzly

[[Page 67221]]

bear that is wrongfully identified as another species is not considered 
incidental take and may be referred to appropriate authorities for 
prosecution.
    (iv) Take under permits. Any person with a valid permit issued 
under Sec.  17.32 by the Service or a designated agent may take grizzly 
bears pursuant to the terms of the permit.
    (v) Research and recovery actions. An authorized agency as defined 
in paragraph (y)(1) of this section may take grizzly bears within the 
NEP area if such action is necessary:
    (A) For scientific purposes;
    (B) To relocate or harass (as defined in Sec.  17.3) grizzly bears 
within the NEP area to improve grizzly bear survival or recovery;
    (C) To address conflicts with ongoing or proposed activities in an 
attempt to improve grizzly bear survival;
    (D) To aid a sick, injured, or orphaned grizzly bear, including 
lethal removal for humane purposes;
    (E) To salvage a dead specimen that may be useful for scientific 
study;
    (F) To dispose of a dead specimen; or
    (G) To aid in law enforcement investigations involving the grizzly 
bear.
    (vi) Removal of grizzly bears involved in conflict. A grizzly bear 
involved in conflict may be taken, up to and including lethal removal, 
but only if:
    (A) It is not reasonably possible to otherwise eliminate the threat 
by nonlethal deterrence or live-capturing and releasing the grizzly 
bear unharmed in a remote area agreed to by the Service, the Washington 
Department of Fish and Wildlife, and the applicable land management 
agency; and
    (B) The taking is done in a humane manner by a Federal, State, or 
Tribal authority of an authorized agency and in accordance with 
Service-approved interagency guidelines.
    (vii) Reporting requirements. Any take pursuant to this paragraph 
(y)(3) must be reported as indicated in paragraph (y)(6) of this 
section.
    (4) What take of the grizzly bear is allowed in Management Zone 2 
of the NEP area? Grizzly bears in Management Zone 2 will be 
accommodated through take allowances described in paragraphs (y)(4)(i) 
and (ii) of this section, in addition to those allowed in Management 
Zone 1 (see paragraph (y)(3) of this section). ``Accommodated'' means 
grizzly bears that move outside Management Zone 1 into these specified 
areas of Federal lands in the NEP will not be disturbed unless they 
demonstrate an immediate threat to human safety or livestock.
    (i) Relocation of bears. With prior approval from the Service, a 
Federal, State, or Tribal authority may live-capture grizzly bears in 
Management Zone 2 and transport and release those grizzly bears in a 
remote location agreed to by the Service, the Washington Department of 
Fish and Wildlife, and the applicable land managing agency for any of 
the following reasons:
    (A) When necessary for the purposes of enhancing conservation.
    (B) After depredation of lawfully present livestock or unnatural 
use of food materials that had been reasonably secured from the bear, 
resulting in conditioning of the bear or significant loss of property.
    (C) After aggressive (not defensive) behavior toward humans results 
in injury to a human or constitutes a demonstrable immediate or 
potential threat to human safety.
    (ii) Conditioned lethal take. With prior written authorization from 
the Service or authorized agency, livestock owners may lethally take a 
grizzly bear within 100 yards (91 m) of legally present livestock, but 
only if:
    (A) A depredation has been confirmed by the Service or authorized 
agency.
    (B) It is not reasonably possible to otherwise eliminate the threat 
by nonlethal deterrence or live capturing and releasing the grizzly 
bear unharmed in a remote area. If, after 2 weeks from the confirmed 
depredation, no further depredations have occurred, the authorization 
will expire.
    (C) The taking is done in a humane manner.
    (D) The taking is reported as indicated in paragraph (y)(6) of this 
section.
    (E) The grizzly bear carcass is surrendered to the Service.
    (5) What take of the grizzly bear is allowed in Management Zone 3 
of the NEP area? In addition to the take allowances described in 
paragraphs (y)(5)(i) and (ii) of this section, all take allowed in 
Management Zones 1 and 2 (see paragraphs (y)(3) and (4) of this 
section) are also allowed in Management Zone 3 of the NEP.
    (i) Relocation of any grizzly bear. With prior approval from the 
Service, a Federal, State, or Tribal authority of an authorized agency 
may live-capture any grizzly bear occurring in Management Zone 3 and 
transport and release the bear in a remote location agreed to by the 
Service, the Washington Department of Fish and Wildlife, and the 
applicable land management agency as a preemptive action to prevent a 
conflict that appears imminent or in an attempt to break habituated 
behavior of bears lingering near human-occupied areas.
    (ii) Conditioned lethal take. The Service, or authorized agency, 
may issue prior written authorization to any person to kill a grizzly 
bear in Management Zone 3 when necessary for public safety or to 
protect property, but only if:
    (A) The Service or authorized agency determines that a grizzly bear 
presents a demonstrable and ongoing threat to human safety or to 
lawfully present livestock, domestic animals, crops, beehives, or other 
property; and that it is not reasonably possible to otherwise eliminate 
the threat by live-capturing and releasing the grizzly bear unharmed. 
Once the Service or authorized agency determines the threat is no 
longer ongoing, the authorizing agency will notify the person, 
terminating the authorization.
    (B) The individuals requesting the written authorization are 
otherwise authorized by the landowner or relevant land management 
entity.
    (C) The taking is done in a humane manner.
    (D) The taking is reported as indicated in paragraph (y)(6) of this 
section.
    (E) The carcass is surrendered to the Service.
    (6) What are the reporting requirements for take of grizzly bears 
in the NEP? (i) Lethal take. Any grizzly bear that is killed under the 
provisions of this paragraph (y) must be reported within 24 hours to 
the Service.
    (ii) Nonlethal take. Any take of a grizzly bear under the 
provisions of this paragraph (y) that does not result in the death but 
causes obvious injury to a grizzly bear must be reported within 5 
calendar days of occurrence to the Service.
    (7) What take of the grizzly bear is not allowed in the NEP area? 
(i) Other than expressly provided by the regulations in this paragraph 
(y), all other forms of take are considered a violation of section 9 of 
the Act. Any grizzly bear or grizzly bear part taken legally must be 
turned over to the Service unless otherwise specified in the 
regulations in this paragraph (y). Any take of grizzly bears must be 
reported as set forth in paragraph (y)(6) of this section.
    (ii) No person shall possess, sell, deliver, carry, transport, 
ship, import, or export, by any means whatsoever, any grizzly bear or 
part thereof from the NEP taken in violation of paragraphs (y)(3) 
through (5) of this section or in violation of applicable Tribal or 
State laws or regulations or the Act.
    (iii) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed, any take of the grizzly 
bear, except as expressly allowed in paragraphs (y)(3) through (5) of 
this section.
    (8) How will the effectiveness of the grizzly bear restoration 
effort be monitored? The Service will monitor

[[Page 67222]]

the status of grizzly bears in the NEP annually and will evaluate the 
status of grizzly bears in the NEP in conjunction with the Service's 
species status assessments and status reviews of the grizzly bear. 
Evaluations in the Service's status reviews will include but not be 
limited to a review of management issues, grizzly bear movements, 
demographic rates, causes of mortality, project costs, and progress 
toward establishing a self-sustaining population.

Janine Velasco,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-21418 Filed 9-28-23; 8:45 am]
BILLING CODE 4333-15-P


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