[Federal Register Volume 79, Number 133 (Friday, July 11, 2014)]
[Rules and Regulations]
[Pages 40004-40016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16255]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 130716626-4522-02]
RIN 0648-BD51


Endangered and Threatened Species: Designation of a Nonessential 
Experimental Population of Upper Columbia River Spring-run Chinook 
Salmon in the Okanogan River Subbasin, Washington, and Protective 
Regulations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule and notice of availability of a final environmental 
assessment.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), designate 
and authorize the release of a nonessential experimental population of 
Upper Columbia River (UCR) spring-run Chinook salmon (Oncorhynchus 
tshawytscha) under section 10(j) of the Endangered Species Act (ESA) in 
the Okanogan River subbasin, and establish a limited set of take 
prohibitions for the nonessential experimental population under section 
4(d) of the ESA. Successful reintroduction of a population within the 
species' historic range would contribute to its viability and further 
its conservation. The issuance of limited protective regulations will 
provide for the conservation of the species while providing assurances 
to people in the Okanogan River subbasin. The geographic boundary for 
the NEP is the main stem and all tributaries of the Okanogan River 
between the Canada-United States border and to the confluence of the 
Okanogan River with the Columbia River, Washington (hereafter 
``Okanogan River NEP Area''). We have prepared a Final Environmental 
Assessment (EA) and Finding of No Significant Impact (FONSI) on the 
proposed action under

[[Page 40005]]

the National Environmental Policy Act (NEPA) (see ADDRESSES: section 
below).

DATES: The final rule is effective August 11, 2014.

ADDRESSES: The Final Environmental Assessment and other reference 
materials regarding this final rule can be obtained via the Internet at 
http://www.westcoast.fisheries.noaa.gov or by submitting a request to 
the Branch Chief, Protected Resources Division, West Coast Region, 
NMFS, 1201 NE Lloyd Blvd., Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: Scott Rumsey, NMFS, 1201 NE Lloyd 
Blvd., Portland, OR 97232 (503-872-2791) or Dwayne Meadows, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910 (301-427-8403).

SUPPLEMENTARY INFORMATION: 

Background

    The UCR spring-run Chinook Salmon evolutionarily significant unit 
(ESU) is listed as an endangered species under the ESA (16 USC 1531 et 
seq.). We first designated the UCR spring-run Chinook Salmon ESU as 
endangered on March 24, 1999 (64 FR 14308), reaffirmed this status on 
June 28, 2005 (70 FR 37160), and maintained its endangered status after 
the ESU's 5-year review (76 FR 50448, August 15, 2011). Section 9 of 
the ESA prohibits the ``take'' of UCR spring-run Chinook salmon unless 
otherwise authorized.
    The listed ESU currently includes all naturally spawned populations 
of spring-run Chinook salmon in accessible reaches of Columbia River 
tributaries between Rock Island and Chief Joseph Dams, excluding the 
Okanogan River. The Okanogan River is a major tributary of the upper 
Columbia River, entering the Columbia River between Wells and Chief 
Joseph Dams. The majority of the Okanogan River subbasin is in Canada 
(74 percent) with the remainder in Washington State (26 percent). 
Listed UCR spring-run Chinook salmon from this ESU currently spawn in 
three river subbasins in eastern Washington: the Methow, Entiat, and 
Wenatchee. A fourth population historically inhabited the Okanogan 
River subbasin, but was extirpated in the 1930s because of overfishing, 
hydropower development, and habitat degradation (NMFS, 2007). The 
listed UCR Spring-run Chinook Salmon ESU also includes six artificial 
propagation programs: the Twisp River, Chewuch River, Methow Composite, 
Winthrop National Fish Hatchery, Chiwawa River, and White River spring 
Chinook salmon hatchery programs.
    On November 22, 2010, we received a letter from the Confederated 
Tribes of the Colville Reservation (CTCR)), a federally recognized 
Native American tribe, requesting that we authorize the release of an 
experimental population of spring-run Chinook salmon in the Okanogan 
River subbasin under section 10(j) of the ESA. The CTCR also initiated 
discussions on this topic with the United States Fish and Wildlife 
Service (USFWS), the Bonneville Power Administration, the Army Corps of 
Engineers, the Bureau of Reclamation, the Washington Department of Fish 
and Wildlife, and the Okanagan Nations Alliance of Canada. The CTCR's 
request included a large amount of information on the biology of UCR 
spring-run Chinook salmon, the possible management implications of 
releasing an experimental population in the Okanogan River subbasin, 
and the expected benefits to the recovery of the listed UCR Spring-run 
Chinook Salmon ESU. On October 24, 2013 we published a proposed rule to 
designate a nonessential experimental population of spring-run Chinook 
salmon in the Okanogan River subbasin (78 FR 63439).
    Under section 10(j) of the ESA, the Secretary of Commerce 
(Secretary) may authorize the release of an ``experimental'' population 
of a listed species outside its current range when the release of the 
experimental population will further the conservation of the listed 
species. The population is experimental under section 10(j) at times 
when it is wholly separate geographically from nonexperimental 
populations. In order to authorize the release of an experimental 
population, section 10(j) also requires that the Secretary determine, 
using the best available information, whether the experimental 
population is ``essential'' or ``nonessential'' to the continued 
existence of the listed species. Section 10(j) allows that an 
experimental population deemed ``nonessential'' is treated as a species 
proposed for listing during interagency consultations under section 7 
of the Act, requiring federal agencies to confer (rather than consult) 
with NMFS on actions that are likely to adversely affect the 
experimental population (except when the population occurs in an area 
within the National Wildlife Refuge System or the National Park System, 
where the ESA requires the population be treated as a threatened 
species). With respect to the ESA's take prohibitions, section 10(j) 
treats experimental populations as threatened species, authorizing NMFS 
to issue regulations governing the application of the ESA's prohibition 
against take of listed species.
    This action involves the designation of a NEP of UCR spring-run 
Chinook salmon in the Okanogan River subbasin. The release of this NEP 
of UCR spring-run Chinook salmon in the Okanogan River NEP Area would 
further the conservation of UCR spring-run Chinook salmon by 
potentially establishing a fourth population in the species' historic 
range, contributing to the viability of the ESU. Fish used for the 
reintroduction would come from the Methow Composite hatchery program 
located at Winthrop National Fish Hatchery. The Methow River population 
of these fish is included in the UCR Spring-run Chinook Salmon ESU and 
has the best chance to survive and adapt to conditions in the Okanogan 
River subbasin because they most closely resemble the genetic and life-
history characteristics of the UCR spring-run Chinook salmon population 
that historically inhabited the Okanogan River subbasin (Jones et al., 
2011). Fish from the NEP are expected to remain geographically separate 
from the UCR Spring-run Chinook Salmon ESU during the life stages in 
which they remain in, or return to, the Okanogan River; the 
experimental designation will not apply at any time when members of the 
NEP are downstream of the confluence of the Okanogan River with the 
Columbia River. This experimental population release is being 
implemented as recommended in the Upper Columbia Spring Chinook Salmon 
and Steelhead Recovery Plan (NMFS, 2007), while at the same time 
ensuring that the reintroduction does not impose undue regulatory 
restrictions on landowners and third parties.
    The geographic boundary defining the Okanogan River NEP Area for 
UCR spring-run Chinook salmon is the mainstem and all tributaries of 
the Okanogan River between the Canada-United States border to the 
confluence of the Okanogan River with the Columbia River. All UCR 
spring-run Chinook salmon in this defined Okanogan River NEP Area are 
considered part of the NEP, irrespective of their origin. Conversely, 
when UCR spring-run Chinook salmon are located outside this defined 
Okanogan River NEP Area, they are not considered part of the NEP.
    In this action, we are designating an experimental population that 
is geographically separate from the nonexperimental ESA-listed UCR 
population, as spring-run Chinook salmon are currently extirpated in 
the Okanogan River subbasin. This designation is expected to reduce the 
species' overall extinction risk from natural and anthropogenic factors 
by increasing its abundance, productivity, spatial structure, and 
diversity within

[[Page 40006]]

the Upper Columbia River. These expected improvements in the overall 
viability of UCR spring-run Chinook salmon, in addition to other 
actions being implemented throughout the Columbia River migration 
corridor, will contribute to the species near-term viability and 
recovery, either minimally if an Okanogan population does not establish 
itself, or significantly if it does. The NEP will be geographically 
separated from the larger ESU of UCR spring-run Chinook salmon while in 
the Okanogan River subbasin, but will intermingle with other Chinook 
salmon populations as they travel downstream of the NEP area, while in 
the ocean, and on part of their upstream spawning migration. The 
``experimental'' population designation is geographically based and 
does not travel with the fish outside the Okanogan River NEP Area.
    This final rule establishes legal authority under section 10(j) of 
the ESA for an experimental population of UCR spring-run Chinook salmon 
in the Okanogan River basin. The rule also provides protective 
regulations under section 4(d) deemed necessary and advisable to 
conserve the experimental population. We, in close coordination with 
tribal, state and federal comanagers, are committed to completing 
review of the Hatchery Genetic Management Plans associated with the 
broodstock-collection, fish-transfer, and fish-release activities 
required to support this reintroduction effort.
    To assist in the development of the Upper Columbia Spring Chinook 
Salmon and Steelhead Recovery Plan (hereinafter called the recovery 
plan), we assembled the Interior Columbia Technical Recovery Team 
(ICTRT) to identify population structure and recovery goals. The 
recovery plan subsequently adopted the ICTRT recovery goals as 
delisting criteria for the UCR spring-run Chinook Salmon ESU.
    The ICTRT recommended specific abundance and productivity goals for 
each population in the UCR Spring-run Chinook Salmon ESU. The team also 
identified the current risk level of each population based on the gap 
between recent abundance and productivity and the desired recovery 
goals. The ICTRT (2008) considered all three extant natural populations 
(Methow, Entiat, and Wenatchee) to be at high risk of extinction based 
on their current abundance and productivity levels. The ICTRT also 
recommended spatial structure and diversity metrics for these 
populations (ICTRT, 2007). Spatial structure refers to the geographic 
distribution of a population and the processes that affect the 
distribution. Populations with restricted distribution and few spawning 
areas are at a higher risk of extinction from catastrophic 
environmental events (e.g., a single landslide) than are populations 
with more widespread and complex spatial structure. A population with 
complex spatial structure typically has multiple spawning areas 
containing the expression of diverse life-history characteristics. 
Diversity is the phenotypic (morphology, behavior, and life-history 
traits) and genotypic (DNA) characteristics within and between 
populations. Phenotypic diversity allows more diverse populations to 
use a wider array of environments and protects populations against 
short-term temporal and spatial environmental changes. Genotypic 
diversity, on the other hand, provides populations with the ability to 
survive long-term changes in the environment by providing genetic 
variations that may prove successful under different situations. It is 
the combination of phenotypic and genotypic diversity expressed in a 
natural setting that provides populations with the ability to utilize 
the full range of habitat and environmental conditions and to have the 
resiliency to survive and adapt to long-term changes in the 
environment. The mixing of hatchery fish (or excessive numbers of out-
of-basin stocks) with naturally produced fish on spawning grounds can 
decrease genetic diversity within a population (NMFS, 2007). The ICTRT 
(2008) also determined that all three extant populations of this ESU 
are at high risk of extinction based on their current lack of spatial 
structure and diversity.
    The recovery plan identifies re-establishment of a population in 
the Okanogan River subbasin as a recovery action (NMFS, 2007). More 
specifically, the recovery plan explains that re-establishment of a 
spring-run Chinook salmon population in the Okanogan River subbasin 
would aid recovery of this ESU by increasing abundance, productivity, 
spatial structure, and diversity, thereby reducing the risk of 
extinction to the ESU as a whole. The recovery plan establishes a 
framework for accomplishing restoration goals for the Okanogan River 
subbasin including restoring connectivity throughout their historic 
range where feasible and practical. Short- and long-term actions will 
protect riparian habitat along spawning and rearing streams and 
establish, restore, and protect stream flows suitable for spawning, 
rearing, and migration. In addition, water quality will be protected 
and restored where feasible and practical. In the mainstem Columbia 
River, implementation of the Federal Columbia River Power System 
(FCRPS) ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010) 
provides a number of new actions and continuation of existing programs 
that will likely continue to increase passage survival through the 
Columbia River mainstem passage corridor.

Statutory and Regulatory Framework

    The ESA provides that species listed as endangered or threatened 
are afforded protection primarily through the prohibitions of section 9 
(16 U.S.C. 1538) and the consultation requirements of section 7 (16 
U.S.C. 1536). Section 9 of the ESA prohibits the take of an endangered 
species. The term ``take'' is defined by the ESA as ``to harass, harm, 
pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to 
engage in any such conduct'' (16 U.S.C. 1532(19)). Section 7 of the ESA 
provides procedures for federal interagency cooperation and 
consultation to conserve federally listed species, ensure their 
survival, help in recovery of these species, and protect designated 
critical habitat necessary for the survival of the listed species. It 
also mandates that all federal agencies determine how to use their 
existing authorities to further the purposes of the ESA to aid in 
recovering listed species. In addition, ESA section 7 requires that 
federal agencies will, in consultation with NMFS, 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 ESA does not apply to activities undertaken on private 
land unless they are authorized, funded, or carried out by a federal 
agency.
    As noted above, for the purposes of section 7 of the ESA, section 
10(j) requires that we treat NEPs as a species proposed to be listed, 
unless they are located within a National Wildlife Refuge or National 
Park, in which case they are treated as threatened, and section 7 
consultation requirements apply. When NEPs are located outside a 
National Wildlife Refuge or National Park, only two provisions of 
section 7 apply--section 7(a)(1) and section 7(a)(4). In these 
instances, NEP designations provide additional flexibility in 
developing conservation and management measures by allowing us to work 
with the action agency early to develop conservation measures, instead 
of analyzing an already well-developed proposed action provided by

[[Page 40007]]

the agency under the framework of a section 7(a)(2) consultation. 
Additionally, for populations of listed species that are designated as 
nonessential, section 7(a)(4) of the ESA only requires that federal 
agencies confer (rather than consult) with us on actions that are 
likely to jeopardize the continued existence of a species proposed to 
be listed. These conferences are advisory in nature, and their findings 
do not restrict agencies from carrying out, funding, or authorizing 
activities.
    For endangered species, section 9 of the ESA automatically 
prohibits take. For threatened species, the ESA does not automatically 
extend the Section 9 take prohibitions, but instead authorizes the 
agency to adopt regulations it deems necessary and advisable for 
species conservation, including prohibiting take under section 4(d). 
Where we designate an experimental population of an endangered species, 
the automatic take prohibition no longer applies; however, because the 
experimental population is treated as a separate threatened species, we 
can issue protective 4(d) regulations for that population as we deem 
necessary and advisable for the conservation of the population. Such 
regulations may include take prohibitions.
    The USFWS has regulations for experimental population designation, 
50 CFR 17.80 through 17.84, that provide definitions, considerations in 
finding that the designation would further the conservation of the 
species and information to be included in the designation. These 
regulations state that, in making the determination that the 
designation would further the conservation of the species, the 
Secretary must consider the effect of taking the eggs or young from 
another population, the likelihood that the experimental population 
will become established, the effect the designation would have on the 
species' overall recovery, and the extent to which the experimental 
population would be affected by activities in the area. Under the USFWS 
regulations, a regulation designating the experimental population must 
include: A clear means to identify the experimental population; a 
finding based on the best available science indicating whether the 
population is essential to the continued existence of the species; 
management restrictions, protective measures, or other management 
concerns; and a periodic review of the success of the release and its 
effect on the conservation and recovery of the species. The USFWS 
regulations also state that any experimental population shall be 
treated as threatened for purposes of establishing protective 
regulations under ESA section 4(d), and the protective regulations for 
the experimental population will contain applicable prohibitions and 
exceptions for that population.
    The USFWS implementing regulations contain the following specific 
provisions:
    The USFWS regulations define an essential experimental population 
as one ``whose loss would be likely to appreciably reduce the 
likelihood of the survival of the species in the wild'' (50 CFR 
17.80(b)). All other experimental populations are classified as 
nonessential (50 CFR 17.81(f)). This definition was directly derived 
from the legislative history to the ESA amendments that created section 
10(j).
    In determining whether the experimental population will further the 
conservation of the species, the USFWS regulations require the agency 
to consider: (1) Any possible adverse effects on extant populations of 
a species as a result of removal of individuals, eggs, or propagules 
for introduction elsewhere, (2) the likelihood that any such 
experimental population will become established and survive in the 
foreseeable future, (3) the relative effects that establishment of an 
experimental population will have on the recovery of the species, and 
(4) the extent to which the introduced population may be affected by 
existing or anticipated federal or state actions or private activities 
within or adjacent to the experimental population area (50 CFR 
17.81(b)).
    USFWS regulations at 50 CFR 17.81(c) also describe four components 
that will be provided in any regulations promulgated with regard to an 
experimental population under section 10(j). The components are: (1) 
Appropriate means to identify the experimental population, including, 
but not limited to, its actual or proposed location, actual or 
anticipated migration, number of specimens released or to be released, 
and other criteria appropriate to identify the experimental 
population(s), (2) a finding of whether the experimental population is, 
or is not, essential to the continued existence of the species in the 
wild, (3) management restrictions, protective measures, or other 
special management concerns of that population, which may include but 
are not limited to, measures to isolate and/or contain the experimental 
population designated in the regulation from natural populations, 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.
    We have not promulgated regulations implementing section 10(j) of 
the ESA, and have authorized only two experimental populations to date 
(78 FR 2893, January 15, 2013; 78 FR 79622, December 31, 2013). The 
USFWS has authorized many experimental populations. While USFWS' 
regulations do not apply to NMFS' 10(j) authorizations, they can help 
inform our authorization process and we use them to do so. We 
considered the factors identified in the USFWS regulations in the 
course of making the statutorily mandated determinations found in ESA 
section 10(j). To summarize, the statute requires that we determine: 
(1) Whether the release will further the conservation of the species, 
and (2) whether the population is essential or nonessential. In 
addition, because section 10(j) provides that the population will only 
be experimental when and at such times as it is wholly separate 
geographically from nonexperimental populations of the same species, we 
must establish that there are such times and places when the 
experimental population is wholly geographically separate. Similarly, 
the regulations require that we identify the experimental population; 
the legislative history indicates that the purpose of this requirement 
is to provide notice as to which populations of listed species are 
experimental (See, Joint Explanatory Statement of the Committee of 
Conference, H.R. Conf. Rep No. 97-835, at 15 (1982)).

Biological Information and Current Status

    UCR spring-run Chinook salmon are anadromous fish that migrate as 
adults from the ocean in the spring to spawn in freshwater streams 
where their offspring hatch and rear prior to migrating back to the 
ocean to forage until maturity. At spawning, adults pair to lay and 
fertilize thousands of eggs in freshwater gravel nests or ``redds'' 
excavated by females. Depending on temperatures, eggs incubate for 
several weeks to months before hatching as ``alevins'' (a larval life 
stage dependent on food stored in a yolk sac). Following yolk sac 
absorption, alevins emerge from the gravel as young juveniles called 
``fry'' and begin actively feeding. UCR spring-run Chinook salmon 
juveniles spend a year in freshwater areas before migrating to the 
ocean. The physiological and behavioral changes required for the 
transition to salt water result in a distinct ``smolt'' stage. On their 
journey juveniles migrate downstream through a riverine and

[[Page 40008]]

estuarine corridor between their natal lake or stream and the ocean.
    After two to three years in the ocean, adult UCR spring-run Chinook 
salmon begin returning from the ocean in the early spring, with the run 
into the Columbia River peaking in mid-May (NMFS, 2007). Spring-run 
Chinook salmon enter the upper Columbia River tributaries from April 
through July. After migration, they hold in these tributaries until 
spawning occurs in the late summer, peaking in mid-to-late August.
    On March 18, 2010, we announced the initiation of 5-year status 
reviews for 16 ESUs of Pacific salmon including the UCR Spring-run 
Chinook Salmon ESU (75 FR 13082). As part of this review, our Northwest 
Fisheries Science Center compiled and issued a report on the newest 
scientific information on the viability of this ESU. The report states,

    ``The Upper Columbia Spring-run Chinook salmon ESU is not 
currently meeting the viability criteria (adapted from the ICTRT) in 
the Upper Columbia Recovery Plan. Increases in natural origin 
abundance relative to the extremely low spawning levels observed in 
the mid[hyphen]1990s are encouraging; however, average productivity 
levels remain extremely low. Large-scale directed supplementation 
programs are underway in two of the three extant populations in the 
ESU. These programs are intended to mitigate short[hyphen]term 
demographic risks while actions to improve natural productivity and 
capacity are implemented. While these programs may provide 
short[hyphen]term demographic benefits, there are significant 
uncertainties regarding the long[hyphen]term risks of relying on 
high levels of hatchery influence to maintain natural populations 
(Ford et al. 2011).''

All extant populations are still considered to be at high risk of 
extinction based on the abundance/productivity and spatial structure/
diversity metrics. When the risk levels for these attributes are 
integrated, the overall risk of extinction for this ESU is high (Ford 
et al., 2011).

Analysis of the Statutory Requirements

1. Will authorizing release of a UCR spring-run Chinook salmon 
experimental population in the Okanogan River subbasin further the 
conservation of the species?

    The ESA defines ``conservation'' as ``the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provide pursuant 
to this [Act] are no longer necessary.'' The factors we considered in 
determining if release of an experimental population in the Okanogan 
River NEP Area would ``further the conservation'' of UCR spring-run 
Chinook salmon included the potential impacts to the ESU posed by the 
release, the likelihood that the experimental population would become 
established and self-sustaining, and the extent to which a self-
sustaining experimental population would reduce the threats to the 
ESU's viability. The USFWS regulations suggest considering whether the 
experimental population would be affected by other state- or federally-
approved actions in the area. This last factor may not be subject to 
precise evaluation, but, where possible, we took into account all 
factors such as other approved actions that affect whether a population 
could become established and self-sustaining.
    The Upper Columbia Spring Chinook Salmon and Steelhead Recovery 
Plan contains specific management strategies for recovering UCR spring-
run Chinook salmon that include securing existing populations and 
reintroducing spring-run Chinook salmon into historically occupied 
habitats in the Okanogan River subbasin. The plan concludes, and we 
continue to agree, that establishing an experimental population of UCR 
spring-run Chinook salmon in the Okanogan River subbasin is expected to 
reduce the species' overall extinction risk from natural and 
anthropogenic factors by increasing its abundance, productivity, 
spatial structure, and diversity within the Upper Columbia River. These 
expected improvements in the overall viability of UCR spring-run 
Chinook salmon, in addition to other actions being implemented 
throughout the Columbia River migration corridor, will contribute to 
the species near-term viability and recovery.
    To ensure the best chance for a successful reintroduction, we first 
determined the most appropriate source of broodstock within the UCR 
Spring-run Chinook Salmon ESU and the availability of that source. 
Reintroduction efforts have the best chance for success when the donor 
population has life history characteristics and genetic diversity 
compatible with the anticipated environmental conditions of the habitat 
into which fish will be reintroduced (Araki et al., 2008). Populations 
found in watersheds closest to the reintroduction area are most likely 
to have adaptive traits that will lead to a successful reintroduction, 
and therefore only spring-run Chinook salmon populations found in the 
Upper Columbia River subbasin were considered for establishing the 
experimental population in the Okanogan River NEP Area.
    The listed UCR Spring-run Chinook Salmon ESU includes six 
artificial propagation programs: The Twisp River, Chewuch River, Methow 
Composite, Winthrop National Fish Hatchery, Chiwawa River, and White 
River. We evaluated the fish propagated by each of these programs for 
their potential to support a re-introduced population in the Okanogan 
River subbasin. We concluded that fish produced from the Methow 
Composite stock of UCR spring-run Chinook salmon at Winthrop National 
Fish Hatchery are likely the most similar to the extirpated Okanogan 
spring-run Chinook salmon and represent the best initial source of 
individuals to establish an experimental population of UCR spring-run 
Chinook salmon in the Okanogan River. Because the Methow Composite 
stock of UCR spring-run Chinook salmon are from the neighboring Methow 
River subbasin and have evolved in an environment similar to that of 
the Okanogan River subbasin, they are likely to be more genetically 
similar to the extirpated Okanogan spring-run Chinook salmon population 
than spring-run Chinook salmon populations from the more distant Entiat 
and Wenatchee River subbasins. For the past several years, enough adult 
salmon from the Methow Composite hatchery program have returned to the 
Methow subbasin to provide enough excess eggs and sperm to begin 
raising fish for reintroduction into the Okanogan River NEP Area.
    We also considered the suitability of available habitat in the 
Okanogan River subbasin to support the experimental population in the 
foreseeable future. The Columbia basin as a whole is estimated to have 
supported pre-development spring-run Chinook salmon returns as large as 
588,000 fish (Chapman, 1986). Historically, the UCR Spring-run Chinook 
Salmon ESU component of the Columbia basin is estimated to have 
comprised up to 68,900 fish (Mullan, 1987; UCSRB, 2007). It is 
estimated that before the 1930s, the Okanogan population of the UCR 
Spring-run Chinook Salmon ESU contained at least 500 spring-run Chinook 
salmon (NMFS, 2007).
    While the historical population of spring-run Chinook salmon in the 
Okanogan River subbasin has been extirpated, the potential remains to 
reestablish a population in this area. Over the past century, 
overfishing, hydropower development, and local habitat degradation have 
severely impacted ecosystem features and processes in the Okanogan and 
other subbasins, creating a fragmented mixture of altered or barren 
fish and wildlife habitats and eradicating UCR spring-run Chinook 
salmon from the Okanogan River subbasin. Disruptions

[[Page 40009]]

in the hydrologic system have resulted in widespread loss of migratory 
corridors and access to productive habitat (CTCR, 2007). Low base 
stream flow and warm summer water temperatures have limited salmonid 
production both currently and historically. Stream flow and fish 
passage within the Okanogan River subbasin are affected by a series of 
dams and water diversions. However, the Upper Columbia Spring Chinook 
Salmon and Steelhead Recovery Plan estimates that the Okanogan River 
subbasin continues to have the capacity for at least 500 spring-run 
Chinook salmon (NMFS, 2007).
    The recovery plan establishes a framework for accomplishing 
restoration goals for the Okanogan River subbasin including restoring 
connectivity throughout their historic range where feasible and 
practical. Short- and long-term actions will protect riparian habitat 
along spawning and rearing streams and establish, restore, and protect 
stream flows suitable for spawning, rearing, and migration. In 
addition, water quality will be protected and restored where feasible 
and practical. In the mainstem Columbia River, implementation of the 
FCRPS ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010) 
provides a number of new actions and continuation of existing programs 
that will likely continue to increase passage survival through the 
Columbia River mainstem passage corridor. The implementation of these 
actions continues to improve habitat conditions in the Okanogan River 
NEP Area to support reestablishing a potential fourth independent 
population of UCR spring-run Chinook salmon. Salmon Creek and Omak 
Creek offer the best habitat conditions for spawning and rearing in the 
subbasin, and major efforts by the CTCR are underway to restore 
tributary habitat for spring-run Chinook salmon in both the United 
States and Canadian portions of the Okanogan River subbasin.
    In addition to actions taken under the recovery plan, there are 
many federal and state laws and regulations that will also help ensure 
the establishment and survival of the experimental population by 
protecting aquatic and riparian habitat. Section 404 of the Clean Water 
Act (CWA) (33 U.S.C. 1344) requires permits from the United States Army 
Corps of Engineers (Corps) before dredge or fill material can be 
discharged into waters of the United States. The dredge and fill permit 
program provides avoidance, minimization, and mitigation for the 
potential adverse effects of dredge and fill activities within the 
nation's waterways (40 CFR 100-149). Section 404(b) of the CWA requires 
that section 404 permits be granted only in the absence of practicable 
alternatives to the proposed project, which would have a less adverse 
impact on the aquatic ecosystem. CWA section 401 provides protection of 
water quality by requiring dischargers to navigable waters to comply 
with applicable water quality standards. In addition, construction and 
operational storm water runoff is subject to restrictions under CWA 
section 402 and state water quality laws. Also the Magnuson-Stevens 
Fishery Conservation and Management Act, as amended (16 U.S.C. 1801 et 
seq.), requires that Essential Fish Habitat (EFH) be identified and 
federal action agencies consult with NMFS on any activity which they 
fund, permit, or carry out that may adversely affect EFH. Freshwater 
EFH for spring-run Chinook salmon in the Upper Columbia River subbasin 
includes the Okanogan River NEP Area. For each of these authorities, we 
do not assume complete implementation and compliance for all actions 
potentially affecting the experimental population or the listed ESU. 
However, we expect compliance and assume, at a minimum, that these 
authorities provide a regulatory regime that tends to encourage actions 
consistent with that regime.
    The habitat improvement actions called for in the recovery plan, 
the protective measures in this final rule, and compliance with 
existing federal, state and local laws, statutes, and regulations, are 
expected to contribute to the survival of the experimental population 
in the Okanogan River subbasin into the foreseeable future. Although 
any reintroduction effort is likely to require supplementation with 
hatchery-origin fish for several years, we conclude there is the 
potential for a population of spring-run Chinook salmon to become 
established. Furthermore, we conclude that such a self-sustaining 
population of genetically compatible individuals is likely to further 
the conservation of the species as discussed above.

2. Is the experimental population separate geographically from the 
nonexperimental populations of the same species?

    Section 10(j) of the ESA requires that we identify the population 
by regulation to provide notice of which populations are experimental. 
The statute also provides that the population is only considered 
experimental ``when, and at such times as, [it] is wholly separate 
geographically from the nonexperimental populations of the same 
species.'' In this case, the analysis and information that identifies 
the population also demonstrates when and where it will be wholly 
geographically separate from other UCR spring-run Chinook salmon. Under 
this rule, the experimental population is defined as the UCR spring-run 
Chinook salmon population released in the Okanogan River subbasin, and 
their subsequent progeny, when geographically located within the 
Okanogan River NEP Area. When the juvenile experimental UCR spring-run 
Chinook salmon leave the mouth of the Okanogan River and pass into the 
Columbia River mainstem and proceed to the Pacific Ocean, they are no 
longer geographically separated from the other extant, listed UCR 
spring-run Chinook salmon populations, and the ``experimental'' 
designation does not apply, unless and until they return as adults to 
spawn in the Okanogan River NEP Area.
    The Okanogan River NEP Area provides the requisite level of 
geographic separation because UCR spring-run Chinook salmon are 
currently extirpated from this area, and straying of other UCR spring-
run Chinook populations into this area is extremely low (Colville 
Business Council, 2010). The UCR Spring-run Chinook Salmon ESU does not 
include the Okanogan River, and the status of the ESU does not rely on 
the Okanogan River subbasin for recovery. If any extant UCR spring-run 
Chinook salmon stray into the Okanogan River subbasin, they would 
acquire experimental status while within that area, and therefore no 
longer be covered by the ``endangered'' listing, nor by the full range 
of section 9 prohibitions. The ``experimental'' designation is 
geographically based and does not travel with the fish outside the 
Okanogan River subbasin.
    Hatchery-origin fish used for the reintroduction will be marked, 
for example, with specific fin clips and/or coded-wire tags to evaluate 
the stray rate and allow for broodstock collection of returning NEP 
adults. It may be possible to mark NEP juvenile fish released into the 
Okanogan River NEP Area in an alternative manner (other than coded-wire 
tags) that would distinguish them from other Chief Joseph Hatchery-
raised Chinook salmon, and we will consider this during the Chief 
Joseph Hatchery annual review. During the Chief Joseph Hatchery annual 
review process, information on fish interactions and stray rates, 
productivity rates of hatchery-origin and natural-origin populations, 
and harvest effects are analyzed and evaluated for consistency with 
best management

[[Page 40010]]

practices for artificial production as developed by the Hatchery 
Scientific Review Group (HSRG) and other science groups in the Pacific 
Northwest. Any such clips or tags would not, however, be for the 
purpose of identifying the NEP since, as discussed above, the 
experimental population is identified based on the geographic location 
of the fish. Indeed, if the reintroduction is successful, and fish 
begin reproducing naturally, their offspring would not be 
distinguishable from fish from other natural-origin UCR spring-run 
Chinook salmon populations. Outside of the experimental population 
area, e.g., in the Columbia River below the mouth of the Okanogan River 
or in the ocean, any such unmarked fish (juveniles and adults alike) 
will not be considered members of experimental population. They will be 
considered part of the ESU currently listed as endangered. Likewise, 
any fish that were marked before release in the NEP Okanogan River Area 
will not be considered part of the experimental population once they 
leave the Okanogan River NEP Area; rather, they will be considered part 
of the ESU currently listed as endangered.

3. Is the experimental population essential to the continued existence 
of the species?

    The ESA requires the Secretary, in authorizing the release of an 
experimental population, to determine whether the population would be 
``essential to the continued existence'' of the ESU. The statute does 
not elaborate on how this determination is to be made. However, as 
noted above, Congress gave some further definition to the term when it 
described an essential experimental population as one whose loss 
``would be likely to appreciably reduce the likelihood of the survival 
of the species in the wild'' (see, Joint Explanatory Statement of the 
Committee of Conference, H.R. Conf. Rep. No. 97-835, at 15 (1982)). The 
USFWS incorporated this concept into its regulatory definition of an 
essential population.
    Based on the best available information as required by ESA section 
10(j)(2)(B), we conclude that the proposed experimental population will 
not be one ``whose loss would be likely to appreciably reduce the 
likelihood of survival'' of the UCR Chinook Spring-run Salmon ESU for 
the reasons described below.
    The recovery plan states that recovery of spring-run Chinook salmon 
in the Okanogan subbasin is not a requirement for delisting. Based on 
the recovery plan's recovery criteria and proposed management 
strategies, the UCR Spring-run Chinook Salmon ESU could recover to the 
point where listing under the ESA is no longer necessary solely with 
contributions from the three extant populations. Specifically, if the 
Wenatchee and Methow populations could achieve a 12-year geometric mean 
abundance of 2,000 natural-origin fish, and if the Entiat population 
reaches a 12-year geometric mean abundance of 500 natural-origin fish, 
the UCR Spring-run Chinook Salmon ESU would meet the recovery criteria 
for abundance. This would require a minimum productivity of between 1.2 
and 1.4 recruits per spawner for the 12-year time period (NMFS, 2007). 
The extant populations would also need to meet specific criteria, 
identified in the recovery plan, which would result in a moderate or 
lower risk for spatial structure and diversity. The Upper Columbia 
Salmon and Steelhead Recovery Plan identifies several harvest, hatchery 
management, hydropower and habitat related actions that could be taken 
to improve viability of the three extant UCR spring-run Chinook salmon 
populations.
    The recovery plan estimates recovery of the UCR Spring-run Chinook 
Salmon ESU would take 10 to 30 years without the addition of the 
Okanogan population. Based on the best available current evidence and 
information, we conclude that recovery of the UCR Spring-run Chinook 
Salmon ESU would still be likely under the above-discussed conditions.
    NOAA's 2011 5-year status review concluded that, despite an 
increase in abundance and a decrease in productivity of the UCR Spring-
run Chinook Salmon ESU, information considered in the review did not 
change the biological extinction risk category since the previous 2005 
status review. Neither status review considered the potential for UCR 
spring-run Chinook salmon in the Okanogan River subbasin to alter this 
risk, because UCR spring-run Chinook salmon were extirpated from the 
Okanogan River subbasin in the 1930s and no UCR spring-run Chinook 
salmon currently exist in the Okanogan River subbasin.
    In summary, even without the establishment of a fourth (Okanogan) 
population, the UCR Spring-run Chinook Salmon ESU could possibly be 
delisted if all threats were addressed and all three populations 
recovered. Because we conclude that a population of UCR spring-run 
Chinook salmon in the Okanogan River NEP Area is not essential for 
conservation of the ESU, we conclude that the proper designation is as 
an NEP. Under Section 10(j)(2)(C)(ii) of the ESA we cannot designate 
critical habitat for a NEP.

Location of the NEP

    ESA section 10(j) requires that the experimental population be 
designated ``only when, and at such times, as it is geographically 
separate from nonexperimental populations of the same species.'' The 
geographic boundary defining the Okanogan River NEP Area for UCR 
spring-run Chinook salmon is the mainstem and all tributaries of the 
Okanogan River between the Canada-United States border to the 
confluence of the Okanogan River with the Columbia River. All UCR 
spring-run Chinook salmon in this defined Okanogan River NEP Area are 
considered part of the NEP, irrespective of their origin. Conversely, 
when UCR spring-run Chinook salmon are located outside this defined 
Okanogan River NEP Area, they are not considered part of the NEP.

Additional Management Restrictions, Protective Measures, and Other 
Special Management Considerations

    As indicated above, section 10(j) requires that experimental 
populations are treated as threatened species, except for certain 
portions of section 7. Congress intended that this provision would 
authorize us to issue regulations we deemed necessary and advisable to 
provide for the conservation of the experimental population, just as it 
does, under section 4(d), for any threatened species (Joint Explanatory 
Statement, supra, at 15). In addition, when amending the ESA to add 
section 10(j), Congress specifically intended to provide broad 
discretion and flexibility to the Secretary in managing experimental 
populations so as to reduce opposition to release of listed species 
outside their current range (H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 
(1982)). Therefore, we are exercising the authority to issue protective 
regulations under section 4(d) for the proposed NEP to identify take 
prohibitions necessary to provide for the conservation of the species 
and otherwise provide assurances to people in the Okanogan River NEP 
Area.
    The ESA defines ``take'' to mean: Harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or attempt to engage in 
any such conduct. Concurrent with the ESA section 10(j) authorization, 
we adopt protective regulations under ESA section 4(d) for the 
experimental population that prohibit take of UCR spring-run Chinook 
salmon that are part of the experimental population except in the

[[Page 40011]]

following circumstances in the Okanogan River NEP Area:
    1. Any activity taken pursuant to a valid permit issued by us under 
Sec.  223.203(b)(1) and Sec.  223.203(b)(7) for scientific research 
activities.
    2. Aid, disposal, or salvage of fish by authorized agency personnel 
acting in compliance with 50 CFR 223.203(b)(3).
    3. Activities associated with artificial propagation of the 
experimental population under an approved Hatchery Genetic Management 
Plan that complies with the requirements of-Sec.  223.203(b)(5).
    4. Any harvest-related activity undertaken by a tribe, tribal 
member, tribal permittee, tribal employee, or tribal agent consistent 
with tribal harvest regulations and an approved Tribal Resource 
Management Plan that complies with the requirements of Sec.  223.204.
    5. Any harvest-related activity consistent with state harvest 
regulations and an approved Fishery Management Evaluation Plan that 
complies with the requirements of Sec.  223.203(b)(4).
    6. Any take that is incidental \1\ to an otherwise lawful activity. 
Otherwise lawful activities include, but are not limited to, 
agricultural, water management, construction, recreation, navigation, 
or forestry practices, when such activities are in full compliance with 
all applicable laws and regulations.
---------------------------------------------------------------------------

    \1\ Incidental take refers to takings that result from, but are 
not the purpose of, carrying out an otherwise lawful activity 
conducted by the Federal agency or applicant. 50 CFR 402.02
---------------------------------------------------------------------------

    Outside the Okanogan River NEP Area, UCR spring-run Chinook salmon 
are not considered to be part of the NEP (even if they originated 
there), and the take prohibitions applicable for endangered UCR spring-
run Chinook salmon will apply.

Summary of Comments and Responses

    The proposed rule and draft EA established a public comment period 
from October 24 until December 9, 2013 (78 FR 63439, October 24, 2013). 
In addition to welcoming comments in general, we also requested 
comments on seven specific questions regarding: (1) Whether the Methow 
Composite stock of UCR spring-run Chinook salmon is the best fish to 
use in establishing an experimental population and the scientific basis 
for the comment; (2) the proposed geographical boundary of the 
experimental population; (3) the extent to which the experimental 
population would be affected by current or future federal, state, 
tribal, or private actions within or adjacent to the experimental 
population area; (4) any necessary management restrictions, protective 
measures, or other management measures that we may not have considered; 
(5) the likelihood that the experimental population would become 
established in the Okanogan River NEP Area; (6) whether the proposed 
experimental population is essential or nonessential; and (7) whether 
the proposed designation furthers the conservation of the species and 
whether we have used the best available science in making this 
determination. We also contacted other Federal agencies and tribes and 
invited them to comment on the proposed rule. On November 5, 2013, we 
also held a public meeting within the geographic area affected by the 
proposed rule.
    We received comments from a total of 8 individuals or organizations 
on the proposed rule and draft EA representing the opinions of various 
natural resource agencies, county officials, non-governmental 
organizations, and private entities. Six of the commenters expressed 
support for the proposal. One of the commenters in support of the 
proposal also suggested a few specific technical edits and 
clarifications be made to the draft EA, which we incorporated. The 
remaining two commenters provided comments expressing concerns about 
the proposal. Below we summarize our responses to all of the 
substantive issues raised regarding the proposed rule and draft EA.

Comments and Responses

    Comment 1: One commenter noted disappointment in the short comment 
period, and felt that there was inadequate coordination with elected 
officials in developing the proposed introduction of endangered UCR 
spring-run Chinook salmon into the Okanogan River and tributaries.
    Response: We provided a 45-day comment period starting on October 
24, 2013, and ending on December 9, 2013. We did not receive requests 
from commenters for a review period extension.
    We believe that there was adequate coordination with elected 
officials and the public in the development of the proposed NEP. The 
reintroduction of spring-run Chinook salmon into the Okanogan River 
subbasin was included as a recommended action in the 2007 Upper 
Columbia Spring Chinook Salmon and Steelhead Recovery Plan. The 
Recovery Plan was developed in close collaboration with the Upper 
Columbia Salmon Recovery Board with extensive involvement of elected 
officials, state and tribal co-managers, and other stakeholders 
throughout the region. In 2011, we published an Advance Notice of 
Proposed Rulemaking in the Federal Register (76 FR 42658; July 16, 
2011) notifying the public of our intention to develop a proposal for 
reintroduction, and describing opportunities for public engagement. 
Additional opportunities for input and engagement were highlighted in 
the proposed rule (78 FR 63439; October 24, 2013). We met with the 
Okanogan County Commissioners on December 5, 2011, and on November 5, 
2013. On those same dates we also convened public meetings in Omak, 
Washington on the proposed reintroduction. These meetings were noticed 
in advance in local newspapers.
    Comment 2: One commenter contended that there is a lack of credible 
historical evidence that the Okanogan Basin ever supported a viable 
population of spring-run Chinook salmon.
    Response: We believe there is credible evidence that the Okanogan 
River subbasin historically supported a viable population of spring-run 
Chinook salmon (see section 3.2.1.1 of the EA for more detailed 
discussion). UCR spring-run Chinook salmon historically occurred in at 
least four systems in the Okanogan River subbasin: (1) Salmon Creek 
(Craig and Suomela, 1941), (2) tributaries upstream of Lake Osoyoos 
(Gartrell, 1936; Chapman et al., 1995; NPCC, 2004a), (3) Omak Creek 
(Fulton, 1968), and (4) the Similkameen River (Fulton, 1968).
    Comment 3: One commenter expressed concern that there is inadequate 
habitat to support the reintroduction of UCR spring-run Chinook salmon.
    Response: In the EA we evaluated whether the current water 
conditions would allow for a reintroduction program to succeed, and 
which areas of the Okanogan River subbasin currently have potential for 
year round rearing of UCR spring-run Chinook salmon (Section 3.5.4). We 
concluded that there is adequate tributary habitat to support UCR 
spring-run Chinook salmon in the United States portion of the Okanogan 
River subbasin.
    Comment 4: One commenter expressed concern that the reintroduction 
of spring-run Chinook salmon will negatively impact other ESA listed 
and non-listed species.
    Response: The reintroduction will not negatively impact other 
populations of UCR spring run Chinook salmon. The reintroduction effort 
will effectively reduce releases of Methow Composite hatchery smolts in 
the Methow subbasin by 200,000 out of a program goal of 600,000 smolts, 
and release them into

[[Page 40012]]

the Okanogan River subbasin instead. Consequently the number of 
naturally spawning hatchery fish in the Methow subbasin is expected to 
be greatly reduced, by approximately one third, providing a large 
benefit to the endangered wild UCR spring-run Chinook salmon in the 
Methow subbasin. Apart from this benefit, life-history strategies for 
UCR spring-run Chinook salmon will not be affected by this action. The 
reintroduction effort into the Okanogan River subbasin is not expected 
to alter fisheries management outside of the action area and not 
expected to result in an increase in harvest impacts for UCR spring-run 
Chinook salmon or other listed species.
    The proposed reintroduction is unlikely to negatively affect UCR 
summer/fall-run Chinook salmon populations. Spring-run Chinook salmon 
typically spawn prior to, and in different habitat than, summer/fall-
run Chinook salmon habitat. Competition for spawning sites or redd 
superimposition is typically rare and in this case is not expected 
between the two species.
    The reintroduction effort will not negatively impact UCR steelhead. 
Given the life-history differences between UCR spring-run Chinook 
salmon and steelhead (e.g., discrete run, spawn, and emergence timing), 
adverse ecological interactions between the experimental spring-run 
Chinook salmon population and steelhead are expected to be minimal. 
There is the possibility of some incidental take of UCR steelhead by 
activities directed at the experimental population (e.g., handling of 
steelhead that is incidental to the collection of spring-run Chinook 
broodstock). However, the level of incidental take of UCR steelhead is 
expected to be minimal, and non-lethal. Additionally, while the limited 
protective regulations in this final rule will apply to the 
nonessential experimental population of UCR spring-run Chinook salmon, 
any actions that might directly or indirectly take steelhead in the 
Okanogan River subbasin must comply with the 4(d) protective 
regulations for West Coast steelhead (71 FR 5178; February 1, 2006).
    Comment 5: One commenter was concerned about the genetic risks to 
the Methow population of spring-run Chinook salmon posed by ``alien'' 
stocks straying into the Methow subbasin from the reintroduction effort 
in the Okanogan River subbasin.
    Response: No ``alien'' stocks of spring-run Chinook salmon would be 
used in the reintroduction program. The reintroduction effort will use 
Methow Composite hatchery stock, a stock originating in the Methow 
subbasin that is currently propagated at the Winthrop National Fish 
Hatchery. This stock is considered the most closely related to the 
historical spring Chinook salmon run in the Okanogan River subbasin and 
determined to be the best for the reintroduction program (see EA 
Subsection 2.5.3, Authorize the Reintroduction Using a Different 
Hatchery Stock). As previously mentioned, the proposed reintroduction 
program will likely reduce the impact of the Methow Composite stock on 
wild UCR spring-run Chinook salmon in the Methow subbasin by relocating 
the release of 200,000 smolts from the Methow River to the Okanogan 
River subbasin.
    Comment 6: One commenter was concerned that harvest targeting 
reintroduced UCR spring-run Chinook salmon stocks would impede recovery 
by resulting in the over-harvest of co-mingled Methow subbasin salmon 
and steelhead.
    Response: Although the wild Methow and the reintroduced UCR spring-
run Chinook salmon populations would co-mingle in the ocean and 
mainstem Columbia River during adult migration, neither population will 
be marked with an adipose-fin clip and thereby be subjected to higher 
sport-harvest rates (see EA Subsection 1.7.1.2, Spring-run Chinook 
Salmon Reintroduction Program (Methow Composite Stock)). Successful 
reintroduction of an experimental UCR spring-run Chinook salmon 
population will expand the spatial distribution of the UCR Spring-run 
Chinook Salmon ESU in the Upper Columbia River Basin, thus aiding in 
recovery.
    Comment 7: One commenter requested information regarding the 
effectiveness of a previous reintroduction effort by the CTCR in the 
Okanogan River subbasin using the Carson stock of hatchery spring-run 
Chinook salmon.
    Response: CTCR staff informed us that Chinook smolts were released 
in the Okanogan River subbasin from 2002 through 2006 to evaluate the 
potential for a reintroduction program (see EA Subsection 2.5.3, 
Authorize the Reintroduction Using a Different Hatchery Stock). The 
Carson stock releases were terminated in 2006 in favor of obtaining a 
broodstock source more genetically similar to the historical Okanagan 
subbasin stock that would better support a long-term reintroduction 
program. We could not find any published literature on the 
effectiveness of the Carson spring-run Chinook salmon reintroduction 
efforts. According to CTCR staff, the 2002-2006 Carson stock 
reintroduction effort demonstrated that spring-run Chinook salmon could 
successfully rear in Omak Creek and emigrate out of the Okanogan River 
subbasin. The study was short-term and limited in scope. Additional 
information may be obtained from CTCR staff.
    Comment 8: One commenter requested information regarding the 
designation of other nonessential experimental populations, and whether 
they had been successful.
    Response: To date, NMFS has designated two nonessential 
experimental populations under section 10(j) of the ESA.
    On January 15, 2013, NMFS designated Middle Columbia River 
steelhead reintroduced above the Pelton Round Butte Hydroelectric 
Project (Oregon) as a non-essential experimental population under 
section 10(j) of the ESA. For additional information see: http://www.gpo.gov/fdsys/pkg/FR-2013-01-15/html/2013-00700.html.
    On December 31, 2013, NMFS issued a final rule establishing a 
nonessential experimental population of Central Valley spring-run 
Chinook salmon and associated protective regulations under section 4(d) 
of the ESA. For additional information see: http://www.westcoast.fisheries.noaa.gov/central_valley/san_joaquin/san_joaquin_reint.html.
    NMFS has not had sufficient time yet to determine the effectiveness 
of these NMFS 10(j) reintroduction efforts.
    The USFWS has used Section 10(j) of the ESA to reintroduce scores 
of threatened and endangered species throughout the U.S. For additional 
information see: http://ecos.fws.gov/ecos/home.action.
    Comment 9: One commenter questioned whether the proposed 
reintroduction would divert resources away from recovery efforts 
targeting extant spring-run Chinook salmon populations, and expressed 
concerns that the reintroduction would impose a financial burden on 
Okanogan County ratepayers.
    Response: Funds allocated to salmon recovery and habitat 
restoration by Public Utility Districts, the Bonneville Power 
Administration and other federal agencies are already established and 
would not change as a result of the reintroduction program. Because 
there would be no change or redirection of these allocated funds with, 
or without, the designation of UCR spring-run Chinook salmon as a NEP 
in the Okanogan River subbasin, the reintroduction program would not

[[Page 40013]]

impose any additional financial burden on Okanogan County ratepayers.
    Comment 10: Two commenters expressed concern that the introduction 
of spring-run Chinook salmon would bring additional regulatory burdens, 
and that the ``threatened'' status accompanying a nonessential 
experimental population might lead to an upgraded endangered status in 
the future.
    Response: This is a concern that we have specifically sought to 
address throughout the rulemaking process, and as a result, no 
additional regulatory burdens would occur as a result of this 
designation. The underlying intent of the nonessential experimental 
population is to utilize the flexibility and discretion afforded under 
section 10(j) of the ESA to manage the introduced population in a 
manner that minimizes regulatory burdens and the potential risk of ESA 
liability to the local community. Section 10(j) allows us to promulgate 
tailored protective regulations to ensure that the potential 
implication(s) of the introduced population are minimized for private 
stakeholders. An exception to the take prohibitions was included in the 
proposed rule to address this specific concern by allowing take of 
spring-run Chinook in the NEP area that is incidental to an otherwise 
lawful activity (see section CFR 223.301(c)(3)(vi) in this final rule). 
In this final rule, we have included additional language in this 
exception to further protect individuals acting lawfully from the take 
prohibitions by clarifying that ``any fish that is incidentally taken 
in a manner allowed by this paragraph may not be collected and must be 
immediately returned to its habitat.'' This clarifying language will 
help ensure that an individual does not errantly retain, transport, or 
possess a fish outside of the Okanogan River NEP Area where the take 
prohibitions for endangered UCR spring-run Chinook salmon would apply.
    The nonessential experimental population designation also minimizes 
the regulatory burden under section 7 of the ESA for federal actions. 
Section 10(j) allows that an experimental population deemed 
``nonessential'' is treated as a species proposed for listing during 
interagency consultations under section 7 of the Act, requiring federal 
agencies to confer (rather than consult) with NMFS on actions that are 
likely to adversely affect the experimental population. Any 
recommendations that result from the conference are advisory in nature 
only, further minimizing any regulatory burden associated with the 
designation of the experimental population.
    There is no risk that the reintroduced population will be upgraded 
to ``endangered'' status. The ``threatened'' status that accompanies 
the reintroduced nonessential experimental population designation will 
remain unchanged ``in perpetuity'' (see EA Subsection 4.1.1.5, Short-
term and Long-term Timeframes Used for Analyses of the EA).
    Comment 11: One commenter was concerned that the reintroduction 
will only serve to justify future acquisition of private lands for the 
purposes of habitat restoration and protection.
    Response: We respectfully disagree that the reintroduction program 
will serve as justification for, or provide an incentive for, enhanced 
land acquisition for habitat conservation. The reintroduction program 
does not encourage nor require additional land acquisition to be 
successful. There is adequate potential spring-run Chinook salmon 
habitat available in the Okanogan River subbasin to support the 
reintroduction effort (see EA Subsection 3.5.4, Okanogan Subbasin 
Habitat Availability). Although the 10(j) designation is not a 
justification to acquire land for habitat conservation purposes, the 
CTCR and any other entity retain the legal rights to pursue land 
acquisitions in the Okanogan River subbasin to protect salmon and 
steelhead habitat. Similarly, landowners retain the legal right to 
pursue, accept and reject proposed property transactions as they see 
fit.
    Comment 12: One commenter asked whether non-tribal members would be 
afforded equal harvest opportunities as tribal members on hatchery-
origin UCR spring-run Chinook salmon from the Okanogan River subbasin.
    Response: The CTCR is developing a fishery management plan to 
harvest returns to the Okanogan River subbasin if such harvest is 
required to reduce the proportion of naturally spawning hatchery-origin 
spring-run Chinook salmon. Washington Department of Fish and Wildlife 
has not submitted a harvest plan that would include recreational 
fishing for spring-run Chinook salmon in the Okanogan River subbasin. 
However, Washington Department of Fish and Wildlife may desire to 
coordinate with co-managers to set recreational fishing seasons in 
addition to regulations already established by the CTCR for tribal 
fisheries in the mainstem Columbia River above Wells Dam for 
Leavenworth spring-run Chinook salmon returning to the Chief Joseph 
Hatchery.
    After review of the comments and further consideration, we have 
decided to adopt the proposed rule that was published in the Federal 
Register (78 FR 63439) on October 24, 2013, with only non-substantive 
editorial changes. Minor modifications were made to remove unnecessary 
regulatory language and provide clarity. The modifications make no 
change to the substance of the rule.

Findings

    Based on the best available information, we determine that the 
release of a NEP of UCR spring-run Chinook salmon in the Okanogan River 
NEP Area will further the conservation of UCR spring-run Chinook 
salmon. Fish used for the reintroduction will come from the Methow 
Composite hatchery program located at Winthrop National Fish Hatchery. 
These fish are included in the UCR spring-run Chinook salmon ESU and 
have the best chance to survive and adapt to conditions in the Okanogan 
River subbasin (Jones et al., 2011). They are expected to remain 
geographically separate from the existing three extant populations of 
the UCR spring-run Chinook Salmon ESU during the life stages in which 
the NEP remains in, or returns to, the Okanogan River; at all times 
when members of the NEP are downstream of the confluence of the 
Okanogan and Columbia Rivers, the experimental designation will not 
apply. Establishment of a fourth population of UCR spring-run Chinook 
salmon in the Okanogan River subbasin will likely contribute to the 
viability of the ESU as a whole. This experimental population release 
is being implemented as recommended in the 2007 Upper Columbia Spring 
Chinook Salmon and Steelhead Recovery Plan, while at the same time 
ensuring that the reintroduction will not impose undue regulatory 
restrictions on landowners and third parties.
    We further determine, based on the best available information, that 
the designated experimental population is not essential to the ESU, 
because absence of the experimental population will not reduce the 
likelihood of survival of the ESU. An Okanogan spring-run Chinook 
salmon population is not a requirement for delisting because the 
population is extirpated. Implementation of habitat actions in the 
recovery plan are expected to increase the viability of the Methow, 
Wenatchee, and Entiat populations to meet ESU recovery criteria without 
establishment of an Okanogan population. We therefore designate the 
released

[[Page 40014]]

population as a Nonessential Experimental Population.

Information Quality Act and Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review pursuant to the 
Information Quality Act (Section 515 of Pub. L. 106-554) in the Federal 
Register on January 14, 2005 (70 FR 2664). The Bulletin established 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation with regard to certain types of information disseminated 
by the Federal Government. The peer review requirements of the OMB 
Bulletin apply to influential or highly influential scientific 
information disseminated on or after June 16, 2005. There are no 
documents supporting this final rule that meet these criteria.

Classification

Executive Order 12866

    This final rule has been determined to be not significant under 
Executive Order (E.O.) 12866.

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

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
801 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities.
    The Chief Counsel for Regulation, Department of Commerce, certified 
to the Chief Counsel for Advocacy at the Small Business Administration 
at the proposed rule stage that this rule will not have a significant 
economic effect on a substantial number of small entities. No comments 
were received regarding the economic impact of this final rule on small 
entities. The factual basis for this certification was published with 
the proposed rule and is not repeated here. Because this rule requires 
no additional regulations on small entities and would impose little to 
no regulatory requirements for activities within the affected area, a 
final regulatory flexibility analysis is not required and one was not 
prepared.

Executive Order 12630

    In accordance with E.O. 12630, the final rule does not have 
significant takings implications. A takings implication assessment is 
not required because this rule: (1) would not effectively compel a 
property owner to have the government physically invade their property, 
and (2) would not deny all economically beneficial or productive use of 
the land or aquatic resources. This rule would substantially advance a 
legitimate government interest (conservation and recovery of a listed 
fish species) and would not present a barrier to all reasonable and 
expected beneficial use of private property.

Executive Order 13132

    In accordance with E.O. 13132, we have determined that this final 
rule does not have federalism implications as that termed is defined in 
E.O. 13132.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    OMB regulations at 5 CFR 1320, which implement provisions of the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that Federal 
agencies obtain approval from OMB before collecting information from 
the public. A Federal agency may not conduct or sponsor, and a person 
is not required to respond to, a collection of information unless it 
displays a currently valid OMB control number. This final rule does not 
include any new collections of information that require approval by OMB 
under the Paperwork Reduction Act.

National Environmental Policy Act

    In compliance with all provisions of the National Environmental 
Policy Act of 1969, we have analyzed the impact on the human 
environment and considered a reasonable range of alternatives for this 
final rule. We made the draft EA available for public comment along 
with the proposed rule, received one set of comments, and responded to 
those comments in an Appendix to the EA. We have prepared a final EA 
and FONSI on this action and have made these documents available for 
public inspection (see ADDRESSES section).

Government-to-Government Relationship With Tribes (E.O. 13175)

    E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments, outlines the responsibilities of the federal government in 
matters affecting tribal interests. If we issue a regulation with 
tribal implications (defined as having a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes) we 
must consult with those governments or the Federal Government must 
provide funds necessary to pay direct compliance costs incurred by 
tribal governments.
    The CTCR Reservation lies within the experimental population area. 
In 2010 staff members of CTCR met with NMFS staff. They discussed the 
Tribe's developing proposal to reintroduce UCR spring-run Chinook 
salmon in the Okanogan River subbasin and designate it as an ESA 10(j) 
experimental population.
    Since that meeting CTCR and NMFS staffs have been in frequent 
contact, including explaining the rule-making process and evaluations 
involved in reviewing any proposal from the Tribes. These contacts and 
conversations included working together on public meetings held in 
Okanogan and Omak, WA (December 5, 2011, and November 5, 2013) and 
monthly status/update calls describing activity associated with the 
NEPA and ESA reviews associated with the proposal and final rules.
    In addition to frequent contact and coordination among CTCR and 
senior NMFS technical and policy staff, we also discussed hatchery 
production changes affected by the Chief Joseph Hatchery and the 
associated aspects of the 10(j) proposal with the Parties to United 
States v. Oregon (Confederated Tribes and Bands of the Yakama Nation, 
Confederated Tribes of the Umatilla Indian Reservation, Confederated 
Tribes of the Warm Springs Reservation of Oregon, Nez Perce Tribe, and 
the Shoshone-Bannock Tribes of the Fort Hall Reservation; the States of 
Washington, Oregon, and Idaho; and the United States (NMFS, USFWS, 
Bureau of Indian Affairs, and the Department of Justice)). The current 
2008-2017 United States v. Oregon Management Agreement (2008) 
anticipated the development of the Chief Joseph Hatchery. Footnote 
5 to Table B-1 Spring Chinook Production for Brood

[[Page 40015]]

Years 2008-2017 states that the parties to the Agreement ``anticipate 
that the proposed Chief Joseph Hatchery is likely to begin operations 
during the term of this Agreement. The Parties agree to develop options 
for providing . . . spring Chinook salmon eggs to initiate the Chief 
Joseph program when it comes online.'' (p. 99). This will include 
coordinating with the ``Production Advisory Committee'' (PAC) which is 
responsible to ``coordinate information, review and analyze . . . 
future natural and artificial production programs . . . and to submit 
recommendations to the management entities.'' (p. 14) The U.S. v Oregon 
Policy Committee, in February 2012, approved changes to the Agreement 
that identified the marking and transfer of 200,000 UCR spring-run 
Chinook salmon pre-smolts to Okanogan River acclimation ponds, and the 
prioritization of this production, in relation to other hatchery 
programs in the Methow River subbasin. The footnote has been modified 
to reflect these changes. The PAC includes technical representatives 
from '' . . . the Warm Springs Tribe, the Umatilla Tribes, the Nez 
Perce Tribe, the Yakama Nation, and the Shoshone-Bannock Tribes.'' 
(p.14). It is these technical representatives who will review adult 
management proposals associated with this final rule. Those 
representatives are senior staff from the identified tribes and will be 
in communication with their respective governments. We invite meetings 
with tribes to have detailed discussions that could lead to government-
to-government consultation meetings with tribal governments. We will 
continue to coordinate with the affected tribes.

References Cited

    A complete list of all references cited in this final rule is 
available upon request (see FOR FURTHER INFORMATION CONTACT).

    Dated: July 7, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports.
    For the reasons set out in the preamble, part 223 of chapter II, 
title 50 of the Code of Federal Regulations, is amended as follows.

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

    Authority: 16 U.S.C. 1531 et seq.; subpart B, Sec. Sec.  223.201 
and 223.202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 
5503(d) for Sec.  223.206(d)(9).


0
2. In Sec.  223.102, in the table in paragraph (e) under ``Fishes,'' 
add an entry for ``Salmon, Chinook (Upper Columbia River spring-run 
ESU-XN)'' after the entry for ``Salmon, Chinook (Upper Willamette River 
ESU)'' and before the entry for ``Salmon, Chum (Columbia River ESU)'' 
to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                             Species \1\
---------------------------------------------------------------------  Citation(s) for    Critical
                                                   Description of          listing        habitat     ESA rules
         Common name           Scientific name      listed entity     determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
            Fishes
 
                                                  * * * * * * *
Salmon, Chinook (Upper         Oncorhynchus     Upper Columbia River  [Insert Federal            NA      223.301
 Columbia River spring-run      tshawytscha.     spring-run Chinook    Register
 ESU-XN).                                        salmon only when,     citation] 7/11/
                                                 and at such times,    14.
                                                 as they are found
                                                 in the mainstem or
                                                 tributaries of the
                                                 Okanogan River from
                                                 the Canada-United
                                                 States border to
                                                 the confluence of
                                                 the Okanogan River
                                                 with the Columbia
                                                 River, Washington.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).

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


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

* * * * *
    (c) Okanogan River UCR spring-run Chinook Salmon Experimental 
Population (Oncorhynchus tshawytscha). (1) The Upper Columbia River 
(UCR) spring-run Chinook salmon population located in the geographic 
area identified in paragraph (c)(5) of this section shall comprise the 
Okanogan River nonessential experimental population (NEP), and shall be 
treated as a ``threatened species'' pursuant to 16 U.S.C. 
1539(j)(2)(C).
    (2) Prohibitions. Except as provided in paragraph (c)(3) of this 
section, the prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 
1538(a)(1)) relating to endangered species apply to UCR spring-run 
Chinook salmon in the Okanogan River NEP Area, defined in paragraph 
(c)(5) of this section.
    (3) Exceptions to the Application of Section 9 Take Prohibitions in 
the Experimental Population Area. Take of UCR spring-run Chinook salmon 
that is otherwise prohibited by paragraph (c)(2) of this section and 50 
CFR 223.203(a) in the Okanogan River NEP Area is allowed, except as 
otherwise noted, provided it falls within one of the following 
categories:
    (i) Any activity taken pursuant to a valid permit issued by NMFS 
under Sec.  223.203(b)(1) and (7) for scientific research activities;
    (ii) Aid, disposal, or salvage of fish by authorized agency 
personnel acting in compliance with 50 CFR 223.203(b)(3);
    (iii) Activities associated with artificial propagation of the 
experimental population under an approved Hatchery Genetic Management 
Plan (HGMP) that complies with the requirements of 50 CFR 
223.203(b)(5);

[[Page 40016]]

    (iv) Any harvest-related activity undertaken by a tribe, tribal 
member, tribal permittee, tribal employee, or tribal agent consistent 
with tribal harvest regulations and an approved Tribal Resource 
Management Plan (TRMP) that complies with the requirements of 50 CFR 
223.204;
    (v) Any harvest-related activity consistent with state harvest 
regulations and an approved Fishery Management Evaluation Plan (FMEP) 
that complies with the requirements of 50 CFR 223.203(b)(4); or
    (vi) Any take that is incidental to an otherwise lawful activity, 
provided that the taking is unintentional; not due to negligent 
conduct; and incidental to, and not the purpose of, the carrying out of 
the otherwise lawful activity. Otherwise lawful activities include, but 
are not limited to, agricultural, water management, construction, 
recreation, navigation, or forestry practices, when such activities are 
in full compliance with all applicable laws and regulations. Any fish 
that is incidentally taken in a manner allowed by this paragraph may 
not be collected and must be immediately returned to its habitat.
    (4) Prohibited take outside the NEP area. Outside the Okanogan 
River NEP Area, UCR spring-run Chinook salmon are not considered to be 
part of the NEP, irrespective of their origin, and therefore the take 
prohibitions for endangered UCR spring-run Chinook salmon apply.
    (5) Geographic extent of the Okanogan River NEP Area. The 
geographic boundary defining the Okanogan River NEP Area for UCR 
spring-run Chinook salmon is the mainstem and all tributaries of the 
Okanogan River between the Canada-United States border to the 
confluence of the Okanogan River with the Columbia River. All UCR 
spring-run Chinook salmon in this defined Okanogan River NEP Area are 
considered part of the NEP, irrespective of where they originated.

[FR Doc. 2014-16255 Filed 7-10-14; 8:45 am]
BILLING CODE 3510-22-P