Proposed Rule2023-21418
Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Grizzly Bear in the North Cascades Ecosystem, Washington State
Primary source
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Published
September 29, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
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.
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://parkplanning.nps.gov/NCEGrizzly">https://parkplanning.nps.gov/NCEGrizzly</a>. 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: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://parkplanning.nps.gov/NCEGrizzly">https://parkplanning.nps.gov/NCEGrizzly</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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 <a href="https://ecos.fws.gov/ecp/species/7642">https://ecos.fws.gov/ecp/species/7642</a>.
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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 (<a href="https://www.sba.gov/document/support-table-size-standards">https://www.sba.gov/document/support-table-size-standards</a>). 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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,
demog
[…truncated; see source link]Indexed from Federal Register on September 29, 2023.
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