experimental population

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16 U.S.C. 1361-1407 ; 1531-1544; and 4201-4245, unless otherwise noted.

40 FR 44415 , Sept. 26, 1975, unless otherwise noted. 40 FR 44415 , Sept. 26, 1975, unless otherwise noted. Redesignated at 85 FR 82388 , Dec. 18, 2020. 40 FR 44415 , Sept. 26, 1975. Redesignated at 85 FR 82388 , Dec. 18, 2020, and further redesignated at 87 FR 43447 , July 21, 2022.

49 FR 33893 , Aug. 27, 1984, unless otherwise noted.

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Subpart h—experimental populations, § 17.80 definitions..

( a ) The term experimental population means an introduced and/or designated population (including any offspring arising solely therefrom) that has been so designated in accordance with the procedures of this subpart but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species. Where part of an experimental population overlaps with nonexperimental populations of the same species on a particular occasion, but is wholly separate at other times, specimens of the experimental population will not be recognized as such while in the area of overlap. That is, experimental status will be recognized only outside the areas of overlap. Thus, such a population will be treated as experimental only when the times of geographic separation are reasonably predictable, e.g., fixed migration patterns, natural or manmade barriers. A population is not treated as experimental if total separation will occur solely as a result of random and unpredictable events.

( b ) The term essential experimental population means an experimental population whose loss would be likely to appreciably reduce the likelihood of the survival of the species in the wild. All other experimental populations are to be classified as nonessential.

[ 49 FR 33893 , Aug. 27, 1984, as amended at 88 FR 42651 , July 3, 2023]

§ 17.81 Listing.

( a ) 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, subject to the further conditions specified in this section, provided that all designations of experimental populations must proceed by regulation adopted in accordance with 5 U.S.C. 553 and the requirements of this subpart.

( b ) 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 Secretary must find by regulation that such release will further the conservation of the species. In making such a finding, the Secretary will use the best scientific and commercial data available to consider:

( 1 ) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere;

( 2 ) The likelihood that any such experimental population will become established and survive in the foreseeable future;

( 3 ) The relative effects that establishment of an experimental population will have on the recovery of the species;

( 4 ) The extent to which the introduced experimental population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area; and

( 5 ) When an experimental population is being established outside of its historical range, any possible adverse effects to the ecosystem that may result from the experimental population being established.

( c ) Any regulation promulgated under paragraph (a) of this section shall 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(s);

( 2 ) A finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild;

( 3 ) Management restrictions, protective measures, or other special management concerns of that population, as appropriate, which may include but are not limited to, measures to isolate, remove, and/or contain the experimental population designated in the regulation from nonexperimental populations; and

( 4 ) A process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species.

( d ) The Secretary may issue a permit under section 10(a)(1)(A) of the Act, if appropriate under the standards set out in sections 10(d) and 10(j) of the Act, to allow actions necessary for the establishment and maintenance of an experimental population.

( e ) The Service will consult with appropriate State fish and wildlife agencies, affected Tribal governments, local governmental agencies, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. When appropriate, a public meeting will be conducted with interested members of the public. Any regulation promulgated pursuant to this section will, to the maximum extent practicable, represent an agreement between the Service, the affected State and Federal agencies, Tribal governments, local government agencies, and persons holding any interest in land or water that may be affected by the establishment of an experimental population.

( f ) Any population of an endangered species or a threatened species determined by the Secretary to be an experimental population in accordance with this subpart will be identified by a species-specific rule in §§ 17.84 and 17.85 as appropriate and separately listed in § 17.11(h) (wildlife) or § 17.12(h) (plants) as appropriate.

( g ) The Secretary may designate critical habitat as defined in section (3)(5)(A) of the Act for an essential experimental population as determined pursuant to paragraph (c)(2) of this section. Any designation of critical habitat for an essential experimental population will be made in accordance with section 4 of the Act. No designation of critical habitat will be made for nonessential experimental populations.

§ 17.82 Prohibitions.

Any population determined by the Secretary to be an experimental population will be treated as if it were listed as a threatened species for purposes of establishing protective regulations under section 4(d) of the Act with respect to such population. The species-specific rules (protective regulations) adopted for an experimental population under § 17.81 will contain applicable prohibitions, as appropriate, and exceptions for that population.

[ 88 FR 42652 , July 3, 2023]

§ 17.83 Interagency cooperation.

( a ) Any experimental population designated for a listed species

( 1 ) determined pursuant to § 17.81(c)(2) of this subpart not to be essential to the survival of that species and

( 2 ) not occurring within the National Park System or the National Wildlife Refuge System, shall be treated for purposes of section 7 (other than subsection (a)(1) thereof) as a species proposed to be listed under the Act as a threatened species.

( b ) For a listed species, any experimental population that, pursuant to § 17.81(c)(2) , has been determined to be essential to the survival of the species or that occurs within the National Park System or the National Wildlife Refuge System, as now or hereafter constituted, will be treated for purposes of section 7 of the Act as a threatened species.

( c ) For purposes of section 7 of the Act, any consultation or conference on a proposed Federal action will treat any experimental and nonexperimental populations as a single listed species for the purposes of conducting the analyses and making agency determinations pursuant to section 7(a) of the Act.

§ 17.84 Species-specific rules—vertebrates.

( a ) Guam kingfisher, sihek ( Todiramphus cinnamominus ).

( 1 ) Where is the occurrence of sihek designated as a nonessential experimental population (NEP)? The nonessential experimental population (NEP) area for the sihek is Palmyra Atoll. Palmyra Atoll is located in the Northern Line Islands, approximately 1,000 miles (1,609 km) south of Honolulu, Hawaii (5° 53′N latitude, 162° 05′W longitude). The extent of the NEP area for sihek is the 250 ha (618 ac) of emergent land distributed among 25 islands, inclusive of the lagoons surrounding those islands.

( 2 ) What take of sihek is allowed in the NEP area?

( i ) Throughout the sihek NEP area, you will not be in violation of the Act if you take a sihek, provided such take is nonnegligent and incidental to a lawful activity, such as habitat management, invasive species management, or scientific research and monitoring, and you report the take as soon as possible as provided under paragraph (a)(2)(iii) of this section.

( ii ) Any person with a valid permit issued by the Service under § 17.32 may take sihek in the NEP area, pursuant to the terms of the permit. Additionally, any employee or authorized agent of the Service, Guam Division of Aquatic and Wildlife Resources, The Nature Conservancy, Zoological Society of London, or Association of Zoos and Aquariums, who is designated and trained to capture, handle, band, attach transmitters, and collect biological samples, when acting in the course of official duties, may take a sihek within the NEP area if such action is necessary to:

( A ) Handle birds for scientific purposes such as banding, measuring, and sample collection;

( B ) Relocate individuals or bring individuals into captivity for the purposes of increasing sihek survival or fecundity;

( C ) Aid a sick, injured, or orphaned sihek;

( D ) Salvage a dead specimen that may be useful for scientific study;

( E ) Dispose of a dead specimen;

( F ) Aid in law enforcement investigations involving the sihek; or

( G ) Take sihek into captivity in accordance with the exit strategy of the program (see paragraph (a)(5) of this section).

( iii ) Any take pursuant to paragraph (a)(2)(i) or (a)(2)(ii)(C) through (E) of this section must be reported as soon as possible to the Permits Coordinator, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, Hawaii 96850 (808/792-9400), who will determine the disposition of any live or dead specimens.

( 3 ) What take of sihek is not allowed in the NEP area?

( i ) Except as expressly allowed in paragraph (a)(2) of this section, all of the provisions of § 17.31(a) and (b) apply to the sihek in areas identified in paragraph (a)(1) of this section, and any manner of take of a member of the NEP not described under paragraph (a)(2) of this section is prohibited.

( ii ) You must not possess, sell, deliver, carry, transport, ship, import, or export, by any means whatsoever, any sihek or part thereof from the experimental population taken in violation of the regulations in this paragraph (a) or in violation of applicable Territorial laws or regulations or the Act.

( iii ) It is unlawful for you to attempt to commit, solicit another to commit, or cause to be committed, any take of sihek, except as expressly allowed in paragraph (a)(2) of this section.

( 4 ) How will the effectiveness of this introduction be monitored? The Service will evaluate the introduction on an annual basis. This evaluation will include, but will not be limited to, a review and assessment of management issues, sihek movements, and post-release behavior; food resources and dependence of sihek on supplemental food; fecundity of the population; causes and rates of mortality; program costs; impacts to the ex situ population; and information gathered to inform releases on Guam or other sites.

( 5 ) When will this introduction end? Depending on the circumstances, the Service may either terminate the release program or temporarily pause the release program to address identified issues before resuming. When the Service terminates the program, the Service will address the disposition of any remaining individuals in the NEP, i.e., whether they will be relocated to captivity or to other suitable habitat or whether they would remain on Palmyra, based on the circumstances at the time of termination.

( i ) The Service will terminate the release program on Palmyra Atoll if monitoring indicates that:

( A ) The benefits from the Palmyra population (including developing and refining release and support strategies for eventual releases on Guam) no longer outweigh the risks to the species or the welfare of the NEP or ex situ population; or

( B ) Unacceptable impacts on the ecosystem can be clearly causally linked to the introduction of sihek.

( ii ) The Service may also terminate the release program when one or more of the objectives of the program have been achieved (e.g., we have developed successful release and monitoring methodologies to apply to future release efforts or we have demonstrated that sihek can survive and reproduce in the wild without human intervention).

( b ) Colorado squawfish ( Ptychocheilus lucius ) and woundfin ( Plagopterus argentissimus).

( 1 ) The Colorado squawfish and woundfin populations identified in paragraph (b)(6) of this section, are experimental, nonessential populations.

( 2 ) No person shall take the species, except in accordance with applicable State or Tribal fish and wildlife conservation laws and regulations in the following instances:

( i ) For educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act; or

( ii ) Incidental to otherwise lawful activities, provided that the individual fish taken, if still alive, is immediately returned to its habitat.

( 3 ) Any violation of applicable State or Tribal fish and wildlife conservation laws or regulations with respect to the taking of this species (other than incidental taking as described in paragraph (b)(2)(ii) of this section) will also be a violation of the Endangered Species Act.

( 4 ) No person shall possess, sell, deliver, carry, transport, ship, import, or export, by any means whatsoever, any such species taken in violation of these regulations or in violation of applicable State or Tribal fish and wildlife laws or regulations.

( 5 ) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (b) (2) through (4) of this section.

( 6 ) All of the sites for reintroduction of Colorado squawfish and woundfin are totally isolated from existing populations of these species. The nearest population of Colorado squawfish is above Lake Powell in the Green and Colorado Rivers, an upstream distance of at least 800 miles including 6 mainstream dams, and 200 miles of dry riverbed. Woundfin are similarly isolated (450 miles distant, 200 miles of dry streambed and 5 mainstream dams). All reintroduction sites are within the probable historic range of these species and are as follows:

Colorado Squawfish

(i) Arizona: Gila County. Salt River from Roosevelt Dam upstream to U.S Highway 60 bridge.

(ii) Arizona: Gila and Yavapai Counties. Verde River from Horseshoe Dam upstream to Perkinsville.

The lower segments of large streams which flow into these two sections of river may, from time to time, be inhabited by Colorado squawfish. Downstream movement of squawfish in these areas will be restricted by dams and upstream movement is limited by lack of suitable habitat.

(i) Arizona: Gila and Yavapai Counties. Verde River from backwaters of Horseshoe Reservoir upstream to Perkinsville.

(ii) Arizona: Graham and Greenlee Counties. Gila River from backwaters of San Carlos Reservoir upstream to Arizona/New Mexico State line.

(iii) Arizona: Greenlee County. San Francisco River from its junction with the Gila River upstream to the Arizona/New Mexico State line.

(iv) Arizona: Gila County. Tonto Creek, from Punkin Center upstream to Gisela.

(v) Arizona: Yavapai County. Hassayampa River, from Red Cliff upstream to Wagoner.

The movement of woundfin beyond these areas will be limited to the lower portion of larger tributaries where suitable habitat exists. Downstream movement is limited by dams, reservoirs, and dry streambed. Upstream movement from these areas is restricted due to the absence of habitat. Upstream areas are too cold and the gradient is too steep to support populations of woundfin.

( 7 ) The reintroduced populations will be checked annually to determine their condition. A seining survey will be used to determine population expansion or contraction, reproduction success, and general health condition of the fish.

( c ) Red wolf ( Canis rufus ).

( 1 ) The red wolf populations identified in paragraphs (c)(9)(i) and (c)(9)(ii) of this section are nonessential experimental populations.

( 2 ) No person may take this species, except as provided in paragraphs (c)(3) through (5) and (10) of this section.

( 3 ) Any person with a valid permit issued by the Service under § 17.32 may take red wolves for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act and in accordance with applicable State fish and wildlife conservation laws and regulations;

( i ) Any person may take red wolves found on private land in the areas defined in paragraphs (c)(9) (i) and (ii) of this section, Provided that such taking is not intentional or willful, or is in defense of that person's own life or the lives of others; and that such taking is reported within 24 hours to the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer for investigation.

( ii ) Any person may take red wolves found on lands owned or managed by Federal, State, or local government agencies in the areas defined in paragraphs (c)(9) (i) and (ii) of this section, Provided that such taking is incidental to lawful activities, is unavoidable, unintentional, and not exhibiting a lack of reasonable due care, or is in defense of that person's own life or the lives of others, and that such taking is reported within 24 hours to the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer for investigation.

( iii ) Any private landowner, or any other individual having his or her permission, may take red wolves found on his or her property in the areas defined in paragraphs (c)(9) (i) and (ii) of this section when the wolves are in the act of killing livestock or pets, Provided that freshly wounded or killed livestock or pets are evident and that all such taking shall be reported within 24 hours to the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer for investigation.

( iv ) Any private landowner, or any other individual having his or her permission, may harass red wolves found on his or her property in the areas defined in paragraphs (c)(9) (i) and (ii) of this section, Provided that all such harassment is by methods that are not lethal or physically injurious to the red wolf and is reported within 24 hours to the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer, as noted in paragraph (c)(6) of this section for investigation.

( v ) Any private landowner may take red wolves found on his or her property in the areas defined in paragraphs (c)(9) (i) and (ii) of this section after efforts by project personnel to capture such animals have been abandoned, Provided that the Service project leader or biologist has approved such actions in writing and all such taking shall be reported within 24 hours to the Service project leader or biologist, the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer for investigation.

( vi ) The provisions of paragraphs (4) (i) through (v) of this section apply to red wolves found in areas outside the areas defined in paragraphs (c)(9) (i) and (ii) of this section, with the exception that reporting of taking or harassment to the refuge manager, Park superintendent, or State wildlife enforcement officer, while encouraged, is not required.

( 5 ) Any employee or agent of the Service or State conservation agency who is designated for such purposes, when acting in the course of official duties, may take a red wolf if such action is necessary to:

( i ) Aid a sick, injured, or orphaned specimen;

( ii ) Dispose of a dead specimen, or salvage a dead specimen which may be useful for scientific study;

( iii ) Take an animal that constitutes a demonstrable but non-immediate threat to human safety or that is responsible for depredations to lawfully present domestic animals or other personal property, if it has not been possible to otherwise eliminate such depredation or loss of personal property, Provided That such taking must be done in a humane manner, and may involve killing or injuring the animal only if it has not been possible to eliminate such threat by live capturing and releasing the specimen unharmed on the refuge or Park;

( iv ) Move an animal for genetic purposes.

( 6 ) Any taking pursuant to paragraphs (c) (3) through (5) of this section must be immediately reported to either the Refuge Manager, Alligator River National Wildlife Refuge, Manteo, North Carolina, telephone 919/473-1131, or the Superintendent, Great Smoky Mountains National Park, Gatlinburg, Tennessee, telephone 615/436-1294. Either of these persons will determine disposition of any live or dead specimens.

( 7 ) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any such species taken in violation of these regulations or in violation of applicable State fish and wildlife laws or regulations or the Endangered Species Act.

( 8 ) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (c) (2) through (7) of this section.

( i ) The Alligator River reintroduction site is within the historic range of the species in North Carolina, in Dare, Hyde, Tyrrell, and Washington Counties; because of its proximity and potential conservation value, Beaufort County is also included in the experimental population designation.

( ii ) The red wolf also historically occurred on lands that now comprise the Great Smoky Mountains National Park. The Park encompasses properties within Haywood and Swain Counties in North Carolina, and Blount, Cocke, and Sevier Counties in Tennessee. Graham, Jackson, and Madison Counties in North Carolina, and Monroe County in Tennessee, are also included in the experimental designation because of the close proximity of these counties to the Park boundary.

( iii ) Except for the three island propagation projects and these small reintroduced populations, the red wolf is extirpated from the wild. Therefore, there are no other extant populations with which the refuge or Park experimental populations could come into contact.

( 10 ) The reintroduced populations will be monitored closely for the duration of the project, generally using radio telemetry as appropriate. All animals released or captured will be vaccinated against diseases prevalent in canids prior to release. Any animal that is determined to be in need of special care or that moves onto lands where the landowner requests their removal will be recaptured, if possible, by Service and/or Park Service and/or designated State wildlife agency personnel and will be given appropriate care. Such animals will be released back into the wild as soon as possible, unless physical or behavioral problems make it necessary to return the animals to a captive-breeding facility.

( 11 ) The status of the Alligator River National Wildlife Refuge project will be reevaluated by October 1, 1992, to determine future management status and needs. This review will take into account the reproductive success of the mated pairs, movement patterns of individual animals, food habits, and overall health of the population. The duration of the first phase of the Park project is estimated to be 10 to 12 months. After that period, an assessment of the reintroduction potential of the Park for red wolves will be made. If a second phase of reintroduction is attempted, the duration of that phase will be better defined during the assessment. However, it is presently thought that a second phase would last for 3 years, after which time the red wolf would be treated as a resident species within the Park. Throughout these periods, the experimental and nonessential designation of the animals will remain in effect.

( d ) Topeka shiner ( Notropis topeka ).

( 1 ) Where is the Topeka shiner designated as a nonessential experimental population (NEP)?

( i ) The NEP area for the Topeka shiner is within the species' historical range and includes those waters within the Missouri counties of Adair, Gentry, Harrison, Putnam, Sullivan, and Worth identified below in paragraph (d)(5) of this section.

( ii ) The Topeka shiner is not known to currently exist in Adair, Gentry, Putnam, Sullivan, and Worth Counties in Missouri, or in those portions of Harrison County, Missouri, where the NEP is being designated. Based on its habitat requirements and potential predation by other fish predators, we do not expect this species to become established outside this NEP area, although there is a remote chance it may.

( iii ) We will not change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP area without a public rulemaking. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

( 2 ) What activities are not allowed in the NEP area?

( i ) Except as expressly allowed in paragraph (d)(3) of this section, all the prohibitions of § 17.21 apply to the Topeka shiner NEP.

( ii ) Any manner of take not described under paragraph (d)(3) of this section is prohibited in the NEP area.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means, Topeka shiners, or parts thereof, that are taken or possessed in violation of paragraph (d)(3) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (d)(2)(iii) of this section.

( 3 ) What take is allowed in the NEP area? Take of this species that is incidental to an otherwise legal activity, such as agriculture, forestry and wildlife management, land development, recreation, and other activities, is allowed provided that the activity is not in violation of any applicable State fish and wildlife laws or regulations.

( 4 ) How will the effectiveness of these reintroductions be monitored? We will monitor reintroduction efforts to assess changes in distribution within each watershed by sampling ponds and streams where releases occur for 10 years after reintroduction. Streams will be sampled annually, and ponds will be sampled annually for the first 3 years and biennially thereafter.

( 5 ) Note: Map of the NEP areas [Big Muddy Creek (Gentry, Harrison, and Worth Counties), Little Creek (Harrison County), and Spring Creek (Adair, Putnam, and Sullivan Counties)] for the Topeka shiner, follows:

( 6 ) Note: Map of the NEP area for the Topeka shiner in Little Creek watershed, Harrison County, follows:

( 7 ) Note: Map of the NEP area for the Topeka shiner in Big Muddy Creek watershed, Gentry, Harrison, and Worth Counties, follows:

( 8 ) Note: Map of the NEP area for the Topeka shiner in Spring Creek watershed, Adair, Putnam, and Sullivan Counties, follows:

( e ) Yellowfin madtom ( Noturus flavipinnis ).

( 1 ) Where is the yellowfin madtom designated as a nonessential experimental population (NEP)? We have designated three populations of this species as NEPs: the North Fork Holston River Watershed NEP, the Tellico River NEP, and the French Broad River and Holston River NEP.

( i ) The North Fork Holston River Watershed NEP area is within the species' historic range and is defined as follows: The North Fork Holston River watershed, Washington, Smyth, and Scott Counties, Virginia; South Fork Holston River watershed upstream to Ft. Patrick Henry Dam, Sullivan County, Tennessee; and the Holston River from the confluence of the North and South Forks downstream to the John Sevier Detention Lake Dam, Hawkins County, Tennessee. This site is totally isolated from existing populations of this species by large Tennessee River tributaries and reservoirs. As the species is not known to inhabit reservoirs and because individuals of the species are not likely to move 100 river miles through these large reservoirs, the possibility that this population could come in contact with extant wild populations is unlikely.

( ii ) The Tellico River NEP area is within the species' historic range and is defined as follows: The Tellico River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile 19 (30.4 kilometers) and Tellico River mile 33 (52.8 kilometers), near the Tellico Ranger Station, Monroe County, Tennessee. This species is not currently known to exist in the Tellico River or its tributaries. Based on its habitat requirements, we do not expect this species to become established outside this NEP area. However, if individuals of this population move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced population. We would then amend this regulation to enlarge the boundaries of the NEP area to include the entire range of the expanded population.

( iii ) The French Broad River and Holston River NEP area is within the species' historic range and is defined as follows: the French Broad River, Knox and Sevier Counties, Tennessee, from the base of Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River; then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches. This species is not known to exist in any of the tributaries to the free-flowing reaches of the French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on its habitat requirements, we do not expect this species to become established outside this NEP area. However, if individuals of this population move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced population. We would then amend this regulation to enlarge the boundaries of the NEP area to include the entire range of the expanded population.

( iv ) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP areas. Additionally, we will not designate critical habitat for these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

( 2 ) What activities are not allowed in the NEP areas?

( i ) Except as expressly allowed in paragraph (e)(3) of this section, all the prohibitions of § 17.31(a) and (b) apply to the yellowfin madtom.

( ii ) Any manner of take not described under paragraph (e)(3) of this section is prohibited in the NEP area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (e)(2) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (e)(2) of this section.

( 3 ) What take is allowed in the NEP area? Take of this species that is accidental and incidental to an otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming), forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations, is allowed.

( 4 ) How will the effectiveness of these reintroductions be monitored? We will prepare periodic progress reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the reintroduction efforts.

( 5 ) Note: Map of the NEP area for the yellowfin madtom in the Tellico River, Tennessee, appears immediately following paragraph (m)(5) of this section.

( 6 ) Note: Map of the NEP area for the yellowfin madtom in the French Broad River and Holston River, Tennessee, appears immediately following paragraph (m)(7) of this section.

( f ) Guam rail ( Gallirallus .

( 1 ) The Guam rail population identified in paragraph (f)(7) of this section is a nonessential experimental population.

( 2 ) No person shall take this species, except:

( i ) In accordance with a valid permit issued by the Service under § 17.32 for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act; or

( ii ) As authorized by the laws and regulations of the Commonwealth of the Northern Mariana Islands, after the Service has made the determination that the experimental population has become well established and occupies all suitable habitat island-wide.

( 3 ) Any employee of the Service, the Commonwealth of the Northern Mariana Islands Division of Fish and Wildlife, or the Guam Division of Aquatic and Wildlife Resources who is designated for such purposes, may, when acting in the course of official duties, take a Guam rail without a permit if such action is necessary to:

( ii ) Dispose of a dead specimen;

( iii ) Salvage a dead specimen that may be useful for scientific study; or

( iv ) Take an animal that is responsible for depredations to personal property if it has not been possible to otherwise eliminate such depredations and/or loss of personal property, provided that such taking must be done in a humane manner and may involve injuring or killing the bird only if it has not been possible to eliminate depredations by live capturing and releasing the specimen unharmed in other suitable habitats.

( 4 ) Any violation of applicable commonwealth of the Northern Mariana Islands fish and wildlife conservation laws or regulations with respect to the taking of this species (other than taking as described in paragraph (f)(2)(ii) of this section) will also be a violation of the Endangered Species Act.

( 5 ) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any such species taken in violation of these regulations or in violation of applicable Commonwealth of the Northern Mariana Islands fish and wildlife laws or regulations or the Endangered Species Act.

( 6 ) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (f) (2) through (5) of this section.

( 7 ) The sites for introduction of Guam rails on Rota, Commonwealth of the Northern Mariana Islands, are on an island separated from Guam by 50 kilometers of ocean. The last known observation of an individual of this species occurred near the northern tip of Guam, which is closest to the island of Rota. No intermingling of these populations will occur since this species has been extirpated in the wild on Guam. The Rota release sites are of necessity outside the historic range of the Guam rail, as described in this regulation, because its primary range has been unsuitably and irreversibly destroyed by the brown tree snake.

( 8 ) The nonessential experimental population on Rota will be checked periodically by staff of the Commonwealth of the Northern Mariana Islands Division of Fish and Wildlife and cooperating staff from the University of Tennessee to determine dispersal patterns, mortality, and reproductive success. The overall success of the releases and general health of the population will also be assessed.

( g ) Black-footed ferret ( Mustela nigripes ).

( 1 ) The black-footed ferret populations identified in paragraphs (g)(9)(i) through (viii) of this section are nonessential experimental populations. We will manage each of these populations, and each reintroduction site in the Southwest and Wyoming nonessential experimental populations, in accordance with their respective management plans.

( 2 ) No person may take this species in the wild in the experimental population area, except as provided in paragraphs (g)(3) , (4) , (5) , and (10) of this section.

( 3 ) Any person with a valid permit issued by the U.S. Fish and Wildlife Service (Service) under section 17.32 may take black-footed ferrets in the wild in the experimental population areas.

( 4 ) Any employee or agent of the Service or appropriate State wildlife agency designated for such purposes, acting in the course of official duties, may take a black-footed ferret in the wild in the experimental population areas if such action is necessary:

( i ) For scientific purposes;

( ii ) To relocate a ferret to avoid conflict with human activities;

( iii ) To relocate a ferret that has moved outside the Little Snake Black-footed Ferret Management Area/Coyote Basin Primary Management Zone or the Rosebud Sioux Reservation Experimental Population Area when that relocation is necessary to protect the ferret or is requested by an affected landowner or land manager, or whose removal is requested pursuant to paragraph (g)(12) of this section.

( iv ) To relocate ferrets within the experimental population area to improve ferret survival and recovery prospects;

( v ) To relocate ferrets from the experimental population areas into other ferret reintroduction areas or captivity;

( vi ) To aid a sick, injured, or orphaned animal; or

( vii ) To salvage a dead specimen for scientific purposes.

( 5 ) A person may take a ferret in the wild within the experimental population areas, provided such take is incidental to and not the purpose of, the carrying out of an otherwise lawful activity and if such ferret injury or mortality was unavoidable, unintentional, and did not result from negligent conduct. Such conduct is not considered intentional or “knowing take” for the purposes of this regulation, and the Service will not take legal action for such conduct. However, we will refer cases of knowing take to the appropriate authorities for prosecution.

( 6 ) You must report any taking pursuant to paragraphs (g)(3) , (4)(vi) and (vii) , and (5) of this section to the appropriate Service Field Supervisor, who will determine the disposition of any live or dead specimens.

( i ) Report such taking in Wyoming, including the Shirley Basin/Medicine Bow experimental population area, to the Field Supervisor, Ecological Services, Fish and Wildlife Service, Cheyenne, Wyoming (telephone: 307/772-2374).

( ii ) Report such taking in the Conata Basin/Badlands experimental population area to the Field Supervisor, Ecological Services, Fish and Wildlife Service, Pierre, South Dakota (telephone: 605/224-8693).

( iii ) Report such taking in the northcentral Montana experimental population area to the Field Supervisor, Ecological Services, Fish and Wildlife Service, Helena, Montana (telephone: 406/449-5225).

( iv ) Report such taking in the Southwest Experimental Population Area (SWEPA) to the Field Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Phoenix, Arizona (telephone: 602-242-0210).

( v ) Report such taking in the northwestern Colorado/northeastern Utah experimental population area to the appropriate Field Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Lakewood, Colorado (telephone: 303/275-2370), or Salt Lake City, Utah (telephone: 801/524-5001).

( vi ) Report such taking in the Cheyenne River Sioux Tribe Experimental Population Area to the Field Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Pierre, South Dakota (telephone 605/224-8693).

( vii ) Report such taking in the Rosebud Sioux Reservation Experimental Population Area to the Field Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Pierre, South Dakota (telephone 605/224-8693).

( 7 ) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any ferret or part thereof from the experimental populations taken in violation of these regulations or in violation of applicable State fish and wildlife laws or regulations or the Endangered Species Act.

( 8 ) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to commit, any offense defined in paragraphs (g)(2) and (7) of this section.

( 9 ) The sites for reintroduction of black-footed ferrets are within the historical range of the species.

( i ) We consider the Shirley Basin/Medicine Bow Management Area on the attached map of Wyoming to be the core recovery area for this species in southeastern Wyoming. The boundaries of the nonessential experimental population are that part of Wyoming south and east of the North Platte River within Natrona, Carbon, and Albany Counties (see Wyoming map). All marked ferrets found in the wild within these boundaries prior to the first breeding season following the first year of releases constituted the nonessential experimental population during this period. All ferrets found in the wild within these boundaries during and after the first breeding season following the first year of releases comprise the nonessential experimental population, thereafter.

( ii ) We consider the Conata Basin/Badlands Reintroduction Area on the attached map for South Dakota to be the core recovery area for this species in southwestern South Dakota. The boundaries of the nonessential experimental population area occur north of State Highway 44 and BIA Highway 2 east of the Cheyenne River and BIA Highway 41, south of I-90, and west of State Highway 73 within Pennington, Shannon, and Jackson Counties, South Dakota. Any black-footed ferret found in the wild within these boundaries is part of the nonessential experimental population after the first breeding season following the first year of releases of black-footed ferret in the Reintroduction Area. A black-footed ferret occurring outside the experimental population area in South Dakota is considered as endangered but may be captured for genetic testing. We will dispose of the captured animal in one of the following ways if necessary:

( A ) We may return an animal genetically related to the experimental population to the Reintroduction Area or to a captive facility.

( B ) Under an existing contingency plan, we will use up to nine black-footed ferrets genetically unrelated to the experimental population in the captive-breeding program. If a landowner outside the experimental population area wishes to retain black-footed ferrets on his property, we will develop a conservation agreement or easement with the landowner.

( iii ) We consider the Northcentral Montana Reintroduction Area shown on the attached map for Montana to be the core recovery area for this species in northcentral Montana. The boundaries of the nonessential experimental population are those parts of Phillips and Blaine Counties, Montana, described as the area bounded on the north beginning at the northwest corner of the Fort Belknap Indian Reservation on the Milk River; east following the Milk River to the east Phillips County line; then south along said line to the Missouri River; then west along the Missouri River to the west boundary of Phillips County; then north along said county line to the west boundary of Fort Belknap Indian Reservation; then further north along said boundary to the point of origin at the Milk River. All marked ferrets found in the wild within these boundaries prior to the first breeding season following the first year of releases constituted the nonessential experimental population during this period. All ferrets found in the wild within these boundaries during and after the first breeding season following the first year of releases comprise the nonessential experimental population thereafter. A black-footed ferret occurring outside the experimental area in Montana is initially considered as endangered but may be captured for genetic testing. We will dispose of the captured animal in one of the following ways if necessary:

( A ) We may return an animal genetically related to the experimental population to the reintroduction area or to a captive facility.

( iv ) We consider the Southwest Experimental Population Area (SWEPA) to be the area shown on a map following paragraph (g)(12) of this section. The SWEPA includes the core recovery areas for this species in Arizona. The boundary of the northern section of the SWEPA is those parts of Apache, Coconino, Gila, Mohave, Navajo, and Yavapai Counties, Arizona, that include the northern area as delineated on the map, excluding Hopi District 6. The northern section also includes portions of Cibola, McKinley, Rio Arriba, Sandoval, and San Juan Counties, New Mexico, and San Juan County, Utah, that coincide with Navajo Nation lands. The boundary of the southern section of the SWEPA is those parts of Cochise, Pima, Pinal, Graham, and Santa Cruz Counties, Arizona, that include the southern area as delineated on the map. After the first breeding season following the first year of black-footed ferret release, we will consider any black-footed ferret found in the SWEPA as part of the nonessential experimental population. We would not consider a black-footed ferret occurring outside of the Arizona, New Mexico, and Utah portions of the SWEPA a member of the nonessential experimental population, and we may capture it for genetic testing. We may dispose of the captured animal in the following ways:

( A ) If an animal is genetically determined to have originated from the experimental population, we may return it to the reintroduction area or to a captive-breeding facility.

( B ) If an animal is determined to be genetically unrelated to the experimental population, we will place it in captivity under an existing contingency plan.

( v ) We consider the Little Snake Black-footed Ferret Management Area in Colorado and the Coyote Basin Black-footed Ferret Primary Management Zone in Utah as the initial recovery sites for this species within the Northwestern Colorado/Northeastern Utah Experimental Population Area (see Colorado/Utah map). The boundaries of the nonessential Experimental Population Area will be all of Moffat and Rio Blanco Counties in Colorado west of Colorado State Highway 13; all of Uintah and Duchesne Counties in Utah; and in Sweetwater County, Wyoming, the line between Range 96 and 97 West (eastern edge), Range 102 and 103 West (western edge), and Township 14 and 15 North (northern edge). All marked ferrets found in the wild within these boundaries prior to the first breeding season following the first year of release will constitute the nonessential experimental population during this period. All ferrets found in the wild within these boundaries during and after the first breeding season following the first year of releases of ferrets into the reintroduction area will comprise the nonessential experimental population thereafter. A black-footed ferret occurring outside the Experimental Population Area is initially considered as endangered but may be captured for genetic testing. We will dispose of the captured animal in one of the following ways if necessary:

( vi ) The Cheyenne River Sioux Tribe Reintroduction Area is shown on the map of north-central South Dakota at the end of paragraph (g) of this section. The boundaries of the nonessential experimental population area are the exterior boundaries of the Cheyenne River Sioux Reservation which includes all of Dewey and Ziebach Counties, South Dakota. Any black-footed ferret found in the wild within these counties will be considered part of the nonessential experimental population after the first breeding season following the first year of black-footed ferret release. A black-footed ferret occurring outside the Experimental Population Area in north-central South Dakota would initially be considered as endangered but may be captured for genetic testing. When a ferret is found outside the Experimental Population Area, the following may occur:

( B ) If an animal is determined to be genetically unrelated to the experimental population, we will place it in captivity under an existing contingency plan. Up to nine black-footed ferrets may be taken for use in the captive-breeding program.

( vii ) The Rosebud Sioux Reservation Experimental Population Area is shown on the map of south-central South Dakota at the end of paragraph (g) of this section. The boundaries of the nonessential experimental population area include all of Gregory, Mellette, Todd, and Tripp Counties in South Dakota. Any black-footed ferret found within these four counties will be considered part of the nonessential experimental population after the first breeding season following the first year of black-footed ferret release. A black-footed ferret occurring outside the nonessential experimental population area in south-central South Dakota will initially be considered as endangered but may be captured for genetic testing. If necessary, disposition of the captured animal may occur in the following ways:

( viii ) The Wyoming Experimental Population Area encompasses most of the State of Wyoming. The boundaries of the nonessential experimental population include all areas in the State of Wyoming outside of the Shirley Basin/Medicine Bow Management Area (see paragraph (g)(9)(i) of this section) and the small portion of Wyoming included as part of the Northwestern Colorado/Northeastern Utah Experimental Population Area (see paragraph (g)(9)(v) of this section). Collectively, however, these three 10(j) areas cover the entire State of Wyoming. Any black-footed ferret found within the Wyoming NEP Experimental Population Area will be considered part of a nonessential experimental population. A black-footed ferret that disperses beyond the boundaries of the nonessential experimental population area takes on the status of that area (endangered, unless within another nonessential experimental population area). Such animals may be captured for genetic testing and relocation. If necessary, disposition of the captured animal may occur in the following ways:

( 10 ) Monitoring the reintroduced populations will occur continually during the life of the project, including the use of radio telemetry and other remote sensing devices, as appropriate. Vaccination of all released animals will occur prior to release, as appropriate, to prevent diseases prevalent in mustelids. Any animal that is sick, injured, or otherwise in need of special care may be captured by authorized personnel of the Service or appropriate State wildlife agency or their agents and given appropriate care. Such an animal may be released back to its appropriate reintroduction area or another authorized site as soon as possible, unless physical or behavioral problems make it necessary to return the animal to captivity.

( 11 ) We will reevaluate the status of the experimental population within the first five years after the first year of release of black-footed ferrets to determine future management needs. This review will take into account the reproductive success and movement patterns of the individuals released into the area, as well as the overall health of the experimental population and the prairie dog ecosystem in the above described areas. We will propose reclassification of the black-footed ferret when we meet the appropriate recovery objectives for the species.

( 12 ) We will not include a reevaluation of the “nonessential experimental” designation for these populations during our review of the initial five year reintroduction program. We do not foresee any likely situation justifying alteration of the nonessential experimental status of these populations. Should any such alteration prove necessary and it results in a substantial modification to black-footed ferret management on non-Federal lands, any private landowner who consented to the introduction of black-footed ferrets on their lands may rescind their consent, and at their request, we will relocate the ferrets pursuant to paragraph (g)(4)(iii) of this section.

( h ) Whooping crane ( Grus americana ). (1) The whooping crane populations identified in paragraphs (h)(9)(i) through (iv) of this section are nonessential experimental populations (NEPs) as defined in § 17.80 .

( i ) The only natural extant population of whooping cranes, known as the Aransas/Wood Buffalo National Park population, occurs well west of the Mississippi River. This population nests in the Northwest Territories and adjacent areas of Alberta, Canada, primarily within the boundaries of the Wood Buffalo National Park, and winters along the Central Texas Gulf of Mexico coast at Aransas National Wildlife Refuge.

(ii) No natural populations of whooping cranes are likely to come into contact with the NEPs set forth in paragraphs (h)(9)(i) through (iv) of this section. Whooping cranes adhere to ancestral breeding grounds, leaving little possibility that individuals from the extant Aransas/Wood Buffalo National Park population will stray into the NEPs. Studies of whooping cranes have shown that migration is a learned rather than an innate behavior.

( 2 ) No person may take this species in the wild in the experimental population areas, except when such take is accidental and incidental to an otherwise lawful activity, or as provided in paragraphs (h)(3) and (4) of this section. Examples of otherwise lawful activities include, but are not limited to, oil and gas exploration and extraction, aquacultural practices, agricultural practices, pesticide application, water management, construction, recreation, trapping, or hunting, when such activities are in full compliance with all applicable laws and regulations.

( 3 ) Any person with a valid permit issued by the Fish and Wildlife Service (Service) under § 17.32 may take whooping cranes in the wild in the experimental population areas for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, and other conservation purposes consistent with the ESA and in accordance with applicable State fish and wildlife conservation laws and regulations.

( 4 ) Any employee or agent of the Service or State wildlife agency who is designated for such purposes, when acting in the course of official duties, may take a whooping crane in the wild in the experimental population areas if such action is necessary to:

( i ) Relocate a whooping crane to avoid conflict with human activities;

( ii ) Relocate a whooping crane that has moved outside any of the areas identified in paragraphs (h)(9)(i) through (iv) of this section, when removal is necessary or requested and is authorized by a valid permit under § 17.22 ;

( iii ) Relocate whooping cranes within the experimental population areas to improve survival and recovery prospects;

( iv ) Relocate whooping cranes from the experimental population areas into captivity;

( v ) Aid a sick, injured, or orphaned whooping crane; or

( vi ) Dispose of a dead specimen or salvage a dead specimen that may be useful for scientific study.

( 5 ) Any taking pursuant to paragraphs (h)(3) and (4) of this section must be immediately reported to the National Whooping Crane Coordinator, U.S. Fish and Wildlife Service, P.O. Box 100, Austwell, TX 77950 (Phone: 361-286-3559), who, in conjunction with his counterpart in the Canadian Wildlife Service, will determine the disposition of any live or dead specimens.

( 6 ) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any such species from the experimental populations taken in violation of these regulations or in violation of applicable State fish and wildlife laws or regulations or the Endangered Species Act.

( 7 ) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraphs (h)(2) through (6) of this section.

( 8 ) The Service will not mandate any closure of areas, including National Wildlife Refuges, during hunting or conservation order seasons, or closure or modification of hunting or conservation order seasons, in the following situations:

( i ) For the purpose of avoiding take of whooping cranes in the NEPs identified in paragraphs (h)(9)(i) through (iv) of this section;

( ii ) If a clearly marked whooping crane from the NEPs identified in paragraphs (h)(9)(i) through (iv) of this section wanders outside the designated NEP areas. In this situation, the Service will attempt to capture the stray bird and return it to the appropriate area if removal is requested by the State.

( 9 ) All whooping cranes found in the wild within the boundaries listed in paragraphs (h)(9)(i) through (iv) of this section will be considered nonessential experimental animals. Geographic areas the nonessential experimental populations may inhabit are within the historic range of the whooping crane in the United States and include the following:

( i ) The entire State of Florida (the Kissimmee Prairie NEP). The reintroduction site is the Kissimmee Prairie portions of Polk, Osceola, Highlands, and Okeechobee Counties. The experimental population released at Kissimmee Prairie is expected to remain mostly within the prairie region of central Florida.

( ii ) The States of Colorado, Idaho, New Mexico, and Utah, and the western half of the State of Wyoming (the Rocky Mountain NEP).

( iii ) That portion of the eastern contiguous United States that includes the States of Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, North Carolina, Ohio, South Carolina, Tennessee, Virginia, West Virginia, and Wisconsin (the Eastern Migratory NEP). Whooping cranes within this population are expected to occur mostly within the States of Wisconsin, Ilinois, Indiana, Kentucky, Tennessee, Georgia, and Florida. The additional States included within the experimental population area are those expected to receive occasional use by the cranes, or which may be used as breeding or wintering areas in the event of future population expansion.

( iv ) The entire State of Louisiana (the Louisiana Nonmigratory NEP). The reintroduction site is the White Lake Wetlands Conservation Area of southwestern Louisiana in Vermilion Parish. Current information indicates that White Lake is the historic location of a resident nonmigratory population of whooping cranes that bred and reared young in Louisiana. Whooping cranes within this nonmigratory population are expected to occur mostly within the White Lake Wetlands Conservation Area and the nearby wetlands in Vermilion Parish. The marshes and wetlands of southwestern Louisiana are expected to receive occasional use by the cranes and may be used in the event of future population expansion.

( v ) A map of all NEP areas in the United States for whooping cranes follows:

( 10 ) The reintroduced populations will be monitored during the duration of the projects by the use of radio telemetry and other appropriate measures. Any animal that is determined to be sick, injured, or otherwise in need of special care will be recaptured to the extent possible by Service and/or State wildlife personnel or their designated agent and given appropriate care. Such animals will be released back to the wild as soon as possible, unless physical or behavioral problems make it necessary to return them to a captive-breeding facility.

( 11 ) The Service will reevaluate the status of the experimental populations periodically to determine future management needs. This review will take into account the reproductive success and movement patterns of the individuals released within the experimental population areas.

( i ) California condor ( Gymnogyps californianus ). (1) Where is the California condor designated as a nonessential experimental population (NEP)? The NEP area for the California condor is within the species' historical range in northern California, northwestern Nevada, and Oregon.

( i ) The western boundary of the NEP is the Submerged Lands Act boundary line along the Pacific coast. The southern boundary of the NEP is formed by: An east-west line from California's Submerged Lands Act boundary to Hare Creek; Hare Creek from the Pacific Ocean to its junction with California State Route 1; north to the junction of State Route 1 and State Route 20; east along California State Route 20 to where it meets Interstate 80; and Interstate 80 from its intersection with California State Route 20 to U.S. Route 95 in Nevada. The eastern boundary of the NEP is U.S. Route 95 in Nevada to the State boundary of Oregon and then east and north along Oregon's southern and eastern boundaries, respectively. The northern boundary of the NEP is the State boundary between Oregon and Washington. All highway boundaries are inclusive of the entire highway right of way.

( ii ) Map follows:

( iii ) We are designating the experimental population area to accommodate the potential future movements of a wild population of California condors. The released population is expected to remain in the experimental area for the foreseeable future (approximately 20 years) due to the geographic extent of the designation.

( iv ) We do not intend to change the status of this nonessential population unless:

( A ) The California condor is recovered and subsequently removed from the list in § 17.11(h) in accordance with the Act; or

( B ) The reintroduction is not successful and the regulations in this paragraph (i) are revoked.

( v ) Legal actions or other circumstances may compel a change in this nonessential experimental population's legal status to essential, threatened, or endangered, or compel the Service to designate critical habitat for the California condors within the experimental population area defined in this rule. If this happens, all California condors will be removed from the area and this experimental population rule will be withdrawn, unless the participating parties in the reintroduction effort agree that the condors should remain in the wild. Changes in the legal status and/or removal of this population of California condors will be made in compliance with any applicable Federal rulemaking and other procedures.

( vi ) We will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

(2) What take of the California condor is allowed in the NEP area? (i) Throughout the California condor NEP, you will not be in violation of the Act if you unavoidably and unintentionally take a California condor (except as noted in paragraph (i)(3)(ii) of this section), provided such take is non-negligent, incidental to a lawful activity ( i.e., not done on purpose), and you report the take as soon as possible as provided under paragraph (i)(2)(iii) of this section. The phrase “unavoidably and unintentionally” means take that occurs despite the exertion of reasonable care to avoid take. Examples of activities that will not violate the take prohibitions of this section include, but are not limited to: Legal hunting of species other than condors; recreational shooting; ranching; farming; existing authorized uses of private and public lands; driving; recreational activities; and administrative and emergency functions carried out by local, State, or Federal government agencies.

(ii) Any person with a valid permit issued by the Service under § 17.32 may take California condors in the wild in the experimental population area, pursuant to the terms of the permit. Additionally, any employee or agent of the Service, National Park Service, Yurok Tribe Natural Resource Division, California Department of Parks and Recreation, California Department of Fish and Wildlife, Nevada Department of Wildlife, or Oregon Department of Fish and Wildlife who is designated and trained for such purposes, when acting in the course of official duties, may take a California condor within the NEP area if such action is necessary:

( A ) For scientific purposes;

( B ) To relocate or haze California condors within the experimental population area to improve California condor survival or recovery;

( C ) To relocate California condors that have moved outside the experimental population area;

( D ) To transport California condors to and from veterinary facilities or captive-breeding facilities;

( E ) To address conflicts with ongoing or proposed activities in an attempt to improve California condor survival;

( F ) To aid a sick, injured, or orphaned California condor;

( G ) To salvage a dead specimen that may be useful for scientific study;

( H ) To dispose of a dead specimen; or

( I ) To aid in law enforcement investigations involving the California condor.

(iii) Any take pursuant to paragraphs (i)(2)(i) , (i)(2)(ii)(F) , (i)(2)(ii)(G) , or (i)(2)(ii)(H) of this section must be reported as soon as possible to the California Condor Field Coordinator, California Condor Recovery Office, 2493 Portola Road, Suite A, Ventura, California 93003, (805/644-5185), who will determine the disposition of any live or dead specimens.

(3) What take of the California condor is not allowed in the NEP area? For the purposes of this rule, an occupied California condor nest is defined as a nest that is attended by a breeding pair of condors, occupied by a condor egg, or occupied or attended by a condor less than 1 year of age.

( i ) Except as expressly allowed in paragraph (i)(2) of this section, all of the provisions of § 17.31(a) and (b) apply to the California condor in areas identified in paragraph (i)(1) of this section, and any manner of take not described under paragraph (i)(2) of this section is prohibited in the NEP.

( ii ) Habitat alteration (e.g., removing trees, erecting structures, altering the nest structure or perches near the nest) within 656 ft (200 m) of an occupied nest is prohibited, except for emergency fuels treatment activities by Federal, State, Tribal, or local government agencies to reduce the risk of catastrophic wildfire or during responses to wildfire or other emergencies.

( iii ) Significant visual or noise disturbance (e.g., tree felling, chainsaws, helicopter overflights, concrete cutters, fireworks, explosives) within 656 ft (200 m) of an occupied nest is prohibited, except for emergency fuels treatment activities by Federal, State, Tribal, or local government agencies to reduce the risk of catastrophic wildfire or during responses to wildfire or other emergencies. Activities such as ranching and use of existing roads and trails would not be considered a significant visual or noise disturbance.

( iv ) You must not possess, sell, deliver, carry, transport, ship, import, or export, by any means whatsoever, any California condor or part thereof from the experimental population taken in violation of this paragraph (i) or in violation of applicable tribal or State laws or regulations or the Act.

( v ) It is unlawful for you to attempt to commit, solicit another to commit, or cause to be committed, any take of the California condor, except as expressly allowed in paragraph (i)(2) of this section.

(4) How will the effectiveness of this reintroduction be monitored? The status of the reintroduction project will receive an informal review on an annual basis, and we will evaluate the reintroduction program to determine whether to continue or terminate reintroductions every 5 years as part of our 5-year status review for the species.

( i ) This evaluation will include, but will not be limited to: A review of management issues; California condor movements and post-release behavior; assessment of food resources and dependence of California condors on supplemental food; fecundity of the population; causes and rates of mortality; project costs; public acceptance; and progress toward establishing a self-sustaining population.

( ii ) If a formal evaluation indicates the project is experiencing a 40 percent or greater mortality rate over multiple years or released California condors are not finding food on their own, serious consideration will be given to terminating the project.

( j ) California condor ( Gymnogyps californianus ).

( 1 ) The California condor ( Gymnogyps californianus ) population identified in paragraph (j)(8) of this section is a nonessential experimental population, and the release of such population will further the conservation of the species.

( 2 ) You must not take any California condor in the wild in the experimental population area except as provided by this rule:

( i ) Throughout the entire California condor experimental population area, you will not be in violation of the Endangered Species Act (Act) if you unavoidably and unintentionally take (including killing or injuring) a California condor, provided such take is non-negligent and incidental to a lawful activity, such as hunting, driving, or recreational activities, and you report the take as soon as possible as provided under paragraph 5 below.

( ii ) [Reserved]

( 3 ) If you have a valid permit issued by the Service under § 17.32 , you may take California condors in the wild in the experimental population area, pursuant to the terms of the permit.

( 4 ) Any employee or agent of the Fish and Wildlife Service (Service), Bureau of Land Management or appropriate State wildlife agency, who is designated for such purposes, when acting in the course of official duties, may take a California condor from the wild in the experimental population area and vicinity if such action is necessary:

( ii ) To relocate California condors within the experimental population area to improve condor survival, and to address conflicts with ongoing or proposed activities, or with private landowners, when removal is necessary to protect the condor, or is requested by an adversely affected landowner or land manager, or other adversely affected party. Adverse effects and requests for condor relocation will be documented, reported and resolved in as an expedient manner as appropriate to the specific situation to protect condors and avoid conflicts. Prior to any efforts to relocate condors, the Service will obtain permission from the appropriate landowner(s);

( iii ) To relocate California condors that have moved outside the experimental population area, by returning the condor to the experimental population area or moving it to a captive breeding facility. All captures and relocations from outside the experimental population area will be coordinated with Service Cooperators, and conducted with the permission of the landowner(s) or appropriate land management agency(s).

( iv ) To aid a sick, injured, or orphaned California condor;

( v ) To salvage a dead specimen that may be useful for scientific study; or

( vi ) To dispose of a dead specimen.

( 5 ) Any taking pursuant to paragraphs (j)(2), (j)(4)(iv), (j)(4)(v), and (j)(4)(vi), of this section must be reported as soon as possible to the Field Supervisor, U.S. Fish and Wildlife Service, Ecological Services, Arizona Field Office, Phoenix, 2321 W. Royal Palm Road, Suite 103, Arizona (telephone 602/640-2720) who will determine the disposition of any live or dead specimens.

( 6 ) You must not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any California condor or part thereof from the experimental population taken in violation of this paragraph (j) or in violation of applicable State or Tribal laws or regulations or the Act.

( 7 ) It is unlawful for you to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (j)(2) and (j)(6) of this section.

( 8 ) The designated experimental population area of the California condor includes portions of three states—Arizona, Nevada, and Utah. The southern boundary is Interstate Highway 40 in Arizona from its junction with Highway 191 west across Arizona to Kingman; the western boundary starts at Kingman, goes northwest on Highway 93 to Interstate Highway 15, continues northeasterly on Interstate Highway 15 in Nevada and Utah, to Interstate Highway 70 in Utah; where the northern boundary starts and goes across Utah to Highway 191; where the eastern boundary starts and goes south through Utah until Highway 191 meets Interstate Highway 40 in Arizona (See map at end of this paragraph (j) ).

( i ) All California condors released into the experimental population area, and their offspring, are to be marked and visually identifiable by colored and coded patagial wing markers.

( ii ) The Service has designated the experimental population area to accommodate the potential future movements of a wild population of condors. All released condors and their progeny are expected to remain in the experimental area due to the geographic extent of the designation.

( 9 ) The nonessential experimental population area includes the entire highway rights-of-way of the highways in paragraph (j)(8) of this section that constitute the perimeter boundary. All California condors found in the wild within these boundaries will comprise the experimental population.

( i ) The experimental population is to be monitored during the reintroduction project. All California condors are to be given physical examinations before being released.

( ii ) If there is any evidence that the condor is in poor health or diseased, it will not be released to the wild.

( iii ) Any condor that displays signs of illness, is injured, or otherwise needs special care may be captured by authorized personnel of the Service, Bureau of Land Management, or appropriate State wildlife agency or their agents, and given the appropriate care. These condors are to be re-released into the reintroduction area as soon as possible, unless physical or behavioral problems make it necessary to keep them in captivity for an extended period of time, or permanently.

( 10 ) The status of the reintroduction project is to receive an informal review on an annual basis and a formal evaluation within the first 5 years after the initial release, and every 5 years thereafter. This evaluation will include, but not be limited to: a review of management issues; compliance with agreements; assessment of available carrion; dependence of older condors on supplemental food sources; post release behavior; causes and rates of mortality; alternative release sites; project costs; public acceptance; and accomplishment of recovery tasks prescribed in California Condor Recovery Plan. The number of variables that could affect this reintroduction project make it difficult to develop criteria for success or failure after 5 years. However, if after 5 years the project is experiencing a 40 percent or greater mortality rate or released condors are not finding food on their own, serious consideration will be given to terminating the project.

( 11 ) The Service does not intend to pursue a change in the nonessential experimental population designation to experimental essential, threatened, or endangered, or modify the experimental population area boundaries without consulting with and obtaining the full cooperation of affected parties located within the experimental population area, the reintroduction program cooperators identified in the memorandum of understanding (MOU) for this program, and the cooperators identified in the agreement for this program.

( i ) The Service does not intend to change the status of this nonessential population until the California condor is recovered and delisted in accordance with the Act or if the reintroduction is not successful and the rule is revoked. No designation of critical habitat will be made for nonessential populations ( 16 U.S.C. § 1539(j)(2)(C)(ii) .

( ii ) Legal actions or other circumstances may compel a change in this nonessential experimental population's legal status to essential, threatened, or endangered, or compel the Service to designate critical habitat for the California condors within the experimental population area defined in this rule. If this happens, all California condors will be removed from the area and this experimental population rule will be revoked, unless the parties to the MOU and agreement existing at that time agree that the birds should remain in the wild. Changes in the legal status and/or removal of this population of California condors will be made in compliance with any applicable Federal rulemaking and other procedures.

( k ) Mexican wolf ( Canis lupus baileyi ). This paragraph (k) sets forth the provisions of a rule to establish an experimental population of Mexican wolves.

( 1 ) Purpose of the rule. The U.S. Fish and Wildlife Service (USFWS) finds that reestablishment of an experimental population of Mexican wolves into the subspecies' probable historical range will further the conservation and recovery of the Mexican wolf subspecies. The USFWS also finds that the experimental population is not essential under § 17.81(c)(2) .

( 2 ) Determinations. The Mexican wolf population reestablished in the Mexican Wolf Experimental Population Area (MWEPA), identified in paragraph (k)(4) of this section, is one nonessential experimental population. This nonessential experimental population will be managed according to the provisions of this rule. The Service does not intend to change the nonessential experimental designation to essential experimental, threatened, or endangered. Critical habitat cannot be designated under the nonessential experimental classification, 16 U.S.C. 1539(j)(2)(C)(ii) .

( 3 ) Definitions. Key terms used in this rule have the following dfinitions:

Active den means a den or a specific site above or below ground that is used by Mexican wolves on a daily basis to bear and raise pups, typically between approximately April 1 and July 31. More than one den site may be used in a single season.

Cross-foster means the removal of offspring from their biological parents and placement with surrogate parents.

Depredation means the confirmed killing or wounding of lawfully present domestic animals by one or more Mexican wolves. The Service, Wildlife Services, or other Service-designated agencies will confirm cases of wolf depredation on lawfully present domestic animals. Cattle trespassing on Federal lands are not considered lawfully present domestic animals.

Designated agency means a Federal, State, or tribal agency designated by the Service to assist in implementing this rule, all or in part, consistent with a Service-approved management plan, special management measure, conference opinion pursuant to section 7(a)(4) of the Act, section 6 of the Act as described in § 17.31 for State game and fish agencies with authority to manage Mexican wolves, or a valid permit issued by the Service through § 17.32 .

Disturbance-causing land-use activity means any activity on Federal lands within a 1-mi (1.6-km) radius around release pens when Mexican wolves are in them, around active dens between April 1 and July 31, and around active Mexican wolf rendezvous sites between June 1 and September 30, which the Service determines could adversely affect reproductive success, natural behavior, or persistence of Mexican wolves. Such activities may include, but are not limited to, timber or wood harvesting, prescribed fire, mining or mine development, camping outside designated campgrounds, livestock husbandry activities (e.g., livestock drives, roundups, branding, vaccinating, etc.), off-road vehicle use, hunting, and any other use or activity with the potential to disturb wolves. The following activities are specifically excluded from this definition:

( A ) Lawfully present livestock and use of water sources by livestock;

( B ) Livestock drives if no reasonable alternative route or timing exists;

( C ) Vehicle access over established roads to non-Federal land where legally permitted activities are ongoing if no reasonable alternative route exists;

( D ) Use of lands within the National Park or National Wildlife Refuge Systems as safety buffer zones for military activities and Department of Homeland Security border security activities;

( E ) Fire-fighting activities associated with wildfires; and

( F ) Any authorized, specific land use that was active and ongoing at the time Mexican wolves chose to locate a den or rendezvous site nearby.

Domestic animal means livestock as defined in this paragraph (k)(3) and non-feral dogs.

Federal land means land owned and under the administration of Federal agencies including, but not limited to, the Service, National Park Service, Bureau of Land Management, U.S. Forest Service, Department of Energy, or Department of Defense.

Feral dog means any dog ( Canis familiaris ) or wolf-dog hybrid that, because of absence of physical restraint or conspicuous means of identifying it at a distance as non-feral, is reasonably thought to range freely without discernible, proximate control by any person. Feral dogs do not include domestic dogs that are penned, leashed, or otherwise restrained (e.g., by shock collar) or which are working livestock or being lawfully used to trail or locate wildlife.

Harass means intentional or negligent actions or omissions that create the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering.

In the act of biting, killing, or wounding means grasping, biting, wounding, or feeding upon a live domestic animal on non-Federal land or live livestock on Federal land. The term does not include feeding on an animal carcass.

Initial release means the release of Mexican wolves to the wild within Zone 1, as defined in this paragraph (k)(3) , or in accordance with tribal or private land agreements in Zone 2, as defined in this paragraph (k)(3) , that have never been in the wild, or releasing pups that have never been in the wild and are less than 5 months old within Zones 1 or 2. The initial release of pups less than 5 months old into Zone 2 allows for the cross-fostering of pups from the captive population into the wild, as well as enables translocation-eligible adults to be re-released in Zone 2 with pups born in captivity.

Intentional harassment means deliberate, preplanned harassment of Mexican wolves, including by less-than-lethal means (such as 12-gauge shotgun rubber-bullets and bean-bag shells) designed to cause physical discomfort and temporary physical injury, but not death. Intentional harassment includes situations where the Mexican wolf or wolves may have been unintentionally attracted—or intentionally tracked, waited for, chased, or searched out—and then harassed. Intentional harassment of Mexican wolves is only allowed under a permit issued by the Service or its designated agency.

Livestock means domestic alpacas, bison, burros (donkeys), cattle, goats, horses, llamas, mules, and sheep, or other domestic animals defined as livestock in Service-approved State and tribal Mexican wolf management plans. Poultry is not considered livestock under this rule.

Mexican Wolf Experimental Population Area (MWEPA) means an area in Arizona and New Mexico including Zones 1, 2, and 3, as defined in this paragraph (k)(3) , that lies south of Interstate Highway 40 to the international border with Mexico.

Non-Federal land means any private, State-owned, or tribal trust land.

Occupied Mexican wolf range means an area of confirmed presence of Mexican wolves based on the most recent map of occupied range posted on the Service's Mexican Wolf Recovery Program Web site at http://www.fws.gov/southwest/es/mexicanwolf/ . Specific to the prohibitions at paragraphs (k)(5)(iii) and (k)(5)(vii)(D) of this section, Zone 3, as defined in this paragraph (k)(3) , and tribal trust lands are not considered occupied range.

Opportunistic harassment means scaring any Mexican wolf from the immediate area by taking actions such as discharging firearms or other projectile-launching devices in proximity to, but not in the direction of, the wolf, throwing objects at it, or making loud noise in proximity to it. Such harassment might cause temporary, non-debilitating physical injury, but is not reasonably anticipated to cause permanent physical injury or death. Opportunistic harassment of Mexican wolves can occur without a permit issued by the Service or its designated agency.

Problem wolves mean Mexican wolves that, for purposes of management and control by the Service or its designated agent(s), are:

( A ) Individuals or members of a group or pack (including adults, yearlings, and pups greater than 4 months of age) that were involved in a depredation on lawfully present domestic animals;

( B ) Habituated to humans, human residences, or other facilities regularly occupied by humans; or

( C ) Aggressive when unprovoked toward humans.

Rendezvous site means a gathering and activity area regularly used by Mexican wolf pups after they have emerged from the den. Typically, these sites are used for a period ranging from about 1 week to 1 month in the first summer after birth during the period from June 1 to September 30. Several rendezvous sites may be used in succession within a single season.

Service-approved management plan means management plans approved by the Regional Director or Director of the Service through which Federal, State, or tribal agencies may become a designated agency. The management plan must address how Mexican wolves will be managed to achieve conservation goals in compliance with the Act, this experimental population rule, and other Service policies. If a Federal, State, or tribal agency becomes a designated agency through a Service-approved management plan, the Service will help coordinate their activities while retaining authority for program direction, oversight, guidance, and authorization of Mexican wolf removals.

Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct ( 16 U.S.C. 1532(19) ).

Translocate means the release of Mexican wolves into the wild that have previously been in the wild. In the MWEPA, translocations will occur only in Zones 1 and 2, as defined in this paragraph (k)(3) .

Tribal trust land means any lands title to which is either: Held in trust by the United States for the benefit of any Indian tribe or individual; or held by any Indian tribe or individual subject to restrictions by the United States against alienation. For purposes of this rule, tribal trust land does not include land purchased in fee title by a tribe. We consider fee simple land purchased by tribes to be private land.

Unacceptable impact to a wild ungulate herd will be determined by a State game and fish agency based upon ungulate management goals, or a 15 percent decline in an ungulate herd as documented by a State game and fish agency, using their preferred methodology, based on the preponderance of evidence from bull to cow ratios, cow to calf ratios, hunter days, and/or elk population estimates.

Unintentional take means the take of a Mexican wolf by any person if the take is unintentional and occurs while engaging in an otherwise lawful activity, occurs despite the use of due care, is coincidental to an otherwise lawful activity, and is not done on purpose. Taking a Mexican wolf by poisoning or shooting will not be considered unintentional take.

Wild ungulate herd means an assemblage of wild ungulates (bighorn sheep, bison, deer, elk, or pronghorn) living in a given area.

Wildlife Services means the U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services.

Wounded means exhibiting scraped or torn hide or flesh, bleeding, or other evidence of physical damage caused by a Mexican wolf bite.

Zone 1 means an area within the MWEPA in Arizona and New Mexico into which Mexican wolves will be allowed to naturally disperse and occupy and where Mexican wolves may be initially released from captivity or translocated. Zone 1 includes all of the Apache, Gila, and Sitgreaves National Forests; the Payson, Pleasant Valley, and Tonto Basin Ranger Districts of the Tonto National Forest; and the Magdalena Ranger District of the Cibola National Forest.

Zone 2 is an area within the MWEPA into which Mexican wolves will be allowed to naturally disperse and occupy, and where Mexican wolves may be translocated.

( A ) On Federal land in Zone 2, initial releases of Mexican wolves are limited to pups less than 5 months old, which allows for the cross-fostering of pups from the captive population into the wild, as well as enables translocation-eligible adults to be re-released with pups born in captivity. On private and tribal land in Zone 2, Mexican wolves of any age, including adults, can also be initially released under a Service- and State-approved management agreement with private landowners or a Service-approved management agreement with tribal agencies.

( B ) The northern boundary of Zone 2 is Interstate Highway 40; the western boundary extends south from Interstate Highway 40 and follows Arizona State Highway 93, Arizona State Highway 89/60, Interstate Highway 10, and Interstate Highway 19 to the United States-Mexico international border; the southern boundary is the United States-Mexico international border heading east, then follows New Mexico State Highway 81/146 north to Interstate Highway 10, then along New Mexico State Highway 26 to Interstate Highway 25; the boundary continues along New Mexico State Highway 70/54/506/24; the eastern boundary follows the eastern edge of Otero County, New Mexico, to the north and then along the southern and then eastern edge of Lincoln County, New Mexico, until it intersects with New Mexico State Hwy 285 and follows New Mexico State Highway 285 north to the northern boundary of Interstate Highway 40. Zone 2 excludes the area in Zone 1, as defined in this paragraph (k)(3) .

Zone 3 means an area within the MWEPA into which Mexican wolves will be allowed to disperse and occupy, but neither initial releases nor translocations will occur there.

( A ) Zone 3 is an area of less suitable Mexican wolf habitat where Mexican wolves will be more actively managed under the authorities of this rule to reduce human conflict. We expect Mexican wolves to occupy areas of suitable habitat where ungulate populations are adequate to support them and conflict with humans and their livestock is low. If Mexican wolves move outside of areas of suitable habitat, they will be more actively managed.

( B ) Zone 3 is two separate geographic areas on the eastern and western sides of the MWEPA. One area of Zone 3 is in western Arizona, and the other is in eastern New Mexico. In Arizona, the northern boundary of Zone 3 is Interstate Highway 40; the eastern boundary extends south from Interstate Highway 40 and follows State Highway 93, State Highway 89/60, Interstate Highway 10, and Interstate Highway 19 to the United States-Mexico international border; the southern boundary is the United States-Mexico international border; the western boundary is the Arizona-California State border. In New Mexico, the northern boundary of Zone 3 is Interstate Highway 40; the eastern boundary is the New Mexico-Texas State border; the southern boundary is the United States-Mexico international border heading west, then follows State Highway 81/146 north to Interstate Highway 10, then along State Highway 26 to Interstate Highway 25, the southern boundary continues along State Highway 70/54/506/24; the western boundary follows the eastern edge of Otero County to the north and then along the southern and then eastern edge of Lincoln County until it follows State Highway 285 north to the northern boundary of Interstate Highway 40.

( 4 ) Designated area. The designated experimental population area for Mexican wolves classified as a nonessential experimental population by this rule is within the subspecies' probable historical range and is wholly separate geographically from the current range of any known Mexican wolves. The boundaries of the MWEPA are the portions of Arizona and New Mexico that are south of Interstate Highway 40 to the international border with Mexico. A map of the MWEPA follows:

( 5 ) Prohibitions. Take of any Mexican wolf in the experimental population is prohibited, except as provided in paragraph (k)(7) of this section. Specifically, the following actions are prohibited by this rule:

( i ) No person may possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any Mexican wolf or wolf part from the experimental population except as authorized in this rule or by a valid permit issued by the Service under § 17.32 . If a person kills or injures a Mexican wolf or finds a dead or injured wolf or wolf parts, the person must not disturb them (unless instructed to do so by the Service or a designated agency), must minimize disturbance of the area around them, and must report the incident to the Service's Mexican Wolf Recovery Coordinator or a designated agency of the Service within 24 hours as described in paragraph (k)(6) of this section.

( ii ) No person may attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this rule.

( iii ) Taking a Mexican wolf with a trap, snare, or other type of capture device within occupied Mexican wolf range is prohibited (except as authorized in paragraph (k)(7)(iv) of this section) and will not be considered unintentional take, unless due care was exercised to avoid injury or death to a wolf. With regard to trapping activities, due care includes:

( A ) Following the regulations, proclamations, recommendations, guidelines, and/or laws within the State or tribal trust lands where the trapping takes place.

( B ) Modifying or using appropriately sized traps, chains, drags, and stakes that provide a reasonable expectation that the wolf will be prevented from either breaking the chain or escaping with the trap on the wolf, or using sufficiently small traps (less than or equal to a Victor #2 trap) that allow a reasonable expectation that the wolf will either immediately pull free from the trap or span the jaw spread when stepping on the trap.

( C ) Not taking a Mexican wolf using neck snares.

( D ) Reporting the capture of a Mexican wolf (even if the wolf has pulled free) within 24 hours to the Service as described in paragraph (k)(6) of this section.

( E ) If a Mexican wolf is captured, trappers can call the Interagency Field Team (1-888-459-WOLF [9653]) as soon as possible to arrange for radio-collaring and releasing of the wolf. Per State regulations for releasing nontarget animals, trappers may also choose to release the animal alive and subsequently contact the Service or Interagency Field Team.

( 6 ) Reporting requirements. Unless otherwise specified in this rule or in a permit, any take of a Mexican wolf must be reported to the Service or a designated agency within 24 hours. We will allow additional reasonable time if access to the site is limited. Report any take of Mexican wolves, including opportunistic harassment, to the Mexican Wolf Recovery Program, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road, NE., Albuquerque, NM 87113; by telephone 505-761-4704; or by facsimile 505-346-2542. Additional contact information can also be found on the Mexican Wolf Recovery Program's Web site at http://www.fws.gov/southwest/es/mexicanwolf/ . Unless otherwise specified in a permit, any wolf or wolf part taken legally must be turned over to the Service, which will determine the disposition of any live or dead wolves.

( 7 ) Allowable forms of take of Mexican wolves. Take of Mexican wolves in the experimental population is allowed as follows:

( i ) Take in defense of human life. Under section 11(a)(3) of the Act and § 17.21(c)(2) , any person may take (which includes killing as well as nonlethal actions such as harassing or harming) a Mexican wolf in self-defense or defense of the lives of others. This take must be reported as specified in accordance with paragraph (k)(6) of this section. If the Service or a designated agency determines that a Mexican wolf presents a threat to human life or safety, the Service or the designated agency may kill the wolf or place it in captivity.

( ii ) Opportunistic harassment. Anyone may conduct opportunistic harassment of any Mexican wolf at any time provided that Mexican wolves are not purposefully attracted, tracked, searched out, or chased and then harassed. Such harassment of Mexican wolves might cause temporary, non-debilitating physical injury, but is not reasonably anticipated to cause permanent physical injury or death. Any form of opportunistic harassment must be reported as specified in accordance with paragraph (k)(6) of this section.

( iii ) Intentional harassment. After the Service or its designated agency has confirmed Mexican wolf presence on any land within the MWEPA, the Service or its designated agency may issue permits valid for not longer than 1 year, with appropriate stipulations or conditions, to allow intentional harassment of Mexican wolves. The harassment must occur in the area and under the conditions specifically identified in the permit. Permittees must report this take as specified in accordance with paragraph (k)(6) of this section.

( iv ) Take on non-Federal lands.

( A ) On non-Federal lands anywhere within the MWEPA, domestic animal owners or their agents may take (including kill or injure) any Mexican wolf that is in the act of biting, killing, or wounding a domestic animal, as defined in paragraph (k)(3) of this section. After the take of a Mexican wolf, the Service must be provided evidence that the wolf was in the act of biting, killing, or wounding a domestic animal at the time of take, such as evidence of freshly wounded or killed domestic animals. This take must be reported as specified in accordance with paragraph (k)(6) of this section. The take of any Mexican wolf without evidence of biting, killing, or wounding domestic animals may be referred to the appropriate authorities for investigation.

( B ) Take of Mexican wolves by livestock guarding dogs, when used to protect livestock on non-Federal lands, is allowed. If such take by a guard dog occurs, it must be reported as specified in accordance with paragraph (k)(6) of this section.

( C ) Based on the Service's or a designated agency's discretion and in conjunction with a removal action authorized by the Service, the Service or designated agency may issue permits to domestic animal owners or their agents (e.g., employees, land manager, local officials) to take (including intentional harassment or killing) any Mexican wolf that is present on non-Federal land where specified in the permit. Permits issued under this provision will specify the number of days for which the permit is valid and the maximum number of Mexican wolves for which take is allowed. Take by permittees under this provision will assist the Service or designated agency in completing control actions. Domestic animal owners or their agents must report this take as specified in accordance with paragraph (k)(6) of this section.

( 1 ) Until the USFWS has achieved the genetic objective for the MWEPA set forth at paragraph (k)(9)(v) of this section by documenting that at least 22 released wolves have survived to breeding age in the MWEPA, the USFWS or a designated agency may issue permits only on a conditional, annual basis according to the following provisions: Either

( i ) Annual release benchmarks (for the purposes of this paragraph, the term “benchmark” means the minimum cumulative number of released wolves surviving to breeding age since January 1, 2016, as documented annually in March) have been achieved based on the following schedule:

( ii ) Permitted take on non-Federal land, or on Federal land under paragraph (k)(7)(v) of this section, during the previous year (April 1 to March 31) did not include the lethal take of any released wolf or wolves that were or would have counted toward the genetic objective set forth at paragraph (k)(9)(v) of this section.

( 2 ) After the USFWS has achieved the genetic objective set forth at paragraph (k)(9)(v) of this section, the conditional annual basis for issuing permits will no longer be in effect.

( v ) Take on Federal land.

( A ) Based on the Service's or a designated agency's discretion and in conjunction with a removal action authorized by the Service, the Service may issue permits to livestock owners or their agents (e.g., employees, land manager, local officials) to take (including intentional harassment or killing) any Mexican wolf that is in the act of biting, killing, or wounding livestock on Federal land where specified in the permit.

( 1 ) Until the USFWS has achieved the genetic objective for the MWEPA set forth at paragraph (k)(9)(v) of this section by documenting that at least 22 released wolves have survived to breeding age, the USFWS or a designated agency may issue permits only on a conditional, annual basis according to the following provisions: Either

( ii ) Permitted take on Federal land, or on non-Federal land under paragraph (k)(7)(iv) of this section, during the previous year (April 1 to March 31) did not include the lethal take of any released wolf or wolves that were or would have counted toward the genetic objective set forth at paragraph (k)(9)(v) of this section.

( 3 ) Permits issued under this provision will specify the number of days for which the permit is valid and the maximum number of Mexican wolves for which take is allowed. Take by permittees under this provision will assist the Service or designated agency in completing control actions. Livestock owners or their agents must report this take as specified in accordance with paragraph (k)(6) of this section.

( 4 ) After the take of a Mexican wolf, the Service must be provided evidence that the wolf was in the act of biting, killing, or wounding livestock at the time of take, such as evidence of freshly wounded or killed livestock. The take of any Mexican wolf without evidence of biting, killing, or wounding domestic animals may be referred to the appropriate authorities for investigation.

( B ) Take of Mexican wolves by livestock guarding dogs, when used to protect livestock on Federal lands, is allowed. If such take by a guard dog occurs, it must be reported as specified in accordance with paragraph (k)(6) of this section.

( C ) This provision for take on Federal land does not exempt Federal agencies and their contractors from complying with sections 7(a)(1) and 7(a)(4) of the Act, the latter of which requires a conference with the Service if they propose an action that is likely to jeopardize the continued existence of the Mexican wolf. In areas within the National Park System and National Wildlife Refuge System, Federal agencies must treat Mexican wolves as a threatened species for purposes of complying with section 7 of the Act.

( vi ) Take in response to unacceptable impacts to a wild ungulate herd. If the Arizona or New Mexico game and fish agency determines that Mexican wolf predation is having an unacceptable impact to a wild ungulate herd, as defined in paragraph (k)(3) of this section, the respective State game and fish agency may request approval from the Service that Mexican wolves be removed from the area of the impacted wild ungulate herd. Upon written approval from the Service, the State (Arizona or New Mexico) or any designated agency may be authorized to remove (capture and translocate in the MWEPA, move to captivity, transfer to Mexico, or lethally take) Mexican wolves. These management actions must occur in accordance with the following provisions:

( A ) The Arizona or New Mexico game and fish agency must prepare a science-based document that:

( 1 ) Describes what data indicate that the wild ungulate herd is below management objectives, what data indicate that the impact on the wild ungulate herd is influenced by Mexican wolf predation, why Mexican wolf removal is a warranted solution to help restore the wild ungulate herd to State game and fish agency management objectives, the type (level and duration) of Mexican wolf removal management action being proposed, and how wild ungulate herd response to wolf removal will be measured and control actions adjusted for effectiveness;

( 2 ) Demonstrates that attempts were and are being made to identify other causes of wild ungulate herd declines and possible remedies or conservation measures in addition to wolf removal;

( 3 ) If appropriate, identifies areas of suitable habitat for Mexican wolf translocation; and

( 4 ) Has been subjected to peer review and public comment prior to its submittal to the Service for written concurrence. In order to comply with this requirement, the State game and fish agency must:

( i ) Conduct the peer review process in conformance with the Office of Management and Budget's most recent Final Information and Quality Bulletin for Peer Review and include in their proposal an explanation of how the bulletin's standards were considered and satisfied; and

( ii ) Obtain at least three independent peer reviews from individuals with relevant expertise other than staff employed by the State (Arizona or New Mexico) requesting approval from the Service that Mexican wolves be removed from the area of the affected wild ungulate herd.

( B ) Before the Service will allow Mexican wolf removal in response to impacts to wild ungulates, the Service will evaluate the information provided by the requesting State (Arizona or New Mexico) and provide a written determination to the requesting State game and fish agency on whether such actions are scientifically based and warranted.

( C ) If all of the provisions above are met, the Service will, to the maximum extent allowable under the Act, make a determination providing for Mexican wolf removal. If the request is approved, the Service will include in the written determination which management action (capture and translocate in MWEPA, move to captivity, transfer to Mexico, lethally take, or no action) is most appropriate for the conservation of the Mexican wolf subspecies.

( D ) Because tribes are able to request the capture and removal of Mexican wolves from tribal trust lands at any time, take in response to impacts to wild ungulate herds is not applicable on tribal trust lands.

( E ) No requests for take in response to unacceptable impacts to a wild ungulate herd may be made by the State game and fish agency or accepted by the USFWS until the genetic objective at paragraph (k)(9)(v) of this section has been met.

( vii ) Take by Service personnel or a designated agency. The Service or a designated agency may take any Mexican wolf in the experimental population in a manner consistent with a Service-approved management plan, special management measure, biological opinion pursuant to section 7(a)(2) of the Act, conference opinion pursuant to section 7(a)(4) of the Act, section 6 of the Act as described in § 17.31 for State game and fish agencies with authority to manage Mexican wolves, or a valid permit issued by the Service through § 17.32 .

( A ) The Service or designated agency may use leg-hold traps and any other effective device or method for capturing or killing Mexican wolves to carry out any measure that is a part of a Service-approved management plan, special management measure, or valid permit issued by the Service under § 17.32 , regardless of State law. The disposition of all Mexican wolves (live or dead) or their parts taken as part of a Service-approved management activity must follow provisions in Service-approved management plans or interagency agreements or procedures approved by the Service on a case-by-case basis.

( B ) The Service or designated agency may capture; kill; subject to genetic testing; place in captivity; or euthanize any feral wolf-like animal or feral wolf hybrid found within the MWEPA that shows physical or behavioral evidence of: Hybridization with other canids, such as domestic dogs or coyotes; being a wolf-like animal raised in captivity, other than as part of a Service-approved wolf recovery program; or being socialized or habituated to humans. If determined to be a pure Mexican wolf, the wolf may be returned to the wild.

( C ) The Service or designated agency may carry out intentional or opportunistic harassment, nonlethal control measures, translocation, placement in captivity, or lethal control of problem wolves. To determine the presence of problem wolves, the Service will consider all of the following:

( 1 ) Evidence of wounded domestic animal(s) or remains of domestic animal(s) that show that the injury or death was caused by Mexican wolves;

( 2 ) The likelihood that additional Mexican wolf-caused depredations or attacks of domestic animals may occur if no harassment, nonlethal control, translocation, placement in captivity, or lethal control is taken;

( 3 ) Evidence of attractants or intentional feeding (baiting) of Mexican wolves; and

( 4 ) Evidence that Mexican wolves are habituated to humans, human residences, or other facilities regularly occupied by humans, or evidence that Mexican wolves have exhibited unprovoked and aggressive behavior toward humans.

( D ) Wildlife Services will not use M-44's and choking-type snares in occupied Mexican wolf range. Wildlife Services may restrict or modify other predator control activities pursuant to a Service-approved management agreement or a conference opinion between Wildlife Services and the Service.

( viii ) Unintentional take.

( A ) Take of a Mexican wolf by any person is allowed if the take is unintentional and occurs while engaging in an otherwise lawful activity. Such take must be reported as specified in accordance with paragraph (k)(6) of this section. Hunters and other shooters have the responsibility to identify their quarry or target before shooting; therefore, shooting a Mexican wolf as a result of mistaking it for another species will not be considered unintentional take. Take by poisoning will not be considered unintentional take.

( B ) Federal, State, or tribal agency employees or their contractors may take a Mexican wolf or wolf-like animal if the take is unintentional and occurs while engaging in the course of their official duties. This includes, but is not limited to, military training and testing and Department of Homeland Security border security activities. Take of Mexican wolves by Federal, State, or tribal agencies must be reported as specified in accordance with paragraph (k)(6) of this section.

( C ) Take of Mexican wolves by Wildlife Services employees while conducting official duties associated with predator damage management activities for species other than Mexican wolves may be considered unintentional if it is coincidental to a legal activity and the Wildlife Services employees have adhered to all applicable Wildlife Services' policies, Mexican wolf standard operating procedures, and reasonable and prudent measures or recommendations contained in Wildlife Service's biological and conference opinions.

( ix ) Take for research purposes. The Service may issue permits under § 17.32 , and designated agencies may issue permits under State and Federal laws and regulations, for individuals to take Mexican wolves pursuant to scientific study proposals approved by the agency or agencies with jurisdiction for Mexican wolves and for the area in which the study will occur. Such take should lead to management recommendations for, and thus provide for the conservation of, the Mexican wolf.

( 8 ) Disturbance-causing land-use activities. For any activity on Federal lands that the Service determines could adversely affect reproductive success, natural behavior, or persistence of Mexican wolves, the Service will work with Federal agencies to use their authorities to temporarily restrict human access and disturbance-causing land-use activities within a 1-mi (1.6-km) radius around release pens when Mexican wolves are in them, around active dens between approximately April 1 and July 31, and around active Mexican wolf rendezvous sites between approximately June 1 and September 30, as necessary.

( 9 ) Management.

( i ) On private land within Zones 1 and 2, as defined in paragraph (k)(3) of this section, of the MWEPA, the Service or designated agency may develop and implement management actions to benefit Mexican wolf recovery in cooperation with willing private landowners, including initial release and translocation of Mexican wolves onto such lands in Zones 1 or 2 if requested by the landowner and with the concurrence of the State game and fish agency.

( ii ) On tribal trust land within Zones 1 and 2, as defined in paragraph (k)(3) of this section, of the MWEPA, the Service or a designated agency may develop and implement management actions in cooperation with willing tribal governments, including: occupancy by natural dispersal, initial release, and translocation of Mexican wolves onto such lands. No agreement between the Service and a Tribe is necessary for the capture and removal of Mexican wolves from tribal trust lands if requested by the tribal government.

( iii ) Based on end-of-year counts, we will manage to achieve and sustain a population average greater than or equal to 320 wolves in Arizona and New Mexico. This average must be achieved over an 8-year period, the population must exceed 320 Mexican wolves each of the last 3 years of the 8-year period, and the annual population growth rate averaged over the 8-year period must demonstrate a stable or increasing population, as calculated by a geometric mean.

( iv ) We are implementing a phased approach to Mexican wolf management within the MWEPA in western Arizona as follows:

( A ) Phase 1 will be implemented for the first 5 years following February 17, 2015. During this phase, initial releases and translocation of Mexican wolves can occur throughout Zone 1 with the exception of the area west of State Highway 87 in Arizona. No translocations can be conducted west of State Highway 87 in Arizona in Zone 2. Mexican wolves can disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3, as defined in paragraph (k)(3) of this section). However, during Phase 1, dispersal and occupancy in Zone 2 west of State Highway 87 will be limited to the area north of State Highway 260 and west to Interstate 17. A map of Phase 1 follows:

( B ) In Phase 2, initial releases and translocation of Mexican wolves can occur throughout Zone 1 including the area west of State Highway 87 in Arizona. No translocations can be conducted west of Interstate Highway 17 in Arizona. Mexican wolves can disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3, as defined in paragraph (k)(3) of this section). However, during Phase 2, dispersal and occupancy west of Interstate Highway 17 will be limited to the area east of Highway 89 in Arizona. A map of Phase 2 follows:

( C ) In Phase 3, initial release and translocation of Mexican wolves can occur throughout Zone 1. No translocations can be conducted west of State Highway 89 in Arizona. Mexican wolves can disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3, as defined in paragraph (k)(3) of this section). A map of Phase 3 follows:

( D ) While implementing this phased approach, two evaluations will be conducted: The first evaluation will cover the first 5 years and the second evaluation will cover the first 8 years after February 17, 2015 in order to determine if we will move forward with the next phase.

( 1 ) Each phase evaluation will consider adverse human interactions with Mexican wolves, impacts to wild ungulate herds, and whether or not the Mexican wolf population in the MWEPA is achieving a population number consistent with a 10 percent annual growth rate based on end-of-year counts, such that 5 years after February 17, 2015, the population of Mexican wolves in the wild is at least 150, and 8 years after February 17, 2015, the population of Mexican wolves in the wild is at least 200.

( 2 ) If we have not achieved this population growth, we will move forward to the next phase. Regardless of the outcome of the two evaluations, by the beginning of year 12 from February 17, 2015, we will move to full implementation of this rule throughout the MWEPA, and the phased management approach will no longer apply.

( E ) The phasing may be expedited with the concurrence of participating State game and fish agencies.

( v ) The USFWS and designated agencies will conduct a sufficient number of releases into the MWEPA from captivity to result in at least 22 released Mexican wolves surviving to breeding age.

( 10 ) Evaluation. The USFWS will continue to evaluate Mexican wolf reestablishment progress and prepare periodic progress reports and detailed annual reports. In addition, approximately 5 years after August 1, 2022, the USFWS will prepare a one-time overall evaluation of the experimental population program that focuses on modifications needed to improve the efficacy of this rule and the progress the experimental population is making to the recovery of the Mexican wolf.

( 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) ).

( 2 ) What is the legal status of the grizzly bear?

( i ) The grizzly bear is listed as “threatened” in § 17.11 (h) and protected under this part. However, the grizzly bear population to which this paragraph (l) applies is considered a nonessential experimental population in accordance with section 10(j) of the Act.

( ii ) We have determined that, as of December 18, 2000, no grizzly bear population exists in the Experimental Population Area. We find, in accordance with § 17.81 (b) , that the reintroduction of grizzly bears as a nonessential experimental population, as defined in § 17.81 (b) , will further the conservation of the species and will be consistent with provisions of section 10(j) of the Act, which requires that an experimental population be geographically separate from other nonexperimental populations of the same species. We also find, in accordance with § 17.81 (c)(2) , that the experimental population of grizzly bears in the Experimental Population Area is not essential to the survival of the species in the wild.

( iii ) Grizzly bears within the Experimental Population Area and the Recovery Area will be accommodated through management provisions provided for in this paragraph (l) and through management plans and policies developed by the Citizen Management Committee (Committee; see paragraph (l)(6) of this section). After reintroduction, every grizzly bear found within the Experimental Population Area will be considered a member of the nonessential experimental population.

( iv ) In the conterminous United States, a grizzly bear that is outside the Experimental Population Area identified in paragraph (l)(1) of this section will be considered as threatened.

( 3 ) Where will grizzly bears be released, and where will recovery be emphasized? The Bitterroot Grizzly Bear Recovery Area identifies the area of recovery emphasis within the Experimental Population Area. The Recovery Area consists of the Selway-Bitterroot Wilderness and the Frank Church-River of No Return Wilderness (See map at the end of paragraph (l) of this section). All reintroductions will take place in the Selway-Bitterroot Wilderness unless it is later determined that reintroduction in the Frank Church-River of No Return Wilderness is appropriate. If, in the future, new wilderness areas are designated adjacent to the Recovery Area, the Committee may recommend to the Secretary their addition to the Recovery Area. The Secretary would have to amend this paragraph (l) to change the definition of the Recovery Area.

( 4 ) What activities are prohibited in the Experimental Population Area?

( i ) You may not take (see definition in § 10.12 of this subchapter ) any grizzly bear in the Experimental Population Area, except as provided in this paragraph (l) . We may refer unauthorized take of grizzly bears to the appropriate authorities for prosecution.

( ii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any grizzly bear or parts thereof that are taken from the Experimental Population Area or possessed in violation of the regulations in this paragraph (l) or in violation of applicable State wildlife conservation laws or regulations or the Act.

( iii ) You may not attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this paragraph (l) .

( 5 ) What activities are allowed in the Experimental Population Area?

( i ) For purposes of this paragraph (l) , except for persons engaged in hunting or shooting activities, you will not be in violation of the Act for “unavoidable and unintentional take” (see definition in paragraph (l)(16) of this section) of grizzly bears within the Experimental Population Area when such take is incidental to a legal activity and is not a result of negligent conduct lacking reasonable due care, and when due care was exercised to avoid the taking. Any taking must be reported within 24 hours to appropriate authorities as listed in paragraph (l)(5)(iii) of this section. Persons lawfully engaged in hunting or shooting activities must correctly identify their target before shooting in order to avoid illegally shooting a grizzly bear. Shooting a grizzly bear as a result of mistaking it for another species is considered a lack of reasonable due care. The act of taking a grizzly bear that is wrongly identified as another species may be referred to appropriate authorities for prosecution.

( ii ) Any person with a valid permit issued by us may take grizzly bears in the Experimental Population Area for scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes. Such permits must be consistent with the Act, with management plans adopted for the nonessential experimental population, and with applicable State wildlife conservation laws and regulations.

( iii ) You may take grizzly bears in the Experimental Population Area in self-defense or in defense of the lives of others. Such taking must be reported within 24 hours as to date, exact location, and circumstances to the Grizzly Bear Recovery Coordinator, University Hall, Room 309, University of Montana, Missoula, Montana 59812 (406-243-4903); or the Assistant Regional Director for Law Enforcement, Eastside Federal Complex, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503-231-6125); or the Assistant Regional Director for Law Enforcement, P.O. Box 25486, DFC, Denver, Colorado 80225 (303-236-7540); and either the Idaho Department of Fish and Game, P.O. Box 25, Boise Idaho 83707 (208-334-3700); or the Montana Department of Fish, Wildlife and Parks, 1420 E. Sixth Avenue, Helena, Montana 59620 (406-444-2535); and Nez Perce Tribal authorities (208-843-2253) (as appropriate).

( iv ) Livestock owners may obtain a permit from the Service, and the Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks, or appropriate Tribal authorities to harass (see definition in § 17.3 ) grizzly bears found in the Experimental Population Area that are actually pursuing or killing livestock (to include permitting the use of livestock guard dogs around livestock to harass such grizzly bears). Prior to issuance of such a permit, authorized State, Federal, or Tribal officials must document pursuit or killing of livestock. All such harassment must be accomplished by an opportunistic, noninjurious method (see definition of “opportunistic, noninjurious harassment” in paragraph (l)(16) of this section) to the grizzly bear, and such harassment must be reported within 24 hours as to date, exact location, and circumstances to the authorities listed under paragraph (l)(5)(iii) of this section.

( v ) Livestock owners may obtain a permit from the Service, and the Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks or appropriate Tribal authorities to take grizzly bears on private lands found in the Experimental Population Area in a manner other than harassment as defined in this paragraph (l) , in order to protect livestock actually pursued or being killed on private property. Prior to issuance of such a permit, authorized State, Federal, or Tribal officials must document pursuit or killing of livestock. Any response protocol established by the Committee must have been satisfied and efforts to capture depredating grizzly bears by Service or State or Tribal wildlife agency personnel must have proven unsuccessful. All such taking must be reported as to date, exact location, and circumstances within 24 hours to the authorities listed under paragraph (l)(5)(iii) of this section.

( vi ) Any authorized employee or agent of the Service or appropriate State wildlife agency or Nez Perce Tribe who is lawfully designated for such purposes, when acting in the course of official duties, may take a grizzly bear from the wild in the Experimental Population Area if such action is necessary to:

( A ) Aid a sick, injured, or orphaned grizzly bear;

( B ) Dispose of a dead grizzly bear, or salvage a dead grizzly bear that may be useful for scientific study;

( C ) Take a grizzly bear that constitutes a demonstrable but nonimmediate threat to human safety or that is responsible for depredations to lawfully present domestic animals or other personal property, if otherwise eliminating such depredation or loss of personal property has not been possible, and after eliminating such threat by live-capturing and releasing the grizzly bear unharmed in the area defined in paragraph (l)(2) of this section or other areas approved by the Committee has been demonstrated not to be possible;

( D ) Move a grizzly bear for genetic management purposes;

( E ) Relocate grizzly bears within the Experimental Population Area to improve grizzly bear survival and recovery prospects; or

( F ) Relocate a grizzly bear to avoid conflict with human activities. However, grizzly bears in the Experimental Population Area will not be disturbed unless they demonstrate a real and imminent threat to human safety, livestock, or bees. Unless the Committee determines otherwise, this rule provides that on private lands outside the national forest boundary in the Bitterroot Valley, Montana (exclusion area), any human/grizzly conflicts will be considered unacceptable. Grizzly bear occupancy will be discouraged in the exclusion area, and grizzly bears found there will be captured and returned to the Recovery Area, or placed in captivity, or destroyed, depending on the history of each bear. If a grizzly bear enters the exclusion area, State and Federal wildlife management agencies will attempt to capture it immediately and notify the public of its presence as soon as possible. The public will be kept updated until the bear is caught. Further, any grizzly bear that occupies inhabited human settlement areas on private land within the Experimental Population Area that, in the judgment of the management agencies or Committee, presents a clear threat to human safety or whose behavior indicates that it may become habituated to humans, will be relocated or destroyed by management agencies.

( 6 ) How will local citizens be involved in the management of the Bitterroot nonessential experimental grizzly bear population?

( i ) The Secretary will establish a Citizen Management Committee for the Bitterroot grizzly bear experimental population and will authorize management implementation responsibility as described in paragraph (l)(9) of this section, in consultation with the Governors of Idaho and Montana. As soon as possible after the effective date of this rule, the Secretary will organize the Committee by requesting nominations of citizen members from the Governors of Idaho and Montana and the Nez Perce Tribe and nominations of agency members by represented agencies.

( ii ) The Committee will be composed of 15 members serving 6-year terms. Appointments may initially be of lesser terms to ensure staggered replacement.

( A ) Membership will consist of seven individuals appointed by the Secretary based upon the recommendations of the Governor of Idaho, five members appointed by the Secretary based upon the recommendations of the Governor of Montana, one member representing the Nez Perce Tribe appointed by the Secretary based on the recommendation of the Nez Perce Tribe, one member representing the Forest Service appointed by the Secretary of Agriculture, and one member representing the Fish and Wildlife Service appointed by the Secretary. Members recommended by the Governors of Idaho and Montana will be based on the recommendations of interested parties and will include at least one representative each from the appropriate State wildlife agencies. If either Governor or the Tribe fails to make recommendations within 60 days, the Secretary (or his/her designee) will accept recommendations from interested parties, and will make the appointments.

( B ) The Committee will consist of a cross-section of interests reflecting a balance of viewpoints, and members are to be selected for their diversity of knowledge and experience in natural resource issues, and for their commitment to collaborative decision-making. In their recommendations to the Secretary, the Governors of Idaho and Montana will attach written documentation of the qualifications of those nominated relating to their knowledge of, and experience in, natural resource issues and their commitment to collaborative decision-making.

( C ) Except for the representatives from Federal agencies, the Committee will be selected from communities within and adjacent to the Recovery and Experimental Population Areas.

( D ) The Secretary will fill vacancies as they occur with the appropriate members based on the recommendation of the appropriate Governor, the Nez Perce Tribe, or agency.

( 7 ) Will independent scientific information be readily available to the Committee? The Secretary will appoint two scientific advisors to the Committee as nonvoting members to attend all meetings of the Committee and to provide scientific expertise to the Committee. These scientific advisors will not be employed by Federal agencies involved in grizzly bear recovery. The Secretary will contact the Wildlife Society Chapters in Idaho and Montana and the Universities of Idaho and Montana for nominations and will select one wildlife scientist representing each State and appoint them as advisors to the Committee.

( 8 ) What is the overall mission of the Committee, and how will it operate?

( i ) The mission of the Committee is to facilitate recovery of the grizzly bear in the Bitterroot ecosystem by assisting in implementing the Bitterroot ecosystem chapter of the recovery plan (Bitterroot Ecosystem Recovery Plan Chapter—Supplement to the Grizzly Bear Recovery Plan, U.S. Fish and Wildlife Service, Missoula, Montana, 1996). The Committee will make recommendations to land and wildlife management agencies that it believes will lead to recovery of the grizzly bear. Decisions on, and implementation of, these recommendations are the responsibility of the land and wildlife management agencies.

( ii ) The Committee will meet a minimum of two times per year. These meetings will be open to the public. Additionally, the committee will provide reasonable public notice of meetings, produce and provide written minutes of meetings to interested persons, and involve the public in its decision-making process. This public participation process will allow members of the public and/or special interest groups to have input to Committee decisions and management actions.

( 9 ) What authority will the Committee have, and what will be its primary tasks? The Committee will have the authority and the responsibility to carry out the following functions:

( i ) Developing a process for obtaining the best biological, social, and economic data. This process will include an explicit mechanism for soliciting peer-reviewed, scientific articles on grizzly bears and their management, and holding periodic public meetings not less than every 2 years, in which qualified scientists may submit comments to and be questioned by the Committee. The two scientific advisors will lead this process. The Committee will base its decisions upon the best scientific and commercial data available. All decisions of the Committee, including components of its management plans, must lead toward recovery of the grizzly bear in the Bitterroot ecosystem and minimize social and economic impacts to the extent practicable within the context of the existing recovery goals for the species.

( ii ) Soliciting technical advice and guidance from outside experts. The scientific advisors will lead the development of an ongoing process to provide the Committee with the best scientific and commercial data available. The scientific advisors will provide this information in the form of peer-reviewed scientific articles on grizzly bears and their management, Committee meetings with presentations by scientific experts, and requests to State and Federal management agencies and the private sector for scientific expertise and advice.

( iii ) Implementing the Bitterroot Ecosystem Chapter of the Grizzly Bear Recovery Plan consistent with this paragraph (l) . The Committee will develop recommendations on existing management plans and policies of land and wildlife management agencies, as necessary, for the management of grizzly bears in the Experimental Population Area. The Committee will make recommendations to land and wildlife management agencies regarding changes to plans and policies, but the final decision on implementation of those recommendations will be made by those agencies. If Committee recommendations require significant changes to existing plans and policy, and the agencies tentatively agree to accept those recommendations, then the requirements of the National Environmental Policy Act may apply. Such management plans and policies will be in accordance with applicable State and Federal laws. The Committee will give full consideration to Service comments and opinions and those of the Forest Service, Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks, and the Nez Perce Tribe.

( iv ) Providing means by which the public may participate in, review, and comment on the decisions of the Committee. The Committee must thoroughly consider and respond to public input prior to making decisions.

( v ) Developing its internal processes, where appropriate, such as governance, decision-making, quorum, terms of members, officers, meeting schedules and location, public notice of meetings, and minutes.

( vi ) Requesting staff support from the Service, the Idaho Department of Fish and Game, Montana Department of Fish, Wildlife and Parks, Forest Service, other affected Federal agencies, and the Nez Perce Tribe, when necessary to perform administrative functions, and requesting reimbursement from us for non-Federal Committee members for costs associated with travel, lodging, and incidentals.

( vii ) Reviewing existing grizzly bear standards and guidelines used by the Forest Service and other agencies and landowners. The Committee will perform an annual review of grizzly bear mortalities and the number and location of bear/human conflicts. This review will be the primary mechanism to assess the adequacy of existing management techniques and standards. If the Committee deems such standards and guidelines inadequate for recovery of grizzly bears, the Committee may recommend changes to the Forest Service and other agencies and landowners.

( viii ) Developing grizzly bear guidance for proper camping and sanitation within the Experimental Population Area and making recommendations to land management agencies for adoption of such guidelines. Existing camping and sanitation procedures developed in other ecosystems with grizzly bears will serve as a basis for such guidelines.

( ix ) Developing a protocol for responding to grizzly/human encounters, livestock depredations, damage to lawfully present property, and other grizzly/human conflicts within the Experimental Population Area. Any response protocol developed by the Committee will have to undergo public comment and be revised as appropriate based on comments received. Any conflicts or mortalities associated with these activities will result in review by the Committee to determine what the Committee may do to help prevent future conflicts or mortalities. The Committee will recommend, as necessary, policy changes on trail restrictions for human safety to appropriate wildlife and land management agencies.

( x ) Recommending to the Service changes to recovery criteria, including mortality limits, population determinations, and other criteria for recovery as appropriate.

( xi ) Reviewing all human-caused grizzly bear mortalities to determine whether new measures for avoiding future occurrences are required and make recommendations on such measures to appropriate land and wildlife management agencies. If grizzly bear mortalities occur as a result of black bear hunting, the Committee will work with the State Fish and Game Departments in both Idaho and Montana to develop solutions to minimize the effects on grizzly bears of black bear hunting.

( xii ) Developing strategies to emphasize recovery inside the Recovery Area and to accommodate grizzly bears inside other areas of the Experimental Population Area.

( A ) Grizzly bears may range outside the Recovery Area because grizzly bear habitat exists throughout the Experimental Population Area. The Committee will not recommend that bears be disturbed or moved unless conflicts are both significant and cannot be corrected as determined by the Committee. This provision includes conflicts associated with livestock, for which the Committee will develop strategies to discourage grizzly bear occupancy in portions of the Experimental Population Area outside of the Recovery Area.

( B ) Unless the Committee determines otherwise, this rule provides that private land outside the national forest boundary in the Bitterroot Valley, Montana (exclusion area), is an area where any human/grizzly conflicts will be considered unacceptable. Grizzly bear occupancy will be discouraged in these areas, and grizzly bears will be captured and returned to the Recovery Area. If a grizzly bear enters the exclusion area, State and Federal wildlife management agencies will attempt to capture it immediately and notify the public of its presence as soon as possible. The public will be kept updated until the bear is caught. Further, any grizzly bear that occupies the exclusion area or other inhabited human settlement areas on private land within the Experimental Population Area that, in the judgment of the management agencies or Committee, presents a clear threat to human safety or whose behavior indicates that it may become habituated to humans, will be relocated or destroyed by management agencies.

( xiii ) Establishing standards for determining whether the experimental reintroduction has been successful and making recommendations on the inclusion of such standards in the Grizzly Bear Recovery Plan. These standards will be based on the best scientific and commercial information available and will reflect that, absent extraordinary circumstances, the success or failure of the program cannot be measured in fewer than 20 years. General guidelines for the standards by which failure will be measured include, but are not limited to, one or more of the following conditions:

( A ) If, within the number of years established by the Committee following initial reintroduction, no relocated grizzly bear remains within the Experimental Population Area and the reasons for emigration or mortality cannot be identified and/or remedied; or

( B ) If, within the number of years established by the Committee following initial reintroduction, no cubs of the year or yearlings exist and the relocated bears are not showing signs of successful reproduction as evidenced by no cubs of the year or yearlings.

( xiv ) Developing procedures for the expeditious issuance of permits described in paragraphs (l)(5)(iv) and (l)(5)(v) of this section, and making recommendations on such procedures to appropriate agencies.

( xv ) Developing 2-year work plans for the recovery effort for submittal to the Secretary pursuant to paragraph (l)(11)(i) of this section.

( xvi ) Establishing, based on the best available science, a refined interim recovery goal for the Bitterroot Ecosystem Chapter of the Grizzly Bear Recovery Plan and a final recovery goal when sufficient information is available and after grizzly bears are reintroduced and occupy suitable habitats in the Experimental Population Area. As this information becomes available, the Committee may recommend the recovery goal to the Secretary along with procedures for determining how this goal will be measured. The recovery goal for the Bitterroot grizzly bear population will be consistent with the habitat available within the Recovery Area. Additional adjacent areas of public land can be considered for contribution of suitable habitat when setting the recovery goal if additional land is shown to be necessary by the best scientific and commercial data available. Any recommendations for revised recovery goals developed by the Committee will require public review and our approval as appropriate prior to revision of any recovery plan. Grizzly bears outside the Recovery Area and within the Experimental Population Area can contribute to meeting the recovery goal if their long-term occupancy in such habitats outside the Recovery Area is reasonably certain.

( 10 ) What agencies will be responsible for day-to-day management activities? The Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks, the Nez Perce Tribe, and the Forest Service, in coordination with us, will exercise day-to-day management responsibility within the Experimental Population Area in accordance with this paragaraph (l). The Service and these cooperating agencies will share management responsibility as per agreements with, and in consideration of, recommendations from the Committee.

( 11 ) How will progress of the Committee be monitored; and what process will be followed by the Secretary to resolve disputes over whether Committee actions are leading to recovery?

( i ) The Secretary or our representative on the Committee will review the Committee's 2-year work plans (see paragraph (l)(9)(xv) of this section). If the Secretary determines, through our representative on the Committee, that the Committee's decisions, work plans, or the implementation of those plans are not leading to the recovery of the grizzly bear within the Experimental Population Area or are not in compliance with this paragraph (l) , our representative will ask the Committee to determine whether such a decision, plan, or implementation of a plan is leading to recovery and is in compliance with this paragraph (l) . The Secretary, who retains final responsibility and authority for implementation of the Act, will review the Committee's determination, as provided in paragraphs (l)(11)(ii) through (iv) of this section, and then make a final determination. Should the Secretary find that a decision, work plan, or implementation of a plan by the Committee is inadequate for recovery of the grizzly bear or is not in compliance with this paragraph (l) , the Secretary may assume lead management responsibility.

( ii ) The Service representative will consider Committee input before making any determination that Committee actions are not leading to recovery or are not in compliance with this paragraph (l) . In the event that our representative on the Committee determines that the actions of the Committee are not leading to recovery of the Bitterroot grizzly bear population or are not in compliance with this paragraph (l) , he or she will recommend to the Committee, based on the best scientific and commercial data available, alternative or corrective actions and provide 6 months for the Committee to accomplish those actions. Should the Committee reject these corrective actions, our representative will convene a Scientific Review Panel of three and will submit to the panel for review those Committee actions or decisions that he or she has determined are not leading to recovery or are not in compliance with this paragrpah (l). The Service representative will consider the views of all Committee members prior to convening a Scientific Review Panel.

( iii ) Members of the Scientific Review Panel will be professional scientists who have had no involvement with the Committee and are not employed by Federal agencies responsible for grizzly bear recovery efforts. The Secretary will select one member of the panel, and the Governors of Idaho and Montana in consultation with the Universities of Idaho and Montana (respectively), will select one panel member each. The Scientific Review Panel will review Committee actions or decisions, solicit additional information if necessary and, using the best scientific and commercial data available, make timely recommendations to the Committee as to whether Committee actions will lead to recovery of the grizzly bear in the Bitterroot ecosystem and are in compliance with paragraph (l). Examples of Committee actions, decisions, or lack of actions that can be submitted to the Scientific Review Panel include, but are not limited to, the following: sufficiency of public involvement in Committee activities; decisions involving sanitation and outreach activities; management of nuisance bears; adequacy of recommendations to land and wildlife management agencies; adequacy of Committee actions in addressing issues such as excessive human-caused grizzly bear mortality; and other actions important to recovery of the grizzly bear in the Bitterroot ecosystem. Committee compliance with paragraph (l) provides the basis for the recommendations of the Scientific Review Panel.

( iv ) If, after timely review, the Committee rejects the recommendations of the Scientific Review Panel, and our representative determines that Committee actions are not leading to recovery of the Bitterroot population, he or she will notify the Secretary. The Secretary will review the Panel's recommendations and determine the disposition of the Committee.

( A ) If the Secretary determines that the Committee should maintain lead management responsibility, the Committee will continue to operate according to the provisions of this paragraph (l) until the recovery objectives under paragraph (l)(9)(xvi) of this section or the Bitterroot Ecosystem Chapter of the Recovery Plan have been met and the Secretary has completed delisting.

( B ) If the Secretary decides to assume lead management responsibility, the Secretary will consult with the Governors of Idaho and Montana regarding that decision and further attempt to resolve the disagreement. If, after such consultation, the Secretary assumes lead management responsibility, the Secretary will publish a notice in the Federal Register explaining the rationale for the determination and notify the Governors of Idaho and Montana. The Committee will disband, and all requirements identified in this paragraph (l) regarding the Committee will be nullified.

( 12 ) How will the Bitterroot grizzly bear population be monitored? The reintroduced population will be monitored closely by Federal and State agencies in cooperation with the Committee for the duration of the recovery process, generally by use of radio telemetry as appropriate.

( 13 ) How will success or failure of the project be evaluated? The status of Bitterroot grizzly bear recovery will be reevaluated separately by the Committee and by the Secretary at 5-year intervals. This review will take into account the reproductive success of the grizzly bears released, human-caused mortality, movement patterns of individual bears, food habits, and overall health of the population and will recommend changes and improvements in the recovery program. Evaluating these parameters will assist in determining success or failure of the restoration.

( 14 ) What process will be followed if the Secretary determines the project has failed?

( i ) If, based on the criteria established by the Committee, the Secretary, after consultation with the Committee, the Governors of Idaho and Montana, the Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks, and the Nez Perce Tribe, determines that the reintroduction has failed to produce a self-sustaining population, this paragraph (l) will not be used to reintroduce additional bears. Any remaining bears will retain their experimental status.

( ii ) Prior to declaring the experimental reintroduction a failure, we will investigate the probable causes of the failure. If the causes can be determined, and legal and reasonable remedial measures identified and implemented, we will consider continuing the recovery effort and maintaining the relocated population. If such reasonable measures cannot be identified and implemented, we will publish the results of our evaluation in the Federal Register in a proposed rulemaking to terminate the authority for additional experimental grizzly bear reintroductions in the Bitterroot ecosystem.

( 15 ) Will the legal status of grizzly bears in the Experimental Population Area change? We do not intend to change the “nonessential experimental” designation to “essential experimental,” “threatened,” or “endangered” and foresee no likely situation that would result in such changes. Critical habitat cannot be designated under the nonessential experimental classification, 16 U.S.C. 1539(j)(2)(C)(ii) .

( 16 ) What are the definitions of key terms used in the rule in this paragraph (l) ? In addition to terms defined in § 10.12 and 17.3 of this subchapter , the following terms apply to this paragraph (l) :

Accommodate means allowing grizzly bears that move outside the Recovery Area onto public land in the Experimental Population Area to remain undisturbed unless they demonstrate a real and imminent threat to human safety or livestock.

Citizen Management Committee (Committee) means that Committee described in paragraph (l)(6) of this section.

Current range means the area inside or within 10 miles of the recovery zone line of currently occupied grizzly bear recovery zones or any area where there is a grizzly bear population, as defined in this paragraph (l)(16) .

Exclusion area (Bitterroot Valley) means those private lands in Montana lying within the Bitterroot Experimental Population Area in the Bitterroot Valley outside the Bitterroot National Forest boundary south of U.S. Highway 12 to Lost Trail Pass and west of Highway 93.

Experimental Population Area (Bitterroot Grizzly Bear Experimental Population Area) means that area delineated in paragraph (l)(1) of this section within which management plans developed as part of the Committee described in paragraph (l)(9) of this section will be in effect. This area includes the Recovery Area. The Experimental Population Area is within the historic range of the grizzly bear, but geographically separate from the current range of the grizzly bear.

Geographically separate means separated by more than 10 miles. The term refers to “wholly separate geographically” in section 10(j)(2) of the Act. The Experimental Population Area and the recovery zone boundary of any existing grizzly bear population must be geographically separate.

Grizzly bear population is defined by verified evidence within the previous 6 years which consists of photos within the area, verified tracks, or sightings by reputable scientists or agency personnel of at least two different female grizzly bears with young or one female with different litters in 2 different years in an area geographically separate from other grizzly bear populations. Verifiable evidence of females with young, to be geographically separate, would have to occur greater than 10 miles from the nearest nonexperimental grizzly bear population recovery zone boundary.

Opportunistic, noninjurious harassment means harassment (see definition of “harass” in § 17.3 ) that occurs when the grizzly bear presents itself (for example, the bear travels onto and is observed on private land or near livestock). This paragraph (l) permits only this type of harassment. You cannot track, attract, search out, or chase a grizzly bear and then harass it. Any harassment must not cause bodily injury or death to the grizzly bear. The intent of harassment permitted by this definition is to scare bears away from the immediate area.

Recovery Area (Bitterroot Grizzly Bear Recovery Area) means the area of recovery emphasis within the Experimental Population Area, and is delineated in paragraph (l)(2) of this section. This area consists of the Selway-Bitterroot and Frank Church-River of No Return Wilderness areas. The Recovery Area is within the historic range of the species.

Recovery emphasis means grizzly bear management decisions in the Recovery Area will favor bear recovery so that this area can serve as core habitat for survival, reproduction, and dispersal of the recovering population. Reintroduction of grizzly bears is planned to occur within the Selway-Bitterroot Wilderness portion of the Recovery Area unless it is later determined that reintroduction in the Frank Church-River of No Return Wilderness is appropriate.

Unavoidable and unintentional take means accidental, unintentional take (see definition of take in § 10.12 of this subchapter ) that occurs despite reasonable care, is incidental to an otherwise lawful activity, and is not done on purpose. An example would be striking a grizzly bear with an automobile. Taking a grizzly bear by shooting will not be considered unavoidable and unintentional take. Shooters have the responsibility to be sure of their targets.

( m ) Spotfin chub (=turquoise shiner) ( Erimonax monachus )—

( 1 ) Where is the spotfin chub designated as a nonessential experimental population (NEP)? We have designated three populations of this species as NEPs: the Tellico River NEP, the Shoal Creek NEP, and the French Broad River and Holston River NEP. This species is not currently known to exist in the Tellico River or its tributaries, the Shoal Creek or its tributaries, or any of the tributaries to the free-flowing reaches of the French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on its habitat requirements, we do not expect this species to become established outside the NEP areas. However, if individuals move upstream or downstream or into tributaries outside any of the designated NEP areas, we would presume that those individuals came from the closest reintroduced population. We would then amend this regulation and enlarge the boundaries of the NEP area to include the entire range of the expanded population.

( i ) The Tellico River NEP area is within the species' probable historic range and is defined as follows: The Tellico River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile 19 (30.4 kilometers (km)) and Tellico River mile 33 (52.8 km), near the Tellico Ranger Station, Monroe County, Tennessee.

( ii ) The Shoal Creek NEP area is within the species' historic range and is defined as follows: Shoal Creek (from Shoal Creek mile 41.7 (66.7 km)) at the mouth of Long Branch, Lawrence County, TN, downstream to the backwaters of Wilson Reservoir (Shoal Creek mile 14 (22 km)) at Goose Shoals, Lauderdale County, AL, including the lower 5 miles (8 km) of all tributaries that enter this reach.

( iii ) The French Broad River and Holston River NEP area is within the species' historic range and is defined as follows: the French Broad River, Knox and Sevier Counties, Tennessee, from the base of Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River; then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches.

( iv ) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP area. Additionally, we will not designate critical habitat for these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

( i ) Except as expressly allowed in paragraph (m)(3) of this section, all the provisions of § 17.31(a) and (b) apply to the spotfin chub.

( ii ) Any manner of take not described under paragraph (m)(3) of this section is prohibited in the NEP area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (m)(2) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (m)(2) of this section.

( 4 ) How will the effectiveness of these reintroductions be monitored?

( i ) In the Tellico River NEP area, we will prepare periodic progress reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the reintroduction efforts.

( ii ) In the Shoal Creek NEP area, after the initial stocking of fish, we will monitor annually their presence or absence and document any spawning behavior or young-of-the-year fish that might be present. This monitoring will be conducted primarily by snorkeling or seining and will be accomplished by contracting with the appropriate species experts. We will produce annual reports detailing the stocking rates and monitoring activities that took place during the previous year. We will also fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the reintroduction efforts.

( iii ) In the Lower French Broad and Lower Holston Rivers NEP area , after the initial stocking of these species, we will monitor annually their presence or absence and document any spawning behavior or young-of-the-year that might be present. This monitoring will be conducted primarily by snorkeling or seining and will be accomplished by contracting with the appropriate species experts. Annual reports will be produced detailing the stocking rates and monitoring activities that took place during the previous year. We will also fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the reintroduction efforts.

( 5 ) Note: Map of the Tellico River NEP area for spotfin chub, dusky darter, smoky madtom, and yellowfin madtom in Tennessee follows:

( 6 ) Note: Map of the Shoal Creek NEP area for spotfin chub and boulder darter in Tennessee and Alabama follows:

( 7 ) Note: Map of the French Broad River and Holston River NEP area for spotfin chub, slender chub, duskytail darter, pygmy madtom, and yellowtail madtom in Tennessee follows:

( n ) Wolf, gray ( Canis lupus ).

( 1 ) Purpose. The regulations in this paragraph (n) set forth the provisions of a rule to establish an experimental population of gray wolves. The Service finds that establishment of an experimental population of gray wolves as described in this paragraph (n) will further the conservation of the species.

( 2 ) Determinations. The gray wolves identified in paragraph (n)(3) of this section constitute a nonessential experimental population (NEP) under § 17.81(c)(2) . These wolves will be managed in accordance with the provisions of this rule in the boundaries of the NEP area within the State of Colorado or any Tribal reservation found in the State that has a wolf management plan, as further provided in this rule. Furthermore, the State of Colorado or any Tribe within the State that has a wolf management plan consistent with this rule can request to assume the lead authority for wolf management under this rule within the borders of the NEP area in the State or reservation as set forth in paragraph (n)(10) of this section.

( 3 ) Designated area. The Colorado NEP area encompasses the entire State of Colorado. All gray wolves found in the wild within the boundary of the Colorado NEP area are considered nonessential experimental animals. Any gray wolf that is outside the Colorado NEP area, with the exception of wolves in the States of Idaho, Minnesota, Montana, Wyoming, and portions of the States of Oregon, Washington, and Utah, is considered endangered. Any wolf originating from the Colorado NEP area and dispersing beyond its borders may be managed by the wolf management regulations established for that area or may be returned to the Colorado NEP area.

( 4 ) Definitions. Key terms used in this rule have the following meanings:

Designated agent —An employee of a Federal, State, or Tribal agency that is authorized or directed by the Service to conduct gray wolf management consistent with this rule.

Intentional harassment —The deliberate and pre-planned harassment of wolves, including by less-than-lethal munitions that are designed to cause physical discomfort and temporary physical injury but not death.

In the act of attacking —The actual biting, wounding, grasping, or killing of livestock or working dogs or chasing, molesting, or harassing by wolves that would indicate to a reasonable person that such biting, wounding, grasping, or killing of livestock or working dogs is likely to occur at any moment.

Landowner —Any of the following entities:

( A ) An owner or lessee of private land, or their immediate family members, or the owner's employees, contractors, or volunteers who are currently employed to actively work on that private land.

( B ) The owners, or their employees or contractors, of livestock that are currently and legally grazed on private land and herding and guarding animals (such as alpacas, llamas, or donkeys) and other leaseholders on private land, such as outfitters or guides who lease hunting rights from private landowners.

( C ) Individuals legally using Tribal lands in the State of Colorado.

Livestock —Cattle, sheep, pigs, horses, mules, goats, domestic bison, and herding and guarding animals (alpacas, llamas, donkeys, and certain breeds of dogs commonly used for herding or guarding livestock). Livestock excludes dogs that are not being used for livestock guarding or herding.

Livestock producer —A person who is actively engaged in farming/ranching and receives income from the production of livestock.

Non-injurious —Does not cause either temporary or permanent physical damage or death.

Opportunistic harassment —Harassment without the conduct of prior purposeful actions to attract, track, wait for, or search out the wolf. Opportunistic harassment includes scaring wolves with noise (e.g., yelling or shooting firearms into the air), movement (e.g., running or driving toward the wolf), or objects (e.g., throwing a rock at a wolf or releasing bear pepper spray).

Private land —All land other than that under Federal Government ownership and administration and including Tribal reservations.

Public land —Federal land such as that administered by the National Park Service, U.S. Fish and Wildlife Service, Bureau of Land Management, Bureau of Reclamation, U.S. Department of Agriculture's Forest Service, Department of Defense, or other agencies within the Federal Government.

Public land permittee —A person or that person's employee who has an active, valid Federal land-use permit to use specific Federal lands to graze livestock or operate an outfitter or guiding business that uses livestock and Tribal members who legally graze their livestock on ceded public lands under recognized Tribal treaty rights. This term does not include private individuals or organizations who have Federal permits for other activities on public land such as collecting firewood, mushrooms, antlers, or Christmas trees, logging, mining, oil or gas development, or other uses that do not require livestock.

Relocation —Capture and movement to another location.

Remove —Place in captivity or kill.

Research —Scientific studies resulting in data that will lend to enhancement of the survival of the gray wolf.

Rule —The regulations in this paragraph (n) .

Tribal land —Any lands where title is either held in trust by the United States for the benefit of an Indian Tribe or individual Indian or held by an Indian Tribe or individual Indian subject to restrictions by the United States against alienation ( i.e., sale or transfer).

Unacceptable impact —Tribally determined decline in a wild ungulate population or herd where wolf predation is a major cause of the population or herd not meeting established Tribal management goals on Tribal land. The Tribal determination must be peer-reviewed and reviewed and commented on by the public prior to a final, written determination by the Service that an unacceptable impact has occurred and that wolf removal will benefit the affected ungulate herd or population.

Working dogs —Guard or herding dogs typically used in livestock production.

Wounded —Exhibiting scraped or torn hide or flesh, bleeding, or other evidence of physical damage caused by a wolf.

( 5 ) Allowable forms of take of gray wolves. Take of gray wolves in the experimental population is allowed without a permit only in these specific circumstances: opportunistic harassment; intentional harassment; take in defense of human life; take to protect human safety; take by designated agents to remove depredating wolves; incidental take; take under any previously authorized permits issued by the Service; take per authorizations for employees of designated agents; take for research purposes; and take to protect livestock animals and working dogs. Consistent with the requirements of the State or Tribe, take is allowed on private land. Take on public land is allowed as specified in paragraph (n)(5)(iv)(A) of this section. Other than as expressly provided by the regulations in this rule, all other forms of take are considered a violation of section 9 of the Act. Any wolf or wolf part taken legally must be turned over to the Service unless otherwise specified in this rule. Any take of wolves must be reported as set forth in paragraph (n)(6) of this section.

( i ) Opportunistic harassment. Anyone may conduct opportunistic harassment of any gray wolf in a non-injurious manner at any time. Opportunistic harassment must be reported to the Service or a designated agent within 7 days as set forth in paragraph (n)(6) of this section.

( ii ) Intentional harassment. After we or a designated agent have confirmed wolf activity on private land or a public land grazing allotment, we or the designated agent may issue written take authorization, with appropriate conditions, valid for not longer than 1 year to any landowner or public land permittee to intentionally harass wolves. The harassment must occur in the area and under the conditions as specifically identified in the written take authorization. Intentional harassment must be reported to the Service or a designated agent(s) within 7 days as set forth in paragraph (n)(6) of this section. The provisions in this paragraph (n)(5)(ii) do not apply if there is evidence of unusual attractants or artificial or intentional feeding.

( iii ) Take by landowners on their private land. Landowners may take wolves on their private land in the following two additional circumstances:

( A ) Consistent with State or Tribal requirements, any landowner may take a gray wolf in the act of attacking livestock or working dogs on private land (owned or leased), provided that there is no evidence of intentional baiting, feeding, or deliberate attractants of wolves. To preserve physical evidence that the livestock or working dogs were recently attacked by a wolf or wolves, the carcass of any wolf taken and surrounding area must not be disturbed. The Service or designated agent must be able to confirm that the livestock or dogs were wounded, harassed, molested, or killed by wolves. The take of any wolf without such evidence of a direct and immediate threat may be referred to the appropriate authorities for prosecution.

( B ) The Service or designated agent may issue a “depredation” written take authorization of limited duration (45 days or fewer) to a landowner or their employees to take up to a specified (by the Service or our designated agent) number of wolves on their private land if:

( 1 ) The landowner has had at least one depredation by wolves on livestock that has been confirmed by the Service or our designated agent within the last 30 days; and

( 2 ) The Service or our designated agent has determined that depredating wolves routinely occur on the private land and present a significant risk to the health and safety of livestock; and

( 3 ) The Service or our designated agent has authorized lethal removal of wolves from those same private lands.

( 4 ) The authorizations set forth by this paragraph (n)(5)(iii)(B) may be terminated at any time once threats have been resolved or minimized.

( iv ) Take on public land. Consistent with State or Tribal requirements, any livestock producer and public land permittee (see definitions in paragraph (n)(4) of this section) who is legally using public land under a valid Federal land-use permit may, without prior written authorization, take a gray wolf in the act of attacking livestock or working dogs on the person's allotment or other area authorized for the person's use.

( A ) The Service or designated agent must be able to confirm that the livestock or working dog was wounded, harassed, molested, or killed by a wolf or wolves. To preserve physical evidence that the take was conducted according to this rule, the carcass of any wolf taken and the area surrounding it should not be disturbed. Any person legally present on public land may immediately take a wolf that is in the act of attacking the individual's livestock animal or working dog, provided conditions described in paragraph (n)(5)(iii)(A) of this section for private land ( i.e., “in the act of attacking”) are met. Any take or method of take on public land must be consistent with the laws and regulations on those public lands.

( B ) The Service or our designated agent may issue a “depredation” written take authorization of limited duration (45 days or fewer) to a public land grazing permittee to take up to a specified (by the Service or our designated agent) number of wolves on that permittee's active livestock grazing allotment if all of the following situations occur:

( 1 ) The grazing allotment has had at least one depredation by wolves on livestock that has been confirmed by the Service or our designated agent within the last 30 days; and

( 2 ) The Service or our designated agent has determined that depredating wolves routinely occur on that allotment and present a significant risk to the health and safety of livestock; and

( 3 ) The Service or our designated agent has authorized lethal removal of wolves from that same allotment.

( 4 ) The authorizations set forth by this paragraph (n)(5)(iv)(B) may be terminated at any time once threats have been resolved or minimized.

( 5 ) Any take or method of take on public land must be consistent with the rules and regulations on those public lands.

( v ) Agency take of wolves that depredate livestock. The Service or our designated agent may carry out harassment, nonlethal control measures, relocation, placement in captivity, or lethal control of depredating wolves. The Service or our designated agent will consider:

( A ) Evidence of wounded livestock or working dogs or remains of livestock or working dogs that show that the injury or death was caused by wolves, or evidence that wolves were in the act of attacking livestock or working dogs;

( B ) The likelihood that additional wolf-caused losses or attacks may occur if no control action is taken;

( C ) Any evidence of unusual attractants or artificial or intentional feeding of wolves; and

( D ) Evidence that animal husbandry practices recommended in approved allotment plans and annual operating plans were followed.

( vi ) Take in defense of human life. Any person may take a gray wolf in defense of the individual's life or the life of another person. The taking of a wolf without an immediate and direct threat to human life may be referred to the appropriate authorities for prosecution.

( vii ) Take to protect human safety. The Service or our designated agent may promptly remove any wolf that we or our designated agent determines to be a threat to human life or safety.

( viii ) Incidental take. Take of a gray wolf is allowed if the take is accidental and/or incidental to an otherwise lawful activity and if reasonable due care was practiced to avoid such take and such take is reported within 24 hours as set forth at paragraph (n)(6) of this section. We may refer incidental take that does not meet these provisions to the appropriate authorities for prosecution. Shooters have the responsibility to identify their target before shooting. Shooting a wolf as a result of mistaking it for another species is not considered incidental take and may be referred to the appropriate authorities for prosecution.

( ix ) Take under permits. Any person with a valid permit issued by the Service under 50 CFR 17.32 , or our designated agent, may take wolves in the wild, pursuant to terms of the permit.

( x ) Additional take authorization for agency employees. When acting in the course of official duties, any employee of the Service or a designated agent may take a wolf, when necessary, in regard to the release, tracking, monitoring, recapture, and management of the NEP or to:

( A ) Aid or euthanize a sick, injured, or orphaned wolf and transfer it to a licensed veterinarian for care;

( B ) Dispose of a dead specimen;

( C ) Salvage a dead specimen that may be used for scientific study;

( D ) Aid in law enforcement investigations involving wolves (collection of specimens for necropsy, etc.); or

( E ) Remove wolves with abnormal physical or behavioral characteristics, as determined by the Service or our designated agent, from passing on or teaching those traits to other wolves.

( F ) Such take must be reported to the Service as set forth in paragraph (n)(6) of this section, and specimens are to be retained or disposed of only in accordance with directions from the Service.

( xi ) Take of gray wolves that are contributing to unacceptable impacts to wild ungulate populations or herds on Tribal land. This exception requires Tribes to develop a science-based proposal that must, at a minimum, include the following information:

( A ) The basis of ungulate population or herd management objectives;

( B ) Data indicating that the ungulate herd is below management objectives;

( C ) Data indicating that wolves are a major cause of the ungulate population decline;

( D ) Why wolf removal is a warranted solution to help restore the ungulate herd to management objectives;

( E ) The level and duration of wolf removal being proposed;

( F ) How ungulate population response to wolf removal will be measured and control actions adjusted for effectiveness; and

( G ) Demonstration that attempts were and are being made to address other identified major causes of ungulate herd or population declines or of Tribal government commitment to implement possible remedies or conservation measures in addition to wolf removal.

( H ) The proposal described in this paragraph (n)(5)(xi) must be subjected to both public and peer review prior to being finalized and submitted to the Service for review. Peer review must include at least three independent peer reviewers with relevant expertise in the subject matter who are not staff of the Tribe submitting the proposal. Before wolf removals can be authorized, the Service will evaluate the information in the proposal and provide a written determination to the requesting Tribal game and fish agency on whether such actions are scientifically based and warranted.

( xii ) Take for research purposes. Permits are available and required, except as otherwise allowed by this rule, for scientific purposes, enhancement of propagation or survival, educational purposes, or other purposes consistent with the Act ( 50 CFR 17.32 ). Scientific studies should be reasonably expected to result in data that will lead to development of sound management of the gray wolf and to enhancement of its survival as a species.

( 6 ) Reporting requirements. Except as otherwise specified in this rule or in an authorization, any take of a gray wolf must be reported to the Service or our designated agent as follows: Lethal take must be reported within 24 hours, and opportunistic or intentional harassment must be reported within 7 days. We will allow additional reasonable time if access to the site is limited.

( i ) Report any take of wolves, including opportunistic harassment or intentional harassment, to U.S. Fish and Wildlife Service, Colorado Ecological Services Field Office Supervisor (134 Union Boulevard, Suite 670, Lakewood, Colorado 80225; [email protected] ), or a Service-designated agent of another Federal, State, or Tribal agency.

( ii ) Unless otherwise specified in this paragraph (n) , any wolf or wolf part taken legally must be turned over to the Service, which will determine the disposition of any live or dead wolves.

( 7 ) Prohibitions. Take of any gray wolf in the NEP is prohibited, except as provided in paragraphs (n)(5) and (8) of this section. Specifically, the following actions are prohibited by this rule:

( i ) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any wolf or part thereof from the experimental population taken in violation of the regulations in this paragraph (n) or in violation of applicable State or Tribal fish and wildlife laws or regulations or the Act.

( ii ) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed any offense defined in this paragraph (n) .

( 8 ) Monitoring. Gray wolves in the NEP area will be monitored by radio telemetry or other standard wolf population monitoring techniques as appropriate. Any animal that is sick, injured, or otherwise in need of special care may be captured by authorized personnel of the Service or our designated agent and given appropriate care. Such an animal will be released back into its respective area as soon as possible, unless physical or behavioral problems make it necessary to return the animal to captivity or euthanize it. If a gray wolf is taken into captivity for care or is euthanized, it must be reported to the Service within 24 hours or as soon as reasonably appropriate.

( 9 ) Review and evaluation of the success or failure of the NEP. Radio transmitters, remote cameras, surveys of roads and trails to document wolf sign, and other monitoring techniques will be used to document wolf reproductive success, abundance, and distribution in Colorado post-release.

( i ) To evaluate progress toward achieving State downlisting and delisting criteria, the State of Colorado will summarize monitoring information in an annual report. The report, due by June 30 of each year, will describe wolf conservation and management activities that occurred in Colorado for as long as the gray wolf is federally listed during any portion of a calendar or biological year. The annual report may include, but not be limited to: post-release wolf movements and behavior; wolf minimum counts or abundance estimates; reproductive success and recruitment; territory use and distribution; cause-specific wolf mortalities; and a summary of wolf conflicts and associated management activities to minimize wolf conflict risk.

( ii ) To assess the reintroduction program, the Service will evaluate Colorado's wolf reintroduction and management program in a summary report each year that wolf reintroductions occur in the State and for a minimum of 5 years after reintroductions are complete. If the Service determines that modifications to reintroduction protocols and wolf monitoring and management activities are needed, the Service will coordinate closely with the State to ensure progress toward achieving their State recovery goals while concurrently minimizing wolf-related conflicts in Colorado.

( 10 ) Memorandum of Agreement (MOA). The State of Colorado or any Tribe within the State, subject to the terms of this rule, may request an MOA from the Service to take over lead management responsibility and authority to implement this rule by managing the nonessential experimental gray wolves in the State or on a Tribal reservation, and implement all parts of their State or Tribal plan that are consistent with this rule, provided that the State or Tribe has a wolf management plan approved by the Service.

( i ) The State or Tribal request for wolf management under an MOA must demonstrate:

( A ) That authority and management capability reside in the State or Tribe to conserve the gray wolf throughout the geographical range of the experimental population within the State of Colorado or within the Tribal reservation;

( B ) That the State or Tribe has an acceptable conservation program for the gray wolf, throughout the NEP area within the State or Tribal reservation, including the requisite authority and capacity to carry out that conservation program;

( C ) Exactly what parts of the State or Tribal plan the State or Tribe intends to implement within the framework of this rule; and

( D ) That the State or Tribal management progress will be reported to the Service on at least an annual basis so the Service can determine if State or Tribal management was conducted in full compliance with this rule.

( ii ) The Service will approve such a request upon a finding that the applicable criteria are met and that approval is not likely to jeopardize the continued existence of the gray wolf.

( iii ) If the Service approves the request, the Service will enter into an MOA with the State or Tribe.

( iv ) An MOA for State or Tribal management as provided in this rule may allow the State of Colorado or any Tribe within the State to become designated agents and lead management of the nonessential experimental gray wolf population within the borders of their jurisdictions in accordance with the State's or Tribe's wolf management plan, except that:

( A ) The MOA may not provide for any form of management inconsistent with the protection provided to the species under this rule, without further opportunity for appropriate public comment and review and amendment of this rule.

( B ) The MOA cannot vest the State of Colorado or any Tribe within the State with any authority over matters concerning section 4 of the Act (determining whether a species warrants listing).

( C ) In the absence of a Tribal wolf management plan or cooperative agreement, the MOA cannot vest the State of Colorado with the authority to issue written authorizations for wolf take on reservations. The Service will retain the authority to issue these written authorizations until a Tribal wolf management plan is developed.

( D ) The MOA for State or Tribal wolf management must provide for joint law enforcement responsibilities to ensure that the Service also has the authority to enforce the State or Tribal management program prohibitions on take.

( E ) The MOA may not authorize wolf take beyond that stated in the rule but may be more restrictive.

( v ) The authority for the MOA will be the Act, the Fish and Wildlife Act of 1956 ( 16 U.S.C. 742a-742j ), and the Fish and Wildlife Coordination Act ( 16 U.S.C. 661-667e ), and any applicable treaty.

( vi ) In order for the MOA to remain in effect, the Service must find, on an annual basis, that the management under the MOA is not jeopardizing the continued existence of the gray wolf in the NEP. The Service or State or Tribe may terminate the MOA upon 90 days' notice if:

( A ) Management under the MOA is likely to jeopardize the continued existence of the gray wolf in the NEP;

( B ) The State or Tribe has failed materially to comply with this rule, the MOA, or any relevant provision of the State or Tribal wolf management plan;

( C ) The Service determines that biological circumstances within the range of the gray wolf indicate that delisting the species is warranted; or

( D ) The States or Tribes determine that they no longer want the wolf management authority vested in them by the Service in the MOA.

( o ) Boulder darter ( Etheostoma wapiti ).

( 1 ) Where is the boulder darter designated as a nonessential experimental population (NEP)?

( i ) The NEP area for the boulder darter is within the species' historic range and is defined as follows: Shoal Creek (from Shoal Creek mile 41.7 (66.7 km)) at the mouth of Long Branch, Lawrence County, TN, downstream to the backwaters of Wilson Reservoir (Shoal Creek mile 14 (22 km)) at Goose Shoals, Lauderdale County, AL, including the lower 5 miles (8 km) of all tributaries that enter this reach.

( ii ) The boulder darter is not currently known to exist in Shoal Creek or its tributaries. Based on the habitat requirements of this fish, we do not expect it to become established outside the NEP area. However, if any individuals of the species move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced population. We would then amend this rule through our normal rulemaking process in order to enlarge the boundaries of the NEP area to include the entire range of the expanded population.

( iii ) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP area. Additionally, we will not designate critical habitat for these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

( i ) Except as expressly allowed in paragraph (o)(3) of this section, all the provisions of § 17.31(a) and (b) apply to the boulder darter.

( ii ) Any manner of take not described under paragraph (o)(3) of this section is prohibited in the NEP area. We may refer unauthorized take of these species to the appropriate authorities for prosecution.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (o)(2) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (o)(2) of this section.

( 4 ) How will the effectiveness of these reintroductions be monitored? After the initial stocking of fish, we will monitor annually their presence or absence and document any spawning behavior or young-of-the-year fish that might be present. This monitoring will be conducted primarily by snorkeling or seining and will be accomplished by contracting with the appropriate species experts. We will produce annual reports detailing the stocking rates and monitoring activities that took place during the previous year. We will also fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the reintroduction efforts.

( 5 ) Note: Map of the NEP area for the boulder darter in the Shoal Creek, Tennessee and Alabama, appears immediately following paragraph (m)(6) of this section.

( p ) Northern aplomado falcon ( Falco femoralis septentrionalis ).

( 1 ) The northern aplomado falcon ( Falco femoralis septentrionalis ) (falcon) population identified in paragraph (p)(9)(i) of this section is a nonessential experimental population (NEP).

( 2 ) No person may take this species, except as provided in paragraphs (p)(3) through (5) and (p)(10) of this section.

( 3 ) Any person with a valid permit issued by the U.S. Fish and Wildlife Service (Service) under § 17.32 may take falcons for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Endangered Species Act (Act);

( 4 ) A falcon may be taken within the NEP area, provided that such take is not willful, knowing, or due to negligence, or is incidental to and not the purpose of the carrying out of an otherwise lawful activity; and that such taking is reported within 24 hours, as provided under paragraph (p)(6) of this section.

( 5 ) Any employee of the Service, New Mexico Department of Game and Fish, or Arizona Game and Fish Department, who is designated for such purpose, or any person with a valid permit issued by the Service under 50 CFR 17.32 , may, when acting in the course of official duties, take a falcon if such action is necessary to:

( ii ) Dispose of a dead specimen, or salvage a dead specimen that may be useful for scientific study;

( iii ) Move a bird within the NEP area for genetic purposes or to improve the health of the population;

( iv ) Relocate falcons that have moved outside the NEP area, by returning the falcon to the NEP area or moving it to a captive breeding facility. All captures and relocations from outside the NEP area will be conducted with the permission of the landowner(s) or appropriate land management agencies; or

( v ) Collect nesting data or band individuals.

( 6 ) Any taking pursuant to paragraphs (p)(3) through (5) of this section must be reported within 24 hours by contacting the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE, Albuquerque, NM 87113; (505) 346-2525. Upon contact, a determination will be made as to the disposition of any live or dead specimens.

( 7 ) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any such species taken in violation of these regulations.

( 8 ) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (p)(2) and (p)(7) of this section.

( i ) The boundaries of the designated NEP area are based on county borders and include the entire States of New Mexico and Arizona. The reintroduction area is within the historical range of the species in New Mexico.

( ii ) All falcons found in the wild within the boundaries of the NEP area after the first releases will be considered members of the NEP. A falcon occurring outside of the NEP area is considered endangered under the Act unless it is marked or otherwise known to be a member of the NEP.

( iii ) The Service has designated the NEP area to accommodate the potential future movements of a wild population of falcons. All released birds and their progeny are expected to remain in the NEP area due to the geographic extent of the designation.

( 10 ) The NEP will be monitored closely for the duration of the reintroduction program. Any bird that is determined to be sick, injured, or otherwise in need of special care will be recaptured to the extent possible by Service and/or State or permitted Tribal wildlife personnel and given appropriate care. Such birds will be released back to the wild as soon as possible, unless physical or behavioral problems make it necessary to return them to a captive-breeding facility or they are euthanized if treatment would be unlikely to be effective.

( 11 ) The Service plans to evaluate the status of the NEP every 5 years to determine future management status and needs, with the first evaluation expected to be not more than 5 years after the first release of birds into the NEP area. All reviews will take into account the reproductive success and movement patterns of individuals released, food habits, and overall health of the population. This evaluation will include a progress report.

( q ) Duskytail darter ( Etheostoma percnurum ).

( 1 ) Where is the duskytail darter designated as a nonessential experimental population (NEP)? We have designated two populations of this species as NEPs: The Tellico River NEP and the French Broad River and Holston River NEP. This species is not currently known to exist in the Tellico River or its tributaries or in any of the tributaries to the free-flowing reaches of the French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on its habitat requirements, we do not expect this species to become established outside these NEP areas. However, if individuals move upstream or downstream or into tributaries outside either of the designated NEP areas, we would presume that these individuals came from the reintroduced population. We would then amend this rule and enlarge the boundaries of the NEP area to include the entire range of the expanded population.

( i ) The Tellico River NEP area is within the species' historic range and is defined as follows: The Tellico River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile 19 (30.4 kilometers) and Tellico River mile 33 (52.8 kilometers), near the Tellico Ranger Station, Monroe County, Tennessee.

( ii ) The French Broad River and Holston River NEP area is within the species' historic range and is defined as follows: the French Broad River, Knox and Sevier Counties, Tennessee, from the base of Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River; then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches.

( i ) Except as expressly allowed in paragraph (q)(3) of this section, all the prohibitions of § 17.31(a) and (b) apply to the duskytail darter.

( ii ) Any manner of take not described under paragraph (q)(3) of this section is prohibited in the NEP area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (q)(2) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (q)(2) of this section.

( 5 ) Note: Map of the NEP area for the duskytail darter in the Tellico River, Tennessee, appears immediately following paragraph (m)(5) of this section.

( 6 ) Note: Map of the NEP area for the duskytail darter in the French Broad River and Holston River, Tennessee, appears immediately following paragraph (m)(7) of this section.

( r ) Smoky madtom ( Noturus baileyi ).

( 1 ) Where is the smoky madtom designated as a nonessential experimental population (NEP)?

( i ) The NEP area for the smoky madtom is within the species' probable historic range and is defined as follows: The Tellico River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile 19 (30.4 kilometers) and Tellico River mile 33 (52.8 kilometers), near the Tellico Ranger Station, Monroe County, Tennessee.

( ii ) The smoky madtom is not currently known to exist in the Tellico River or its tributaries. Based on the habitat requirements of this fish, we do not expect it to become established outside the NEP area. However, if any individuals of the species move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced population. We would then amend paragraph (r)(1)(i) of this section and enlarge the boundaries of the NEP area to include the entire range of the expanded population.

( iii ) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP area. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

( i ) Except as expressly allowed in paragraph (r)(3) of this section, all the prohibitions of § 17.31(a) and (b) apply to the smoky madtom.

( ii ) Any manner of take not described under paragraph (r)(3) of this section is prohibited in the NEP area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (r)(2) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (r)(2) of this section.

( 5 ) Note: Map of the NEP area for the smoky madtom in the Tellico River, Tennessee, appears immediately following paragraph (m)(6) of this section.

( s ) Slender chub ( Erimystax cahni ).

( 1 ) Where is the slender chub designated as a nonessential experimental population (NEP)?

( i ) The NEP area for the slender chub is within the species' historic range and is defined as follows: the French Broad River, Knox and Sevier Counties, Tennessee, from the base of Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River; then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches.

( ii ) The slender chub is not known to exist in any of the tributaries to the free-flowing reaches of the French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on its habitat requirements, we do not expect this species to become established outside this NEP area. However, if individuals of this population move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced population. We would then amend this regulation to enlarge the boundaries of the NEP area to include the entire range of the expanded population.

( i ) Except as expressly allowed in paragraph (s)(3) of this section, all the prohibitions of § 17.31(a) and (b) apply to the slender chub.

( ii ) Any manner of take not described under paragraph (s)(3) of this section is prohibited in the NEP area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (s)(2) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (s)(2) of this section.

( 5 ) Note: Map of the NEP area for the slender chub in the French Broad River and Holston River, Tennessee, appears immediately following paragraph (m)(7) of this section.

( t ) Pygmy madtom ( Noturus stanauli ).

( 1 ) Where is the pygmy madtom designated as a nonessential experimental population (NEP)?

( i ) The NEP area for the pygmy madtom is within the species' historic range and is defined as follows: the French Broad River, Knox and Sevier Counties, Tennessee, from the base of Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River; then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches.

( ii ) The pygmy madtom is not known to exist in any of the tributaries to the free-flowing reaches of the French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on its habitat requirements, we do not expect this species to become established outside this NEP area. However, if individuals of this population move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced population. We would then amend this regulation to enlarge the boundaries of the NEP area to include the entire range of the expanded population.

( i ) Except as expressly allowed in paragraph (t)(3) of this section, all the prohibitions of § 17.31(a) and (b) apply to the pygmy madtom.

( ii ) Any manner of take not described under paragraph (t)(3) of this section is prohibited in the NEP area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (t)(2) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (t)(2) of this section.

( 5 ) Note: Map of the NEP area for the pygmy madtom in the French Broad River and Holston River, Tennessee, appears immediately following paragraph (m)(7) of this section.

( u ) Rio Grande silvery minnow ( Hybognathus amarus )—

( 1 ) Where are populations of this fish designated as nonessential experimental populations (NEP)?

( i ) The NEP area for the Rio Grande silvery minnow is within the species' historical range and is defined as follows: Rio Grande, from Little Box Canyon downstream of Fort Quitman, Hudspeth County, Texas, through Big Bend National Park and the Rio Grande Wild and Scenic River, to Amistad Dam; and on the Pecos River, from its confluence with Independence Creek to its confluence with the Rio Grande.

( ii ) The Rio Grande silvery minnow is not currently known to exist in the Rio Grande or Pecos River in Texas. Based on the habitat requirements of this fish, we do not expect it to become established outside the NEP area. However, if any individuals of this species move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reestablished populations. We would then amend paragraph (u)(1)(i) of this section to enlarge the boundaries of the NEP to include the entire range of the expanded population.

( iii ) We do not intend to change the NEP designation to “essential experimental,” “threatened,” or “endangered” within the NEP area. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

( 2 ) What take is allowed of this species in the NEP area?

( i ) A Rio Grande silvery minnow may be taken within the NEP area, provided that such take is either not willful, knowing, or due to negligence, or is incidental to and not the purpose of the carrying out of an otherwise lawful activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming), agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations. However, Federal agencies, must consult under section 7 of the Act on their activities that may affect the Rio Grande silvery minnow within Big Bend National Park or the Wild and Scenic River.

( ii ) Any person with a valid permit issued by the U.S. Fish and Wildlife Service (Service) under 50 CFR 17.32 may take Rio Grande silvery minnows for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act;

( iii ) Any taking pursuant to paragraph (u)(2)(i) of this section must be reported within 7 days by contacting the Service, Austin Ecological Services Field Office, 107011 Burnet Road, Suite 200, Austin, TX 78758; (512) 490-0057. Once the Service is contacted, a determination will be made as to the disposition of any live or dead specimens. Reporting requirements for take pursuant to paragraph (u)(2)(ii) of this section will be specifically defined in the permit issued by the Service.

( 3 ) What take of this species is not allowed in the NEP area?

( i ) Except as expressly allowed in paragraph (u)(2) of this section, all the provisions of 50 CFR 17.31(a) and (b) apply to the fish identified in paragraph (u)(1) of this section.

( ii ) Any manner of take not described under paragraph (u)(2) of this section is prohibited in the NEP area.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (u)(3) of this section or in violation of the applicable State or local fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (u)(3) of this section.

( 4 ) How will the effectiveness of the reestablishment be monitored?

( i ) After the initial stocking of this fish, we will monitor their presence or absence at least annually and document any spawning behavior or young-of-year fish that might be present. Depending on available resources, monitoring may occur more frequently, especially during the first few years of reestablishment efforts. This monitoring will be conducted primarily by seining and will be accomplished by Service, National Park Service, or State employees or by contracting with the appropriate species experts. Annual reports will be produced detailing stocking and monitoring activities that took place during the previous year.

( ii ) The Service will fully evaluate these reestablishment efforts every 5 years to determine whether to continue or terminate them.

( iii ) Note: Map of the NEP area for the Rio Grande silvery minnow in Texas follows:

( v ) Sonoran pronghorn ( Antilocapra americana sonoriensis ).

( 1 ) The Sonoran pronghorn ( Antilocapra americana sonoriensis ) population identified in paragraph (v)(12) of this section is a nonessential experimental population (NEP).

( 2 ) No person may take this species, except as provided in paragraphs (v)(3) through (v)(6) of this section.

( 3 ) Any person with a valid permit issued by the U.S. Fish and Wildlife Service under § 17.32 may take pronghorn within the NEP area for scientific purposes, the enhancement of propagation or survival of the species, and other conservation purposes consistent with the Endangered Species Act.

( 4 ) A Sonoran pronghorn may be taken within the boundaries of Yuma Proving Grounds; Barry M. Goldwater Range; lands of the Arizona State Land Department; Bureau of Land Management lands; privately owned lands; and lands of the Tohono O'odham Nation, Colorado River Indian Tribes, Gila River Indian Reservation, Ak-Chin Indian Reservation, Pascua Yaqui Indian Reservation, and San Xavier Reservation within the NEP area, provided that such take is incidental to, and not the purpose of, carrying out any otherwise lawful activity; and provided that such taking is reported as soon as possible in accordance with paragraph (v)(6) of this section. Otherwise lawful activities are any activities in compliance with applicable land management regulations, hunting regulations, tribal law, and all other applicable law and regulations, and include, but are not limited to, military training and testing, border security and enforcement carried out by Federal law enforcement officials (e.g., U.S. Customs and Border Protection), agriculture, rural and urban development, livestock grazing, camping, hiking, hunting, recreational vehicle use, sightseeing, nature or scientific study, rockhounding, and geocaching, where such activities are permitted.

( 5 ) Any employee or agent of the U.S. Fish and Wildlife Service, the Arizona Department of Game and Fish, and the tribes listed in paragraph (v)(4) of this section, who is designated for such purpose may, when acting in the course of official duties, take a Sonoran pronghorn if such action is necessary to:

( i ) Aid a sick, injured, or orphaned Sonoran pronghorn, including rescuing such animals from canals;

( ii ) Dispose of a dead Sonoran pronghorn specimen, or salvage a dead specimen that may be useful for scientific study;

( iii ) Move a Sonoran pronghorn for genetic purposes or to improve the health of the population; or

( iv ) Capture and release a Sonoran pronghorn for relocation, to collect biological data, or to attach, service, or detach radio-telemetry equipment.

( 6 ) Any taking pursuant to paragraphs (v)(3) through (v)(5) of this section must be reported as soon as possible by calling the U.S. Fish and Wildlife Service, Arizona Ecological Services Office, 201 N Bonita Avenue, Suite 141, Tucson, AZ 85745 (520/670-6150), or the Cabeza Prieta National Wildlife Refuge, 1611 North Second Avenue, Ajo, AZ 85321 (520/387-6483). Upon contact, a determination will be made as to the disposition of any live or dead specimens.

( 7 ) No person may possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any Sonoran pronghorn or Sonoran pronghorn parts taken in violation of these regulations.

( 8 ) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (v)(2) and (7) of this section.

( 9 ) The boundaries of the designated NEP area are based on the maximum estimated range of pronghorn that are released in and become established within the NEP area. These boundaries are physical barriers to movements, including major freeways and highways, and the Colorado River. All release sites will be within the NEP area.

( i ) All Sonoran pronghorn found in the wild within the boundaries of the NEP area will be considered members of the NEP. Any Sonoran pronghorn occurring outside of the NEP area are considered endangered under the Act.

( ii ) The Service has designated the NEP area to accommodate the potential future movements of wild Sonoran pronghorn. All released Sonoran pronghorn and their progeny are expected to remain in the NEP area due to the geographical extent of the designation and substantial barriers to movement that form the boundaries of the NEP.

( 10 ) The NEP will be monitored closely for the duration of the program. Any pronghorn that is determined to be sick, injured, or otherwise in need of special care will be recaptured to the extent possible by Service and/or State or Tribal wildlife personnel or their designated agent and given appropriate care. Such pronghorn will be released back to the wild as soon as possible, unless physical or behavioral problems make it necessary to return them to a captive-breeding facility.

( 11 ) The Service plans to evaluate the status of the NEP every 5 years to determine future management status and needs, with the first evaluation occurring not more than 5 years after the first release of pronghorn into the NEP area. All reviews will take into account the reproductive success and movement patterns of individuals released, food habits, and overall health of the population. This evaluation will include a progress report.

( 12 ) The areas covered by this proposed nonessential experimental population designation are in Arizona. They include the area north of Interstate 8 and south of Interstate 10, bounded by the Colorado River on the west and Interstate 10 on the east, and an area south of Interstate 8, bounded by Highway 85 on the west, Interstates 10 and 19 on the east, and the U.S.-Mexico border on the south.

( 13 ) Note: Map of the NEP area for the Sonoran pronghorn in southwestern Arizona follows:

( w ) Bull Trout ( Salvelinus confluentus )—

( 1 ) Where are populations of this fish designated as nonessential experimental populations (NEPs)?

( i ) The NEP area for the bull trout is within the species' historical range and is defined as follows: the entire Clackamas River subbasin as well as the mainstem Willamette River, from Willamette Falls to its points of confluence with the Columbia River, including Multnomah Channel.

( ii ) Bull trout are not currently known to exist in the Clackamas River subbasin or the mainstem Willamette River, from Willamette Falls to its points of confluence with the Columbia River, including Multnomah Channel, in Oregon. Should any bull trout be found in the Willamette River within the NEP boundary, the U.S. Fish and Wildlife Service (Service) will assume the fish to be part of the reintroduced population, unless the fish is tagged or otherwise known to be from another population. Given the presence of suitable overwintering and forage habitat in the upper portion of the Clackamas River, as well as the geographic distance from spawning and rearing habitat in the upper Clackamas River to any overwintering and foraging habitat in the lower Clackamas and Willamette Rivers, we do not expect the reintroduced fish to become established outside the NEP. Bull trout found outside of the NEP boundary, but known to be part of the NEP, will assume the status of bull trout within the geographic area in which they are found.

( iii ) We do not intend to change the NEP designation to “essential experimental,” “threatened,” or “endangered” within the NEP area. Additionally, we will not designate critical habitat for the NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

( i ) Bull trout may be taken within the NEP area, provided that such take is:

( A ) Not willful, knowing, or due to negligence.

( B ) Incidental to and not the purpose of carrying out an otherwise lawful activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming), agriculture, hydroelectric power generation, and other activities that are in accordance with Federal, State, Tribal, and local laws and regulations.

( C ) Consistent with Oregon Department of Fish and Wildlife (ODFW) fishing regulations that have been coordinated with the Service, if due to fishing.

( D ) Incidental to any activities related to or associated with the operation and maintenance of the Clackamas River Hydroelectric Project (FERC Project No. 2195) by Portland General Electric (PGE) as administered under a license issued by FERC. Acceptable forms of taking of bull trout include, but are not limited to, mortality, stranding, injury, impingement and entrainment at project facilities, or delay in up- or downstream passage associated with or caused by any of the following activities. Activities related to the operation and maintenance of Project 2195 include, but are not limited to:

( 1 ) Hydroelectric generation at any project facility;

( 2 ) Maintenance of project facilities;

( 3 ) Provision of upstream and downstream fish passage, whether through fish passage facilities, powerhouses, bypass facilities, bypass reaches, or spillways;

( 4 ) Fish handling at fish separation and counting facilities;

( 5 ) Fish removal from fish passage facilities and areas critical to downstream migrant passage testing at the time of testing (Bull trout removed for this testing do not need to be returned to the Clackamas River subbasin.);

( 6 ) Fish conservation activities;

( 7 ) Fish handling, tagging, and sampling in connection with FERC-approved studies; and

( 8 ) Approved resource protection, mitigation, and enhancement measures.

( E ) Consistent with the adaptive management process identified for this project including:

( 1 ) The targeted relocation or possible removal of bull trout by the Service or our project partners, if bull trout are documented staging at the entrance to, within, or below, juvenile fish passage facilities within the Clackamas Hydroelectric Project; and

( 2 ) Discontinuation of the reintroduction project and complete removal of bull trout from the Clackamas River if the Service determines, in consultation and coordination with the State of Oregon, NMFS, and other project partners, and based on project monitoring and evaluation, that the reintroduction efforts cannot be carried out in a manner consistent with the recovery of threatened salmon and steelhead.

( ii ) Any person with a valid permit issued by the Service under § 17.32 and a valid State permit issued by ODFW may take bull trout for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act.

( i ) Except as expressly allowed in paragraph (w)(2) of this section, all the provisions of § 17.31(a) and (b) apply to the fish identified in paragraph (w)(1) of this section.

( ii ) Any manner of take not described under paragraph (w)(2) of this section or Oregon Revised Statute (ORS) 498.002 and Oregon Angling Regulations pursuant to ORS 498.002 is prohibited in the NEP area. Should State statutes or regulations change, take prohibitions will change accordingly. Any changes to State recreational fishing regulations pertaining to the experimental population of bull trout in the Clackamas River subbasin will be made by the State in collaboration with the Service. We may refer unauthorized take of this species to ODFW law enforcement authorities or Service law enforcement authorities for prosecution.

( iii ) A person may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in a manner not expressly allowed in paragraph (w)(2) of this section, or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) A person may not attempt to commit, solicit another to commit, or cause to be committed any offense except the take expressly allowed in paragraph (w)(2) of this section.

( i ) Effectiveness monitoring of the project will be conducted jointly by the Service and ODFW, with assistance from the U.S. Forest Service (USFS) and PGE.

( ii ) We will monitor the effectiveness of the reintroduction during phase 1 of the project (2011-2017) by annually assessing: Distribution and movement, relative survival of translocated bull trout via presence and absence surveys, occurrence of spawning and reproduction, and genetic health, as measured against the donor population. These monitoring objectives will be accomplished by methodologies that include Passive Integrated Transponder (PIT) tagging of all fish translocated to the Clackamas River, radio tagging of the adult and subadult life stages, snorkel surveys, redd surveys, and minnow trapping.

( iii ) If successful reproduction of reintroduced bull trout is detected, we will incorporate monitoring to assess the distribution, movement, growth, and survival of the initial cohorts of naturally produced bull trout.

( iv ) Monitoring activities in phase 2 (2018-2024) and phase 3 (2025-2030) will be informed by phase 1 monitoring and evaluation.

( v ) Annual reports that summarize the implementation and monitoring activities that occurred the previous year will be collaboratively developed by the Service, ODFW, and USFS.

( vi ) We will evaluate the implementation strategy annually, and we will evaluate the reestablishment effort at the completion of phase 1 to determine whether to continue translocation of bull trout in phase 2.

( 5 ) What safeguards are in place to ensure the protection of Federally listed salmon and steelhead in the NEP area?

( i ) In consultation and coordination with the National Marine Fisheries Service (NMFS) and other project partners, we have developed a plan to facilitate management decisions associated with potential impacts from the bull trout reintroduction on listed anadromous salmonids. If specific bull trout and/or anadromous salmonid thresholds are triggered, we will follow the planned management actions to minimize impacts to salmon and steelhead from the reintroduction of bull trout in the Clackamas River.

( ii ) Our management actions implemented and the frequency of those actions, will be informed by:

( A ) The reintroduction project's monitoring and evaluation program, jointly implemented by the Service, ODFW, and USFS; and

( B ) The conservation status of the listed Clackamas River anadromous salmonid populations.

( iii ) Because we cannot predict all likely impact scenarios and appropriate management responses, we will modify our plan as necessary, in consultation and coordination with NMFS, ODFW, and other project partners, consistent with the overall adaptive management of the project.

( iv ) Although our analysis indicates a low likelihood for population-level impacts to Federally listed salmon and steelhead populations, if the Service determines, in consultation and coordination with the State of Oregon, NMFS, and other project partners, and based on project monitoring and evaluation, that the reintroduction efforts are not consistent with the recovery of salmon or steelhead, the reintroduction program will be discontinued and bull trout will be removed from the experimental population area.

( v ) Prior to releasing bull trout into the Clackamas River, the Service will complete any required interagency cooperation with NMFS pursuant to section 7(a)(2) of the Act.

( 6 ) Note: Map of the NEP area for bull trout in Oregon follows:

( x ) Wood bison ( Bison bison athabascae ).

( 1 ) Wood bison within the area identified in paragraph (x)(2)(i) of this section are members of a nonessential experimental population (NEP) and will be managed primarily by the State of Alaska (State), through its Department of Fish and Game (ADF&G), in cooperation with the Service, in accordance with this rule and the respective management plans.

( 2 ) Where are wood bison in Alaska designated as an NEP?

( i ) The boundaries of the NEP area encompass the Yukon, Tanana, and Kuskokwim River drainages in Alaska (Figure 1). The NEP area includes much of the wood bison's historical range in Alaska, and the release sites are within the species' historical range. The NEP area is defined as follows: the Yukon River drainage from the United States-Canada border downstream to its mouth; the Tanana River drainage from the United States-Canada border downstream to its confluence with the Yukon River; and the Kuskokwim River drainage from its headwaters downstream to its mouth at the Bering Sea.

( ii ) Any wood bison found within the Alaska wood bison NEP area will be considered part of the NEP. The bison will be managed by the State to prevent establishment of any population outside the NEP area.

( 3 ) Under what circumstances might an Alaska wood bison NEP be eliminated?

( i ) We do not anticipate eliminating all individuals within an Alaska wood bison NEP unless:

( A ) The State deems the reintroduction efforts a failure or most members of reintroduced populations have disappeared for any reason;

( B ) Monitoring of wood bison in Alaska indicates appreciable harm to other native wildlife, such as the introduction of disease or other unanticipated environmental consequences associated with their presence; or

( C ) Legal or statutory changes reduce or eliminate the State's ability to complete the restoration effort as designed and intended in its management plans, with the management flexibility and protection of other land uses (including other resource development) provided in this NEP designation.

( ii ) If any of the circumstances listed in paragraph (x)(3)(i) of this section occur, some or all wood bison may be removed from the wild in Alaska by any method deemed practicable by the State, including lethal removal. If the reintroduction of wood bison under this nonessential experimental designation is discontinued for any reason and no action is taken by the Service and the State to change the designation, all remaining wood bison in Alaska will retain their NEP status.

( 4 ) Which agency is the management lead for wood bison in Alaska? The Alaska Department of Fish and Game will have primary responsibility for leading and implementing the wood bison restoration effort, in cooperation with the Service, and will keep the Service apprised of the status of the effort on an ongoing basis. The Service will retain responsibility for ensuring compliance with all provisions of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ), including compliance with section 7 for actions occurring on National Wildlife Refuge and National Park Service lands.

( 5 ) What take of wood bison is allowed in the NEP area? In the following instances, wood bison may be taken in accordance with applicable State fish and wildlife conservation laws and regulations:

( i ) Hunting will be an allowed take based on sustained yield principles as established by ADF&G.

( ii ) A wood bison may be taken within the NEP area, provided that such take is not willful, knowing, or due to negligence, or is incidental to and not the purpose of the carrying out of an otherwise lawful activity, including but not limited to recreation (e.g., trapping, hiking, camping, or shooting activities); forestry; agriculture; oil and gas exploration and development and associated activities; construction and maintenance of roads or railroads, buildings, facilities, energy projects, pipelines, and transmission lines of any kind; mining; mineral exploration; travel by any means, including vehicles, watercraft, snow machines, or aircraft; tourism; and other activities that are in accordance with Federal, State, and local laws and regulations and specific authorizations. Such conduct is not considered intentional or “knowing take” for purposes of this regulation, and neither the Service nor the State will take legal action for such conduct. Any cases of “knowing take” will be referred to the appropriate authorities for prosecution.

( iii ) Any person with a valid permit issued by the Service under 50 CFR 17.32 or by ADF&G may take wood bison for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the ESA. Additionally, any employee or agent of the Service or ADF&G designated for such purposes, acting in the course of official duties, may take a wood bison if such action is necessary:

( B ) To relocate a wood bison to avoid conflict with human activities;

( C ) To relocate a wood bison if necessary to protect the wood bison;

( D ) To relocate wood bison within the NEP area to improve wood bison survival and recovery prospects or for genetic purposes;

( E ) To relocate wood bison from one population in the NEP area into another, or into captivity;

( F ) To relocate wood bison that have moved outside the NEP area back into the NEP area or remove them;

( G ) To aid or euthanize a sick, injured, or orphaned wood bison;

( H ) To dispose of a dead wood bison, or salvage a dead wood bison for scientific purposes; or

( I ) To aid in law enforcement investigations involving wood bison.

( iv ) Any person may take a wood bison in defense of the individual's life or the life of another person. The Service, the State, or our designated agent(s) may also promptly remove any wood bison that the Service, the State, or our designated agent(s) determine to be a threat to human life or safety. Any such taking must be reported within 24 hours to the location identified in paragraph (x)(5)(vi) of this section.

( v ) In connection with otherwise lawful activities, including but not limited to the use and development of land, provided at paragraph (x)(5)(ii) of this section, the Federal Government, the State, municipalities of the State, other local governments, Native American Tribal Governments, and all landowners and their employees or authorized agents, tenants, or designees may harass wood bison in the areas defined in paragraph (x)(2)(i) of this section, provided that all such harassment is by methods that are not lethal or physically injurious to wood bison and is reported within 24 hours to the location identified in paragraph (x)(5)(vi) of this section.

( vi ) Any taking pursuant to paragraph (x)(5)(ii) of this section must be reported within 14 days by contacting the Alaska Department of Fish and Game, 1300 College Road, Fairbanks, AK 99701; (907) 459-7206. ADF&G will determine the most appropriate course of action regarding any live or dead specimens.

( 6 ) What take of wood bison is not allowed in the NEP area?

( i ) Except as expressly allowed in paragraph (x)(5) of this section, all the provisions of 50 CFR 17.31(a) and (b) apply to the wood bison identified in paragraph (x)(1) of this section.

( ii ) Any manner of take not described under paragraph (x)(5) of this section is prohibited in the NEP area.

( iii ) A person may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified wood bison, or parts thereof, that are taken or possessed in a manner not expressly allowed in paragraph (x)(5) of this section or in violation of the applicable State or local fish and wildlife laws or regulations or the ESA.

( iv ) A person may not attempt to commit, solicit another to commit, or cause to be committed any take of wood bison, except that take expressly allowed in paragraph (x)(5) of this section.

( 7 ) How will the effectiveness of the wood bison reintroduction be monitored? ADF&G will monitor the population status of reintroduced bison herds at least annually and will document productivity, survival, and population size. The Service or other Federal agencies may also be involved in population monitoring, particularly where National Wildlife Refuge System or Bureau of Land Management lands are involved. Tribal governments or other organizations may also participate in population monitoring and other management activities. Depending on available resources, monitoring may occur more frequently, especially during the first few years of reestablishment efforts. This monitoring will be conducted primarily through aerial surveys and will be accomplished by State or Service employees, through cooperative efforts with local governments, or by contracting with other appropriate species experts.

( 8 ) What other provisions apply to this rule? If any particular provision of this rule or the application of any particular provision to any entity or circumstance is held invalid, the remainder of this finding and rule and the application of such provisions to other entities or circumstances shall not be affected by such holding.

( y ) Grizzly bear ( Ursus arctos horribilis )—North Cascades nonessential experimental population.

( 1 ) Purpose. The regulations in this paragraph (y) set forth the provisions of a rule to establish an experimental population of grizzly bears. The Service finds that establishment of an experimental population of grizzly bears as described in this paragraph (y) will further the conservation of the species.

( 2 ) Determinations. The grizzly bears identified in this paragraph (y) constitute a nonessential experimental population (NEP) under § 17.81(c)(2) . These grizzly bears will be managed in accordance with the provisions of this rule within the boundaries of the NEP area as identified in paragraph (y)(4) of this section. After our initial release of one or more grizzly bears into the NEP area, any grizzly bears found within the NEP area will be considered a member of the NEP.

( 3 ) 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 memorandum of understanding (MOU) to assist in implementing all or part of the specified actions in this paragraph (y) .

Demonstrable and ongoing threat refers to a grizzly bear actively chasing or attacking livestock or lingering in close proximity to livestock following a depredation.

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, State, or private lands are not considered lawfully present.

Deterrence means an intentional action to haze, disrupt, or annoy a grizzly bear to move out of close proximity to people or property to promote human safety, prevent conflict, or protect property and that does not cause death or lasting bodily injury to 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 a pet or livestock.

Federal, State, or Tribal authority means an employee of a State, Federal, or federally recognized 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 substantial property damage, obtained anthropogenic foods (e.g., pet food, livestock feed, garbage), killed or injured lawfully present livestock, damaged beehives, breached an intact structure or electrified perimeter to obtain fruit or crops (e.g., greenhouse, garden, orchard, field, stackyard or grain bin), shown repeated and persistent signs of habituation in proximity to human-occupied areas (e.g., has been repeatedly hazed or previously relocated), exhibited aggressive behavior ( i.e., not acting in defense of offspring or food or in response to a surprise encounter), or has been involved in a human-grizzly encounter resulting in substantial human injury or loss of human life.

Human-occupied areas means any structures or areas currently used or inhabited by humans (e.g., homes, residential areas, occupied campgrounds or trailheads, job sites).

In the act of attacking means the actual biting, wounding, grasping, or killing of livestock (including working dogs) by a grizzly bear.

Lasting bodily injury refers to any permanent damage or injury that limits a grizzly bear's ability to effectively move, obtain food, or defend itself for any length of time.

Livestock means cattle, sheep, pigs, horses, mules, goats, domestic bison, alpacas, llamas, donkeys, and working dogs but not poultry, feral dogs, or domestic dogs (working or otherwise) that are not in close proximity to human-occupied areas or to lawfully present livestock.

Threat to human safety means a grizzly bear that exhibits aggressive ( i.e., nondefensive) behavior towards humans.

( A ) Grizzly bear presence alone does not constitute a threat to human safety.

( B ) Grizzly bears less than 2 years of age with no history of food-conditioning are not considered a threat to human safety.

Working dog means a herding or guard dog that is actively herding or guarding in close proximity to human-occupied areas or to lawfully present livestock.

( 4 ) Where is the grizzly bear North Cascades NEP?

( i ) The grizzly bear NEP area 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. The area shown in figure 1 to paragraph (y)(4) of this section will remain designated as the experimental population area unless the Service determines in a future rulemaking that:

( 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 Area A of the grizzly bear North Cascades NEP includes the Mount Baker Snoqualmie National Forest, Okanogan-Wenatchee National Forest, and Colville National Forest north of Interstate 90 and west of Washington State Route 97, as well as the North Cascades National Park Service complex. Management Area A 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 Area B of the grizzly bear North Cascades NEP includes the Mount Baker Snoqualmie National Forest and Okanogan-Wenatchee National Forest south of Interstate 90, Gifford Pinchot National Forest, and Mount Rainier National Park. Management Area B also includes the Colville National Forest and Okanogan-Wenatchee National Forest lands east of Washington State Route 97 within the experimental population boundary. Management Area B 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 Area C of the grizzly bear North Cascades NEP comprises all non-Federal lands within the North Cascades Ecosystem Recovery Zone and all other lands outside of or not otherwise included in Management Areas A and B within the NEP boundary. Management Area C 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 area are capable of supporting grizzly bears and grizzly bears may occur there.

( v ) Map of the NEP area and associated management areas for the grizzly bear in the North Cascades Ecosystem follows:

Figure 1 to Paragraph (y)(4)

( 5 ) What take of the grizzly bear is allowed in Management Area A of the North Cascades NEP area? The exceptions to take prohibitions described in paragraphs (y)(5)(i) through (viii) of this section apply in Management Area A:

( i ) Defense of life. Any person may take a grizzly bear 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)(8) of this section.

( ii ) Deterrence. Any person may take a grizzly bear for the purpose of deterrence (see definition in paragraph (y)(3)) of this section, under the provisions set forth in this paragraph (y)(5)(ii) :

( A ) Once a grizzly bear has moved out of close proximity, deterrence is unlikely to be effective and must cease.

( B ) Any deterrence action must not cause lasting bodily injury or death to the grizzly bear.

( C ) Deterrence must be by acceptable techniques, which include non-projectile auditory deterrents, visual stimuli/deterrents, vehicle threat pressure, and noise-making projectiles. Unacceptable deterrence methods include screamers/whistlers, rubber bullets/batons, and bean bag and aero sock rounds. For more information about appropriate nonlethal deterrents, contact the Service for the most current Service-approved guidelines.

( D ) A person may not bait, stalk, or pursue a grizzly bear for the purposes of deterrence. Pursuit is defined as deterrence carried out beyond 200 yards (183 m) of a human-occupied area or lawfully present livestock.

( E ) Any person who deters a grizzly bear must use discretion and act safely and responsibly.

( iii ) Incidental take.

( A ) Except as provided in paragraph (y)(5)(iii)(B) of this section, take of a grizzly bear is allowed if it is incidental to ( i.e., unintentional and not the purpose of) an otherwise lawful activity and is not due to negligent conduct.

( B ) Take of a grizzly bear resulting from U.S. Forest Service actions on National Forest System lands in Management Area A that is incidental to otherwise lawful activity is allowed if the U.S. Forest Service has maintained its `no net loss' agreement and implemented food storage restrictions throughout National Forest System lands in Management Area A.

( iv ) Take under permits. Any person with a valid permit issued under § 17.32 by the Service may take a grizzly bear pursuant to the terms of the permit.

( v ) Take under section 6 of the Act. Any State conservation agency may take a grizzly bear under section 6(c) of the Act as described in § 17.31 .

( vi ) Research and recovery actions. With prior approval of the Service, an authorized agency as defined in paragraph (y)(3) of this section may take a grizzly bear if such action is necessary:

( B ) To aid a sick or injured grizzly bear, including euthanasia if the grizzly bear is unlikely to survive or poses an immediate threat to human safety;

( C ) To salvage a dead specimen that may be useful for scientific study;

( D ) To dispose of a dead specimen; or

( E ) To aid in law enforcement investigations involving the grizzly bear.

( vii ) Removal of grizzly bears involved in conflict. With prior approval of the Service, a grizzly bear involved in conflict in the NEP area may be taken by an authorized agency, including by 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 (with compassion and consideration for the bear and minimizing pain and distress) by a Federal, State, or Tribal authority of an authorized agency.

( viii ) Relocation of a grizzly bear. With prior approval from the Service, an authorized agency may live-capture one or more grizzly bears and transport and release them in a remote location agreed to by the Service, the Washington Department of Fish and Wildlife, and the applicable land managing agency:

( A ) For a grizzly bear involved in conflict;

( B ) To prevent unnatural use of food materials that have been reasonably secured from the bear or unnatural use of anthropogenic foods;

( C ) After aggressive ( i.e., not defensive) behavior toward humans results in injury to a human or constitutes a demonstrable immediate or potential threat to human safety;

( D ) As a preemptive action to prevent a conflict that appears imminent or in an attempt to prevent habituation of bears; or

( E ) For any other conservation purpose for the grizzly bear as determined by the Service.

( ix ) Reporting requirements. Any take pursuant to this paragraph (y)(5) resulting in lasting injury or death of a grizzly bear must be reported as indicated in paragraph (y)(8) of this section.

( 6 ) What take of the grizzly bear is allowed in Management Area B of the North Cascades NEP area? Grizzly bears in Management Area B will be accommodated through take exceptions described in paragraph (y)(6)(i) of this section, in addition to those take exceptions allowed in Management Area A as set forth in paragraph (y)(5) of this section. “Accommodated” means a grizzly bear in Management Area B will not be disturbed unless it demonstrates a threat to human safety or to protect property.

( i ) Conditioned lethal take. The Service may issue prior written authorization allowing an individual to kill a depredating grizzly bear within 200 yards (183 m) of legally present livestock. Such authorizations will be valid for 5 days, but the Service may extend the authorization of lethal take an additional 5 days if additional grizzly bear depredations or injuries to livestock occur and circumstances indicate that the offending bear can be identified. Such authorizations will be issued only if:

( A ) A depredation has been confirmed by the Service or authorized agency;

( B ) The Service or an authorized agency determines it is not reasonably possible to otherwise eliminate the threat by deterrence or live-capturing and releasing the grizzly bear unharmed;

( C ) The taking is done in a humane manner ( i.e., showing compassion and consideration for the bear and minimizing pain and distress);

( D ) The taking is reported as indicated in paragraph (y)(8) of this section; and

( E ) The grizzly bear carcass and any associated collars or ear tags are surrendered to the Service.

( 7 ) What take of the grizzly bear is allowed in Management Area C of the North Cascades NEP area? In addition to the take exceptions described in paragraph (y)(7)(i) of this section, all take exceptions allowed in Management Areas A and B as set forth in paragraphs (y)(5) and (6) of this section are also allowed in Management Area C of the NEP.

( i ) Conditioned lethal take.

( A ) The Service may issue prior written authorization allowing an individual to kill a grizzly bear in Management Area C when deemed necessary for human safety or to protect property. Such authorizations will be valid for 5 days, may be reissued by the Service if deemed warranted, and will be issued only if:

( 1 ) 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 nonlethal deterrence or live-capturing and releasing the grizzly bear unharmed;

( 2 ) The individual requesting the written authorization is the landowner, livestock producer, or designee (e.g., an employee or lessee);

( 3 ) The taking is done in a humane manner;

( 4 ) The taking is reported as indicated in paragraph (y)(8) of this section; and

( 5 ) The carcass and any associated collars or ear tags are surrendered to the Service.

( B ) Any individual may take (injure or kill) a grizzly bear in the act of attacking livestock on private lands ( i.e., nonpublic lands) under the provisions set forth in this paragraph (y)(7)(i)(B) :

( 1 ) The individual is the landowner or livestock producer or a designee (e.g., an employee or lessee).

( 2 ) Any grizzly bear taken is reported to the Service or authorized agency within 24 hours.

( 3 ) The carcass of any grizzly bear and the surrounding area is not disturbed to preserve physical evidence of the attack.

( 4 ) The Service or authorized agency is able to confirm that the livestock or working dog was injured or killed by a grizzly bear. The taking of any grizzly bear without such evidence may be referred to the appropriate authorities for prosecution.

( 5 ) There is no evidence of excessive unsecured attractants (e.g., carcass piles or bone yards) or of intentional feeding or baiting of grizzly bears or wildlife.

( 8 ) What are the reporting requirements for take of grizzly bears in the North Cascades NEP?

( i ) Lethal take. Any grizzly bear that is killed by an individual under the provisions of this paragraph (y) must be reported within 24 hours to the Service's Washington Fish and Wildlife Office special reporting hotline: (360) 800-7960. Any grizzly bear that is killed by a Federal, State, or Tribal authority of an authorized agency under the provisions of this paragraph (y) must be reported within 24 hours by following the reporting instructions as described in the authorized agency's MOU and included in an annual report to the Service.

( ii ) Nonlethal take resulting in injury. Any direct take of a grizzly bear by an individual under the provisions of this paragraph (y) that does not result in death of a grizzly bear but causes lasting bodily injury must be reported within 5 calendar days of occurrence to the Service's Washington Fish and Wildlife Office special reporting hotline: (360) 800-7960. Any direct take of a grizzly bear by a Federal, State, or Tribal authority of an authorized agency under the provisions of this paragraph (y) that does not result in death of a grizzly bear but causes lasting bodily injury must be reported within 5 calendar days of occurrence by following the reporting instructions as described in the authorized agency's MOU and included in an annual report to the Service. Indirect incidental take, such as harm to a grizzly bear resulting from habitat modification, does not need to be reported under this provision.

( 9 ) What take of the grizzly bear is not allowed in the North Cascades NEP area?

( i ) Other than expressly provided by the regulations in this paragraph (y) , all take is prohibited and considered a violation of section 9 of the Act. Take of a grizzly bear within the NEP area must be reported as set forth in paragraph (y)(8) 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 this paragraph (y) 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)(5) through (7) of this section.

( iv ) 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 is not allowed under this rule and may be referred to appropriate authorities for prosecution.

( v ) Any grizzly bear or grizzly bear part taken legally in accordance with the regulations in this paragraph (y) must be turned over to the Service unless otherwise authorized by the Service in writing.

( 10 ) How will the effectiveness of the grizzly bear restoration effort be monitored? The Service will monitor grizzly bears in the North Cascades NEP annually and will evaluate the status of grizzly bears in the NEP in conjunction with the Service's species status assessments and status reviews of the grizzly bear. Evaluations in the Service's status reviews will include, but not be limited to, a review of management issues, grizzly bear movements, demographic rates, causes of mortality, project costs, and progress toward establishing a population.

[ 49 FR 35954 , Sept. 13, 1984; 50 FR 30194 , July 24, 1985]

Editorial Note

Editorial note:.

For Federal Register citations affecting § 17.84 , see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov .

§ 17.85 Species-specific rules—invertebrates.

( a ) Fourteen mollusks in the Tennessee River. The species in the following table comprise nonessential experimental populations (NEPs):

( 1 ) Where are these mollusks designated as nonessential experimental populations (NEPs)?

( i ) The NEP Area for these 14 mollusks is within the species' historic ranges, and is defined as follows: The free-flowing reach of the Tennessee River from the base of Wilson Dam downstream to the backwaters of Pickwick Reservoir (river mile (RM) 259.4 [414.0 km] to RM 246.0 [393.6 km] and includes the lower 5 RM (8 km) of all tributaries to this reach in Colbert and Lauderdale Counties, Alabama.

( ii ) None of the identified species are known to exist in any of the tributaries to the free-flowing reach of the Tennessee River below Wilson Dam or from below the backwaters of Pickwick Reservoir, Colbert and Lauderdale Counties, Alabama. In the future, if any of the 14 mollusks are found upstream of the lower 5 RM (8 km) of these tributaries or downstream into Pickwick Reservoir, we will presume the animals came from the reintroduced NEP, and we will amend this rule and enlarge the boundaries of the NEP Area to include the entire range of the expanded population.

( iii ) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP Area. Additionally, we will not designate critical habitat for these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

( 2 ) What activities are not allowed in the NEP Area?

( i ) Except as expressly allowed in the rule in this paragraph (a) , all the prohibitions of § 17.31(a) and (b) apply to the mollusks identified in the rule in this paragraph (a) .

( ii ) Any manner of take not described under paragraph (a)(3) of this section will not be allowed in the NEP Area. We may refer the unauthorized take of these species to the appropriate authorities for prosecution.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified 14 mollusks, or parts thereof, that are taken or possessed in violation of these regulations or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in this paragraph (a) .

( 3 ) What take is allowed in the NEP Area?

( i ) Take of these species that is accidental and incidental to an otherwise lawful activity such as fishing, boating, commercial navigation, trapping, wading, or mussel harvesting, is allowed.

( ii ) Any individual collecting or harvesting mussels must check their collection prior to leaving the immediate area and return any NEP mussels to the site where they were obtained.

( b ) Sixteen mollusks in the French Broad and Holston Rivers. The species in the following table comprise nonessential experimental populations (NEP):

( 1 ) Where are these mollusks designated as NEPs?

( i ) The NEP area for these mollusks is within the species' historical range and is defined as follows: The French Broad River, Knox and Sevier Counties, Tennessee, from the base of Douglas Dam (river mile (RM) 32.3 (51.7 kilometers (km)) downstream to the confluence with the Holston River; then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches. None of the species identified in paragraph (b) are known to exist in any of the tributaries to the free-flowing reaches of the French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on their habitat requirements, we do not expect these species to become established outside this NEP area. However, if any individuals are found upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced populations. We would then amend paragraph (b)(1)(i) of this section to enlarge the boundaries of the NEP area to include the entire range of the expanded population.

( ii ) Another NEP area for 10 of these mollusks (Cumberland bean, Cumberlandian combshell, Cumberland monkeyface, oyster mussel, birdwing pearlymussel, cracking pearlymussel, dromedary pearlymussel, fine-rayed pigtoe, shiny pigtoe, and Anthony's riversnail) is provided in paragraph (a) of this section.

( i ) Except as expressly allowed in paragraph (b)(3) of this section, all the prohibitions of § 17.31(a) and (b) apply to the mollusks identified in paragraph (b) of this section.

( ii ) Any manner of take not described under paragraph (b)(3) of this section will not be allowed in the NEP area. We may refer the unauthorized take of these species to the appropriate authorities for prosecution.

( iii ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified mollusks, or parts thereof, that are taken or possessed in violation of paragraph (b)(2) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.

( iv ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (b)(2) of this section.

( 3 ) What take is allowed in the NEP area? Take of these species that is accidental and incidental to an otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming), forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations, is allowed.

( 5 ) Note: Map of the NEP area in Tennessee for the 16 mollusks listed in paragraph (b) of this section follows:

( c ) American Burying Beetle ( Nicrophorus americanus ).

( 1 ) Where is the American burying beetle designated as a nonessential experimental population (NEP)?

( i ) The NEP area for the American burying beetle is within the species' historical range and is defined as follows: The Missouri Counties of Cedar, St. Clair, Bates, and Vernon.

( ii ) The American burying beetle is not known to exist in Cedar, St. Clair, Bates, or Vernon Counties in Missouri, as of the date of enacting this regulation. Based on its habitat requirements and movement patterns, we do not expect this species to become established outside this NEP area.

( i ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means, American burying beetles, or parts thereof, that are taken or possessed in violation of paragraph (c)(3) of this section or in violation of applicable State fish and wildlife laws or regulations or the Act.

( ii ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (c)(2)(i) of this section.

( 3 ) What take is allowed in the NEP area? Take of this species that is accidental and incidental to an otherwise legal activity, such as agriculture, forestry and wildlife management, land development, recreation, and other activities, is allowed.

( 4 ) How will the effectiveness of these reintroductions be monitored? We will prepare periodic progress reports and fully evaluate these reintroduction efforts after 5 years to determine whether to continue or terminate the reintroduction efforts.

( 5 ) Note: Map of the NEP area for the American burying beetle follows:

( d ) Oregon Silverspot Butterfly ( Speyeria zerene hippolyta ).

( 1 ) Where is the Oregon silverspot butterfly designated as a nonessential experimental population (NEP)?

( i ) The NEP areas for the Oregon silverspot butterfly are within the subspecies' historical range in Tillamook and Clatsop Counties, Oregon. The boundary of the NEP includes those Public Land Survey System sections intersecting with a 4.25-mile (6.8-kilometer) radius around the release locations. This boundary was selected to encompass all likely movements of Oregon silverspot butterflies away from the release areas while maintaining geographic separation from existing populations.

( A ) The Nestucca Bay NEP area, centered on the coastal prairie habitat on the Cannery Hill Unit of the Nestucca Bay National Wildlife Refuge (Nestucca Bay NEP area), includes Township 4 South, Range 10 West, Sections 15 through 36; Township 4 South, Range 11 West, Sections 13, 24, 25, and 36; Township 5 South, Range 10 West, Sections 2 through 11, 14 through 23, 27 through 30; and Township 5 South, Range 11 West, Sections 12, 13, 24, and 25.

( B ) The Saddle Mountain NEP area, centered on the coastal prairie habitat on top of Saddle Mountain State Natural Area (Saddle Mountain NEP area), includes Township 6 North, Range 7 West, Sections 7, 17 through 20, 29 through 32; Township 6 North, Range 8 West, Sections 1 through 36; Township 6 North, Range 9 West, Sections 1, 11 through 14, 23 through 26, 35, and 36; Township 5 North, Range 7 West, Sections 5 through 8, 17, 18, and 19; Township 5 North, Range 8 West, Sections 1 through 24; and Township 5 North, Range 9 West, Sections 1, 2, 3, 11, 12, 13, and 14.

( ii ) The nearest known extant population to the Nestucca Bay NEP area is 8 miles (13 kilometers) to the south, beyond the longest known flight distance of the butterfly (4.1 miles (6.6 kilometers)) and with little or no suitable habitat between them. The nearest known extant population to the Saddle Mountain NEP area is 50 miles (80 kilometers) to the south, well beyond the longest known flight distance of the butterfly (4.1 miles (6.6 kilometers)). Given its habitat requirements, movement patterns, and distance from extant populations, the NEP is wholly separate from extant populations, and we do not expect the reintroduced Oregon silverspot butterflies to become established outside the NEP areas. Oregon silverspot butterflies outside of the NEP boundaries will assume the status of Oregon silverspot butterflies within the geographic area in which they are found.

( iii ) We will not change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP areas without engaging in notice-and-comment rulemaking. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii) .

( 2 ) What take of the Oregon silverspot butterfly is allowed in the NEP areas?

( i ) Oregon silverspot butterflies may be taken within the NEP area, provided that such take is not willful, knowing, or due to negligence, and is incidental to carrying out an otherwise lawful activity, such as agriculture, forestry and wildlife management, land development, recreation, and other activities that are in accordance with Federal, State, Tribal, and local laws and regulations.

( ii ) Any person with a valid permit issued by the Service under 50 CFR 17.32 may take the Oregon silverspot butterfly for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act. Additionally, any employee or agent of the Service, any other Federal land management agency, or a State conservation agency, who is designated by the agency for such purposes, may, when acting in the course of official duties, take an Oregon silverspot butterfly in the wild in the NEP area if such action is necessary:

( B ) To relocate Oregon silverspot butterflies to avoid conflict with human activities;

( C ) To relocate Oregon silverspot butterflies within the NEP area to improve Oregon silverspot butterfly survival and recovery prospects or for genetic purposes;

( D ) To relocate Oregon silverspot butterflies from one population in the NEP into another in the NEP, or into captivity;

( E ) To euthanize an injured Oregon silverspot butterfly;

( F ) To dispose of a dead Oregon silverspot butterfly, or salvage a dead Oregon silverspot butterfly for scientific purposes;

( G ) To relocate an Oregon silverspot butterfly that has moved outside the NEP area back into the NEP area; or

( H ) To aid in law enforcement investigations involving the Oregon silverspot butterfly.

( 3 ) What take of Oregon silverspot butterfly is not allowed in the NEP area?

( i ) Except as expressly allowed in paragraph (d)(2) of this section, all of the provisions of 50 CFR 17.31(a) and (b) apply to the Oregon silverspot butterfly in areas identified in paragraph (d)(1) of this section.

( ii ) A person may not possess, sell, deliver, carry, transport, ship, import, or export by any means, Oregon silverspot butterflies, or parts thereof, that are taken or possessed in a manner not expressly allowed in paragraph (d)(2) of this section or in violation of applicable State fish and wildlife laws or regulations or the Act.

( iii ) Any manner of take not described under paragraph (d)(2) of this section is prohibited in the NEP areas.

( iv ) A person may not attempt to commit, solicit another to commit, or cause to be committed any take of the Oregon silverspot butterfly, except as expressly allowed in paragraph (d)(2) of this section.

( 4 ) How will the effectiveness of these reintroductions be monitored? We will monitor populations annually for trends in abundance in cooperation with partners, monitor habitat quality, and prepare annual progress reports. We will fully evaluate reintroduction efforts after 5 years to determine whether to continue or terminate the reintroduction efforts.

( 5 ) Maps of the NEP areas for the Oregon silverspot butterfly in Northwest Oregon.

( i ) Note: Map of the Oregon silverspot butterfly NEP follows:

( ii ) Note: Map of Nestucca Bay NEP area for the Oregon silverspot butterfly follows:

( iii ) Note: Map of Saddle Mountain NEP area for the Oregon silverspot butterfly follows:

[ 66 FR 32263 , June 14, 2001, as amended at 72 FR 52459 , Sept. 13, 2007; 77 FR 16717 , Mar. 22, 2012; 82 FR 28578 , June 23, 2017; 87 FR 8965 , Feb.17, 2022; 87 FR 15145 , Mar. 17, 2022; 88 FR 42652 , July 3, 2023; 88 FR 71672 , Oct. 17, 2023]

§ 17.86 [Reserved]

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What’s the difference between essential and nonessential experimental populations?

by wolfcenter | Aug 18, 2021 | Canines , Carnivores , Chris Anderson , Conservation , Wolves | 0 comments

When talking about recovery actions for species and conservation efforts, you’ve probably heard the term nonessential experimental population thrown around.

What does that mean? And more importantly, what does it mean for the species that are labeled with it?

When the U.S. Fish and Wildlife Service wants to help a species re-establish itself in the wild, it can label a population as experimental under the Endangered Species Act. 1 These are populations that are being reintroduced to areas that they’ve historically occupied but aren’t established in. 2

Experimental populations are designated as either essential or nonessential . Essential experimental populations are populations that, if lost, would affect the survival of the species overall in the wild. 3 Nonessential experimental populations are the opposite – they are populations on which the species’ survival doesn’t depend. 2

There is a lot more flexibility when it comes to rules applied to nonessential experimental populations. When a species is listed as endangered or threatened, they receive protections from Section 7 and Section 9 of the Endangered Species Act. Section 7 discusses how federal agencies must act when it comes to these species, and Section 9 is the one that prohibits harassing, harming, shooting, killing, etc., of these animals. 2

When it comes to nonessential experimental populations, the rules are different. If they’re in a National Wildlife Refuge, or National Park, they’ll receive the same protections of Sections 7 and 9. However, if they’re outside of these areas, they only have the same protections as a species that’s being considered for listing . This means that when it comes to Section 7, only two parts apply to them: 7(a)(1), and 7(a)(4). 2

7(a)(1) makes it a requirement that federal agencies must help to conserve listed species. Meanwhile, 7(a)(4) requires these agencies to talk with the USFWS regarding actions that may hurt a proposed species’ ability to survive. 2

Even with the flexibility of protection, the plans for these species must still work toward success and help the species survive. 1

Many wolf populations have been given this designation. Check out more of our blogs about wolves here !

All the best, Chris & the WERC Team

https://www.fws.gov/pacific/ecoservices/endangered/recovery/pdf/10j%20Experimental%20Population%20Fact%20Sheet%2011-9-16%20(approved%20by%20ARD-ES).pdf

https://www.fws.gov/verobeach/FloridaPantherRIT/20150819%2010j%20Experimental%20Population%20Fact%20Sheet.pdf

https://www.animallaw.info/administrative/us-endangered-species-act-subpart-h-experimental-populations#s80

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Methodology

• Guide to Experimental Design | Overview, Steps, & Examples

Guide to Experimental Design | Overview, 5 steps & Examples

Published on December 3, 2019 by Rebecca Bevans . Revised on June 21, 2023.

Experiments are used to study causal relationships . You manipulate one or more independent variables and measure their effect on one or more dependent variables.

Experimental design create a set of procedures to systematically test a hypothesis . A good experimental design requires a strong understanding of the system you are studying.

There are five key steps in designing an experiment:

• Consider your variables and how they are related
• Write a specific, testable hypothesis
• Design experimental treatments to manipulate your independent variable
• Assign subjects to groups, either between-subjects or within-subjects
• Plan how you will measure your dependent variable

For valid conclusions, you also need to select a representative sample and control any  extraneous variables that might influence your results. If random assignment of participants to control and treatment groups is impossible, unethical, or highly difficult, consider an observational study instead. This minimizes several types of research bias, particularly sampling bias , survivorship bias , and attrition bias as time passes.

Table of contents

Step 1: define your variables, step 2: write your hypothesis, step 3: design your experimental treatments, step 4: assign your subjects to treatment groups, step 5: measure your dependent variable, other interesting articles, frequently asked questions about experiments.

You should begin with a specific research question . We will work with two research question examples, one from health sciences and one from ecology:

To translate your research question into an experimental hypothesis, you need to define the main variables and make predictions about how they are related.

Start by simply listing the independent and dependent variables .

Then you need to think about possible extraneous and confounding variables and consider how you might control  them in your experiment.

Finally, you can put these variables together into a diagram. Use arrows to show the possible relationships between variables and include signs to show the expected direction of the relationships.

Here we predict that increasing temperature will increase soil respiration and decrease soil moisture, while decreasing soil moisture will lead to decreased soil respiration.

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Now that you have a strong conceptual understanding of the system you are studying, you should be able to write a specific, testable hypothesis that addresses your research question.

The next steps will describe how to design a controlled experiment . In a controlled experiment, you must be able to:

• Systematically and precisely manipulate the independent variable(s).
• Precisely measure the dependent variable(s).
• Control any potential confounding variables.

If your study system doesn’t match these criteria, there are other types of research you can use to answer your research question.

How you manipulate the independent variable can affect the experiment’s external validity – that is, the extent to which the results can be generalized and applied to the broader world.

First, you may need to decide how widely to vary your independent variable.

• just slightly above the natural range for your study region.
• over a wider range of temperatures to mimic future warming.
• over an extreme range that is beyond any possible natural variation.

Second, you may need to choose how finely to vary your independent variable. Sometimes this choice is made for you by your experimental system, but often you will need to decide, and this will affect how much you can infer from your results.

• a categorical variable : either as binary (yes/no) or as levels of a factor (no phone use, low phone use, high phone use).
• a continuous variable (minutes of phone use measured every night).

How you apply your experimental treatments to your test subjects is crucial for obtaining valid and reliable results.

First, you need to consider the study size : how many individuals will be included in the experiment? In general, the more subjects you include, the greater your experiment’s statistical power , which determines how much confidence you can have in your results.

Then you need to randomly assign your subjects to treatment groups . Each group receives a different level of the treatment (e.g. no phone use, low phone use, high phone use).

You should also include a control group , which receives no treatment. The control group tells us what would have happened to your test subjects without any experimental intervention.

When assigning your subjects to groups, there are two main choices you need to make:

• A completely randomized design vs a randomized block design .
• A between-subjects design vs a within-subjects design .

Randomization

An experiment can be completely randomized or randomized within blocks (aka strata):

• In a completely randomized design , every subject is assigned to a treatment group at random.
• In a randomized block design (aka stratified random design), subjects are first grouped according to a characteristic they share, and then randomly assigned to treatments within those groups.

Sometimes randomization isn’t practical or ethical , so researchers create partially-random or even non-random designs. An experimental design where treatments aren’t randomly assigned is called a quasi-experimental design .

Between-subjects vs. within-subjects

In a between-subjects design (also known as an independent measures design or classic ANOVA design), individuals receive only one of the possible levels of an experimental treatment.

In medical or social research, you might also use matched pairs within your between-subjects design to make sure that each treatment group contains the same variety of test subjects in the same proportions.

In a within-subjects design (also known as a repeated measures design), every individual receives each of the experimental treatments consecutively, and their responses to each treatment are measured.

Within-subjects or repeated measures can also refer to an experimental design where an effect emerges over time, and individual responses are measured over time in order to measure this effect as it emerges.

Counterbalancing (randomizing or reversing the order of treatments among subjects) is often used in within-subjects designs to ensure that the order of treatment application doesn’t influence the results of the experiment.

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Finally, you need to decide how you’ll collect data on your dependent variable outcomes. You should aim for reliable and valid measurements that minimize research bias or error.

Some variables, like temperature, can be objectively measured with scientific instruments. Others may need to be operationalized to turn them into measurable observations.

• Ask participants to record what time they go to sleep and get up each day.
• Ask participants to wear a sleep tracker.

How precisely you measure your dependent variable also affects the kinds of statistical analysis you can use on your data.

Experiments are always context-dependent, and a good experimental design will take into account all of the unique considerations of your study system to produce information that is both valid and relevant to your research question.

If you want to know more about statistics , methodology , or research bias , make sure to check out some of our other articles with explanations and examples.

• Student’s  t -distribution
• Normal distribution
• Null and Alternative Hypotheses
• Chi square tests
• Confidence interval
• Cluster sampling
• Stratified sampling
• Data cleansing
• Reproducibility vs Replicability
• Peer review
• Likert scale

Research bias

• Implicit bias
• Framing effect
• Cognitive bias
• Placebo effect
• Hawthorne effect
• Hindsight bias
• Affect heuristic

Experimental design means planning a set of procedures to investigate a relationship between variables . To design a controlled experiment, you need:

• A testable hypothesis
• At least one independent variable that can be precisely manipulated
• At least one dependent variable that can be precisely measured

When designing the experiment, you decide:

• How you will manipulate the variable(s)
• How you will control for any potential confounding variables
• How many subjects or samples will be included in the study
• How subjects will be assigned to treatment levels

Experimental design is essential to the internal and external validity of your experiment.

The key difference between observational studies and experimental designs is that a well-done observational study does not influence the responses of participants, while experiments do have some sort of treatment condition applied to at least some participants by random assignment .

A confounding variable , also called a confounder or confounding factor, is a third variable in a study examining a potential cause-and-effect relationship.

A confounding variable is related to both the supposed cause and the supposed effect of the study. It can be difficult to separate the true effect of the independent variable from the effect of the confounding variable.

In your research design , it’s important to identify potential confounding variables and plan how you will reduce their impact.

In a between-subjects design , every participant experiences only one condition, and researchers assess group differences between participants in various conditions.

In a within-subjects design , each participant experiences all conditions, and researchers test the same participants repeatedly for differences between conditions.

The word “between” means that you’re comparing different conditions between groups, while the word “within” means you’re comparing different conditions within the same group.

An experimental group, also known as a treatment group, receives the treatment whose effect researchers wish to study, whereas a control group does not. They should be identical in all other ways.

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Statistics By Jim

Making statistics intuitive

Experimental Design: Definition and Types

By Jim Frost 3 Comments

What is Experimental Design?

An experimental design is a detailed plan for collecting and using data to identify causal relationships. Through careful planning, the design of experiments allows your data collection efforts to have a reasonable chance of detecting effects and testing hypotheses that answer your research questions.

An experiment is a data collection procedure that occurs in controlled conditions to identify and understand causal relationships between variables. Researchers can use many potential designs. The ultimate choice depends on their research question, resources, goals, and constraints. In some fields of study, researchers refer to experimental design as the design of experiments (DOE). Both terms are synonymous.

Ultimately, the design of experiments helps ensure that your procedures and data will evaluate your research question effectively. Without an experimental design, you might waste your efforts in a process that, for many potential reasons, can’t answer your research question. In short, it helps you trust your results.

Learn more about Independent and Dependent Variables .

Design of Experiments: Goals & Settings

Experiments occur in many settings, ranging from psychology, social sciences, medicine, physics, engineering, and industrial and service sectors. Typically, experimental goals are to discover a previously unknown effect , confirm a known effect, or test a hypothesis.

Effects represent causal relationships between variables. For example, in a medical experiment, does the new medicine cause an improvement in health outcomes? If so, the medicine has a causal effect on the outcome.

An experimental design’s focus depends on the subject area and can include the following goals:

• Understanding the relationships between variables.
• Identifying the variables that have the largest impact on the outcomes.
• Finding the input variable settings that produce an optimal result.

For example, psychologists have conducted experiments to understand how conformity affects decision-making. Sociologists have performed experiments to determine whether ethnicity affects the public reaction to staged bike thefts. These experiments map out the causal relationships between variables, and their primary goal is to understand the role of various factors.

Conversely, in a manufacturing environment, the researchers might use an experimental design to find the factors that most effectively improve their product’s strength, identify the optimal manufacturing settings, and do all that while accounting for various constraints. In short, a manufacturer’s goal is often to use experiments to improve their products cost-effectively.

In a medical experiment, the goal might be to quantify the medicine’s effect and find the optimum dosage.

Developing an Experimental Design

Developing an experimental design involves planning that maximizes the potential to collect data that is both trustworthy and able to detect causal relationships. Specifically, these studies aim to see effects when they exist in the population the researchers are studying, preferentially favor causal effects, isolate each factor’s true effect from potential confounders, and produce conclusions that you can generalize to the real world.

To accomplish these goals, experimental designs carefully manage data validity and reliability , and internal and external experimental validity. When your experiment is valid and reliable, you can expect your procedures and data to produce trustworthy results.

An excellent experimental design involves the following:

• Lots of preplanning.
• Developing experimental treatments.
• Determining how to assign subjects to treatment groups.

The remainder of this article focuses on how experimental designs incorporate these essential items to accomplish their research goals.

Learn more about Data Reliability vs. Validity and Internal and External Experimental Validity .

Preplanning, Defining, and Operationalizing for Design of Experiments

This phase of the design of experiments helps you identify critical variables, know how to measure them while ensuring reliability and validity, and understand the relationships between them. The review can also help you find ways to reduce sources of variability, which increases your ability to detect treatment effects. Notably, the literature review allows you to learn how similar studies designed their experiments and the challenges they faced.

Operationalizing a study involves taking your research question, using the background information you gathered, and formulating an actionable plan.

This process should produce a specific and testable hypothesis using data that you can reasonably collect given the resources available to the experiment.

• Null hypothesis : The jumping exercise intervention does not affect bone density.
• Alternative hypothesis : The jumping exercise intervention affects bone density.

To learn more about this early phase, read Five Steps for Conducting Scientific Studies with Statistical Analyses .

Formulating Treatments in Experimental Designs

In an experimental design, treatments are variables that the researchers control. They are the primary independent variables of interest. Researchers administer the treatment to the subjects or items in the experiment and want to know whether it causes changes in the outcome.

As the name implies, a treatment can be medical in nature, such as a new medicine or vaccine. But it’s a general term that applies to other things such as training programs, manufacturing settings, teaching methods, and types of fertilizers. I helped run an experiment where the treatment was a jumping exercise intervention that we hoped would increase bone density. All these treatment examples are things that potentially influence a measurable outcome.

Even when you know your treatment generally, you must carefully consider the amount. How large of a dose? If you’re comparing three different temperatures in a manufacturing process, how far apart are they? For my bone mineral density study, we had to determine how frequently the exercise sessions would occur and how long each lasted.

How you define the treatments in the design of experiments can affect your findings and the generalizability of your results.

Assigning Subjects to Experimental Groups

A crucial decision for all experimental designs is determining how researchers assign subjects to the experimental conditions—the treatment and control groups. The control group is often, but not always, the lack of a treatment. It serves as a basis for comparison by showing outcomes for subjects who don’t receive a treatment. Learn more about Control Groups .

How your experimental design assigns subjects to the groups affects how confident you can be that the findings represent true causal effects rather than mere correlation caused by confounders. Indeed, the assignment method influences how you control for confounding variables. This is the difference between correlation and causation .

Imagine a study finds that vitamin consumption correlates with better health outcomes. As a researcher, you want to be able to say that vitamin consumption causes the improvements. However, with the wrong experimental design, you might only be able to say there is an association. A confounder, and not the vitamins, might actually cause the health benefits.

Let’s explore some of the ways to assign subjects in design of experiments.

Completely Randomized Designs

A completely randomized experimental design randomly assigns all subjects to the treatment and control groups. You simply take each participant and use a random process to determine their group assignment. You can flip coins, roll a die, or use a computer. Randomized experiments must be prospective studies because they need to be able to control group assignment.

Random assignment in the design of experiments helps ensure that the groups are roughly equivalent at the beginning of the study. This equivalence at the start increases your confidence that any differences you see at the end were caused by the treatments. The randomization tends to equalize confounders between the experimental groups and, thereby, cancels out their effects, leaving only the treatment effects.

For example, in a vitamin study, the researchers can randomly assign participants to either the control or vitamin group. Because the groups are approximately equal when the experiment starts, if the health outcomes are different at the end of the study, the researchers can be confident that the vitamins caused those improvements.

Statisticians consider randomized experimental designs to be the best for identifying causal relationships.

If you can’t randomly assign subjects but want to draw causal conclusions about an intervention, consider using a quasi-experimental design .

Learn more about Randomized Controlled Trials and Random Assignment in Experiments .

Randomized Block Designs

Nuisance factors are variables that can affect the outcome, but they are not the researcher’s primary interest. Unfortunately, they can hide or distort the treatment results. When experimenters know about specific nuisance factors, they can use a randomized block design to minimize their impact.

This experimental design takes subjects with a shared “nuisance” characteristic and groups them into blocks. The participants in each block are then randomly assigned to the experimental groups. This process allows the experiment to control for known nuisance factors.

Blocking in the design of experiments reduces the impact of nuisance factors on experimental error. The analysis assesses the effects of the treatment within each block, which removes the variability between blocks. The result is that blocked experimental designs can reduce the impact of nuisance variables, increasing the ability to detect treatment effects accurately.

Suppose you’re testing various teaching methods. Because grade level likely affects educational outcomes, you might use grade level as a blocking factor. To use a randomized block design for this scenario, divide the participants by grade level and then randomly assign the members of each grade level to the experimental groups.

A standard guideline for an experimental design is to “Block what you can, randomize what you cannot.” Use blocking for a few primary nuisance factors. Then use random assignment to distribute the unblocked nuisance factors equally between the experimental conditions.

You can also use covariates to control nuisance factors. Learn about Covariates: Definition and Uses .

Observational Studies

In some experimental designs, randomly assigning subjects to the experimental conditions is impossible or unethical. The researchers simply can’t assign participants to the experimental groups. However, they can observe them in their natural groupings, measure the essential variables, and look for correlations. These observational studies are also known as quasi-experimental designs. Retrospective studies must be observational in nature because they look back at past events.

Imagine you’re studying the effects of depression on an activity. Clearly, you can’t randomly assign participants to the depression and control groups. But you can observe participants with and without depression and see how their task performance differs.

Observational studies let you perform research when you can’t control the treatment. However, quasi-experimental designs increase the problem of confounding variables. For this design of experiments, correlation does not necessarily imply causation. While special procedures can help control confounders in an observational study, you’re ultimately less confident that the results represent causal findings.

Learn more about Observational Studies .

For a good comparison, learn about the differences and tradeoffs between Observational Studies and Randomized Experiments .

Between-Subjects vs. Within-Subjects Experimental Designs

When you think of the design of experiments, you probably picture a treatment and control group. Researchers assign participants to only one of these groups, so each group contains entirely different subjects than the other groups. Analysts compare the groups at the end of the experiment. Statisticians refer to this method as a between-subjects, or independent measures, experimental design.

In a between-subjects design , you can have more than one treatment group, but each subject is exposed to only one condition, the control group or one of the treatment groups.

A potential downside to this approach is that differences between groups at the beginning can affect the results at the end. As you’ve read earlier, random assignment can reduce those differences, but it is imperfect. There will always be some variability between the groups.

In a  within-subjects experimental design , also known as repeated measures, subjects experience all treatment conditions and are measured for each. Each subject acts as their own control, which reduces variability and increases the statistical power to detect effects.

In this experimental design, you minimize pre-existing differences between the experimental conditions because they all contain the same subjects. However, the order of treatments can affect the results. Beware of practice and fatigue effects. Learn more about Repeated Measures Designs .

Design of Experiments Examples

For example, a bone density study has three experimental groups—a control group, a stretching exercise group, and a jumping exercise group.

In a between-subjects experimental design, scientists randomly assign each participant to one of the three groups.

In a within-subjects design, all subjects experience the three conditions sequentially while the researchers measure bone density repeatedly. The procedure can switch the order of treatments for the participants to help reduce order effects.

Matched Pairs Experimental Design

A matched pairs experimental design is a between-subjects study that uses pairs of similar subjects. Researchers use this approach to reduce pre-existing differences between experimental groups. It’s yet another design of experiments method for reducing sources of variability.

Researchers identify variables likely to affect the outcome, such as demographics. When they pick a subject with a set of characteristics, they try to locate another participant with similar attributes to create a matched pair. Scientists randomly assign one member of a pair to the treatment group and the other to the control group.

On the plus side, this process creates two similar groups, and it doesn’t create treatment order effects. While matched pairs do not produce the perfectly matched groups of a within-subjects design (which uses the same subjects in all conditions), it aims to reduce variability between groups relative to a between-subjects study.

On the downside, finding matched pairs is very time-consuming. Additionally, if one member of a matched pair drops out, the other subject must leave the study too.

Learn more about Matched Pairs Design: Uses & Examples .

Another consideration is whether you’ll use a cross-sectional design (one point in time) or use a longitudinal study to track changes over time .

A case study is a research method that often serves as a precursor to a more rigorous experimental design by identifying research questions, variables, and hypotheses to test. Learn more about What is a Case Study? Definition & Examples .

In conclusion, the design of experiments is extremely sensitive to subject area concerns and the time and resources available to the researchers. Developing a suitable experimental design requires balancing a multitude of considerations. A successful design is necessary to obtain trustworthy answers to your research question and to have a reasonable chance of detecting treatment effects when they exist.

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March 23, 2024 at 2:35 pm

Dear Jim You wrote a superb document, I will use it in my Buistatistics course, along with your three books. Thank you very much! Miguel

March 23, 2024 at 5:43 pm

Thanks so much, Miguel! Glad this post was helpful and I trust the books will be as well.

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What are the purpose and uses of experimental research design?

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Experimental population, Essential (EXPE)

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Home » Experimental Design – Types, Methods, Guide

Experimental Design – Types, Methods, Guide

Table of Contents

Experimental Design

Experimental design is a process of planning and conducting scientific experiments to investigate a hypothesis or research question. It involves carefully designing an experiment that can test the hypothesis, and controlling for other variables that may influence the results.

Experimental design typically includes identifying the variables that will be manipulated or measured, defining the sample or population to be studied, selecting an appropriate method of sampling, choosing a method for data collection and analysis, and determining the appropriate statistical tests to use.

Types of Experimental Design

Here are the different types of experimental design:

Completely Randomized Design

In this design, participants are randomly assigned to one of two or more groups, and each group is exposed to a different treatment or condition.

Randomized Block Design

This design involves dividing participants into blocks based on a specific characteristic, such as age or gender, and then randomly assigning participants within each block to one of two or more treatment groups.

Factorial Design

In a factorial design, participants are randomly assigned to one of several groups, each of which receives a different combination of two or more independent variables.

Repeated Measures Design

In this design, each participant is exposed to all of the different treatments or conditions, either in a random order or in a predetermined order.

Crossover Design

This design involves randomly assigning participants to one of two or more treatment groups, with each group receiving one treatment during the first phase of the study and then switching to a different treatment during the second phase.

Split-plot Design

In this design, the researcher manipulates one or more variables at different levels and uses a randomized block design to control for other variables.

Nested Design

This design involves grouping participants within larger units, such as schools or households, and then randomly assigning these units to different treatment groups.

Laboratory Experiment

Laboratory experiments are conducted under controlled conditions, which allows for greater precision and accuracy. However, because laboratory conditions are not always representative of real-world conditions, the results of these experiments may not be generalizable to the population at large.

Field Experiment

Field experiments are conducted in naturalistic settings and allow for more realistic observations. However, because field experiments are not as controlled as laboratory experiments, they may be subject to more sources of error.

Experimental Design Methods

Experimental design methods refer to the techniques and procedures used to design and conduct experiments in scientific research. Here are some common experimental design methods:

Randomization

This involves randomly assigning participants to different groups or treatments to ensure that any observed differences between groups are due to the treatment and not to other factors.

Control Group

The use of a control group is an important experimental design method that involves having a group of participants that do not receive the treatment or intervention being studied. The control group is used as a baseline to compare the effects of the treatment group.

Blinding involves keeping participants, researchers, or both unaware of which treatment group participants are in, in order to reduce the risk of bias in the results.

Counterbalancing

This involves systematically varying the order in which participants receive treatments or interventions in order to control for order effects.

Replication

Replication involves conducting the same experiment with different samples or under different conditions to increase the reliability and validity of the results.

This experimental design method involves manipulating multiple independent variables simultaneously to investigate their combined effects on the dependent variable.

This involves dividing participants into subgroups or blocks based on specific characteristics, such as age or gender, in order to reduce the risk of confounding variables.

Data Collection Method

Experimental design data collection methods are techniques and procedures used to collect data in experimental research. Here are some common experimental design data collection methods:

Direct Observation

This method involves observing and recording the behavior or phenomenon of interest in real time. It may involve the use of structured or unstructured observation, and may be conducted in a laboratory or naturalistic setting.

Self-report Measures

Self-report measures involve asking participants to report their thoughts, feelings, or behaviors using questionnaires, surveys, or interviews. These measures may be administered in person or online.

Behavioral Measures

Behavioral measures involve measuring participants’ behavior directly, such as through reaction time tasks or performance tests. These measures may be administered using specialized equipment or software.

Physiological Measures

Physiological measures involve measuring participants’ physiological responses, such as heart rate, blood pressure, or brain activity, using specialized equipment. These measures may be invasive or non-invasive, and may be administered in a laboratory or clinical setting.

Archival Data

Archival data involves using existing records or data, such as medical records, administrative records, or historical documents, as a source of information. These data may be collected from public or private sources.

Computerized Measures

Computerized measures involve using software or computer programs to collect data on participants’ behavior or responses. These measures may include reaction time tasks, cognitive tests, or other types of computer-based assessments.

Video Recording

Video recording involves recording participants’ behavior or interactions using cameras or other recording equipment. This method can be used to capture detailed information about participants’ behavior or to analyze social interactions.

Data Analysis Method

Experimental design data analysis methods refer to the statistical techniques and procedures used to analyze data collected in experimental research. Here are some common experimental design data analysis methods:

Descriptive Statistics

Descriptive statistics are used to summarize and describe the data collected in the study. This includes measures such as mean, median, mode, range, and standard deviation.

Inferential Statistics

Inferential statistics are used to make inferences or generalizations about a larger population based on the data collected in the study. This includes hypothesis testing and estimation.

Analysis of Variance (ANOVA)

ANOVA is a statistical technique used to compare means across two or more groups in order to determine whether there are significant differences between the groups. There are several types of ANOVA, including one-way ANOVA, two-way ANOVA, and repeated measures ANOVA.

Regression Analysis

Regression analysis is used to model the relationship between two or more variables in order to determine the strength and direction of the relationship. There are several types of regression analysis, including linear regression, logistic regression, and multiple regression.

Factor Analysis

Factor analysis is used to identify underlying factors or dimensions in a set of variables. This can be used to reduce the complexity of the data and identify patterns in the data.

Structural Equation Modeling (SEM)

SEM is a statistical technique used to model complex relationships between variables. It can be used to test complex theories and models of causality.

Cluster Analysis

Cluster analysis is used to group similar cases or observations together based on similarities or differences in their characteristics.

Time Series Analysis

Time series analysis is used to analyze data collected over time in order to identify trends, patterns, or changes in the data.

Multilevel Modeling

Multilevel modeling is used to analyze data that is nested within multiple levels, such as students nested within schools or employees nested within companies.

Applications of Experimental Design 

Experimental design is a versatile research methodology that can be applied in many fields. Here are some applications of experimental design:

• Medical Research: Experimental design is commonly used to test new treatments or medications for various medical conditions. This includes clinical trials to evaluate the safety and effectiveness of new drugs or medical devices.
• Agriculture : Experimental design is used to test new crop varieties, fertilizers, and other agricultural practices. This includes randomized field trials to evaluate the effects of different treatments on crop yield, quality, and pest resistance.
• Environmental science: Experimental design is used to study the effects of environmental factors, such as pollution or climate change, on ecosystems and wildlife. This includes controlled experiments to study the effects of pollutants on plant growth or animal behavior.
• Psychology : Experimental design is used to study human behavior and cognitive processes. This includes experiments to test the effects of different interventions, such as therapy or medication, on mental health outcomes.
• Engineering : Experimental design is used to test new materials, designs, and manufacturing processes in engineering applications. This includes laboratory experiments to test the strength and durability of new materials, or field experiments to test the performance of new technologies.
• Education : Experimental design is used to evaluate the effectiveness of teaching methods, educational interventions, and programs. This includes randomized controlled trials to compare different teaching methods or evaluate the impact of educational programs on student outcomes.
• Marketing : Experimental design is used to test the effectiveness of marketing campaigns, pricing strategies, and product designs. This includes experiments to test the impact of different marketing messages or pricing schemes on consumer behavior.

Examples of Experimental Design 

Here are some examples of experimental design in different fields:

• Example in Medical research : A study that investigates the effectiveness of a new drug treatment for a particular condition. Patients are randomly assigned to either a treatment group or a control group, with the treatment group receiving the new drug and the control group receiving a placebo. The outcomes, such as improvement in symptoms or side effects, are measured and compared between the two groups.
• Example in Education research: A study that examines the impact of a new teaching method on student learning outcomes. Students are randomly assigned to either a group that receives the new teaching method or a group that receives the traditional teaching method. Student achievement is measured before and after the intervention, and the results are compared between the two groups.
• Example in Environmental science: A study that tests the effectiveness of a new method for reducing pollution in a river. Two sections of the river are selected, with one section treated with the new method and the other section left untreated. The water quality is measured before and after the intervention, and the results are compared between the two sections.
• Example in Marketing research: A study that investigates the impact of a new advertising campaign on consumer behavior. Participants are randomly assigned to either a group that is exposed to the new campaign or a group that is not. Their behavior, such as purchasing or product awareness, is measured and compared between the two groups.
• Example in Social psychology: A study that examines the effect of a new social intervention on reducing prejudice towards a marginalized group. Participants are randomly assigned to either a group that receives the intervention or a control group that does not. Their attitudes and behavior towards the marginalized group are measured before and after the intervention, and the results are compared between the two groups.

When to use Experimental Research Design 

Experimental research design should be used when a researcher wants to establish a cause-and-effect relationship between variables. It is particularly useful when studying the impact of an intervention or treatment on a particular outcome.

Here are some situations where experimental research design may be appropriate:

• When studying the effects of a new drug or medical treatment: Experimental research design is commonly used in medical research to test the effectiveness and safety of new drugs or medical treatments. By randomly assigning patients to treatment and control groups, researchers can determine whether the treatment is effective in improving health outcomes.
• When evaluating the effectiveness of an educational intervention: An experimental research design can be used to evaluate the impact of a new teaching method or educational program on student learning outcomes. By randomly assigning students to treatment and control groups, researchers can determine whether the intervention is effective in improving academic performance.
• When testing the effectiveness of a marketing campaign: An experimental research design can be used to test the effectiveness of different marketing messages or strategies. By randomly assigning participants to treatment and control groups, researchers can determine whether the marketing campaign is effective in changing consumer behavior.
• When studying the effects of an environmental intervention: Experimental research design can be used to study the impact of environmental interventions, such as pollution reduction programs or conservation efforts. By randomly assigning locations or areas to treatment and control groups, researchers can determine whether the intervention is effective in improving environmental outcomes.
• When testing the effects of a new technology: An experimental research design can be used to test the effectiveness and safety of new technologies or engineering designs. By randomly assigning participants or locations to treatment and control groups, researchers can determine whether the new technology is effective in achieving its intended purpose.

How to Conduct Experimental Research

Here are the steps to conduct Experimental Research:

• Identify a Research Question : Start by identifying a research question that you want to answer through the experiment. The question should be clear, specific, and testable.
• Develop a Hypothesis: Based on your research question, develop a hypothesis that predicts the relationship between the independent and dependent variables. The hypothesis should be clear and testable.
• Design the Experiment : Determine the type of experimental design you will use, such as a between-subjects design or a within-subjects design. Also, decide on the experimental conditions, such as the number of independent variables, the levels of the independent variable, and the dependent variable to be measured.
• Select Participants: Select the participants who will take part in the experiment. They should be representative of the population you are interested in studying.
• Randomly Assign Participants to Groups: If you are using a between-subjects design, randomly assign participants to groups to control for individual differences.
• Conduct the Experiment : Conduct the experiment by manipulating the independent variable(s) and measuring the dependent variable(s) across the different conditions.
• Analyze the Data: Analyze the data using appropriate statistical methods to determine if there is a significant effect of the independent variable(s) on the dependent variable(s).
• Draw Conclusions: Based on the data analysis, draw conclusions about the relationship between the independent and dependent variables. If the results support the hypothesis, then it is accepted. If the results do not support the hypothesis, then it is rejected.
• Communicate the Results: Finally, communicate the results of the experiment through a research report or presentation. Include the purpose of the study, the methods used, the results obtained, and the conclusions drawn.

Purpose of Experimental Design 

The purpose of experimental design is to control and manipulate one or more independent variables to determine their effect on a dependent variable. Experimental design allows researchers to systematically investigate causal relationships between variables, and to establish cause-and-effect relationships between the independent and dependent variables. Through experimental design, researchers can test hypotheses and make inferences about the population from which the sample was drawn.

Experimental design provides a structured approach to designing and conducting experiments, ensuring that the results are reliable and valid. By carefully controlling for extraneous variables that may affect the outcome of the study, experimental design allows researchers to isolate the effect of the independent variable(s) on the dependent variable(s), and to minimize the influence of other factors that may confound the results.

Experimental design also allows researchers to generalize their findings to the larger population from which the sample was drawn. By randomly selecting participants and using statistical techniques to analyze the data, researchers can make inferences about the larger population with a high degree of confidence.

Overall, the purpose of experimental design is to provide a rigorous, systematic, and scientific method for testing hypotheses and establishing cause-and-effect relationships between variables. Experimental design is a powerful tool for advancing scientific knowledge and informing evidence-based practice in various fields, including psychology, biology, medicine, engineering, and social sciences.

Advantages of Experimental Design 

Experimental design offers several advantages in research. Here are some of the main advantages:

• Control over extraneous variables: Experimental design allows researchers to control for extraneous variables that may affect the outcome of the study. By manipulating the independent variable and holding all other variables constant, researchers can isolate the effect of the independent variable on the dependent variable.
• Establishing causality: Experimental design allows researchers to establish causality by manipulating the independent variable and observing its effect on the dependent variable. This allows researchers to determine whether changes in the independent variable cause changes in the dependent variable.
• Replication : Experimental design allows researchers to replicate their experiments to ensure that the findings are consistent and reliable. Replication is important for establishing the validity and generalizability of the findings.
• Random assignment: Experimental design often involves randomly assigning participants to conditions. This helps to ensure that individual differences between participants are evenly distributed across conditions, which increases the internal validity of the study.
• Precision : Experimental design allows researchers to measure variables with precision, which can increase the accuracy and reliability of the data.
• Generalizability : If the study is well-designed, experimental design can increase the generalizability of the findings. By controlling for extraneous variables and using random assignment, researchers can increase the likelihood that the findings will apply to other populations and contexts.

Limitations of Experimental Design

Experimental design has some limitations that researchers should be aware of. Here are some of the main limitations:

• Artificiality : Experimental design often involves creating artificial situations that may not reflect real-world situations. This can limit the external validity of the findings, or the extent to which the findings can be generalized to real-world settings.
• Ethical concerns: Some experimental designs may raise ethical concerns, particularly if they involve manipulating variables that could cause harm to participants or if they involve deception.
• Participant bias : Participants in experimental studies may modify their behavior in response to the experiment, which can lead to participant bias.
• Limited generalizability: The conditions of the experiment may not reflect the complexities of real-world situations. As a result, the findings may not be applicable to all populations and contexts.
• Cost and time : Experimental design can be expensive and time-consuming, particularly if the experiment requires specialized equipment or if the sample size is large.
• Researcher bias : Researchers may unintentionally bias the results of the experiment if they have expectations or preferences for certain outcomes.
• Lack of feasibility : Experimental design may not be feasible in some cases, particularly if the research question involves variables that cannot be manipulated or controlled.

About the author

Muhammad Hassan

Researcher, Academic Writer, Web developer

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Genetic linkage maps are an increasingly important tool in both fundamental and applied research, enabling the study and deployment of genes that determine important biological traits. This concise introduction to genetic mapping in species with disomic inheritance enables life science graduate students and researchers to use mapping software to produce more reliable results. After a brief refresher on meiosis and genetic recombination, the steps in the map construction procedure are described, with explanations of the computations involved. The emphasis throughout is on the practical application of the methods described; detailed mathematical formulae are avoided and exercises are included to help readers consolidate their understanding. A chapter on recognising and solving problems provides valuable guidance for dealing with real-life situations. An extensive chapter dedicated to the more complex situation of outbreeding species offers a unique insight into the approach required for many economically important and model species, both plants and animals.

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Frontmatter pp i-vi

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Contents pp vii-x

Preface pp xi-xii.

• By J.W. Van Ooijen & , Wageningen, The Netherlands, J. Jansen , Wageningen, The Netherlands

1 - Introduction pp 1-8

2 - meiosis and genetic recombination pp 9-20, 3 - estimation of recombination frequencies pp 21-44, 4 - determination of linkage groups pp 45-58, 5 - estimation of a genetic map pp 59-76, 6 - criteria for the evaluation of maps pp 77-86, 7 - how to find the best map order pp 87-100, 8 - outbreeding species pp 101-122, 9 - mapping in practice pp 123-138, answers to exercises pp 139-154, index pp 155-157, full text views.

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Intervention Studies

Clinical Trials

•   1  
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The Subjects

Population hierarchy, internal and external validity, sample size.

Epi_Tools.XLSX

All Modules

When clinical trials are performed there is generally a target population or reference population to which one would like to apply the findings. For example, researchers reported on the efficacy of low-dose aspirin in preventing myocardial infarction in women [Ridker P, et al.: A randomized trial of low-dose aspirin in the primary prevention of cardiovascular disease in women . N Engl J Med 2005;352:1293-304]. The reference population was adult females who have not had a myocardial infarction.

The following is an excerpt from the report by Ridker et al. describing how they obtained their study population:

The eligibility criteria need to balance the needs for internal and external validity. Internal validity refers to the accuracy of the conclusions within that particular study sample, while external validity refers to whether or not the results of a particular study are relevant to a more general population. For example, in 1981 the Physicians Health Study sent invitation letters, consent forms, and enrollment questionnaires to all 261,248 male physicians between 40 and 84 years of age who lived in the United States and who were registered with the American Medical Association. Less than half responded to the invitation, and only about 59,000 were willing to participate. Of those 33,223 were both willing and eligible.

In other words, the effect of aspirin in preventing myocardial infarctions did appear to be different in women and men. 

The major advantage of large randomized clinical trials is that that they are the most effective way to reduce confounding. As such, they offer the opportunity to identify small to moderate effects that may be clinically very important. For example, coronary artery disease (CAD) is the most frequent cause of death and disability in the the US and worldwide. Consequently, interventions that reduce risk by 15-20% would be extremely important, because so much death and disability is attributed to CAD. While control of confounding makes it easier to accurately assess modest but important effects, it is still necessary to have an adequate sample size in order to produce a measure of association that is reasonably precise. If the study does not have a sufficient sample size (i.e., if it is "under powered"), the study might fail to identify a meaningful benefit that truly existed, and much time and money would have been wasted on an incorrect conclusion.

Actually, the key factor influencing the power of the study is the number of outcomes (often referred to as "endpoints") rather than study size per se . Of course, increasing study size will increase the number of endpoints, but two other factors that affect the power of the study are the likelihood of the outcome among the study subjects and the duration of the study. For example, both the Physicians' Health Study and the Women's Health Study required participants to be above the age of 40 at the time of enrollment, since younger subjects would be substantially less likely to have a myocardial infarction during the planned follow up period. The duration of the follow up period is obviously also relevant, since shorter periods of follow up will produce fewer events and reduce statistical power

In order to avoid conducting studies that are underpowered, investigators will perform a series of calculations referred to as sample size estimates. This is not a single calculation, but a series of calculations that, in essence, address "what if" questions. For example, the observational studies that led up to the Physicians Health Study failed to find statistically significant benefits of aspirin, but they seemed to suggest that if there were a benefit, it would likely be on the order of a 15-30% reduction in risk of myocardial infarction. If one has estimates of the magnitude of risk (the expected cumulative incidence) in the reference population, one can than perform calculations to estimate how many subjects one would need in each of two study groups to detect a given effect, if it existed. For example, if the expected incidence of myocardial infarction over five years in males over 40 years of age were around 5%, and if low-dose aspirin truly reduced the risk by about 20%, then the expected frequencies in the untreated placebo group and the aspirin treated group would be expected to be 0.05 and 0.04 respectively. The Excel file "Epi_Tools.XLS" has a worksheet entitled "Sample Size" that performs these calculations for you.

The illustration above shows that a "what if" situation, i.e. what if the frequency of myocardial infarction is 5% without aspirin and 4% with the low-dose aspirin regimen (i.e., a 20% reduction in risk). The calculations indicate that in order to have a 90% probability (statistical power) of finding a statistically significant difference using p<0.05 as the criterion of significance, we would need a little over 9,000 subjects in each group. The investigators in the Physicians' Health Study wisely sought a somewhat larger sample than the estimates indicated.

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Department of the Interior Proposes Expanding Conservation Technique as Climate Change Threatens Greater Species Extinction

In the first Endangered Species Act (ESA) interpretive rule produced under the Biden-Harris administration, the U.S. Fish and Wildlife Service is proposing to revise section 10(j) regulations under the ESA to better facilitate recovery by allowing for the introduction of listed species to suitable habitats outside of their historical ranges. The proposed change will help improve the conservation and recovery of imperiled ESA-listed species in the coming decades, as growing impacts from climate change climate change Climate change includes both global warming driven by human-induced emissions of greenhouse gases and the resulting large-scale shifts in weather patterns. Though there have been previous periods of climatic change, since the mid-20th century humans have had an unprecedented impact on Earth's climate system and caused change on a global scale. Learn more about climate change and invasive species invasive species An invasive species is any plant or animal that has spread or been introduced into a new area where they are, or could, cause harm to the environment, economy, or human, animal, or plant health. Their unwelcome presence can destroy ecosystems and cost millions of dollars. Learn more about invasive species cause habitats within their historical ranges to shift and become unsuitable. 

Reintroducing species of plants and animals back into areas where they have disappeared has been a regularly used technique in wildlife conservation for decades, and federal agencies were authorized by Congress to create experimental populations to aid in that effort in 1982.

“Climate change and the rapid spread of invasive species pose an ever-increasing threat to native biodiversity. The time to act – and use every tool at our disposal – is now,” said Secretary of the Interior Deb Haaland . “The growing extinction crisis highlights the importance of the Endangered Species Act and efforts to conserve species before declines become irreversible. This effort to update proven conservation tools will help ensure species on the cusp of extinction can recover and thrive for generations to come.”

Foundational conservation policy must keep pace with corresponding science, which has shown that climate change and invasive species are pushing plants and animals into completely new geographic areas for the habitat needed for their continued survival. Improving the ESA’s experimental population regulations will prevent more species from becoming stranded when conditions change in their current habitat and help establish them in more suitable habitats given these rising threats. 

“Recovering species and preventing their extinction will require innovative, proactive, science-based policies and conservation actions that address the growing impacts from climate change and invasive species before it is too late,” said Martha Williams, Service Director. “The Service remains committed to working with our diverse state, local and Tribal partners to meet these growing challenges, and appreciates how vital locally driven, partnership-based solutions will be in the coming years.”  

The Service uses experimental populations as a recovery tool when there is a need to establish a new population of an ESA listed species outside of its current range. This tool furthers the conservation of the species by establishing more populations, while also providing fewer regulatory restrictions for affected partners.  Establishment of an experimental population requires a rulemaking process, including publishing the rule in the Federal Register and providing the public an opportunity to review and submit comments. Experimental populations have been used to help advance the recovery of numerous listed species including but not limited to, California condors, whooping cranes, and Sonoran pronghorns. In addition, we are considering introducing the Guam kingfisher outside its historical range. The species currently cannot be reintroduced to its former habitat on Guam because of the presence of brown tree snakes.  

Stemming this extinction crisis is a central component of the Biden-Harris administration’s America the Beautiful  initiative . This locally led and voluntary effort aims to conserve, connect and restore 30 percent of lands and waters in the U.S. by 2030, while enhancing wildlife habitat and improving biodiversity.  

Under today’s proposed revisions, the Service would be able to introduce an experimental population of an ESA threatened or endangered species into suitable habitat outside of its current range and probable historical range. The revised regulation will not change the rulemaking process for designating a 10(j) experimental population or require reevaluation of existing experimental populations. 

Scientists have already observed wildlife responding to the effects of climate change , with some species and ecosystems losing habitat due to increased temperatures, altered rain and snow patterns, sea level rise, and greater frequency and intensity of drought and wildfires. These species include the Mt. Rainier ptarmigan in Washington state, Montana stoneflies and the emperor penguin , found in the Antarctic. Climate change has also exacerbated existing threats to plants and wildlife, such as greater threats from disease and invasive species. In Hawaii, increased temperatures are driving the spread of avian malaria among some of the world’s most endangered birds, as mosquitoes move upslope. At Blackwater National Wildlife Refuge in Maryland, coastal wetlands are being overtaken by the invasive grass phragmites -- a problem made worse by sea level rise -- causing the loss of habitat for imperiled species such as the saltmarsh sparrow.   

The Service is also proposing other minor changes to provide more clarity in the regulations. We will accept comments from all interested parties until August 8, 2022. Please note that if you are using the Federal eRulemaking Portal, the deadline for submitting an electronic comment is 11:59 p.m. Eastern Standard Time on this date ( https://www.regulations.gov .  In the Search box, enter FWS-HQ-ES-2021-0033).

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• Published: 11 September 2024

Evolution of evolvability in rapidly adapting populations

• James T. Ferrare 1 &
• Benjamin H. Good   ORCID: orcid.org/0000-0002-7757-3347 2 , 3 , 4  

Nature Ecology & Evolution ( 2024 ) Cite this article

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• Evolutionary theory
• Genetic interaction
• Population genetics

Mutations can alter the short-term fitness of an organism, as well as the rates and benefits of future mutations. While numerous examples of these evolvability modifiers have been observed in rapidly adapting microbial populations, existing theory struggles to predict when they will be favoured by natural selection. Here we develop a mathematical framework for predicting the fates of genetic variants that modify the rates and benefits of future mutations in linked genomic regions. We derive analytical expressions showing how the fixation probabilities of these variants depend on the size of the population and the diversity of competing mutations. We find that competition between linked mutations can dramatically enhance selection for modifiers that increase the benefits of future mutations, even when they impose a strong direct cost on fitness. However, we also find that modest direct benefits can be sufficient to drive evolutionary dead ends to fixation. Our results suggest that subtle differences in evolvability could play an important role in shaping the long-term success of genetic variants in rapidly evolving microbial populations.

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Rapid evolution of mutation rate and spectrum in response to environmental and population-genetic challenges

Evolvability-enhancing mutations in the fitness landscapes of an RNA and a protein

Changes in the distribution of fitness effects and adaptive mutational spectra following a single first step towards adaptation

Data availability.

Fitness measurements and confidence intervals in Fig. 1a were obtained from the Supplementary Information of ref. 8 . Simulation results in the remaining figures are available in the accompanying source data files. Source data are provided with this paper.

Code availability

Source code for forward-time simulations, numerical calculations and figure generation are available via Github ( https://github.com/bgoodlab/evolution_of_evolvability ).

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Acknowledgements

We thank D. Wong for useful discussions and S. Walton, O. Ghosh and Z. Liu for comments and feedback on the manuscript. This work was supported in part by the Alfred P. Sloan Foundation (FG-2021-15708) and a Terman Fellowship from Stanford University. B.H.G. is a Chan Zuckerberg Biohub San Francisco Investigator.

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Biophysics Program, Stanford University, Stanford, CA, USA

James T. Ferrare

Department of Applied Physics, Stanford University, Stanford, CA, USA

Benjamin H. Good

Department of Biology, Stanford University, Stanford, CA, USA

Chan Zuckerberg Biohub – San Francisco, San Francisco, CA, USA

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Contributions

Conceptualization: J.T.F. and B.H.G.; theory and methods development: J.T.F. and B.H.G.; analysis: J.T.F. and B.H.G.; writing: J.T.F. and B.H.G.

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Correspondence to Benjamin H. Good .

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Extended data

Extended data fig. 1 examples of epistatic fitness landscapes that satisfy the minimal model in fig. 1 ..

( a ) The evolvability modifier in Fig. 1b can be viewed as the lowest order term in a general macroscopic epistasis expansion (left, SI Section 3.1 ). Different fitness landscapes can produce the same macroscopic behavior. ( b,c ) Examples of highly epistatic fitness landscapes that satisfy the simple model above. ( b ) A ‘maximally epistatic’ landscape of branching uphill paths, which generalizes the model in refs. 79 , 80 . Each step k = 1, …, K of a given path can access M ≪ L beneficial mutations; all other genotypes have fitness zero. ( c ) A fitness landscape formed by a non-linear combination of two global phenotypes, for example, stability, \(\Phi (\,{\overrightarrow{g}})\) , and activity, \(\Psi (\,{\overrightarrow{g}})\) . Individual mutations can affect both traits simultaneously (right). Stabilizing mutations can act like modifier alleles by potentiating the fitness benefits of mutations that would destabilize the protein on their own (left). In particular, a strongly stabilizing mutation can allow K ≈ ϕ m / ∣ ϕ ℓ ∣ new mutations to accumulate before their effects on stability become important. See SI Section 3.1 for more details.

Extended Data Fig. 2 Deleterious mutations and indirect selection for robustness.

(a) A generalization of the simplified model in Fig. 5a , where the modifier can also shift the typical fitness cost s d . (b, c) Fixation probability of a robustness-enhancing modifier with \({U}_{d}^{{\prime} } < {U}_{d}\) (and all other parameters are held fixed). Symbols denote the results of forward time simulations for N = 10 8 , s b = 10 −2 , and U b = 10 −5 , while solid lines denote our theoretical predictions in SI Section 6 . Panel (b) shows that the purgeable mutations approximation holds across a broad range of fitness costs, with the dashed line marking the predicted transition to quasi-neutrality ( ∣ s d ∣ ≈ v / x c ). Panel (c) shows that selection for increased robustness is relatively weak unless U d ≳ s b (dashed line). (d) Fixation probability of a modifier that imposes a tradeoff between robustness and evolvability by increasing the strength of selection on beneficial and deleterious mutations simultaneously. Results are shown for s b = ∣ s d ∣ = s and U d = 10 −2 , with the remaining parameters the same as panel b. Since U d ≫ U b , this example shows that strong selection for evolvability can occur for modifiers reduce the average fitness effect of mutations ( \(\Delta \overline{s}\propto {U}_{b}\Delta s-{U}_{d}\Delta s < 0\) ). (e) Fixation probability of modifier that enhances robustness and evolvability at the same, by shifting mutations from deleterious to beneficial \(({U}_{d}-{U}_{d}^{{\prime} }={U}_{b}^{{\prime} }-{U}_{b})\) . Symbols denote results of forward-time simulations with s d = − 10 −2 and U d = 10 −2 , with the remaining parameters the same as panel (b). Lines denote our theoretical predictions in the absence of deleterious mutations ( \({U}_{d}={U}_{d}^{{\prime} }=0\) ). This example shows that enhancements in evolvability are weighted more strongly than comparable increases in robustness, even when nearly all new mutations are deleterious ( U b ≪ U d ).

Source data

Extended data fig. 3 relaxing the assumption that modifiers permanently change the mutation spectrum..

An alternative version of the model in Fig. 5c , where the modifier reverts to an evolutionary dead-end ( μ m ( s ) = 0) after K mutations. Symbols denote the results of forward-time simulations for N = 10 8 , s b = 10 −2 , and U b = 10 −5 , while the line denotes our theoretical predictions for the minimal modifier model in Fig. 1b (that is K = ∞ ). Even in this extreme case, our minimal modifier model (solid line) remains highly accurate for moderate values of K , and as little as K = 1 in the quasi-sweeps regime. This demonstrates that large populations can only ‘see’ across the fitness landscape for \(\approx {x}_{cm}/{s}_{b}^{{\prime} }\) additional mutations (SI Section 7.2 ).

Extended Data Fig. 4 Selection for evolvability in the presence of diminishing returns epistasis.

(a, b) A simple model of global diminishing returns epistasis motivated by the empirical example in ref. 58 (SI Section 7.3 ). The fitness effects of new mutations shrink as the population adapts (panel a), leading to a decelerating rate of adaptation over time (panel b). Points denote the results of forward-time simulations for the distribution of fitness effects \(\mu (s|\overrightarrow{g})={U}_{b}\cdot \delta (s-{\tilde{s}}_{b}\cdot {e}^{-X(\overrightarrow{g})/\theta })\) , with U b = 10 −5 , \({\tilde{s}}_{b}=1{0}^{-1}\) , θ = 0.2, and N = 10 7 ; points are connected by solid lines to aid visualization. (c, d) The fixation probability of an evolvability modifier that arises at the beginning of the inset in panel a, where the fitness trajectory is still decelerating. Green symbols in ( c ) show a selection-strength modifier with the same diminishing returns schedule as the background population ( θ m ≈ θ ), while the blue symbols show an alternate example where the modifier avoids future diminishing returns once it arises ( θ m ≈ ∞ ). The green line illustrates the predictions from the ‘adiabatic’ approximation in SI Section 7.3 , demonstrating that the permanent modifier model [ \({\mu }_{m}(s|\overrightarrow{g})\approx {\mu }_{m}(s)\) ] provides a good approximation when the local selection strengths are properly renormalized. The blue line shows the predictions from our heuristic analysis in SI Section 7.3 , which accounts for the additional benefits that accrue for the modifier lineage when θ m ≫ θ (panel d). This example illustrates that the evolvability advantages that accrue from large differences in diminishing returns epistasis can drive modest deviations from our existing theory when θ grows close to x c .

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Ferrare, J.T., Good, B.H. Evolution of evolvability in rapidly adapting populations. Nat Ecol Evol (2024). https://doi.org/10.1038/s41559-024-02527-0

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Escaping the cohort of concern: in vitro experimental evidence supports non-mutagenicity of N -nitroso-hydrochlorothiazide

• Genotoxicity and Carcinogenicity
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• Published: 11 September 2024

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• R. D. Gandhi   ORCID: orcid.org/0000-0002-6697-5308 1 ,
• S. Hickert 2 ,
• Y. Hoevelmann 2 ,
• C. D. Mee 3 ,
• J. Schlingemann   ORCID: orcid.org/0000-0003-4799-1086 2 ,
• A. Adams 5 ,
• A. Blanazs   ORCID: orcid.org/0000-0001-9280-8469 5 ,
• S. Simon   ORCID: orcid.org/0000-0002-2497-5211 2 ,
• J. Elloway 1 ,
• L. Rigger   ORCID: orcid.org/0009-0006-4107-6046 4 ,
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• C. V. Beaumont   ORCID: orcid.org/0000-0002-6796-7449 1 ,
• L. Wright 6 &
• A. Doherty 1  

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In recent years, nitrosamine impurities in pharmaceuticals have been subject to intense regulatory scrutiny, with nitrosamine drug substance-related impurities (NDSRIs) treated as cohort of concern impurities, regardless of predicted mutagenic potential. Here, we describe a case study of the NDSRI N -nitroso-hydrochlorothiazide (NO-HCTZ), which was positive in the bacterial reverse mutation (Ames) test but is unstable under the test conditions, generating formaldehyde among other products. The mutagenic profile of NO-HCTZ was inconsistent with that expected of a mutagenic nitrosamine, exhibiting mutagenicity in the absence of metabolic activation, and instead aligned well with that of formaldehyde. To assess further, a modified Ames system including glutathione (3.3 mg/plate) to remove formaldehyde was developed. Strains used were S. typhimurium TA98, TA100, TA1535, and TA1537, and E. coli WP2 uvrA /pKM101. In this system, formaldehyde levels were considerably lower, with a concomitant increase in levels of S-(hydroxymethyl)glutathione (the adduct formed between glutathione and formaldehyde). Upon retesting NO-HCTZ in the modified system (1.6–5000 µg/plate), a clear decrease in the mutagenic response was observed in the strains in which NO-HCTZ was mutagenic in the original system (TA98, TA100, and WP2 uvrA /pKM101), indicating that formaldehyde drives the response, not NO-HCTZ. In strain TA1535, an increase in revertant colonies was observed in the modified system, likely due to a thiatriazine degradation product formed from NO-HCTZ under Ames test conditions. Overall, these data support a non-mutagenic designation for NO-HCTZ and demonstrate the value of further investigation when a positive Ames result does not align with the expected profile.

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Mutagenic Azido Impurities in Drug Substances: A Perspective

Genotoxic Impurities in Pharmaceuticals

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Introduction

Hydrochlorothiazide (HCTZ) is a thiazide-type diuretic medication approved in 1959 for the treatment of hypertension and oedema (Herman et al. 2024 ; Reynolds 1989 ; Rosendorff 2011 ). It is the most prescribed antihypertensive drug and used both as a single agent and in combination with other active pharmaceutical ingredients (APIs) such as beta blockers, angiotensin-converting enzyme (ACE) inhibitors, angiotensin II receptor blockers, calcium channel blocking agents, statins, and other diuretics. In 2019, it was reported to be the second most commonly prescribed drug (as part of a combination product) in the US with some 40 million prescriptions and close to 10 million patients (efpia 2022 ).

Developed in the 1950s, HCTZ (Fig.  1 a) is synthesised by either the reaction of paraformaldehyde with 5-chloro-2, 4-disulfamoylaniline in nonaqueous media, or the reaction of formaldehyde with 6-chloro-7-sulfamoyl-2H-1, 2, 4-benzothiadiazine-1, 1-dioxide in aqueous alkaline solution (Deppeler et al. 1981 ).

Chemical structures of a Hydrochlorothiazide (HCTZ), b N-nitroso-hydrochlorothiazide (NO-HCTZ), and the main degradation products of NO-HCTZ, which are c an aromatic amine (3, 2-amino-4-chloro-5-sulfamoylbenzenesulfonic acid; ABSA), d a thiatriazine and e formaldehyde (FA)

As part of the Article 5(3) risk process (EMA/CHMP 2020 ), a step 1 assessment concluded that there was a potential risk of formation of N -nitroso-hydrochlorothiazide (NO-HCTZ) (Fig.  1 b) in the formulated drug product as a result of nitrosation of HCTZ through interaction with traces of nitrite or other nitrosating agents in excipients, concerns relating primarily to the low pKa and anilinic nature of the secondary amine present within the molecule.

Analytical investigations conducted on solutions of HCTZ revealed a complex mixture of products (efpia 2022 ; Grahek et al. 2023 ) in addition to the expected nitroso derivative. While nitrosation was observed, yielding NO-HCTZ (Fig.  1 b), this was found to be intrinsically unstable under bio-relevant conditions, undergoing rapid degradation to yield three further species: an aromatic amine (2-amino-4-chloro-5-sulfamoylbenzenesulfonic acid; ABSA) (Fig.  1 c), a thiatriazine (Fig.  1 d), and formaldehyde (FA) (Fig.  1 e).

A simplified version of the proposed degradation sequence (Grahek et al. 2023 ) is shown in Fig.  2 .

Simplified degradation pathway of NO-HCTZ, showing the release of formaldehyde in the first steps of the sequence

NO-HCTZ was synthesised and tested for its mutagenic potential in a series of Bacterial Reverse Mutation (Ames) tests conducted across different laboratories (efpia 2022 ) before enhanced Ames test (EAT) guidance for nitrosamines became available (EMA 2023 ). Results showed a positive response with both rat and hamster S9 metabolising enzyme sources. However, a positive response was also seen in some strains without metabolic activation. This is not expected for a potent N-nitrosamine where the mechanism of toxicity is via formation of a reactive diazonium species following metabolic activation (Cross and Ponting 2021 ; Li et al. 2023 ; Li and Hecht 2022 ).

Standard mutagenic impurities in pharmaceuticals must be controlled according to the principles of ICH guideline M7(R2), with a lifetime acceptable intake (AI) limit of 1.5 µg/day based on the Threshold of Toxicological Concern (TTC). However, this guideline also describes the cohort of concern, comprising certain chemical classes including N -nitroso species, for which this TTC-based limit may not be conservative enough. In 2021, NO-HCTZ was widely considered a cohort of concern nitrosamine drug substance-related impurity (NDSRI) and assigned a default AI limit of 18 ng/day. This limit presented a considerable challenge from a manufacturing perspective and risked interruptions to the supply of HCTZ. Based on the observed instability of NO-HCTZ and the known genotoxicity of FA (Kawanishi et al. 2014 ; Takahashi et al. 1985 ), the aim of the present study was to investigate whether scavenging of FA resulting from NO-HCTZ could decrease the mutagenic response of NO-HCTZ in the Ames test. If the observed mutagenicity were demonstrated to be associated with FA and not the NO-HCTZ itself, it was thought that this may enable control of NO-HCTZ as a non-mutagenic impurity in line with ICH Q3B(R2) principles. This would increase the AI limit considerably from 18 ng/day which would alleviate the manufacturing challenge and maintain supply of HCTZ. Since then, the regulatory landscape has changed and from July 2023, following demonstrated non-mutagenicity of NO-HCTZ in in vivo testing, some health authorities (HAs) recognised NO-HCTZ as a non-mutagenic impurity. However, this is still not the case for all HAs.

Materials and methods

S9 incubations and subsequent lc-uv/ms analysis, chemicals and reagents.

All solvents used were of LC–MS grade quality, if not stated otherwise. Magnesium chloride hexahydrate, glucose 6-phosphate (G6P) disodium salt hydrate, glutathione, 37% formaldehyde solution, ammonium acetate, potassium chloride, dimethylformamide suitable for HPLC, dibasic sodium phosphate, acetonitrile, formic acid, 2,4-dinitrophenylhydrazine (DNPH) phosphoric acid solution, formaldehyde-DNPH solution, nicotinamide adenine dinucleotide phosphate (NADP) disodium salt, nutrient broth No.1 medium and sodium dihydrogen phosphate dihydrate were obtained from Merck. NO-HCTZ was synthesised as described in section S5. S9 fraction from phenobarbital/5,6-benzoflavone-induced hamster liver was purchased from Trinova Biochem (Giessen, Germany). The water used in this part of the study was prepared with a Milli-Q system (Q-POD). As a suitable reference standard was not commercially available for S‑(hydroxymethyl)glutathione, a standard serving for its qualitative identification in the incubation samples was prepared by adding an excess of formaldehyde to a glutathione standard solution applying a modified approach described in literature (Hopkinson et al. 2010 ).

S9 incubations

Preparation of the s9 mix.

The S9 mix was prepared immediately before use with final concentrations of 0.1 M phosphate buffer (pH 7.4), 8 mM MgCl 2 , 33 mM KCl, 4 mM NADP, 5 mM G6P and 10% (v/v) S9 fraction from phenobarbital/5,6-benzoflavone-induced hamster liver.

For the incubations with supplemented glutathione, appropriate aliquots of a glutathione stock solution prepared in phosphate buffer were administered by replacing the equivalent volume of phosphate buffer in the S9 mix.

The incubations samples for the − S9 conditions in the absence of the S9 mix were prepared solely in 0.1 M phosphate, with any required glutathione supplemented by replacing the respective volume of phosphate buffer with the glutathione stock solution.

Incubation procedure

500 µl of phenobarbital/5,6-benzoflavone-induced hamster S9 mix (+ S9 conditions) or 0.1 M phosphate buffer (− S9 conditions) containing either 0, 3.3, 6.7 or 10 mg glutathione were added to a centrifuge tube and mixed with 100 µl nutrient broth medium. After addition of 50 µl NO-HCTZ (100 mg/ml in dimethylformamide) and brief mixing, the samples were incubated at 37 °C and shaken at 500 rpm. After selected time points (0, 2, 10, 30, 60 min), the individual incubations were terminated by addition of 650 µl ice-cold acetonitrile and the tubes were shaken on a vortex shaker for a few seconds. The samples were subsequently centrifuged for 5 min at 15,000 g at room temperature, followed by LC-UV or LC–MS analysis of the obtained supernatant as described below.

Furthermore, appropriate chemical control samples for the + S9 and − S9 conditions were prepared. For that purpose, 500 µl of S9 mix or 0.1 M phosphate buffer supplemented with or without glutathione were mixed with 100 µl nutrient broth medium prior to addition of 50 µl dimethylformamide instead of NO-HCTZ. The subsequent incubations and treatments were carried out as described above, with the exception that only the incubation time points 0 min and 60 min were prepared for the individual chemical control samples.

LC-UV and LC–MS analysis

Lc-uv analysis of formaldehyde after derivatisation with 2,4-dinitrophenylhydrazine.

50 µl of the supernatant obtained after termination of the incubation and subsequent centrifugation were mixed with 945 µl acetonitrile and 5 µl of 2,4-dinitrophenylhydrazine phosphoric acid (0.2 M) for derivatisation. After brief shaking, the sample was diluted with 500 µl of water prior to LC-UV analysis according to the method details given in the Supplementary Material (Supplementary Table  1 ). Identification and assignment of the peak corresponding to formaldehyde-2,4-dinitrophenylhydrazine was performed based on comparison to a commercially obtained reference standard; an exemplary LC-UV chromatogram is shown in Supplementary Fig.  1 .

LC–MS analysis of S-(hydroxymethyl)glutathione and NO-HCTZ

20 µl of the supernatant obtained after termination of the incubation and subsequent centrifugation were diluted with 980 µl water followed by LC–MS analysis for S‑(hydroxymethyl)glutathione and NO-HCTZ using two separate LC–MS methods. All samples were analyzed for their levels of S‑(hydroxymethyl)glutathione, whereas only the incubation samples obtained after 0 min, 30 min and 60 min were subjected to LC–MS analysis for NO-HCTZ.

Details on the LC–MS conditions and exemplary chromatograms for the analysis of S‑(hydroxymethyl)glutathione are shown in the Supplementary Material (Supplementary Table  2 , Supplementary Fig.  2 , Supplementary Fig.  3 ). Identification and assignment of the peak corresponding to S‑(hydroxymethyl)glutathione in the incubation samples was carried out based on the respective m / z as well as comparison to a prepared qualitative reference standard.

The LC–MS method used for the detection of NO-HCTZ and an illustrative LC–MS chromatogram are shown in Supplementary Table  3 and Supplementary Fig.  4 , respectively. Identification and assignment of the peak corresponding to NO-HCTZ in the samples was performed based on comparison to the available reference standard.

Metabolic activation system

Experiments were conducted in either the presence of a metabolic activation system (S9 mix) (based on the livers of male Sprague–Dawley rats or male Syrian hamsters induced with either Aroclor 1254 or phenobarbital/5,6-benzoflavone), or in the absence of S9 mix (phosphate buffer pH 7.4). S9 fraction (purchased from Trinova Biochem (Giessen, Germany)) was diluted to 30 mg/ml protein with 0.1 mol/l phosphate buffer (pH 7.4) before incorporation into the S9 mix. The S9 fraction was thawed and complete activation systems (S9 mix) were prepared immediately before use. Final concentrations in S9 mix were: 100 mmol/l phosphate buffer (pH 7.4), 8 mmol/l magnesium chloride, 33 mmol/l potassium chloride, 4 mmol/l NADP, 5 mmol/l glucose-6-phosphate (G6P) and 10 % v/v of 30 mg/ml protein rat or hamster liver homogenate (S9 fraction).

Note that the inducing agent used (Aroclor 1254 or phenobarbital/5,6-benzoflavone) for the S9 fraction varied between experiments due to the discontinuation of S9 induced with Aroclor 1254 following the banning of Aroclor 1254 production. Within any given experiment that included both rat and hamster liver S9 mixes, the inducing agent was the same for both. All batches of rat liver S9 fraction (regardless of inducing agent) used in this work had metabolic capacity demonstrated by the supplier by key enzyme assays and the ability to activate reference agents to bacterial mutagens. All batches of hamster liver S9 fraction (regardless of inducing agent) were evaluated by the supplier for the ability to metabolise the standard reference oil HC235 to mutagenic intermediates. All batches of S9 fraction (for either species, regardless of inducing agent) were additionally tested in-house by the test facility using two promutagens, cyclophosphamide and benzo[a]pyrene, in strains TA1535 and TA98, respectively. The transition to S9 induced with phenobarbital/5,6-benzoflavone is supported by a body of research (Callander et al. 1995 ; Elliott et al. 1992 ; Paolini et al. 1991 ). The type of S9 used in any given experimental figure in this publication is described in the corresponding figure legend.

Bacterial strains

The bacterial strains used were Salmonella typhimurium LT2 strains TA1535, TA1537, TA98 and TA100, and Escherichia coli WP2 strain uvrA /pKM101 (referred to as WP2 uvrA /pKM101 hereafter). Further details are available in SI and Supplementary Table  8 .

Ames experimental conditions

Ames tests were conducted based on recommendations of the OECD 471 test guideline (OECD 2020 ) and using the pre-incubation test (pre-incubations were of 60 min duration at 37 °C in an orbital incubator set at 120 rpm) based on the methods of Maron and Ames ( 1983 ), Mortelmans and Riccio ( 2000 ), Mortelmans and Zeiger ( 2000 ) and Venitt et al ( 1984 ). Dosing was performed in ≤ 100 µl of solvent (water for FA and NDEA, DMF for NO-HCTZ). Further details are available in the supplementary information (chapter S9).

Analysis of formaldehyde and HM-GSH

Glutathione (GSH) is an uncommon tripeptide made from the amino acids glutamic acid, cysteine and glycine. It is an important antioxidant found in most eukaryotic and some prokaryotic cells. GSH reacts with FA to form S-(hydroxymethyl)glutathione (HM-GSH) (Fig.  3 ), leading to the depletion of free FA.

Glutathione (GSH) reacts with formaldehyde (FA) to form S-(hydroxymethyl)glutathione (HM-GSH)

Formaldehyde levels released from NO-HCTZ upon incubation under Ames-like conditions (see Materials & Methods / S9 Incubations & Subsequent LC-UV/MS Analysis) with addition of various glutathione levels were measured at different time points by HPLC–UV after DNPH-derivatisation.

As depicted in Fig.  4 a, formaldehyde levels are decreased with increasing glutathione supplementation, both with and without addition of S9 mix, and concomitant increase in HM-GSH (Fig.  4 b). However, there are still detectable amounts of formaldehyde present, even upon addition of 10 mg glutathione. For all glutathione levels, the measured signal increases over time. Initially (t0), measured formaldehyde levels are already quite high. NO-HCTZ degrades almost completely within 60 min both with and without addition of S9 mix and independent of the amount of GSH supplementation (Fig.  4 c).

Inclusion of GSH decreases formaldehyde levels and increases levels of HM-GSH. 5 mg NO-HCTZ in DMF was incubated with 100 µl of bacterial growth medium and 500 µl of 0.1 M phosphate buffer (− S9) or phenobarbital/5,6-benzoflavone-induced hamster liver S9 mix (+ S9). The indicated quanitities of GSH were included and reactions were incubated with shaking for the indicated time. Reactions were stopped and analysis performed for the indicated components. a Formaldehyde levels released from NO-HCTZ measured by HPLC–UV. b LC–MS analysis for levels of HM-GSH. c NO-HCTZ measured by LC–MS. The peak area was normalised to the one of the respective t  = 0 min sample of each supplementation series

Ames profile of NO-HCTZ aligns with formaldehyde

NO-HCTZ, formaldehyde and the thiatriazine product were all tested in Ames, with all three molecules exhibiting mutagenicity (Fig.  5 ). It was observed that the mutagenic profile of NO-HCTZ aligned well with that of formaldehyde, while the profile of the thiatriazine was distinct. NO-HCTZ displayed positive or borderline positive responses in strains TA98, TA100, and WP2 uvrA /pKM101, irrespective of metabolic activation. Formaldehyde was also positive in these same strains, irrespective of metabolic activation, with the exception of TA98 in the presence of Aroclor-induced rat liver S9 where a positive response was not observed. The thiatriazine was exclusively positive in strain TA1535, irrespective of metabolic activation, while NO-HCTZ and formaldehyde were both negative in this strain (Fig.  5 ). All three compounds were negative in strain TA1537 (data not shown).

Ames profiles of NO-HCTZ and formaldehyde align . NO-HCTZ, formaldehyde, and the thiatriazine were all tested in 5-strain Ames assays, employing a liquid-preincubation method (60 min at 37 °C) in the absence and presence of Aroclor-1254-induced rat or hamster liver S9 as indicated. The red dashed line indicates the mutagenic threshold. Error bars represent standard deviations across three technical replicates (color figure online)

Development of a modified Ames system to counteract the mutagenic response of formaldehyde

For method development work, strain TA100 was used in the presence and absence of rat liver S9. It was observed that the inclusion of glutathione in the pre-incubation mix did not markedly affect the vehicle control revertant count compared to the original Ames test system (Fig.  6 a). Formaldehyde treatment at 25 µg/plate produced a clear positive response in TA100 in the absence or presence of rat liver S9 (Fig.  6 b). However, the inclusion of glutathione in the pre-incubation mix, at all concentrations tested, decreased the response to below the mutagenic threshold. The addition of glutathione did not interfere with the mutagenic response imparted by the positive control promutagen 2-aminoanthracene, with a clear positive response observed. However, in the absence of rat liver S9, the mutagenic response of the positive control sodium azide decreased with addition of glutathione in a dose-dependent fashion.

Inclusion of GSH decreases FA-induced mutagenic effect in TA100. Ames assays were performed employing a liquid-preincubation method (60 min at 37 °C) in the absence and presence of Aroclor-1254-induced rat liver S9. GSH was either omitted (original system) or included in the pre-incubation mix at the indicated quantity. The red dashed line indicates the mutagenic threshold. Error bars represent standard deviations across three technical replicates. a Colony counts are shown for vehicle (water) treatments. b A single dose of formaldehyde was used (25 µg/plate) alongside positive controls (2-aminoanthracene in the presence of S9 or sodium azide in the absence of S9) (color figure online)

Having observed that the addition of glutathione did not negatively impact the Ames test system in the presence of rat liver S9, the test system was validated in all five strains in the presence of rat and hamster liver S9 using glutathione at 3.3 mg/plate. In strains for which formaldehyde produced a mutagenic response in the original test system, the inclusion of glutathione decreased the response to below the mutagenic threshold (Fig.  7 a). Vehicle treatments were comparable between the original and modified systems (Fig.  7 b). The positive control treatment (2-aminoanthracene) produced a clear positive response in both test systems (Fig.  7 c).

Validation of modified system in the presence of metabolic activation . Ames assays were performed employing a liquid-preincubation method (60 min at 37 °C) in the absence and presence of Aroclor-1254-induced rat or hamster liver S9. GSH was either omitted or included in the pre-incubation mix at 3.3 mg/plate. Under these conditions, treatments are shown for formaldehyde (FA) 25 µg/plate ( a ), vehicle (DMF) ( b ), and positive control 2-aminoanthracene (2AA) ( c ). The red dashed line indicates the mutagenic threshold. Error bars represent standard deviations across three technical replicates (color figure online)

A single dose level of NDEA (5 mg/plate) was tested in the original and modified system. In the presence of rat or hamster liver S9, a mutagenic response was detected in strains TA1535, TA100, and WP2 uvrA /pKM101 in the original system and the modified system (Fig. 8 a). As shown in Fig.  5 , the thiatriazine was uniquely positive in TA1535, irrespective of metabolic activation. When the thiatriazine was tested in TA1535 in the presence and absence of rat or hamster liver S9 in the original and modified system, a clear positive response was observed in both cases, irrespective of metabolic activation (Fig.  8 b).

The modified system reliably detects mutagenicity of NDEA and the thiatriazine. Ames assays were performed employing a liquid-preincubation method (60 min at 37 °C) in the absence and presence of phenobarbital/5,6-benzoflavone-induced rat or hamster liver S9. GSH was either omitted or included in the pre-incubation mix at 3.3 mg/plate. Under these conditions, treatments are shown for NDEA 5 mg/plate in all 5 tester strains ( a ) and for the thiatriazine in strain TA1535 only ( b ). The red dashed line indicates the mutagenic threshold. Error bars represent standard deviations across three technical replicates (color figure online)

Having observed a decrease in the mutagenic response of the positive control NaN 3 in strain TA100 in the presence of GSH to below the threefold increase in revertant colonies over concurrent vehicle treatment required for positive controls by the test facility (Fig.  6 b), the effect of GSH was investigated across all strains with a range of positive control compounds (Fig.  9 ). A decrease in mutagenic response caused by GSH was again observed in TA100 treated with NaN 3 as well as in WP2 uvrA /pKM101 treated with K 2 Cr 2 O 7 . Treatment of TA100 with MMS and WP2 uvrA /pKM101 with 4NQO led to clear mutagenic responses with and without GSH treatment. All positive control options tested in the remaining strains (TA98, TA1537, and TA1535) caused positive responses in the presence and absence of GSH. NaN 3 is the standard positive control used in the base-pair substitution detection strains TA1535 and TA100 (the latter strain being derived from the former). While inclusion of GSH decreased the mutagenic response of NaN 3 in TA100 to below the required threefold increase in revertants vs vehicle control for positive controls, this was not observed when treating TA1535 with NaN 3 .

Suitable positive control compounds identified for the modified system for all strains in the absence of metabolic activation. Ames assays were performed employing a liquid-preincubation method (60 min at 37 °C) in the absence of metabolic activation (S9 mix). Varying quantities of GSH (0, 3.3, or 6.7 mg/plate) were included in the pre-incubation mix. Under these conditions, treatments are shown for the indicated chemicals at the indicated doses. The red dashed line indicates the fold-change required of a positive control at the test facility to satisfy the criteria for test acceptance. Error bars represent standard deviations across three technical replicates

The mutagenic response of NO-HCTZ is decreased in the modified system

Having established the modified system which removes formaldehyde, NO-HCTZ was tested in Ames using both the original and modified test systems. While focussing on strains in which NO-HCTZ was positive in prior testing (Fig.  5 ), it was observed that the mutagenic response of NO-HCTZ was decreased in the modified system under all conditions tested (i.e. in the presence of rat or hamster liver S9, and in the absence of S9) (Fig.  10 ). The general mutagenic profile appears to shift to the right in the presence of GSH, indicating that a much higher dose (generally ten-fold higher) of NO-HCTZ is required to observe the same mutagenic response.

Inclusion of GSH in the Ames assay decreases the mutagenic effect of NO-HCTZ observed in the original Ames test system. Ames assays were performed employing a liquid-preincubation method (60 min at 37 °C) in the absence and presence of phenobarbital/5,6-benzoflavone-induced rat or hamster liver S9. GSH was included or excluded as indicated at 3.3 mg/plate in the pre-incubation mix. The red dashed line indicates the mutagenic threshold. Error bars represent standard deviations across three technical replicates (color figure online)

Mutagenic response observed when testing NO-HCTZ in the modified system in TA1535

As observed previously (Fig.  5 ), no positive response is detected in strain TA1535 in the absence or presence of rat or hamster liver S9 for NO-HCTZ in the original Ames test system (Fig. 11 ). Cytotoxicity was observed at the top two dose levels (1600 and 5000 µg/plate) in the form of dramatically reduced colony numbers. In the presence of glutathione, however, a clear positive response is observed in the absence and presence of rat or hamster S9, with the increase in revertants above the mutagenic threshold at 1600 µg/plate. At the top dose of 5000 µg/plate, cytotoxicity is observed.

We have demonstrated that the mutagenic response of NO-HCTZ is due to formaldehyde generation under Ames test conditions and have validated a modified version of the Ames test system in which inclusion of glutathione counteracts formaldehyde-induced mutagenic response (Fig.  10 ) by decreasing formaldehyde levels via formation of HM-GSH in a concentration-dependent manner (Fig.  3 , Fig.  4 ). In this modified system, the mutagenic response of the nitrosamine positive control NDEA was sustained (Fig.  8 a). Formaldehyde is known to form from incubation of NO-HCTZ under Ames test conditions (efpia 2022 ; Grahek et al. 2023 ). When NO-HCTZ was tested in the modified Ames system including glutathione, a clear reduction in the mutagenic response was observed in the relevant strains (Fig.  10 ). This provides strong evidence that the mutagenic effect imparted by NO-HCTZ is attributable to the formaldehyde rather than NO-HCTZ itself via metabolism to a diazonium species. This aligns with Grahek et al.’s work (Grahek et al. 2023 ) that demonstrated that the corresponding diazonium ion of NO-HCTZ cannot form under physiological conditions, and is in agreement with the finding that NO-HCTZ is non-mutagenic following a negative in vivo mutation assay (EMA 2024a ).

While formaldehyde generated from NO-HCTZ does lead to a mutagenic response in the Ames test, this is not relevant in the context of safety assessment of mutagenic impurities in pharmaceuticals and controlling to levels below the TTC-based lifetime AI of 1.5 µg/day. As stated in ICH M7(R2) addendum (ICH 2023 ), “Formaldehyde exposure occurs in air, water, and food, and it is a common endogenous component of biological materials and is a naturally occurring component of many foods such as meat, dairy products, fruit and vegetables. Levels of daily exposure to formaldehyde via the dietary route have been estimated in the range of 1.5–119 mg/day. Formaldehyde is also a product of normal human metabolism and is essential for the biosynthesis of certain amino acids. The human body produces and uses 53–92 g (878–1210 mg/kg b.w./day for a 60–70 kg person) of formaldehyde per day, which is rapidly metabolized and cleared from blood plasma.” The calculated lifetime acceptable intake (AI) specified in the ICH M7(R2) addendum is 8 mg/day by inhalation and 10 mg/day by all other routes, well above the lifetime AI by TTC of 1.5 µg/day.

A primary aromatic amine (ABSA) results from incubation of NO-HCTZ under conditions of the Ames test (Fig.  2 ). Since primary aromatic amines as a class carry a high mutagenic risk via metabolic activation to form a nitrenium ion (Ford and Griffin 1992 ; Kim and Guengerich 2005 ), it was considered that this molecule could be contributing to the positive Ames result observed for NO-HCTZ. However, given that the NO-HCTZ mutagenic response is observed independently of metabolic activation, while primary aromatic amines require metabolic activation to form the reactive nitrenium species (Kim and Guengerich 2005 ), this molecule is not considered to be contributing to the mutagenic effect observed.

The NO-HCTZ mutagenic response observed uniquely in the modified system in TA1535 (Fig.  11 ) is considered to be due to the thiatriazine. Since NO-HCTZ yields both thiatriazine (shown to be positive in TA1535 (Fig.  5 )) and formaldehyde under Ames test conditions, we hypothesise that, in the original test system (Fig.  5 ), excessive cytotoxicity imparted by formaldehyde “masked” any effect of the thiatriazine in the system. In contrast, the scavenging of formaldehyde by glutathione in the modified system decreases the cytotoxic effect of formaldehyde, effectively “unmasking” the mutagenic effect of thiatriazine in TA1535. Nonetheless, the possible formation of thiatriazine from the NO-HCTZ is not thought to constitute a mutagenic risk in vivo given the negative result obtained when NO-HCTZ was tested in an in vivo mutagenicity study (EMA 2024a ).

Inclusion of GSH in the Ames assay leads to a mutagenic response in TA1535 which is not observed in the original Ames test system. Ames assays were performed employing a liquid-preincubation method (60 min at 37 °C) in the absence and presence of phenobarbital/5,6-benzoflavone-induced rat or hamster liver S9. GSH was included or excluded as indicated at 3.3 mg/plate in the pre-incubation mix. The red dashed line indicates the mutagenic threshold. Error bars represent standard deviations across three technical replicates (color figure online)

In addition to testing NO-HCTZ in the modified Ames system which includes 3.3 mg/plate of GSH (in the presence and absence of phenobarbital/5,6-benzoflavone-induced rat or hamster liver S9 mix), a test was also performed using 6.7 mg/plate of GSH only in the presence of phenobarbital/5,6-benzoflavone-induced rat and hamster liver S9 mix (Supplementary Fig.  6 ). Under these conditions, a greater mutagenic response was observed in WP2 uvrA /pKM101 with the addition of 6.7 mg compared to the original system. In all four other strains, results were unchanged between using GSH at 3.3 mg or 6.7 mg. It is unclear why this effect was observed in WP2 uvrA /pKM101. The Ames test in the absence of S9 (performed later) was conducted solely with 3.3 mg of GSH. This choice was made on the basis that, although measured FA levels were further decreased by inclusion of 6.7 mg GSH vs 3.3 mg GSH (Fig.  3 ), there was no difference observed in the decrease of mutagenic response when using 3.3 or 6.7 mg GSH in TA100 treated with pure FA (Fig.  6 ) nor in strains TA100 or TA98 treated with NO-HCTZ (Supplementary Fig.  6 ). The profile of TA1535 treated with NO-HCTZ was also unchanged between inclusion of GSH at 3.3 mg and 6.7 mg. For this reason, 3.3 mg of GSH was thought to represent the best balance of decreasing the mutagenic effect of FA while minimising the risk of introducing unintended changes to the Ames test system.

Not all nitrosamine molecules are mutagenic carcinogens, and those that are occupy a broad range of potencies (Cross and Ponting 2021 ). Significant ongoing work on structure–activity relationship (SAR) has identified a range of properties that modulate the carcinogenic potency of a nitrosamine, and has been adopted in the Carcinogenic Potency Categorisation Approach (CPCA) introduced in July 2023, e.g. in revision 16 of the EMA Q&A for marketing authorisation holders (EMA 2024b ). Many structural features can vastly decrease the likelihood of a nitrosamine to undergo the same metabolic activation pathway to form a DNA-reactive diazonium ion as a small, dialkyl potently carcinogenic nitrosamine e.g., NDMA. These factors can be particularly relevant for NDSRIs, given their structural diversity and relative bulk. In the case of NO-HCTZ, the Ames-positive profile did not align with what would be expected of a nitrosamine that is mutagenic via metabolic activation to a diazonium ion. Furthermore, experiments performed by Grahek et al. ( 2023 ) demonstrate that the corresponding diazonium species of NO-HCTZ cannot form under physiological conditions. Taken together, NO-HCTZ is a prime example to demonstrate the utility of further investigation when an Ames test profile of a positive result (e.g., strain specificity and metabolic activation conditions) does not fit with the expected mechanism for the molecule in question.

To conclude, work presented here clearly demonstrates that the positive Ames result observed with NO-HCTZ is due to formaldehyde and not NO-HCTZ. This conclusion is supported by the inability of the corresponding diazonium species to form under physiological conditions (Grahek et al. 2023 ) and the negative result obtained in an in vivo mutagenicity assay (EMA 2024a ). At the time of writing, multiple Health Authorities (HAs), including the EMA and Health Canada, have explicitly recognised NO-HCTZ as a non-mutagenic impurity, allowing control to ICH Q3B limits (EMA 2024a ; Health Canada 2024 ). Others, including the US FDA, currently default to a CPCA-based limit of 1.5 µg/day. It is proposed that any HAs not recognising NO-HCTZ as non-mutagenic consider reviewing this position in light of the data presented here.

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Acknowledgements

We thank Mechthild Wissing (Merck KGaA, Darmstadt, Germany) for assistance with HPLC measurements of FA; Emma Goodhead, Sarah Pickering, and Emily Pass (Gentronix Ltd, UK) for their excellent technical support.

This research did not receive any specific grant from funding agencies in the public, commercial, or not-for-profit sectors.

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RDG: conceptualization, methodology, writing—original draft, writing—review and editing, visualization, formal analysis, supervision; SH: conceptualization of analytical methodologies, data interpretation, writing—original draft, writing—review and editing; YH: conceptualization and execution of analytical experiments, data interpretation, writing—original draft, writing—review and editing; CDM: investigation, validation, writing—original draft; JS: conceptualization, visualization, writing—original draft, writing—review and editing; AA: resources, writing—original draft; AB: resources, writing—original draft; SS: investigation, formal analysis, writing—original draft; JE: conceptualization, methodology, writing—review and editing; LR: resources, writing—original draft; AT: conceptualization, writing—original draft; CVB: writing—review and editing; LW: writing—review and editing; AD: conceptualization, writing—review and editing, funding acquisition.

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Gandhi, R.D., Hickert, S., Hoevelmann, Y. et al. Escaping the cohort of concern: in vitro experimental evidence supports non-mutagenicity of N -nitroso-hydrochlorothiazide. Arch Toxicol (2024). https://doi.org/10.1007/s00204-024-03859-3

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

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We, the National Marine Fisheries Service (NMFS), designate and authorize the release of a nonessential experimental population of Upper Columbia River (UCR) spring-run Chinook salmon ( Oncorhynchus tshawytscha ) under section 10(j) of the Endangered Species Act (ESA) in the Okanogan River subbasin, and establish a limited set of take prohibitions for the nonessential experimental population under section 4(d) of the ESA. Successful reintroduction of a population within the species' historic range would contribute to its viability and further its conservation. The issuance of limited protective regulations will provide for the conservation of the species while providing assurances to people in the Okanogan River subbasin. The geographic boundary for the NEP is the main stem and all tributaries of the Okanogan River between the Canada-United States border and to the confluence of the Okanogan River with the Columbia River, Washington (hereafter “Okanogan River NEP Area”). We have prepared a Final Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) on the proposed action under ( print page 40005) the National Environmental Policy Act (NEPA) (see ADDRESSES: section below).

The final rule is effective August 11, 2014.

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

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

The UCR spring-run Chinook Salmon evolutionarily significant unit (ESU) is listed as an endangered species under the ESA ( 16 USC 1531 et seq. ). We first designated the UCR spring-run Chinook Salmon ESU as endangered on March 24, 1999 ( 64 FR 14308 ), reaffirmed this status on June 28, 2005 ( 70 FR 37160 ), and maintained its endangered status after the ESU's 5-year review ( 76 FR 50448 , August 15, 2011). Section 9 of the ESA prohibits the “take” of UCR spring-run Chinook salmon unless otherwise authorized.

The listed ESU currently includes all naturally spawned populations of spring-run Chinook salmon in accessible reaches of Columbia River tributaries between Rock Island and Chief Joseph Dams, excluding the Okanogan River. The Okanogan River is a major tributary of the upper Columbia River, entering the Columbia River between Wells and Chief Joseph Dams. The majority of the Okanogan River subbasin is in Canada (74 percent) with the remainder in Washington State (26 percent). Listed UCR spring-run Chinook salmon from this ESU currently spawn in three river subbasins in eastern Washington: the Methow, Entiat, and Wenatchee. A fourth population historically inhabited the Okanogan River subbasin, but was extirpated in the 1930s because of overfishing, hydropower development, and habitat degradation (NMFS, 2007). The listed UCR Spring-run Chinook Salmon ESU also includes six artificial propagation programs: the Twisp River, Chewuch River, Methow Composite, Winthrop National Fish Hatchery, Chiwawa River, and White River spring Chinook salmon hatchery programs.

On November 22, 2010, we received a letter from the Confederated Tribes of the Colville Reservation (CTCR)), a federally recognized Native American tribe, requesting that we authorize the release of an experimental population of spring-run Chinook salmon in the Okanogan River subbasin under section 10(j) of the ESA. The CTCR also initiated discussions on this topic with the United States Fish and Wildlife Service (USFWS), the Bonneville Power Administration, the Army Corps of Engineers, the Bureau of Reclamation, the Washington Department of Fish and Wildlife, and the Okanagan Nations Alliance of Canada. The CTCR's request included a large amount of information on the biology of UCR spring-run Chinook salmon, the possible management implications of releasing an experimental population in the Okanogan River subbasin, and the expected benefits to the recovery of the listed UCR Spring-run Chinook Salmon ESU. On October 24, 2013 we published a proposed rule to designate a nonessential experimental population of spring-run Chinook salmon in the Okanogan River subbasin ( 78 FR 63439 ).

Under section 10(j) of the ESA, the Secretary of Commerce (Secretary) may authorize the release of an “experimental” population of a listed species outside its current range when the release of the experimental population will further the conservation of the listed species. The population is experimental under section 10(j) at times when it is wholly separate geographically from nonexperimental populations. In order to authorize the release of an experimental population, section 10(j) also requires that the Secretary determine, using the best available information, whether the experimental population is “essential” or “nonessential” to the continued existence of the listed species. Section 10(j) allows that an experimental population deemed “nonessential” is treated as a species proposed for listing during interagency consultations under section 7 of the Act, requiring federal agencies to confer (rather than consult) with NMFS on actions that are likely to adversely affect the experimental population (except when the population occurs in an area within the National Wildlife Refuge System or the National Park System, where the ESA requires the population be treated as a threatened species). With respect to the ESA's take prohibitions, section 10(j) treats experimental populations as threatened species, authorizing NMFS to issue regulations governing the application of the ESA's prohibition against take of listed species.

This action involves the designation of a NEP of UCR spring-run Chinook salmon in the Okanogan River subbasin. The release of this NEP of UCR spring-run Chinook salmon in the Okanogan River NEP Area would further the conservation of UCR spring-run Chinook salmon by potentially establishing a fourth population in the species' historic range, contributing to the viability of the ESU. Fish used for the reintroduction would come from the Methow Composite hatchery program located at Winthrop National Fish Hatchery. The Methow River population of these fish is included in the UCR Spring-run Chinook Salmon ESU and has the best chance to survive and adapt to conditions in the Okanogan River subbasin because they most closely resemble the genetic and life-history characteristics of the UCR spring-run Chinook salmon population that historically inhabited the Okanogan River subbasin (Jones et al., 2011). Fish from the NEP are expected to remain geographically separate from the UCR Spring-run Chinook Salmon ESU during the life stages in which they remain in, or return to, the Okanogan River; the experimental designation will not apply at any time when members of the NEP are downstream of the confluence of the Okanogan River with the Columbia River. This experimental population release is being implemented as recommended in the Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan (NMFS, 2007), while at the same time ensuring that the reintroduction does not impose undue regulatory restrictions on landowners and third parties.

The geographic boundary defining the Okanogan River NEP Area for UCR spring-run Chinook salmon is the mainstem and all tributaries of the Okanogan River between the Canada-United States border to the confluence of the Okanogan River with the Columbia River. All UCR spring-run Chinook salmon in this defined Okanogan River NEP Area are considered part of the NEP, irrespective of their origin. Conversely, when UCR spring-run Chinook salmon are located outside this defined Okanogan River NEP Area, they are not considered part of the NEP.

In this action, we are designating an experimental population that is geographically separate from the nonexperimental ESA-listed UCR population, as spring-run Chinook salmon are currently extirpated in the Okanogan River subbasin. This designation is expected to reduce the species' overall extinction risk from natural and anthropogenic factors by increasing its abundance, productivity, spatial structure, and diversity within ( print page 40006) the Upper Columbia River. These expected improvements in the overall viability of UCR spring-run Chinook salmon, in addition to other actions being implemented throughout the Columbia River migration corridor, will contribute to the species near-term viability and recovery, either minimally if an Okanogan population does not establish itself, or significantly if it does. The NEP will be geographically separated from the larger ESU of UCR spring-run Chinook salmon while in the Okanogan River subbasin, but will intermingle with other Chinook salmon populations as they travel downstream of the NEP area, while in the ocean, and on part of their upstream spawning migration. The “experimental” population designation is geographically based and does not travel with the fish outside the Okanogan River NEP Area.

This final rule establishes legal authority under section 10(j) of the ESA for an experimental population of UCR spring-run Chinook salmon in the Okanogan River basin. The rule also provides protective regulations under section 4(d) deemed necessary and advisable to conserve the experimental population. We, in close coordination with tribal, state and federal comanagers, are committed to completing review of the Hatchery Genetic Management Plans associated with the broodstock-collection, fish-transfer, and fish-release activities required to support this reintroduction effort.

To assist in the development of the Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan (hereinafter called the recovery plan), we assembled the Interior Columbia Technical Recovery Team (ICTRT) to identify population structure and recovery goals. The recovery plan subsequently adopted the ICTRT recovery goals as delisting criteria for the UCR spring-run Chinook Salmon ESU.

The ICTRT recommended specific abundance and productivity goals for each population in the UCR Spring-run Chinook Salmon ESU. The team also identified the current risk level of each population based on the gap between recent abundance and productivity and the desired recovery goals. The ICTRT (2008) considered all three extant natural populations (Methow, Entiat, and Wenatchee) to be at high risk of extinction based on their current abundance and productivity levels. The ICTRT also recommended spatial structure and diversity metrics for these populations (ICTRT, 2007). Spatial structure refers to the geographic distribution of a population and the processes that affect the distribution. Populations with restricted distribution and few spawning areas are at a higher risk of extinction from catastrophic environmental events (e.g., a single landslide) than are populations with more widespread and complex spatial structure. A population with complex spatial structure typically has multiple spawning areas containing the expression of diverse life-history characteristics. Diversity is the phenotypic (morphology, behavior, and life-history traits) and genotypic (DNA) characteristics within and between populations. Phenotypic diversity allows more diverse populations to use a wider array of environments and protects populations against short-term temporal and spatial environmental changes. Genotypic diversity, on the other hand, provides populations with the ability to survive long-term changes in the environment by providing genetic variations that may prove successful under different situations. It is the combination of phenotypic and genotypic diversity expressed in a natural setting that provides populations with the ability to utilize the full range of habitat and environmental conditions and to have the resiliency to survive and adapt to long-term changes in the environment. The mixing of hatchery fish (or excessive numbers of out-of-basin stocks) with naturally produced fish on spawning grounds can decrease genetic diversity within a population (NMFS, 2007). The ICTRT (2008) also determined that all three extant populations of this ESU are at high risk of extinction based on their current lack of spatial structure and diversity.

The recovery plan identifies re-establishment of a population in the Okanogan River subbasin as a recovery action (NMFS, 2007). More specifically, the recovery plan explains that re-establishment of a spring-run Chinook salmon population in the Okanogan River subbasin would aid recovery of this ESU by increasing abundance, productivity, spatial structure, and diversity, thereby reducing the risk of extinction to the ESU as a whole. The recovery plan establishes a framework for accomplishing restoration goals for the Okanogan River subbasin including restoring connectivity throughout their historic range where feasible and practical. Short- and long-term actions will protect riparian habitat along spawning and rearing streams and establish, restore, and protect stream flows suitable for spawning, rearing, and migration. In addition, water quality will be protected and restored where feasible and practical. In the mainstem Columbia River, implementation of the Federal Columbia River Power System (FCRPS) ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010) provides a number of new actions and continuation of existing programs that will likely continue to increase passage survival through the Columbia River mainstem passage corridor.

The ESA provides that species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 ( 16 U.S.C. 1538 ) and the consultation requirements of section 7 ( 16 U.S.C. 1536 ). Section 9 of the ESA prohibits the take of an endangered species. The term “take” is defined by the ESA as “to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct” ( 16 U.S.C. 1532(19) ). Section 7 of the ESA provides procedures for federal interagency cooperation and consultation to conserve federally listed species, ensure their survival, help in recovery of these species, and protect designated critical habitat necessary for the survival of the listed species. It also mandates that all federal agencies determine how to use their existing authorities to further the purposes of the ESA to aid in recovering listed species. In addition, ESA section 7 requires that federal agencies will, in consultation with NMFS, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species, or result in the destruction or adverse modification of designated critical habitat. Section 7 of the ESA does not apply to activities undertaken on private land unless they are authorized, funded, or carried out by a federal agency.

As noted above, for the purposes of section 7 of the ESA, section 10(j) requires that we treat NEPs as a species proposed to be listed, unless they are located within a National Wildlife Refuge or National Park, in which case they are treated as threatened, and section 7 consultation requirements apply. When NEPs are located outside a National Wildlife Refuge or National Park, only two provisions of section 7 apply—section 7(a)(1) and section 7(a)(4). In these instances, NEP designations provide additional flexibility in developing conservation and management measures by allowing us to work with the action agency early to develop conservation measures, instead of analyzing an already well-developed proposed action provided by ( print page 40007) the agency under the framework of a section 7(a)(2) consultation. Additionally, for populations of listed species that are designated as nonessential, section 7(a)(4) of the ESA only requires that federal agencies confer (rather than consult) with us on actions that are likely to jeopardize the continued existence of a species proposed to be listed. These conferences are advisory in nature, and their findings do not restrict agencies from carrying out, funding, or authorizing activities.

For endangered species, section 9 of the ESA automatically prohibits take. For threatened species, the ESA does not automatically extend the Section 9 take prohibitions, but instead authorizes the agency to adopt regulations it deems necessary and advisable for species conservation, including prohibiting take under section 4(d). Where we designate an experimental population of an endangered species, the automatic take prohibition no longer applies; however, because the experimental population is treated as a separate threatened species, we can issue protective 4(d) regulations for that population as we deem necessary and advisable for the conservation of the population. Such regulations may include take prohibitions.

The USFWS has regulations for experimental population designation, 50 CFR 17.80 through 17.84 , that provide definitions, considerations in finding that the designation would further the conservation of the species and information to be included in the designation. These regulations state that, in making the determination that the designation would further the conservation of the species, the Secretary must consider the effect of taking the eggs or young from another population, the likelihood that the experimental population will become established, the effect the designation would have on the species' overall recovery, and the extent to which the experimental population would be affected by activities in the area. Under the USFWS regulations, a regulation designating the experimental population must include: A clear means to identify the experimental population; a finding based on the best available science indicating whether the population is essential to the continued existence of the species; management restrictions, protective measures, or other management concerns; and a periodic review of the success of the release and its effect on the conservation and recovery of the species. The USFWS regulations also state that any experimental population shall be treated as threatened for purposes of establishing protective regulations under ESA section 4(d), and the protective regulations for the experimental population will contain applicable prohibitions and exceptions for that population.

The USFWS implementing regulations contain the following specific provisions:

The USFWS regulations define an essential experimental population as one “whose loss would be likely to appreciably reduce the likelihood of the survival of the species in the wild” ( 50 CFR 17.80(b) ). All other experimental populations are classified as nonessential ( 50 CFR 17.81(f) ). This definition was directly derived from the legislative history to the ESA amendments that created section 10(j).

In determining whether the experimental population will further the conservation of the species, the USFWS regulations require the agency to consider: (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere, (2) the likelihood that any such experimental population will become established and survive in the foreseeable future, (3) the relative effects that establishment of an experimental population will have on the recovery of the species, and (4) the extent to which the introduced population may be affected by existing or anticipated federal or state actions or private activities within or adjacent to the experimental population area ( 50 CFR 17.81(b) ).

USFWS regulations at 50 CFR 17.81(c) also describe four components that will be provided in any regulations promulgated with regard to an experimental population under section 10(j). The components are: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s), (2) a finding of whether the experimental population is, or is not, essential to the continued existence of the species in the wild, (3) management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and/or contain the experimental population designated in the regulation from natural populations, and (4) a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species.

We have not promulgated regulations implementing section 10(j) of the ESA, and have authorized only two experimental populations to date ( 78 FR 2893 , January 15, 2013; 78 FR 79622 , December 31, 2013). The USFWS has authorized many experimental populations. While USFWS' regulations do not apply to NMFS' 10(j) authorizations, they can help inform our authorization process and we use them to do so. We considered the factors identified in the USFWS regulations in the course of making the statutorily mandated determinations found in ESA section 10(j). To summarize, the statute requires that we determine: (1) Whether the release will further the conservation of the species, and (2) whether the population is essential or nonessential. In addition, because section 10(j) provides that the population will only be experimental when and at such times as it is wholly separate geographically from nonexperimental populations of the same species, we must establish that there are such times and places when the experimental population is wholly geographically separate. Similarly, the regulations require that we identify the experimental population; the legislative history indicates that the purpose of this requirement is to provide notice as to which populations of listed species are experimental (See, Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep No. 97-835, at 15 (1982)).

UCR spring-run Chinook salmon are anadromous fish that migrate as adults from the ocean in the spring to spawn in freshwater streams where their offspring hatch and rear prior to migrating back to the ocean to forage until maturity. At spawning, adults pair to lay and fertilize thousands of eggs in freshwater gravel nests or “redds” excavated by females. Depending on temperatures, eggs incubate for several weeks to months before hatching as “alevins” (a larval life stage dependent on food stored in a yolk sac). Following yolk sac absorption, alevins emerge from the gravel as young juveniles called “fry” and begin actively feeding. UCR spring-run Chinook salmon juveniles spend a year in freshwater areas before migrating to the ocean. The physiological and behavioral changes required for the transition to salt water result in a distinct “smolt” stage. On their journey juveniles migrate downstream through a riverine and ( print page 40008) estuarine corridor between their natal lake or stream and the ocean.

After two to three years in the ocean, adult UCR spring-run Chinook salmon begin returning from the ocean in the early spring, with the run into the Columbia River peaking in mid-May (NMFS, 2007). Spring-run Chinook salmon enter the upper Columbia River tributaries from April through July. After migration, they hold in these tributaries until spawning occurs in the late summer, peaking in mid-to-late August.

On March 18, 2010, we announced the initiation of 5-year status reviews for 16 ESUs of Pacific salmon including the UCR Spring-run Chinook Salmon ESU ( 75 FR 13082 ). As part of this review, our Northwest Fisheries Science Center compiled and issued a report on the newest scientific information on the viability of this ESU. The report states,

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

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

The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provide pursuant to this [Act] are no longer necessary.” The factors we considered in determining if release of an experimental population in the Okanogan River NEP Area would “further the conservation” of UCR spring-run Chinook salmon included the potential impacts to the ESU posed by the release, the likelihood that the experimental population would become established and self-sustaining, and the extent to which a self-sustaining experimental population would reduce the threats to the ESU's viability. The USFWS regulations suggest considering whether the experimental population would be affected by other state- or federally-approved actions in the area. This last factor may not be subject to precise evaluation, but, where possible, we took into account all factors such as other approved actions that affect whether a population could become established and self-sustaining.

The Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan contains specific management strategies for recovering UCR spring-run Chinook salmon that include securing existing populations and reintroducing spring-run Chinook salmon into historically occupied habitats in the Okanogan River subbasin. The plan concludes, and we continue to agree, that establishing an experimental population of UCR spring-run Chinook salmon in the Okanogan River subbasin is expected to reduce the species' overall extinction risk from natural and anthropogenic factors by increasing its abundance, productivity, spatial structure, and diversity within the Upper Columbia River. These expected improvements in the overall viability of UCR spring-run Chinook salmon, in addition to other actions being implemented throughout the Columbia River migration corridor, will contribute to the species near-term viability and recovery.

To ensure the best chance for a successful reintroduction, we first determined the most appropriate source of broodstock within the UCR Spring-run Chinook Salmon ESU and the availability of that source. Reintroduction efforts have the best chance for success when the donor population has life history characteristics and genetic diversity compatible with the anticipated environmental conditions of the habitat into which fish will be reintroduced (Araki et al., 2008). Populations found in watersheds closest to the reintroduction area are most likely to have adaptive traits that will lead to a successful reintroduction, and therefore only spring-run Chinook salmon populations found in the Upper Columbia River subbasin were considered for establishing the experimental population in the Okanogan River NEP Area.

The listed UCR Spring-run Chinook Salmon ESU includes six artificial propagation programs: The Twisp River, Chewuch River, Methow Composite, Winthrop National Fish Hatchery, Chiwawa River, and White River. We evaluated the fish propagated by each of these programs for their potential to support a re-introduced population in the Okanogan River subbasin. We concluded that fish produced from the Methow Composite stock of UCR spring-run Chinook salmon at Winthrop National Fish Hatchery are likely the most similar to the extirpated Okanogan spring-run Chinook salmon and represent the best initial source of individuals to establish an experimental population of UCR spring-run Chinook salmon in the Okanogan River. Because the Methow Composite stock of UCR spring-run Chinook salmon are from the neighboring Methow River subbasin and have evolved in an environment similar to that of the Okanogan River subbasin, they are likely to be more genetically similar to the extirpated Okanogan spring-run Chinook salmon population than spring-run Chinook salmon populations from the more distant Entiat and Wenatchee River subbasins. For the past several years, enough adult salmon from the Methow Composite hatchery program have returned to the Methow subbasin to provide enough excess eggs and sperm to begin raising fish for reintroduction into the Okanogan River NEP Area.

We also considered the suitability of available habitat in the Okanogan River subbasin to support the experimental population in the foreseeable future. The Columbia basin as a whole is estimated to have supported pre-development spring-run Chinook salmon returns as large as 588,000 fish (Chapman, 1986). Historically, the UCR Spring-run Chinook Salmon ESU component of the Columbia basin is estimated to have comprised up to 68,900 fish (Mullan, 1987; UCSRB, 2007). It is estimated that before the 1930s, the Okanogan population of the UCR Spring-run Chinook Salmon ESU contained at least 500 spring-run Chinook salmon (NMFS, 2007).

While the historical population of spring-run Chinook salmon in the Okanogan River subbasin has been extirpated, the potential remains to reestablish a population in this area. Over the past century, overfishing, hydropower development, and local habitat degradation have severely impacted ecosystem features and processes in the Okanogan and other subbasins, creating a fragmented mixture of altered or barren fish and wildlife habitats and eradicating UCR spring-run Chinook salmon from the Okanogan River subbasin. Disruptions ( print page 40009) in the hydrologic system have resulted in widespread loss of migratory corridors and access to productive habitat (CTCR, 2007). Low base stream flow and warm summer water temperatures have limited salmonid production both currently and historically. Stream flow and fish passage within the Okanogan River subbasin are affected by a series of dams and water diversions. However, the Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan estimates that the Okanogan River subbasin continues to have the capacity for at least 500 spring-run Chinook salmon (NMFS, 2007).

The recovery plan establishes a framework for accomplishing restoration goals for the Okanogan River subbasin including restoring connectivity throughout their historic range where feasible and practical. Short- and long-term actions will protect riparian habitat along spawning and rearing streams and establish, restore, and protect stream flows suitable for spawning, rearing, and migration. In addition, water quality will be protected and restored where feasible and practical. In the mainstem Columbia River, implementation of the FCRPS ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010) provides a number of new actions and continuation of existing programs that will likely continue to increase passage survival through the Columbia River mainstem passage corridor. The implementation of these actions continues to improve habitat conditions in the Okanogan River NEP Area to support reestablishing a potential fourth independent population of UCR spring-run Chinook salmon. Salmon Creek and Omak Creek offer the best habitat conditions for spawning and rearing in the subbasin, and major efforts by the CTCR are underway to restore tributary habitat for spring-run Chinook salmon in both the United States and Canadian portions of the Okanogan River subbasin.

In addition to actions taken under the recovery plan, there are many federal and state laws and regulations that will also help ensure the establishment and survival of the experimental population by protecting aquatic and riparian habitat. Section 404 of the Clean Water Act (CWA) ( 33 U.S.C. 1344 ) requires permits from the United States Army Corps of Engineers (Corps) before dredge or fill material can be discharged into waters of the United States. The dredge and fill permit program provides avoidance, minimization, and mitigation for the potential adverse effects of dredge and fill activities within the nation's waterways ( 40 CFR 100-149 ). Section 404(b) of the CWA requires that section 404 permits be granted only in the absence of practicable alternatives to the proposed project, which would have a less adverse impact on the aquatic ecosystem. CWA section 401 provides protection of water quality by requiring dischargers to navigable waters to comply with applicable water quality standards. In addition, construction and operational storm water runoff is subject to restrictions under CWA section 402 and state water quality laws. Also the Magnuson-Stevens Fishery Conservation and Management Act, as amended ( 16 U.S.C. 1801 et seq. ), requires that Essential Fish Habitat (EFH) be identified and federal action agencies consult with NMFS on any activity which they fund, permit, or carry out that may adversely affect EFH. Freshwater EFH for spring-run Chinook salmon in the Upper Columbia River subbasin includes the Okanogan River NEP Area. For each of these authorities, we do not assume complete implementation and compliance for all actions potentially affecting the experimental population or the listed ESU. However, we expect compliance and assume, at a minimum, that these authorities provide a regulatory regime that tends to encourage actions consistent with that regime.

The habitat improvement actions called for in the recovery plan, the protective measures in this final rule, and compliance with existing federal, state and local laws, statutes, and regulations, are expected to contribute to the survival of the experimental population in the Okanogan River subbasin into the foreseeable future. Although any reintroduction effort is likely to require supplementation with hatchery-origin fish for several years, we conclude there is the potential for a population of spring-run Chinook salmon to become established. Furthermore, we conclude that such a self-sustaining population of genetically compatible individuals is likely to further the conservation of the species as discussed above.

Section 10(j) of the ESA requires that we identify the population by regulation to provide notice of which populations are experimental. The statute also provides that the population is only considered experimental “when, and at such times as, [it] is wholly separate geographically from the nonexperimental populations of the same species.” In this case, the analysis and information that identifies the population also demonstrates when and where it will be wholly geographically separate from other UCR spring-run Chinook salmon. Under this rule, the experimental population is defined as the UCR spring-run Chinook salmon population released in the Okanogan River subbasin, and their subsequent progeny, when geographically located within the Okanogan River NEP Area. When the juvenile experimental UCR spring-run Chinook salmon leave the mouth of the Okanogan River and pass into the Columbia River mainstem and proceed to the Pacific Ocean, they are no longer geographically separated from the other extant, listed UCR spring-run Chinook salmon populations, and the “experimental” designation does not apply, unless and until they return as adults to spawn in the Okanogan River NEP Area.

The Okanogan River NEP Area provides the requisite level of geographic separation because UCR spring-run Chinook salmon are currently extirpated from this area, and straying of other UCR spring-run Chinook populations into this area is extremely low (Colville Business Council, 2010). The UCR Spring-run Chinook Salmon ESU does not include the Okanogan River, and the status of the ESU does not rely on the Okanogan River subbasin for recovery. If any extant UCR spring-run Chinook salmon stray into the Okanogan River subbasin, they would acquire experimental status while within that area, and therefore no longer be covered by the “endangered” listing, nor by the full range of section 9 prohibitions. The “experimental” designation is geographically based and does not travel with the fish outside the Okanogan River subbasin.

Hatchery-origin fish used for the reintroduction will be marked, for example, with specific fin clips and/or coded-wire tags to evaluate the stray rate and allow for broodstock collection of returning NEP adults. It may be possible to mark NEP juvenile fish released into the Okanogan River NEP Area in an alternative manner (other than coded-wire tags) that would distinguish them from other Chief Joseph Hatchery-raised Chinook salmon, and we will consider this during the Chief Joseph Hatchery annual review. During the Chief Joseph Hatchery annual review process, information on fish interactions and stray rates, productivity rates of hatchery-origin and natural-origin populations, and harvest effects are analyzed and evaluated for consistency with best management ( print page 40010) practices for artificial production as developed by the Hatchery Scientific Review Group (HSRG) and other science groups in the Pacific Northwest. Any such clips or tags would not, however, be for the purpose of identifying the NEP since, as discussed above, the experimental population is identified based on the geographic location of the fish. Indeed, if the reintroduction is successful, and fish begin reproducing naturally, their offspring would not be distinguishable from fish from other natural-origin UCR spring-run Chinook salmon populations. Outside of the experimental population area, e.g., in the Columbia River below the mouth of the Okanogan River or in the ocean, any such unmarked fish (juveniles and adults alike) will not be considered members of experimental population. They will be considered part of the ESU currently listed as endangered. Likewise, any fish that were marked before release in the NEP Okanogan River Area will not be considered part of the experimental population once they leave the Okanogan River NEP Area; rather, they will be considered part of the ESU currently listed as endangered.

The ESA requires the Secretary, in authorizing the release of an experimental population, to determine whether the population would be “essential to the continued existence” of the ESU. The statute does not elaborate on how this determination is to be made. However, as noted above, Congress gave some further definition to the term when it described an essential experimental population as one whose loss “would be likely to appreciably reduce the likelihood of the survival of the species in the wild” (see, Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 97-835, at 15 (1982)). The USFWS incorporated this concept into its regulatory definition of an essential population.

Based on the best available information as required by ESA section 10(j)(2)(B), we conclude that the proposed experimental population will not be one “whose loss would be likely to appreciably reduce the likelihood of survival” of the UCR Chinook Spring-run Salmon ESU for the reasons described below.

The recovery plan states that recovery of spring-run Chinook salmon in the Okanogan subbasin is not a requirement for delisting. Based on the recovery plan's recovery criteria and proposed management strategies, the UCR Spring-run Chinook Salmon ESU could recover to the point where listing under the ESA is no longer necessary solely with contributions from the three extant populations. Specifically, if the Wenatchee and Methow populations could achieve a 12-year geometric mean abundance of 2,000 natural-origin fish, and if the Entiat population reaches a 12-year geometric mean abundance of 500 natural-origin fish, the UCR Spring-run Chinook Salmon ESU would meet the recovery criteria for abundance. This would require a minimum productivity of between 1.2 and 1.4 recruits per spawner for the 12-year time period (NMFS, 2007). The extant populations would also need to meet specific criteria, identified in the recovery plan, which would result in a moderate or lower risk for spatial structure and diversity. The Upper Columbia Salmon and Steelhead Recovery Plan identifies several harvest, hatchery management, hydropower and habitat related actions that could be taken to improve viability of the three extant UCR spring-run Chinook salmon populations.

The recovery plan estimates recovery of the UCR Spring-run Chinook Salmon ESU would take 10 to 30 years without the addition of the Okanogan population. Based on the best available current evidence and information, we conclude that recovery of the UCR Spring-run Chinook Salmon ESU would still be likely under the above-discussed conditions.

NOAA's 2011 5-year status review concluded that, despite an increase in abundance and a decrease in productivity of the UCR Spring-run Chinook Salmon ESU, information considered in the review did not change the biological extinction risk category since the previous 2005 status review. Neither status review considered the potential for UCR spring-run Chinook salmon in the Okanogan River subbasin to alter this risk, because UCR spring-run Chinook salmon were extirpated from the Okanogan River subbasin in the 1930s and no UCR spring-run Chinook salmon currently exist in the Okanogan River subbasin.

In summary, even without the establishment of a fourth (Okanogan) population, the UCR Spring-run Chinook Salmon ESU could possibly be delisted if all threats were addressed and all three populations recovered. Because we conclude that a population of UCR spring-run Chinook salmon in the Okanogan River NEP Area is not essential for conservation of the ESU, we conclude that the proper designation is as an NEP. Under Section 10(j)(2)(C)(ii) of the ESA we cannot designate critical habitat for a NEP.

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

As indicated above, section 10(j) requires that experimental populations are treated as threatened species, except for certain portions of section 7. Congress intended that this provision would authorize us to issue regulations we deemed necessary and advisable to provide for the conservation of the experimental population, just as it does, under section 4(d), for any threatened species (Joint Explanatory Statement, supra, at 15). In addition, when amending the ESA to add section 10(j), Congress specifically intended to provide broad discretion and flexibility to the Secretary in managing experimental populations so as to reduce opposition to release of listed species outside their current range (H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982)). Therefore, we are exercising the authority to issue protective regulations under section 4(d) for the proposed NEP to identify take prohibitions necessary to provide for the conservation of the species and otherwise provide assurances to people in the Okanogan River NEP Area.

The ESA defines “take” to mean: Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Concurrent with the ESA section 10(j) authorization, we adopt protective regulations under ESA section 4(d) for the experimental population that prohibit take of UCR spring-run Chinook salmon that are part of the experimental population except in the ( print page 40011) following circumstances in the Okanogan River NEP Area:

1. Any activity taken pursuant to a valid permit issued by us under § 223.203(b)(1) and § 223.203(b)(7) for scientific research activities.

2. Aid, disposal, or salvage of fish by authorized agency personnel acting in compliance with 50 CFR 223.203(b)(3) .

3. Activities associated with artificial propagation of the experimental population under an approved Hatchery Genetic Management Plan that complies with the requirements of-§ 223.203(b)(5).

4. Any harvest-related activity undertaken by a tribe, tribal member, tribal permittee, tribal employee, or tribal agent consistent with tribal harvest regulations and an approved Tribal Resource Management Plan that complies with the requirements of § 223.204.

5. Any harvest-related activity consistent with state harvest regulations and an approved Fishery Management Evaluation Plan that complies with the requirements of § 223.203(b)(4).

6. Any take that is incidental  [ 1 ] to an otherwise lawful activity. Otherwise lawful activities include, but are not limited to, agricultural, water management, construction, recreation, navigation, or forestry practices, when such activities are in full compliance with all applicable laws and regulations.

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

The proposed rule and draft EA established a public comment period from October 24 until December 9, 2013 ( 78 FR 63439 , October 24, 2013). In addition to welcoming comments in general, we also requested comments on seven specific questions regarding: (1) Whether the Methow Composite stock of UCR spring-run Chinook salmon is the best fish to use in establishing an experimental population and the scientific basis for the comment; (2) the proposed geographical boundary of the experimental population; (3) the extent to which the experimental population would be affected by current or future federal, state, tribal, or private actions within or adjacent to the experimental population area; (4) any necessary management restrictions, protective measures, or other management measures that we may not have considered; (5) the likelihood that the experimental population would become established in the Okanogan River NEP Area; (6) whether the proposed experimental population is essential or nonessential; and (7) whether the proposed designation furthers the conservation of the species and whether we have used the best available science in making this determination. We also contacted other Federal agencies and tribes and invited them to comment on the proposed rule. On November 5, 2013, we also held a public meeting within the geographic area affected by the proposed rule.

We received comments from a total of 8 individuals or organizations on the proposed rule and draft EA representing the opinions of various natural resource agencies, county officials, non-governmental organizations, and private entities. Six of the commenters expressed support for the proposal. One of the commenters in support of the proposal also suggested a few specific technical edits and clarifications be made to the draft EA, which we incorporated. The remaining two commenters provided comments expressing concerns about the proposal. Below we summarize our responses to all of the substantive issues raised regarding the proposed rule and draft EA.

Comment 1: One commenter noted disappointment in the short comment period, and felt that there was inadequate coordination with elected officials in developing the proposed introduction of endangered UCR spring-run Chinook salmon into the Okanogan River and tributaries.

Response: We provided a 45-day comment period starting on October 24, 2013, and ending on December 9, 2013. We did not receive requests from commenters for a review period extension.

We believe that there was adequate coordination with elected officials and the public in the development of the proposed NEP. The reintroduction of spring-run Chinook salmon into the Okanogan River subbasin was included as a recommended action in the 2007 Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan. The Recovery Plan was developed in close collaboration with the Upper Columbia Salmon Recovery Board with extensive involvement of elected officials, state and tribal co-managers, and other stakeholders throughout the region. In 2011, we published an Advance Notice of Proposed Rulemaking in the Federal Register ( 76 FR 42658 ; July 16, 2011) notifying the public of our intention to develop a proposal for reintroduction, and describing opportunities for public engagement. Additional opportunities for input and engagement were highlighted in the proposed rule ( 78 FR 63439 ; October 24, 2013). We met with the Okanogan County Commissioners on December 5, 2011, and on November 5, 2013. On those same dates we also convened public meetings in Omak, Washington on the proposed reintroduction. These meetings were noticed in advance in local newspapers.

Comment 2: One commenter contended that there is a lack of credible historical evidence that the Okanogan Basin ever supported a viable population of spring-run Chinook salmon.

Response: We believe there is credible evidence that the Okanogan River subbasin historically supported a viable population of spring-run Chinook salmon (see section 3.2.1.1 of the EA for more detailed discussion). UCR spring-run Chinook salmon historically occurred in at least four systems in the Okanogan River subbasin: (1) Salmon Creek (Craig and Suomela, 1941), (2) tributaries upstream of Lake Osoyoos (Gartrell, 1936; Chapman et al., 1995; NPCC, 2004a), (3) Omak Creek (Fulton, 1968), and (4) the Similkameen River (Fulton, 1968).

Comment 3: One commenter expressed concern that there is inadequate habitat to support the reintroduction of UCR spring-run Chinook salmon.

Response: In the EA we evaluated whether the current water conditions would allow for a reintroduction program to succeed, and which areas of the Okanogan River subbasin currently have potential for year round rearing of UCR spring-run Chinook salmon (Section 3.5.4). We concluded that there is adequate tributary habitat to support UCR spring-run Chinook salmon in the United States portion of the Okanogan River subbasin.

Comment 4: One commenter expressed concern that the reintroduction of spring-run Chinook salmon will negatively impact other ESA listed and non-listed species.

Response: The reintroduction will not negatively impact other populations of UCR spring run Chinook salmon. The reintroduction effort will effectively reduce releases of Methow Composite hatchery smolts in the Methow subbasin by 200,000 out of a program goal of 600,000 smolts, and release them into ( print page 40012) the Okanogan River subbasin instead. Consequently the number of naturally spawning hatchery fish in the Methow subbasin is expected to be greatly reduced, by approximately one third, providing a large benefit to the endangered wild UCR spring-run Chinook salmon in the Methow subbasin. Apart from this benefit, life-history strategies for UCR spring-run Chinook salmon will not be affected by this action. The reintroduction effort into the Okanogan River subbasin is not expected to alter fisheries management outside of the action area and not expected to result in an increase in harvest impacts for UCR spring-run Chinook salmon or other listed species.

The proposed reintroduction is unlikely to negatively affect UCR summer/fall-run Chinook salmon populations. Spring-run Chinook salmon typically spawn prior to, and in different habitat than, summer/fall-run Chinook salmon habitat. Competition for spawning sites or redd superimposition is typically rare and in this case is not expected between the two species.

The reintroduction effort will not negatively impact UCR steelhead. Given the life-history differences between UCR spring-run Chinook salmon and steelhead (e.g., discrete run, spawn, and emergence timing), adverse ecological interactions between the experimental spring-run Chinook salmon population and steelhead are expected to be minimal. There is the possibility of some incidental take of UCR steelhead by activities directed at the experimental population (e.g., handling of steelhead that is incidental to the collection of spring-run Chinook broodstock). However, the level of incidental take of UCR steelhead is expected to be minimal, and non-lethal. Additionally, while the limited protective regulations in this final rule will apply to the nonessential experimental population of UCR spring-run Chinook salmon, any actions that might directly or indirectly take steelhead in the Okanogan River subbasin must comply with the 4(d) protective regulations for West Coast steelhead ( 71 FR 5178 ; February 1, 2006).

Comment 5: One commenter was concerned about the genetic risks to the Methow population of spring-run Chinook salmon posed by “alien” stocks straying into the Methow subbasin from the reintroduction effort in the Okanogan River subbasin.

Response: No “alien” stocks of spring-run Chinook salmon would be used in the reintroduction program. The reintroduction effort will use Methow Composite hatchery stock, a stock originating in the Methow subbasin that is currently propagated at the Winthrop National Fish Hatchery. This stock is considered the most closely related to the historical spring Chinook salmon run in the Okanogan River subbasin and determined to be the best for the reintroduction program (see EA Subsection 2.5.3, Authorize the Reintroduction Using a Different Hatchery Stock). As previously mentioned, the proposed reintroduction program will likely reduce the impact of the Methow Composite stock on wild UCR spring-run Chinook salmon in the Methow subbasin by relocating the release of 200,000 smolts from the Methow River to the Okanogan River subbasin.

Comment 6: One commenter was concerned that harvest targeting reintroduced UCR spring-run Chinook salmon stocks would impede recovery by resulting in the over-harvest of co-mingled Methow subbasin salmon and steelhead.

Response: Although the wild Methow and the reintroduced UCR spring-run Chinook salmon populations would co-mingle in the ocean and mainstem Columbia River during adult migration, neither population will be marked with an adipose-fin clip and thereby be subjected to higher sport-harvest rates (see EA Subsection 1.7.1.2, Spring-run Chinook Salmon Reintroduction Program (Methow Composite Stock)). Successful reintroduction of an experimental UCR spring-run Chinook salmon population will expand the spatial distribution of the UCR Spring-run Chinook Salmon ESU in the Upper Columbia River Basin, thus aiding in recovery.

Comment 7: One commenter requested information regarding the effectiveness of a previous reintroduction effort by the CTCR in the Okanogan River subbasin using the Carson stock of hatchery spring-run Chinook salmon.

Response: CTCR staff informed us that Chinook smolts were released in the Okanogan River subbasin from 2002 through 2006 to evaluate the potential for a reintroduction program (see EA Subsection 2.5.3, Authorize the Reintroduction Using a Different Hatchery Stock). The Carson stock releases were terminated in 2006 in favor of obtaining a broodstock source more genetically similar to the historical Okanagan subbasin stock that would better support a long-term reintroduction program. We could not find any published literature on the effectiveness of the Carson spring-run Chinook salmon reintroduction efforts. According to CTCR staff, the 2002-2006 Carson stock reintroduction effort demonstrated that spring-run Chinook salmon could successfully rear in Omak Creek and emigrate out of the Okanogan River subbasin. The study was short-term and limited in scope. Additional information may be obtained from CTCR staff.

Comment 8: One commenter requested information regarding the designation of other nonessential experimental populations, and whether they had been successful.

Response: To date, NMFS has designated two nonessential experimental populations under section 10(j) of the ESA.

On January 15, 2013, NMFS designated Middle Columbia River steelhead reintroduced above the Pelton Round Butte Hydroelectric Project (Oregon) as a non-essential experimental population under section 10(j) of the ESA. For additional information see: http://www.gpo.gov/​fdsys/​pkg/​FR-2013-01-15/​html/​2013-00700.html .

On December 31, 2013, NMFS issued a final rule establishing a nonessential experimental population of Central Valley spring-run Chinook salmon and associated protective regulations under section 4(d) of the ESA. For additional information see: http://www.westcoast.fisheries.noaa.gov/​central_​valley/​san_​joaquin/​san_​joaquin_​reint.html .

NMFS has not had sufficient time yet to determine the effectiveness of these NMFS 10(j) reintroduction efforts.

The USFWS has used Section 10(j) of the ESA to reintroduce scores of threatened and endangered species throughout the U.S. For additional information see: http://ecos.fws.gov/​ecos/​home.action .

Comment 9: One commenter questioned whether the proposed reintroduction would divert resources away from recovery efforts targeting extant spring-run Chinook salmon populations, and expressed concerns that the reintroduction would impose a financial burden on Okanogan County ratepayers.

Response: Funds allocated to salmon recovery and habitat restoration by Public Utility Districts, the Bonneville Power Administration and other federal agencies are already established and would not change as a result of the reintroduction program. Because there would be no change or redirection of these allocated funds with, or without, the designation of UCR spring-run Chinook salmon as a NEP in the Okanogan River subbasin, the reintroduction program would not ( print page 40013) impose any additional financial burden on Okanogan County ratepayers.

Comment 10: Two commenters expressed concern that the introduction of spring-run Chinook salmon would bring additional regulatory burdens, and that the “threatened” status accompanying a nonessential experimental population might lead to an upgraded endangered status in the future.

Response: This is a concern that we have specifically sought to address throughout the rulemaking process, and as a result, no additional regulatory burdens would occur as a result of this designation. The underlying intent of the nonessential experimental population is to utilize the flexibility and discretion afforded under section 10(j) of the ESA to manage the introduced population in a manner that minimizes regulatory burdens and the potential risk of ESA liability to the local community. Section 10(j) allows us to promulgate tailored protective regulations to ensure that the potential implication(s) of the introduced population are minimized for private stakeholders. An exception to the take prohibitions was included in the proposed rule to address this specific concern by allowing take of spring-run Chinook in the NEP area that is incidental to an otherwise lawful activity (see section CFR 223.301(c)(3)(vi) in this final rule). In this final rule, we have included additional language in this exception to further protect individuals acting lawfully from the take prohibitions by clarifying that “any fish that is incidentally taken in a manner allowed by this paragraph may not be collected and must be immediately returned to its habitat.” This clarifying language will help ensure that an individual does not errantly retain, transport, or possess a fish outside of the Okanogan River NEP Area where the take prohibitions for endangered UCR spring-run Chinook salmon would apply.

The nonessential experimental population designation also minimizes the regulatory burden under section 7 of the ESA for federal actions. Section 10(j) allows that an experimental population deemed “nonessential” is treated as a species proposed for listing during interagency consultations under section 7 of the Act, requiring federal agencies to confer (rather than consult) with NMFS on actions that are likely to adversely affect the experimental population. Any recommendations that result from the conference are advisory in nature only, further minimizing any regulatory burden associated with the designation of the experimental population.

There is no risk that the reintroduced population will be upgraded to “endangered” status. The “threatened” status that accompanies the reintroduced nonessential experimental population designation will remain unchanged “in perpetuity” (see EA Subsection 4.1.1.5, Short-term and Long-term Timeframes Used for Analyses of the EA).

Comment 11: One commenter was concerned that the reintroduction will only serve to justify future acquisition of private lands for the purposes of habitat restoration and protection.

Response: We respectfully disagree that the reintroduction program will serve as justification for, or provide an incentive for, enhanced land acquisition for habitat conservation. The reintroduction program does not encourage nor require additional land acquisition to be successful. There is adequate potential spring-run Chinook salmon habitat available in the Okanogan River subbasin to support the reintroduction effort (see EA Subsection 3.5.4, Okanogan Subbasin Habitat Availability). Although the 10(j) designation is not a justification to acquire land for habitat conservation purposes, the CTCR and any other entity retain the legal rights to pursue land acquisitions in the Okanogan River subbasin to protect salmon and steelhead habitat. Similarly, landowners retain the legal right to pursue, accept and reject proposed property transactions as they see fit.

Comment 12: One commenter asked whether non-tribal members would be afforded equal harvest opportunities as tribal members on hatchery-origin UCR spring-run Chinook salmon from the Okanogan River subbasin.

Response: The CTCR is developing a fishery management plan to harvest returns to the Okanogan River subbasin if such harvest is required to reduce the proportion of naturally spawning hatchery-origin spring-run Chinook salmon. Washington Department of Fish and Wildlife has not submitted a harvest plan that would include recreational fishing for spring-run Chinook salmon in the Okanogan River subbasin. However, Washington Department of Fish and Wildlife may desire to coordinate with co-managers to set recreational fishing seasons in addition to regulations already established by the CTCR for tribal fisheries in the mainstem Columbia River above Wells Dam for Leavenworth spring-run Chinook salmon returning to the Chief Joseph Hatchery.

After review of the comments and further consideration, we have decided to adopt the proposed rule that was published in the Federal Register ( 78 FR 63439 ) on October 24, 2013, with only non-substantive editorial changes. Minor modifications were made to remove unnecessary regulatory language and provide clarity. The modifications make no change to the substance of the rule.

Based on the best available information, we determine that the release of a NEP of UCR spring-run Chinook salmon in the Okanogan River NEP Area will further the conservation of UCR spring-run Chinook salmon. Fish used for the reintroduction will come from the Methow Composite hatchery program located at Winthrop National Fish Hatchery. These fish are included in the UCR spring-run Chinook salmon ESU and have the best chance to survive and adapt to conditions in the Okanogan River subbasin (Jones et al., 2011). They are expected to remain geographically separate from the existing three extant populations of the UCR spring-run Chinook Salmon ESU during the life stages in which the NEP remains in, or returns to, the Okanogan River; at all times when members of the NEP are downstream of the confluence of the Okanogan and Columbia Rivers, the experimental designation will not apply. Establishment of a fourth population of UCR spring-run Chinook salmon in the Okanogan River subbasin will likely contribute to the viability of the ESU as a whole. This experimental population release is being implemented as recommended in the 2007 Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan, while at the same time ensuring that the reintroduction will not impose undue regulatory restrictions on landowners and third parties.

We further determine, based on the best available information, that the designated experimental population is not essential to the ESU, because absence of the experimental population will not reduce the likelihood of survival of the ESU. An Okanogan spring-run Chinook salmon population is not a requirement for delisting because the population is extirpated. Implementation of habitat actions in the recovery plan are expected to increase the viability of the Methow, Wenatchee, and Entiat populations to meet ESU recovery criteria without establishment of an Okanogan population. We therefore designate the released ( print page 40014) population as a Nonessential Experimental Population.

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

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

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 801 et seq. ), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy at the Small Business Administration at the proposed rule stage that this rule will not have a significant economic effect on a substantial number of small entities. No comments were received regarding the economic impact of this final rule on small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. Because this rule requires no additional regulations on small entities and would impose little to no regulatory requirements for activities within the affected area, a final regulatory flexibility analysis is not required and one was not prepared.

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

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

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

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

E.O. 13175 , Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the federal government in matters affecting tribal interests. If we issue a regulation with tribal implications (defined as having a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes) we must consult with those governments or the Federal Government must provide funds necessary to pay direct compliance costs incurred by tribal governments.

The CTCR Reservation lies within the experimental population area. In 2010 staff members of CTCR met with NMFS staff. They discussed the Tribe's developing proposal to reintroduce UCR spring-run Chinook salmon in the Okanogan River subbasin and designate it as an ESA 10(j) experimental population.

Since that meeting CTCR and NMFS staffs have been in frequent contact, including explaining the rule-making process and evaluations involved in reviewing any proposal from the Tribes. These contacts and conversations included working together on public meetings held in Okanogan and Omak, WA (December 5, 2011, and November 5, 2013) and monthly status/update calls describing activity associated with the NEPA and ESA reviews associated with the proposal and final rules.

In addition to frequent contact and coordination among CTCR and senior NMFS technical and policy staff, we also discussed hatchery production changes affected by the Chief Joseph Hatchery and the associated aspects of the 10(j) proposal with the Parties to United States v. Oregon (Confederated Tribes and Bands of the Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of the Warm Springs Reservation of Oregon, Nez Perce Tribe, and the Shoshone-Bannock Tribes of the Fort Hall Reservation; the States of Washington, Oregon, and Idaho; and the United States (NMFS, USFWS, Bureau of Indian Affairs, and the Department of Justice)). The current 2008-2017 United States v. Oregon Management Agreement (2008) anticipated the development of the Chief Joseph Hatchery. Footnote #5 to Table B-1 Spring Chinook Production for Brood ( print page 40015) Years 2008-2017 states that the parties to the Agreement “anticipate that the proposed Chief Joseph Hatchery is likely to begin operations during the term of this Agreement. The Parties agree to develop options for providing . . . spring Chinook salmon eggs to initiate the Chief Joseph program when it comes online.” (p. 99). This will include coordinating with the “Production Advisory Committee” (PAC) which is responsible to “coordinate information, review and analyze . . . future natural and artificial production programs . . . and to submit recommendations to the management entities.” (p. 14) The U.S. v Oregon Policy Committee, in February 2012, approved changes to the Agreement that identified the marking and transfer of 200,000 UCR spring-run Chinook salmon pre-smolts to Okanogan River acclimation ponds, and the prioritization of this production, in relation to other hatchery programs in the Methow River subbasin. The footnote has been modified to reflect these changes. The PAC includes technical representatives from ” . . . the Warm Springs Tribe, the Umatilla Tribes, the Nez Perce Tribe, the Yakama Nation, and the Shoshone-Bannock Tribes.” (p.14). It is these technical representatives who will review adult management proposals associated with this final rule. Those representatives are senior staff from the identified tribes and will be in communication with their respective governments. We invite meetings with tribes to have detailed discussions that could lead to government-to-government consultation meetings with tribal governments. We will continue to coordinate with the affected tribes.

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

Dated: July 7, 2014.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

• Endangered and threatened species

For the reasons set out in the preamble, part 223 of chapter II, title 50 of the Code of Federal Regulations , is amended as follows.

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

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

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

3. In § 223.301, add paragraph (c) to read as follows:

(c) Okanogan River UCR spring-run Chinook Salmon Experimental Population ( Oncorhynchus tshawytscha ). (1) The Upper Columbia River (UCR) spring-run Chinook salmon population located in the geographic area identified in paragraph (c)(5) of this section shall comprise the Okanogan River nonessential experimental population (NEP), and shall be treated as a “threatened species” pursuant to 16 U.S.C. 1539(j)(2)(C) .

(2) Prohibitions. Except as provided in paragraph (c)(3) of this section, the prohibitions of section 9(a)(1) of the ESA ( 16 U.S.C. 1538(a)(1) ) relating to endangered species apply to UCR spring-run Chinook salmon in the Okanogan River NEP Area, defined in paragraph (c)(5) of this section.

(3) Exceptions to the Application of Section 9 Take Prohibitions in the Experimental Population Area. Take of UCR spring-run Chinook salmon that is otherwise prohibited by paragraph (c)(2) of this section and 50 CFR 223.203(a) in the Okanogan River NEP Area is allowed, except as otherwise noted, provided it falls within one of the following categories:

(i) Any activity taken pursuant to a valid permit issued by NMFS under § 223.203(b)(1) and (7) for scientific research activities;

(ii) Aid, disposal, or salvage of fish by authorized agency personnel acting in compliance with 50 CFR 223.203(b)(3) ;

(iii) Activities associated with artificial propagation of the experimental population under an approved Hatchery Genetic Management Plan (HGMP) that complies with the requirements of 50 CFR 223.203(b)(5) ; ( print page 40016)

(iv) Any harvest-related activity undertaken by a tribe, tribal member, tribal permittee, tribal employee, or tribal agent consistent with tribal harvest regulations and an approved Tribal Resource Management Plan (TRMP) that complies with the requirements of 50 CFR 223.204 ;

(v) Any harvest-related activity consistent with state harvest regulations and an approved Fishery Management Evaluation Plan (FMEP) that complies with the requirements of 50 CFR 223.203(b)(4) ; or

(vi) Any take that is incidental to an otherwise lawful activity, provided that the taking is unintentional; not due to negligent conduct; and incidental to, and not the purpose of, the carrying out of the otherwise lawful activity. Otherwise lawful activities include, but are not limited to, agricultural, water management, construction, recreation, navigation, or forestry practices, when such activities are in full compliance with all applicable laws and regulations. Any fish that is incidentally taken in a manner allowed by this paragraph may not be collected and must be immediately returned to its habitat.

(4) Prohibited take outside the NEP area. Outside the Okanogan River NEP Area, UCR spring-run Chinook salmon are not considered to be part of the NEP, irrespective of their origin, and therefore the take prohibitions for endangered UCR spring-run Chinook salmon apply.

(5) Geographic extent of the Okanogan River NEP Area. The geographic boundary defining the Okanogan River NEP Area for UCR spring-run Chinook salmon is the mainstem and all tributaries of the Okanogan River between the Canada-United States border to the confluence of the Okanogan River with the Columbia River. All UCR spring-run Chinook salmon in this defined Okanogan River NEP Area are considered part of the NEP, irrespective of where they originated.

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

[ FR Doc. 2014-16255 Filed 7-10-14; 8:45 am]

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