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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-09136

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** May 3, 2024
- **Citation:** 89 FR 36982

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2023-0074; FXES11130100000-245-FF01E00000]
RIN 1018-BG89
Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Grizzly Bear in the North Cascades Ecosystem, Washington State

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

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

DATES:

This rule is effective June 3, 2024.

Information Collection Requirements:
If you wish to comment on the information collection requirements in this rule, please note that the Office of Management and Budget (OMB) is required to make a decision concerning the collection of information contained in this rule between 30 and 60 days after the date of publication of this rule in the
Federal Register
. Therefore, comments should be submitted to OMB by June 3, 2024.

ADDRESSES:

This final rule, public comments on our September 29, 2023, proposed rule, a final environmental impact statement, and the record of decision, are available on the internet at
https://www.regulations.gov
at Docket No. FWS-R1-ES-2023-0074.

Information Collection Requirements:
Written comments and suggestions on the information collection requirements may be submitted at any time to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-3803 (mail); or
Info_Coll@fws.gov
(email). Please reference “OMB Control Number 1018-0199” in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT:

Brad Thompson, State Supervisor, U.S. Fish and Wildlife Service, Washington Fish and Wildlife Office, 1009 College Street SE, Lacey, WA 98503; telephone 360 753 9440. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of contact in the United States.

SUPPLEMENTARY INFORMATION:

The Service is establishing a nonessential experimental population (NEP) of the grizzly bear (
Ursus arctos horribilis
) within the U.S. portion of the North Cascades Ecosystem (NCE) in the State of Washington under section 10(j) of the Act.

Previous Federal Actions

In November 2022, the National Park Service (NPS) and Service jointly initiated the process for developing an Environmental Impact Statement (EIS)/Grizzly Bear Restoration Plan for the North Cascades Ecosystem. On September 28, 2023, the draft Environmental Impact Statement (EIS) was published (88 FR 67277). One of three alternatives assessed in the draft EIS proposed to restore grizzly bears to the NCE through reintroduction of grizzly bears and designation of an NEP under the Act. On September 30, 2023, the Service published a proposed rule pursuant to section 10(j) of the Act (hereafter, a “10(j) rule”) to reintroduce grizzly bears to a portion of the NCE in Washington State as an NEP and manage them in accordance with a proposed zoned management approach (88 FR 67193). For a description of previous Federal actions concerning this species, please refer to the proposed rule or to our Environmental Conservation Online System (ECOS) species profile for the grizzly bear at
https://ecos.fws.gov/ecp/species/7642.

Peer Review

In accordance with our joint policy on peer review published in the
Federal Register
on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review, we solicited independent scientific review of the proposed rule (USFWS in litt. 2016, entire). We invited six independent peer reviewers and received three responses. The peer reviews can be found at
https://www.regulations.gov
and
https://fws.gov/library/categories/peer-review-plans.
In preparing this final rule, we incorporated the results of these reviews, as appropriate, into this final rule. A summary of the peer review comments, and our responses can be found in the Summary of Comments and Recommendations below.

Summary of Changes From the Proposed Rule

As a result of comments, additional data received during the comment period, and additional analysis, we made several changes to the rule we proposed on September 29, 2023 (88 FR 67193). In addition to updating information, correcting errors, clarifying descriptions, and providing additional details and context in this final rule, we:

• Changed the names of Management Zones 1, 2, and 3 to Management Areas A, B, and C to avoid potential confusion with numbered management zones in other parts of the species' range.

• Specified that, within the NEP boundary, Management Area C would comprise all non-Federal lands within the NCE Recovery Zone and all other lands outside of or not otherwise included in proposed Management Areas A and B.

• Specified that should a grizzly bear be found in the NEP area before our initial translocation of a grizzly bear into the NEP (
e.g.,
a grizzly bear moving from Canada to the United States), it would be managed under the grizzly bear section 4(d) rule (50 CFR 17.40(b)).

• Added allowance in all Management Areas of the NEP for preemptive relocation of grizzly bears by authorized agencies to prevent imminent conflict or habituation.

• Added a provision for individuals to lethally take grizzly bears in Management Area C if the bear is in the act of attacking livestock (including working dogs) on private lands and added definitions of “in the act of attacking” and “working dogs.”

• Reduced the timeframe for authorization to individuals for lethal take of a grizzly bear in Management Areas B and C from 2 weeks to 5 days.

• Added definitions for “demonstrable and ongoing threat,” “human-occupied areas,” and “threat to human safety” in relation to provisions for conflict management; added a

definition of “lasting bodily injury” relative to the limits of actions to deter grizzly bears; and clarified the meaning of “humane” when lethally removing a grizzly bear.

• Clarified several aspects of the rule, including the following:

○ The ‘no net loss’ of core area requirement for the incidental take exception applies to U.S. Forest Service (USFS) actions on National Forest System lands in Management Area A only.

○ We will attempt to capture 3 to 7 bears per year (rather than 5 to 7 bears) to establish the initial target population of 25 bears.

○ Authorized agencies may relocate bears to a remote area that is not specific to a certain management area.

○ Individuals are authorized to deter grizzly bears to promote human safety, prevent conflict, or protect property, including individuals such as forest managers, loggers, and others conducting otherwise lawful forest management activities.

○ Reporting requirements for take do not apply to incidental take resulting from habitat modification; such reporting may otherwise be addressed as a result of section 7(a)(2) consultation when applicable.

○ USFS-issued road use permits that include hauling on non-Federal lands are included in Federal actions that are exempt from section 7(a)(2) consultation requirements.

• Provided clearer definitions or enhanced discussion of the following terms: “deterrence,” “conflict bears,” “humane lethal take,” and “authorized agency.”

Summary of Comments and Recommendations

In the proposed rule published on September 29, 2023 (88 FR 67193), we requested that all interested parties submit written comments on the proposal by November 13, 2023. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We invited all federally recognized Tribes in the State of Washington to consult on the development of the 10(j) rule, and this invitation was also sent to Tribal governments near potential source populations of grizzly bears in the Northern Continental Divide Ecosystem (NCDE) and Greater Yellowstone Ecosystem (GYE). An informational virtual presentation was held online on October 17, 2023, with agency staff describing the proposed rule and answering questions submitted by the public. An informational presentation was also posted online for the public to view. Four in-person public meetings to present information and obtain feedback were held around the ecosystem between October 30 and November 3, 2023. News releases were published online announcing the proposal and the public meetings. During the 45-day comment period, we received over 12,200 comments on the proposed 10(j) rule and over 12,700 comments on the draft EIS.

Below, we summarize the substantive comments pertinent to the rulemaking and our responses to those comments. We considered substantive comments to be those that provided information relevant to our requested action, such as data, pertinent anecdotal information, or opinions backed by relevant experience or information, and literature citations. Due to the similarity of many comments, we combined multiple comments into a single, synthesized comment for many issues. We considered nonsubstantive those comments that expressed a statement or opinion without providing supporting information or relevance, or restated data or information that we already have but without an alternate perspective to consider. We also considered comments that sought actions beyond the scope of our proposal or authority to be nonsubstantive but have provided a response as needed in some instances to explain our rationale. Substantive comments from peer reviewers, Federal agencies, congressional representatives, State agencies, and Tribes are grouped separately. Comments common to multiple groups are presented first. All substantive information provided during the comment periods has either been incorporated directly into this final determination or is addressed below.

Comments Common to Multiple Groups

Comment:
One peer reviewer questioned whether the NEP designation was necessary, and asked whether the Service had a summary of other species designated as NEPs and whether they were successful. Another commenter stated that the current 4(d) rule is sufficient as it already allows for management of bears involved in conflict, noting that the Service is under no obligation to issue a new rule to expand allowable take.

Response:
Based on our extensive outreach efforts with Federal and State agencies, Tribes, local governments, and interested parties, as well as public comments received in the EIS process, we have concluded that an NEP designation is an important tool in this instance to build social tolerance and support for grizzly bear conservation in the NCE. In our experience managing grizzly bears under the 4(d) rule, by limiting impacts to property and safety and providing more tools to address threats, the public's receptivity and tolerance to having grizzly bears on the landscape is likely to improve.

The Service has discretion on whether to designate experimental populations of listed species, and how to tailor protections and management of grizzly bears designated as an experimental population. The Service and NPS considered an alternative in the EIS that would reintroduce grizzly bears with existing ESA protections under the current 4(d) rule, but for the reasons discussed further in the final EIS (NPS and USFWS 2024, entire) and our Record of Decision (
e.g.,
likelihood of successful grizzly bear restoration, public safety, long-term management, and impacts on natural and socioeconomic resources), we selected Alternative C: Restoration with ESA section 10(j) designation as preferred over reintroduction under the 4(d) rule.

Comment:
Commenters expressed concern about the size and placement of the NEP boundary and its relation to the NCE Recovery Zone. A commenter stated that the NEP boundary should be smaller (extending no more than 25 mi (40 km) beyond the eastern side of the NCE Recovery Zone) to provide full ESA protections to grizzly bears in the Selkirk Recovery Zone. Another commenter stated that the NEP boundary should be larger to include the States of Idaho and Oregon.

Response:
Grizzly bear recovery zones were established by the Service to delineate areas in the lower 48 States that have sufficient habitat to support recovery for grizzly bear populations. The NCE Recovery Zone is not a regulatory boundary for the purposes of the 10(j) rule, but is used as a reference for delineating Management Area A. The NEP boundary encompasses not only the NCE Recovery Zone, but also areas outside of the NCE Recovery Zone through which reintroduced grizzly bears may potentially pass or periodically use at some point in the future, and where their presence may necessitate increased management flexibility. The NEP boundary and the Management Area boundaries are clearly identified in figure 2 and in the text of the final rule. The NCE Recovery Zone is also shown in figure 2 for context. Based on verified grizzly bear occurrence data and information on grizzly bear dispersal distances, we anticipate the separation of the Selkirk Recovery Zone from the NEP boundary (see

Where is the grizzly bear North

Cascades NEP?,

in § 17.84 Species-specific rules—vertebrates in the rule portion of this document), will be sufficient to protect grizzly bears from the Selkirk ecosystem. We did not include adjacent States in the NEP boundary, as reintroduced grizzly bears are unlikely to disperse as far as Idaho or Oregon in the near future due to limited habitat connectivity (
e.g.,
human population centers, highways, Columbia River).

Comment:
Commenters recommended various areas be changed to a different Management Area designation based on perceived importance or lack of importance to grizzly bears, and based on the perceived default bear management that would likely follow under a specific Management Area designation. Commenters, including a peer reviewer, suggested that State lands (specifically Loomis State Forest, Colockum Wildlife Area, and Loup Loup State Forest), should be included in Management Areas A or B, as they contain suitable grizzly bear habitat. One commenter suggested including a size comparison between the NCE Recovery Zone and Management Area A to emphasize the limited difference between the two (
i.e.,
removal of State and private lands had limited impact to the overall size of the NCE Recovery Zone). One commenter requested all Management Areas allow for management practices allowed in Management Area C.

Commenters expressed concern that the characterization of Management Area B as having limited human influence did not reflect recreational or other multiple uses on these lands. They also expressed concern that Management Area B did not appear to be grounded in the biological needs of grizzly bears. Taken in combination, they expressed concern that the NEP delineation could be interpreted by the public as seeking to determine land uses on National Forest System lands, which could impact social acceptance of expansion of grizzly bear populations in similar areas outside of the NEP boundary. One commenter stated that the Management Area descriptions imply recovery and occupancy is expected only on Federal lands within the NCE Recovery Zone boundary, and that the Service should be more explicit about how it will manage for grizzly bears.

A commenter requested clarification for why the Olympic Peninsula and Columbia Plateau are included in Management Area C.

One commenter requested further information about how the Bear Management Units informed the designation of Management Area boundaries, expressed concern about proximity of urban growth areas to Management Area A, and expressed concern that private lands would become ecological sinks.

Response:
The primary grizzly bear recovery effort within the NCE Recovery Zone should be focused on Federal lands because these lands provide adequate secure habitat (large tracts of relatively undisturbed land), which is the most crucial element in grizzly bear recovery. Management Area A, which includes NPS and National Forest System lands, encompasses approximately 85 percent of the NCE Recovery Zone. These Federal lands support grizzly bear diet, habitat, and reproduction needs (see
Behavior and Life History,
below). Federal land protections, such as motorized restrictions, the Wilderness Act, and Inventoried Roadless Areas (IRAs) help ensure secure habitat on Federal lands for grizzly bears into the future (USFWS 2022, p. 8). To successfully recover and manage reintroduced grizzly bears and their progeny over time, the rule provides a graduated approach to management flexibility while focusing recovery efforts for grizzly bears on Federal lands within the NCE Recovery Zone (see
Management Areas,
below). Management Areas are based on suitability for occupancy by grizzly bears and the likelihood of human-bear conflicts.

Although we acknowledge other landownerships within the NCE Recovery Zone contain suitable grizzly bear habitat, at least allowing for greater management flexibility is appropriate on those non-Federal lands within the NCE Recovery Zone by including those under Management Area C. However, our State partners or other authorized agencies will not necessarily act on that greater management flexibility, especially in areas where suitable habitat could complement recovery efforts for grizzly bears in the NCE and in areas less likely to result in human-grizzly bear conflicts. Not all management areas allow for the management practices that are allowed in Management Area C, as requested by the commenter, because Management Area A serves as core habitat for the survival, reproduction, and dispersal of the NEP, and Management Area B is meant to accommodate natural movement or dispersal by grizzly bears.

The Service included Federal lands in Management Area B to acknowledge their greater potential for use by grizzly bears than most areas in Management Area C and because the Federal lands can complement the recovery within the NCE Recovery Zone. The primary difference in management between Management Areas B and C and Management Area A is the additional allowance of authorized conditioned lethal take by an individual within Areas B and C.

The delineation of Management Areas does not alter or affect any National Forest System land management decision or activity. Rather, the delineation provides different tools in managing grizzly bears in accordance with the specific Management Area. The 10(j) rule provides for greater flexibility in management of grizzly bears on these lands than without the 10(j) rule. The framework of the 10(j) rule is designed for restoration of grizzly bears in the NCE Recovery Zone and solely applies to the area within the NEP boundary within Washington State.

The need for the tools and flexibilities that a 10(j) experimental population designation provides has been a recurring theme in public comment and community conversations starting with the previous North Cascades Grizzly Restoration Plan/EIS process that was terminated in 2020 (85 FR 41624, July 10, 2020). The intent of the 10(j) rule is to limit the potential impacts of reintroduction of this listed species to improve tolerance.

Grizzly bears reintroduced into the NCE Recovery Zone are highly unlikely to disperse to the Olympic Peninsula due to the distance, geographic barriers, and human population centers. Grizzly bears similarly would also need to cross significant barriers to reach the Columbia Plateau. Including these areas in the Management Area C does not mean that we intend on reintroducing or recovering populations there. However, including these areas within the NEP boundary and under Management Area C serves to ensure we account for any unexpected dispersal of bears to those areas and to allow for the greatest level of management flexibility should that occur. If those regions of Washington were not included as part of the NEP area, any grizzly bears that dispersed to these areas would be managed as threatened under the 4(d) rule.

Bear management units are delineated within recovery zones as part of recovery planning and used in aid of habitat and population monitoring; they were not used to designate management areas. All the bear management units for the NCE Recovery Zone are included in Management Area A. While management flexibilities available on private lands may provide for additional lethal take, the Service will monitor all lethal take and will not consider lethal take a first resort for conflict

management particularly on public lands, which comprise the bulk of the NCE Recovery Zone.

Comment:
Commenters, including Representative Dan Newhouse, expressed concern that the proposed restoration plan does not comply with Washington State Law (RCW 77.12.035).

Response:
Washington State law does not preclude the NPS and the Service from reintroducing grizzly bear as proposed. The Washington State Office of the Attorney General has interpreted the provision to prohibit only the Washington Department of Fish and Wildlife (WDFW) from transplanting or introducing bears into the State (see
Federalism (E.O. 13132),
below, for further discussion of co-management with Washington).

Comment:
Commenters expressed concern about adequate funding for agency staffing, outreach and education, nonlethal control measures (
e.g.,
electric fences, bear-resistant garbage containers), conflict management, livestock depredation compensation, improvements to sanitation, and food storage infrastructure. One commenter suggested conservation organizations should be encouraged to provide those funds.

Response:
The final EIS (NPS and USFWS 2024) includes further analysis of costs associated with the restoration of grizzly bear in the NCE in Appendix C. The Service will develop memorandums of understanding with Federal, State, and Tribal agency partners to document roles and responsibilities and identify sources for support in implementing the rule (see
Management Restrictions, Protective Measures, and Other Special Management,
below). Funding for programs, including outreach and education, nonlethal control measures, conflict management, livestock depredation compensation, and improvements to sanitation and food storage infrastructure is often in partnership with other agencies, States, Tribes, and nongovernmental organizations. The Service will work with partners to model programs in the NCE after similar successful programs in other grizzly bear ecosystems. In the NCE, efforts are ongoing by WDFW, USFS, the North Cascades NPS complex, and several nongovernmental organizations to provide communities with resources, technical support, and education. We will work with partner agencies and nongovernmental organizations to identify funding needs and priorities, as well as potential sources.

Comment:
A commenter expressed concern that the NCE grizzly bear restoration plan is being proposed despite the need for the Service to prioritize numerous other species with their limited resources, and suggested a focus on land protection, habitat restoration, and grants to enhance species recovery. Commenters also stated that NCE recovery efforts should not reduce resources supporting current and ongoing grizzly bear recovery efforts in other ecosystems.

Response:
The Service has established recovery plans for multiple species including grizzly bear and works with partners to implement recovery actions identified in the recovery plans. Funding of recovery actions is provided by a combination of Federal appropriations to the Service and other Federal agencies and from partner contributions. The Service annually prioritizes and adjusts investment level in recovery actions across multiple species based on multiple factors including available Federal and partner funding. The Service seeks to recover grizzly bears in all six recovery zones consistent with its Grizzly Bear Recovery Plan (revised, USFWS 1993, entire) (hereafter Recovery Plan). The NCE Recovery Zone has been managed to protect and secure habitat for grizzly bears since 1997 (USFWS 1997, entire). Restoration efforts will be carried out jointly between NPS and the Service and interested partners. The Service will continue to work with our Federal, State, Tribal, and other partners to prioritize Service staff time to conduct grizzly bear outreach and education, provide technical assistance, and assist with conflict management.

Comment:
Multiple commenters expressed concerns about impacts to the recovery of source populations. The State of Idaho Governor's Office of Species Conservation (Idaho OSC), the Idaho Department of Fish and Game (Idaho DFG), and Montana Fish, Wildlife, and Parks (Montana FWP) stated concerns about impacts to U.S.-based source populations of NCE and restoration efforts in GYE and NCDE and concerns about coordination with responsible authorities in areas of potential source populations. Another commenter suggested that source populations of bears should not be in the lower 48 States and that bears should not come from coastal food economies, while another opposed the transfer of fully protected grizzlies from other States to the NCE, emphasizing the importance of keeping grizzlies in their native habitats where they are not yet fully recovered.

Response:
As described in the rule, the Service expects to obtain grizzly bears for reintroduction based on source populations that have a positive growth rate, could withstand the loss of bears to support the NCE, and have similar food economies to the NCE. The Service will consider bears from a number of source populations, including British Columbia, NCDE, and GYE. Implementation of the rule is not expected to result in meaningful impacts to source populations (see
Effects on Wild Populations,
below). Any bears sourced from the NCDE or GYE Demographic Monitoring Areas will count against the mortality thresholds addressing those populations. The Service will contact the relevant authorities to develop specific plans for bear captures for translocation to the NCE Recovery Zone before captures are implemented.

Comment:
Commenters, including Montana FWP, commented on issues related to the number of bears in a restoration population. Montana FWP stated that recovery criteria are not established for the NCE Recovery Zone and that the 200-400 grizzly bear carrying capacity number cited in our proposed rule may not be adequate for recovery and delisting in the NCE Recovery Zone, and questioned whether genetic connectivity or genetic augmentation will be required. Another commenter stated that the restoration population of 200 bears in the NCE is too low and instead should be 1,000 bears to ensure long-term genetic viability.

Response:
The section 10(j) rule does not set recovery criteria or goals for the grizzly bear listed entity, nor is it required to do so. Rather, the section 10(j) rule helps to implement recovery guidance contained in the NCE supplement to the Grizzly Bear Recovery Plan (USFWS 1997, entire), which recommended consideration of translocations in aid of recovery (see “Recovery Efforts to Date” below). The Service will take into account the need for genetic diversity as part of the restoration effort starting with selection of source populations that have high heterozygosity. The restoration plan and 10(j) rule include monitoring of genetic diversity and adaptive management through additional translocations if necessary to enhance heterozygosity and long-term genetic viability of the NEP (see
Capture and Release Procedures,
below).

Comment:
Many commenters, including Tribes, raised concern over human safety and the risk grizzly bears may pose for people living, working, and recreating in the North Cascades. Other commenters identified the need for additional education and outreach related to bear safety and conflict

prevention, with some commenters highlighting the importance of signage, grant opportunities, and direct engagement with communities.

Response:
While grizzly bear attacks on humans are rare, they can occur and can have serious consequences. While precautions must be taken, our experience with grizzly bears in other ecosystems demonstrates that human-bear conflict can be minimized with a variety of tools, including the securing of attractants and maintaining awareness of surroundings. Many of the precautions needed for living and recreating among grizzly bears are also the same as for black bears, which are already present in the ecosystem. The 10(j) rule includes provisions affirming the ability of individuals to take bears in self-defense and to allow individuals to deter bears out of close proximity to people or property.

The Service will continue to provide information and education for the public and affected communities about best practices for grizzly bear safety. Education and outreach about how to minimize conflict is an important part of project implementation, and we will work with partners to increase outreach to people who live, work, and recreate in the NCE and surrounding areas. Outreach and education efforts will be modeled after similar efforts and practices developed in other grizzly bear recovery ecosystems over multiple decades.

Comment:
Commenters suggested that using grizzly bear forage estimates from the Cabinet-Yaak Ecosystem (CYE) may be problematic, and could lead to increased movements, human conflicts, and mortality resulting from diet limitations. One commenter suggested that British Columbia would be a better analog for climate and food selection than the CYE or the diet of males in the NCDE and GYE that were referenced in the proposed rule.

Response:
The EIS includes an analysis of habitat suitability and grizzly bear foods and vegetation types in the North Cascades. Many of the vegetation types and available foods in the North Cascades are similar to the CYE where grizzly bear food habits have been studied. This makes the CYE a good analog to the NCE for evaluating potential grizzly bear food use. We have also added a reference to grizzly bear diets and dominant food sources in British Columbia (see
Behavior and Life History,
below).

Comment:
Commenters expressed concern over the possible impact that grizzly bear restoration could have on salmon, game, and listed species.

Response:
Because grizzly bears historically occupied the ecosystem, other species of fish and wildlife historically coinhabited the NCE with grizzly bears. Restoring grizzly bears in the NCE will contribute to restoring missing ecological interactions that help to shape fish and wildlife habitat through seed dispersal, increasing nutrient availability, and predator-prey dynamics (see van Manen et al. 2017, pp. 75-90). The final EIS provides a detailed assessment of habitat suitability, predator-prey interactions, and food and vegetation types, including elk and other ungulates, salmon, and federally listed species (NPS and USFWS 2024, chapter 3: “Grizzly Bears” and “Other Wildlife and Fish” sections).

In addition, the Service undertook an intra-service consultation and a consultation with the National Marine Fisheries Service under section 7(a)(2) and determined that the reintroduction of grizzly bears under the rule is not likely to jeopardize grizzly bear or any other ESA-listed species, including whitebark pine and ESA-listed salmon, nor result in the destruction or modification of any designated critical habitat for ESA-listed species.

Comment:
One commenter stated the Service should consider how the regulation should adapt as the grizzly bear population grows and expands. One commenter asked that we consider including specific triggers, derived from proposed monitoring information, that would prompt specific changes in program implementation. One peer reviewer suggested that we more clearly define adaptive management and provide additional details on how adaptive management will be applied. One commenter asked for more details on interagency coordination in implementing monitoring and adaptive management.

Response:
We updated the adaptive management section to clarify that we are using the term adaptive management in the broad sense of applying management interventions, monitoring outcomes, and modifying future management actions to achieve grizzly bear restoration objectives and maximize social tolerance. Based on our experience in other ecosystems, this flexible approach to adaptive management (for both management interventions and interagency coordination) is necessary given that we are working in complex ecological and social systems where management interventions are often context dependent.

Comment:
Commenters stated that the 10(j) rule does not detail monitoring methods and resources and stated that data sharing in other recovery zones is helpful for outreach and management.

Response:
Below, we describe how we intend to monitor reintroduced grizzly bears (see
Monitoring and Evaluation,
below). Prior to implementation of reintroduction, a strategy for monitoring will be developed with further details of responsibilities between the Service and other participating agencies, including how we will manage and share data.

Comment:
We received several comments relating to the 1997 agreement on ‘No net loss of existing core area within any bear management unit’ (hereafter ‘no net loss’ agreement) with the NPS and USFS. One commenter stated that the existing habitat protections for core grizzly bear habitat reflected in the ‘no net loss’ agreement may not be sufficient. Other commenters noted that the ‘no net loss’ agreement will require monitoring, that data sets analyzing core habitat and trail use need to be updated, and that the agencies should work toward improving habitat connectivity. Several commenters stated that the ‘no net loss’ agreement should be extended to lands in Management Area B or beyond to facilitate connectivity or prevent habitat degradation.

Response:
The Service is currently coordinating with the NPS and USFS through the Interagency Grizzly Bear Committee (IGBC) North Cascades Subcommittee Technical Team to update the baseline and memorialize the ‘no net loss’ agreement for the U.S. portion of the NCE Recovery Zone. We expect the baseline update will include metrics such as core habitat and trail data. We clarify in the final rule that the intent is for the `no net loss' agreement as to NPS and National Forest System lands to apply only within Management Area A, the focal area for recovery of an NCE grizzly bear population.

Peer Reviewer Comments

As discussed in “Peer Review” above, we received comments on our proposed rule from three peer reviewers. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the contents of the proposed rule. We summarize substantive peer reviewer comments below that are not included in “Comments Common to Multiple Groups.” The peer reviewers generally concurred with our methods and conclusions and provided additional literature, information, clarifications, and suggestions to improve the final rule. For example, all three peer reviewers agreed that our description and analysis of the biology, habitat,

population trends, conservation status, and distribution of the species were accurate and that our conclusions were accurate and supported by the provided evidence, although one peer reviewer questioned the exclusion of specific State lands from Management Area B. All three peer reviewers shared that our proposed rule did not have any significant oversights, omissions, or inconsistencies. Finally, the peer reviewers provided additional literature for our consideration, such as additional citations, and we incorporated the recommended clarifications and literature, as needed.

Federal Agency Comments

One Federal agency, the Pacific Northwest Region of the USFS, provided comments on the proposed rule. We summarize substantive comments below that are not included in “Comments Common to Multiple Groups.”

Comment:
USFS stated the Service's summary of access management in the rule is too simplistic and should be deleted or changed.

Response:
The access management definitions from the IGBC Task Force Report on Grizzly Bear/Motorized Access Management (USFS 1997, entire; IGBC 1998, entire) describe motorized access management across all grizzly bear recovery zones; revising those definitions is outside the scope of this rulemaking process. However, the Service has updated its summary description of `no net loss', which requires maintenance of the core grizzly bear habitat area and limits net gain of the road network within the NCE, as recommended.

Comment:
The USFS stated that some areas in Management Area B have not yet adopted measures intended to reduce human-bear conflicts as in other recovery zones where bears are present. The USFS provided as one example, the Gifford Pinchot National Forest (NF), which may not have food storage orders in place. The USFS stated that even on forests where food storage orders exist, different measures need to be implemented based on risk.

Response:
We clarify that food storage orders are a requirement for national forests and NPS lands only within Management Area A for the purpose of incidental take allowance (see
Incidental Take,
below). Food storage orders and other methods of securing attractants are important tools for preventing human-wildlife conflict with many species (
e.g.,
black bears), not just grizzly bears. We recognize that improved sanitation and updated food storage infrastructure will be important for reducing potential human-bear conflicts in Management Areas B and C into the future.

Comments From States

We received comments from three State wildlife agencies, one jointly with the Idaho State Governor's Office of Species Conservation, which we summarize here and provide detailed responses to below. As previously noted, the WDFW is a cooperating agency in the planning process and the Service consulted with WDFW in the development of the proposed rule. The WDFW expressed that, if an action alternative of the FEIS is chosen, they support finalizing the rule to designate an NEP and encouraged NPS and the Service to implement releases only on NPS lands. Montana FWP expressed concern regarding potential negative impacts on grizzly bear recovery efforts in other States from grizzly bear restoration efforts in the NCE and establishing an NEP. Idaho OSC and Idaho DFG opposed NCE restoration efforts and the establishment of an NEP. We summarize substantive comments below that are not included in “Comments Common to Multiple Groups.”

Comment:
Montana FWP commented that the proposed rule was contradictory in stating that recovery of grizzly bears in each of the six recovery zones is necessary while also stating that the NCE population is not essential to the survival of the species in the wild.

Response:
Reintroductions are, by their nature, experiments, the fate of which is uncertain. However, it is always our goal for reintroductions to be successful and contribute to recovery. The importance of reintroductions to recovery does not necessarily mean these populations are “essential” under section 10(j) of the Act. In fact, Congress' expectation was that “in most cases, experimental populations will not be essential” (H.R. Conference Report No. 97-835 at 34). The preamble to our 1984 publication of ESA 10(j) implementing regulations reflects this understanding, stating that an essential population will be a special case, and not the general rule (49 FR 33885 at 33888, August 27, 1984). The Service's objective to recover grizzly bears in each of the six recovery zones is not in conflict with the Service's determination that the North Cascades NEP will contribute to that recovery but is not essential for the survival of grizzly bears in the wild (see
Is the Experimental Population Essential to the Continued Existence of the Species in the Wild?,
below).

Comment:
Montana FWP disagreed with the use of the phrase “excessive human-caused mortality” in the proposed rule and stated that extensive efforts in Montana and other States have minimized human-caused mortality to ensure it is not “excessive.” Montana FWP noted that current levels of human-caused mortality of grizzly bears in the NCDE and GYE are not considered excessive because these mortalities are below mortality thresholds at sustainable levels.

Response:
We revised our discussion of threats to reflect that while human-caused mortality is a primary threat, mortality thresholds currently in place have mitigated this threat in those ecosystems such that grizzly bear populations have increased in number and range (see
Threats,
below). Mortality thresholds for the NCDE are documented in the Recovery Plan (USFWS 1993, pp. 33-34) and in the NCDE Conservation Strategy (NCDE Subcommittee 2019, entire). Thresholds for the GYE are documented in the GYE Recovery Plan Supplement: Revised Demographic Criteria (USFWS 2017, p. 6) and in the 2016 GYE Conservation Strategy (YES 2016, p. 48).

Comment:
Idaho OSC and Idaho DFG stated there was a lack of coordination with ESA delisting petitions and efforts to develop conservation strategies in other grizzly bear recovery zones, including efforts by the Selkirk Cabinet-Yaak Subcommittee of the IGBC, or the current EIS process considering grizzly bear restoration in the Bitterroot Ecosystem (BE). Commentors stated the eastern boundary of the NCE NEP makes unsupported assumptions about these recovery efforts.

Response:
We developed the final rule based on the current listed entity of the grizzly bear under the Act (
i.e.,
as a threatened species in the lower 48 States). The rule does not preclude the Service from making future revisions to the listed entity. If the Service revises the grizzly bear listed entity, the effect on this NEP, if any, would be addressed at that time. The Service developed the eastern boundary of the NEP based on grizzly bear data, human populations, and readily discernable features (
e.g.,
roads, Federal land boundaries). The 10(j) rule does not interfere with or preclude developing a conservation strategy by the IGBC Selkirk Cabinet-Yaak Subcommittee or considering alternatives for addressing grizzly bear restoration to the BE.

Comment:
Idaho OSC and Idaho DFG questioned to which listed DPS of grizzly bear the experimental population belongs and what criteria would be used to determine whether

that DPS is recovered. They expressed concerns that the NEP would not itself qualify as a DPS and that establishing an NEP in the NCE could preclude determinations regarding delisting of the grizzly bear.

Response:
An experimental population is not a separate listed entity (
i.e.,
a DPS, subspecies, or species), but instead is considered part of the listed entity (in this case, the grizzly bear lower-48 DPS). The reintroduction of an experimental population is intended to further the recovery of the listed entity to which it belongs. We anticipate that a restored grizzly bear population in the NCE will contribute to the recovery of the listed entity, which includes grizzly bears throughout the conterminous United States, by providing additional population redundancy and representation. The NEP is part of the current listed entity of the grizzly bear and does not preclude the Service from revising the listed entity in the future, at which time the effect, if any, on the NCE NEP will be considered. See
Recovery Efforts to Date
and
Effects of the Experimental Population on Grizzly Bear Recovery
for additional details on the recovery plan and efforts. If grizzly bears are recovered and delisted under the Act, the experimental population designation and associated regulation will also be removed as part of the delisting rulemaking (see
Exit Strategy,
below).

Comment:
Montana FWP states they are hesitant to support removing grizzly bears from the NCDE or GYE to support the reintroduction of bears into the NCE because of the likelihood the bears could come into conflict due to the NCE's proximity to the large human population of the Puget Sound and because of the concern that the rule does not provide adequate support for conflict prevention measures.

Response:
We acknowledge that NCE is adjacent to the Puget Sound region, which is densely populated by humans. However, several factors support our determination that the NCE can support a viable grizzly bear population that is no more susceptible to conflict than other grizzly bear populations. First, the gradual reintroduction of grizzly bears will provide agencies additional time to further develop conflict prevention efforts and practices employed in other recovery areas. Second, even at the eventual restoration population, the NCE will have substantially lower grizzly bear population densities than either the GYE or NCDE. Third, the NCE contains sufficient habitat and resources to support the restoration population and is composed predominantly of wilderness and IRAs that helps reduce the potential for conflict as compared with, for example, grizzly bears in areas of subpar habitat (often on private land, with high road densities). As noted above, we expect to support the efforts necessary for the successful reintroduction and management of this grizzly bear NEP through a combination of resources from the Service and other partner Federal agencies, WDFW, interested Tribes, and nongovernmental organizations.

Comment:
Montana FWP suggested the Service consider more flexible criteria for determining grizzly bears for translocation to the NCE Recovery Zone (
e.g.,
bears with some conflict history, bears from dissimilar food economies).

Response:
Translocating grizzly bears with no conflict history and grizzly bears from similar food economies produces a greater chance of success in the placement of these animals in the NCE Recovery Zone. This approach has been successful with augmentation efforts in the Cabinet Mountains in the CYE and is identical to the Montana FWP proposal for moving bears with no history of conflicts to the GYE.

Comment:
WDFW stated that releasing bears on non-NPS lands (
e.g.,
USFS) could be more administratively complex for WDFW than releasing bears on NPS lands because in WDFW's view the NPS Organic Act provides clearer Federal support for releasing bears on NPS lands. In the scenario of releases off NPS lands, WDFW stated it would need to consider their position regarding RCW 77.12.035 and their role and responsibility to permit the importation and release of wildlife in the State of Washington. They encourage NPS and the Service to implement releases only on NPS lands.

Response:
The Service and NPS will prioritize release sites on NPS lands but retain the option to conduct initial releases of grizzly bears on National Forest System lands if unforeseen circumstances prevent access to release sites on NPS lands (
e.g.,
due to aircraft issues). We will work with WDFW and the associated land management partner, whether it is NPS or USFS, to avoid administrative complications as appropriate.

Comments From Tribes

We received comment letters from two Tribes, the Sauk-Suiattle Indian Tribe and the Upper Skagit Indian Tribe. The Sauk-Suiattle Indian Tribe expressed general opposition to grizzly bear restoration efforts as described in the draft EIS. The Upper Skagit Indian Tribe expressed support for grizzly bear restoration with the designation of a nonessential experimental population (Alternative C in the draft EIS (NPS and USFWS 2023)). We summarize substantive comments below that are not included in “Comments Common to Multiple Groups.”

Comment:
The Sauk-Suiattle Tribe highlighted concerns over the threats that grizzly bears may pose to treaty rights, especially regarding resource competition for salmon and berries.

Response:
We discuss the potential effects of grizzly bear restoration specific to Tribal lands and treaty right activities in chapter 3 of the EIS, in the “Ethnographic Resources” section. The effects on salmon and game are further addressed in chapter 3 of the final EIS (NPS and USFWS 2024), in the “Other Wildlife and Fish” section.

Although grizzly bears forage on foods that the Sauk-Suiattle Tribe gathers, the low number of grizzly bears spread across the NCE will have a minimal effect on those food resources, including fish, wildlife, and roots or berries. Preliminary results from northwest Montana and north Idaho suggest grizzly bear diets, on average, are composed of at least 20 percent berries during the summer months (USFWS 2019, p. 15). At that rate, we estimate an adult female grizzly bear typically consumes an average of 2.5 gallons of huckleberries per day. The bears, and this level of consumption, are expected to be distributed across the NCE Recovery Zone rather than concentrated in one area. Only minimal impacts on berry availability to humans are anticipated from the consumption of berries by the initial population levels of 25 bears and the eventual restoration population of 200 bears.

Comment:
The Upper Skagit Indian Tribe requested that Tribal consultation be conducted throughout the reintroduction implementation process.

Response:
The Service and the NPS will engage with and involve affected Tribes throughout the implementation of grizzly bear restoration to the NCE. Given the unique responsibility and government-to-government relationship that the Federal Government has with individual Tribal nations, Tribal consultation is always an ongoing process and will continue for the duration of grizzly bear recovery efforts in the NCE.

Comment:
The Upper Skagit Indian Tribe highlighted the traditional cultural connections between grizzly bears and the Upper Skagit Indian Tribe and requested consideration of this traditional ecological knowledge and history in support of draft EIS alternative C, including designation of an NEP.

Response:
The Service agrees that cultural connections and traditional ecological knowledge are important considerations and have factored these into the development of the rule. The traditional ecological knowledge of Tribes and First Nations has provided some of the evidence of historical grizzly bear presence in the NCE, and the important cultural connections underscore the importance of restoring and conserving a grizzly bear population in the ecosystem.

Congressional Comments

One Federal congressional representative, Congressman Dan Newhouse, representing the 4th District of Washington, provided comments on the proposed rule. We summarize substantive comments below that are not included in “Comments Common to Multiple Groups.”

Comment:
Congressman Newhouse stated that the NPS and the Service are not taking into the account the concerns of local communities. The commenter expressed concerns about the format of the October 17, 2023, virtual public meeting and the information presented in it, particularly that the Service's and NPS's definition of “substantive comments” limits public comment.

Response:
During the public scoping period and comment period on the proposed rule, nine public meetings took place, both virtually and in-person, and the public was able to provide comment through a variety of methods. (See “Consultation with State, Local, Tribal, Federal, and Affected Private Landowners,” below, for more information).

As noted in the proposed rule and in the virtual public meeting, comments merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination or changes to the rule. Similar guidance on what constitutes substantive comment is included in NEPA handbooks for both the Service (USFWS 2014, p. 29) and the NPS (NPS 2015, p. 65). While agencies consider only substantive comments regarding the NEPA document for formal response, we do not discourage anyone from submitting their thoughts on the proposed rule. Through the public comment process, the agencies are made aware of stakeholder sentiment and factor that perspective into the decision-making process.

Comment:
Congressman Newhouse stated the concurrent release of the draft EIS and proposed 10(j) rule indicates the agencies had already made a decision.

Response:
A decision had not been made with the concurrent release of the draft EIS and proposed 10(j) rule. The proposed 10(j) rule is a part of the Federal proposed action to restore grizzly bear to the North Cascades. As such, the proposed 10(j) rule, and the environmental effects of that proposed rule, are appropriately considered concurrently. In the previous North Cascades Grizzly Restoration Plan/EIS process, stakeholders repeatedly asked for more detailed information about what possible management under a 10(j) experimental population designation would entail. The proposed 10(j) rule was responsive to those concerns and provided a specific framework for what management of an experimental population could look like. Without both documents being released simultaneously, the public would not be able to fully evaluate the alternative in the draft EIS that includes designation of an experimental population.

Public Comments

We received over 12,200 comments from the public, including nongovernmental organizations, trade associations on behalf of their memberships, local governments, and individual members of the public. Comments included both opposition to and support for grizzly bear restoration efforts in the NCE Recovery Zone and the designation of an NEP, as well as specific provisions of the rule. We summarize substantive comments below that are not included in “Comments Common to Multiple Groups.”

Comment:
Some commenters were concerned that prevention of human-bear conflict will result in travel restrictions, bear-proofing requirements, and permitting requirements. One commenter noted the possibility of restrictions on National Forest System lands outside of the NCE Recovery Zone. Another commenter recommended prioritizing efforts to provide bear-resistant food storage and bear-resistant garbage containers at NPS and USFS campgrounds.

Response:
While short-term closures of areas may occur to prevent conflict (
e.g.,
trail closure for several days because of a grizzly bear known to be feeding on a carcass in the area), no long-term closures or travel restrictions are planned (see
Regulatory Planning and Review—Executive Orders 12866, 13563, and 14094,
below). The NPS and USFS are currently working to improve sanitation and update food storage infrastructure and implement food storage orders where they are not already in place (see
Management Efforts in the NCE and NCE Recovery Zone,
below). We clarify that food storage is a requirement for National Forest System lands only within Management Area A for the purpose of the incidental take exception to the general prohibition against take (see
Incidental Take,
below).

Comment:
A commenter stated that no bear should be preemptively relocated if the bear is not a threat to human safety, particularly if the bear has not become habituated or food-conditioned, or when nonnatural foods/attractants have not been properly secured. Commenters suggested that the Service should require the use of nonlethal conflict-reduction measures, including securing attractants, bear-resistant garbage containers, bear-resistant food cannisters, electric fences, use of guard animals or other nonlethal methods for managing conflict with livestock and domestic animals before bears are relocated or lethally removed. One commenter suggested livestock owners must be able to document and demonstrate the use of nonlethal deterrents. Commenters suggested that relocation or lethal removal of bears should only be considered after nonlethal management methods have been exhausted. Commenters stated that lethal removal should not be allowed for livestock depredations occurring on public lands.

Response:
Relocation of bears should and will be a tool only used when warranted, but bears may be relocated preemptively when appropriate for recovery purposes. Relocating a bear before they become habituated, food-conditioned, or a threat to human safety is sometimes the best course of action to avoid human-bear conflict and improve the likelihood of grizzly bear survival (see
Management Restrictions, Protective Measures, and Other Special Management,
below). Throughout the NEP area, we will consider lethal removal as a management tool only when it is not reasonably possible to eliminate the threat through nonlethal deterrence or live-capture and release of the grizzly bear unharmed. Lethal take in self-defense or defense of others remains an exception throughout the NEP area. We will employ methods and tools developed in other ecosystems to reduce human-grizzly bear conflict (including depredations) and/or increase the likelihood of finding and documenting depredation events. Livestock conflicts are not always preventable. Grizzly bears can cause significant losses in some instances, but a quick management response can increase social (or public) tolerance for

grizzly bears. We will not prohibit lethal removal for livestock depredation on public lands, but it should not be the first choice.

Comment:
One commenter requested a definition for the phrase “lasting bodily injury” in reference to injuries a bear might sustain during deterrence and hazing activities. One commenter requested the 5-day window for reporting injuries be changed to 24 hours.

Response:
We added a definition for “lasting bodily injury” to the final rule. The 5-day reporting window is consistent with our practices under the existing 4(d) rule for the grizzly bear outside the NEP, and we retain that reporting window for this NEP. In other grizzly bear ecosystems with this same 5-day reporting requirement, partners report this type of injury immediately. We would anticipate the same response in the NCE but include a 5-day reporting window in recognition that reporting an injury within 24 hours is not always feasible.

Comment:
A commenter expressed concern that unintentional lethal take may occur when hazing grizzly bears and requested specific guidance on acceptable and unacceptable hazing methods.

Response:
We have added some specific examples of what deterrence methods are considered acceptable, and which ones are not (see
Deterrence,
below).

Comment:
One commenter stated that the 10(j) rule does not provide enough flexibility for agricultural producers. The commenter stated that requiring confirmation of depredation in Management Area B and determination of a demonstrable and ongoing threat in Management Area C will result in harm to producers. Two commenters requested detail on what an “ongoing threat” means in regard to grizzly bear conflict with livestock.

Response:
In the final rule we clarified and defined what we mean by “demonstrable and ongoing threat” and “in the act of attacking” (see § 17.84 Species-specific rules—vertebrates, in the rule portion of this document). The Service or authorized agencies will respond to conflicts in all Management Areas and will determine the best management action moving forward, including lethal control. Lethal take authorization with conditions will be evaluated on a case-by-case basis. Individuals can also conduct intentional nonlethal deterrence and employ preventative tools (
e.g.,
electric fences) to prevent conflicts prior to a confirmed depredation or a human safety threat. In addition, we added a provision allowing lethal take of bears in the act of attacking livestock, including working dogs, if it occurs on private lands in Management Area C (see
Management Area Management Actions,
below).

Comment:
A commenter requested that forest managers, loggers, and others conducting otherwise lawful forest management activities be included in the list of those authorized to conduct nonlethal deterrence activities.

Response:
We updated the rule to confirm that individuals, which includes forest managers, loggers, and others conducting otherwise lawful forest management activities, may take nonlethal action to haze, disrupt, or annoy a grizzly bear out of close proximity to people or property to promote human safety, prevent conflict, or protect property (see
Management Restrictions, Protective Measures, and Other Special Management,
below).

Comment:
One commenter expressed concern that lethal take would occur near logging operations. Other commenters disagreed with exemption of incidental take in the 10(j) rule, particularly lethal incidental take allowed as part of forestry actions, because it could seemingly affect an unlimited number of bears in a variety of unspecified scenarios.

Response:
Based on our experience in other recovery zones, we expect lethal take as part of forestry actions to be very rare. The highest quality grizzly bear habitat and the location of most release sites are expected to be in wilderness where logging activities do not occur. If grizzly bears do overlap with logging operations, we expect most take to be in the form of harassment rather than lethal take. The Service and NPS considered an alternative in the EIS that would reintroduce grizzly bears with existing ESA protections, including the general prohibition against incidental take. As discussed further in the final EIS and our Record of Decision, we selected Alternative C: Restoration with ESA section 10(j) designation as the preferred approach as it allows for take in various circumstances to reduce the regulatory burden associated with reintroduction. The Grizzly Bear Recovery Plan calls for maintaining human-caused mortality below 4 percent of the population for all recovery zones (USFWS 1993, pp. 20-21). Because we anticipate the NCE population to remain low for the near future, we will attempt to keep human-caused mortality to zero. However, zero mortalities may not be practical given the need to protect human safety and property, and due to accidental mortalities (
e.g.,
vehicle collisions).

Comment:
One commenter requested more detail on what “humane manner” means, in terms of lethal removal of grizzly bears. Another commenter requested we remove the term humane and asserted that it is not possible to humanely remove,
i.e.,
kill, an animal.

Response:
We revised the rule to clarify that “humane” means with compassion and consideration for the bear and minimizing pain and distress. We consider it possible to humanely treat an animal when lethally removing it and therefore decline to remove the term or the requirement.

Comment:
A commenter stated that baited foot snares should not be used to capture bears intended for reintroduction to the NCE. Another commenter requested that we develop a humane capture and handling protocol due to the potential for injury and stress, particularly with foot snare traps.

Response:
While trapping is expected to occur largely with culvert traps, foot snares have been used safely for research captures of grizzly bears in other areas and may be the source of trapping for some bears for this restoration effort. Culvert traps are not as portable as foot snares, which offer more opportunities to trap in remote locations where we would expect to locate bears without a history of conflicts. Agencies currently capture and handle grizzly bears humanely using the techniques such as culvert traps or foot snares followed by anesthetization and radio collaring (Jonkel 1993, entire).

Comment:
Two commenters stated that a quick response is essential when responding to livestock depredations and expressed concern that government delays will hamper response. One commenter requested that authorizing conditioned lethal take should be allowed in all three management areas. One commenter requested that conditioned lethal take authorization last 4 weeks rather than 2 weeks. One commenter expressed concern about the length of time allowed for time-limited authorization.

Response:
A quick response is important when responding to livestock depredations. We currently work closely and effectively with authorized agencies in four ecosystems in Idaho, Montana, and Wyoming to ensure minimal delay. We expect to establish the same relationships and protocols with authorized agencies in the NCE. Authorized agencies may remove grizzly bears in conflict in all Management Areas of this NEP if the bear meets the criteria for removal. However, as Management Area A is entirely public land and core recovery habitat, we will

not support authorizing bear removals in Management Area A by individuals other than the Service or a Federal, State, or Tribal authority of an authorized agency and expect to work with the affected Federal land managers to address any conflict concerns.

In response to the comments, we reevaluated the timeframes for lethal take authorization. In the proposed rule, we proposed a 2-week timeframe; however, we reconsidered because of the potential for killing the wrong bear with an extended timeline. With a longer timeline, the greater the possibility bears may move, and different bears may enter the area. As a result, we are not extending the timeline but instead are reducing it to 5 days. The Service may extend authorization of lethal take to individuals for an additional 5 days if there are additional grizzly bear depredations or injuries to livestock and circumstances indicate the offending bear can be identified.

Comment:
Several commenters stated the provisions or sideboards describing when lethal removal of bears involved in conflict is allowed are unclear, and it is unclear as to when and why it might not be “reasonably possible to otherwise eliminate the threat by non-lethal deterrence or live capturing and releasing the grizzly bear unharmed in a remote area.” One commenter requested uniformity across all three Management Areas for decisions about lethal removal.

Response:
Determining whether to lethally remove a grizzly bear is a complex decision process, involving highly variable and fact-specific situations. As such, it is impossible to identify parameters to account for and describe all possible scenarios in the rule. Decisions on lethal removal will be based on many factors, including the ability to identify a particular bear (
e.g.,
markings, collars, track size, canine spacing), the individual bear involved (
e.g.,
sex, age, presence of dependent young, conflict history), relevant conflict history in the immediate area, and number of bears in the area. The Service has a history of making well-informed and timely decisions about lethal removal across four ecosystems with multiple authorized agencies in Idaho, Montana, and Wyoming. We expect to establish similar practices and protocols in the NCE. The Service also revised the final rule to improve clarity regarding the circumstances in which we will authorize lethal removal but retained the “not reasonably possible” language allowing for appropriate judgment and discretion based on the circumstances.

Comment:
Many commenters opposed lethal control authorizations for livestock owners or private individuals, citing public safety risks, likelihood of accidental wounding of bears, and potential for taking the wrong bear. Commenters stated that lethal control should be performed only by the Service or authorized agency personnel. One commenter suggested instead supplying ranchers with tranquilizer darts, whereby bears would await relocation by Federal officials, if a threat to livestock were posed.

Response:
Nonlethal actions (
e.g.,
relocation, securing attractants, or deterrence) are always the first options to address conflicts, and authorization of lethal take for individuals will be considered only after these options had failed or were deemed nonviable by the Service or an authorized agency. The two exceptions are when individuals kill a bear in defense of self or others, or the limited conditioned exception for take of a bear in the act of attacking livestock or working dogs on private lands in Management Area C. The final rule affirms that authorization of lethal take will be issued only after depredations are confirmed by the Service or an authorized agency and if the Service or authorized agency concludes an ongoing threat to human safety, livestock, or other pertinent property exists. As discussed in the previous response, the Service will authorize lethal take based on many factors. The Service expects to outline these factors and communication and coordination support with authorized agencies in the agency-specific Memoranda of Understanding (MOUs). If the Service decides to authorize lethal removal, that authorization will carry clear conditions and be time-limited. Lethal removal for conflicts (other than in cases of self-defense, or for the limited exception in Management Area C described) must be performed by the Service, a Federal, State, or Tribal authority of an authorized agency in accordance with the Service-agency MOU, or via prior written authorization to the individual in accordance with the rule.

Comment:
Several commenters indicated that the nonlethal incidental take reporting requirements due to `habitat modification resulting from otherwise lawful activities' are impractical and should be exempted from reporting.

Response:
We did not intend for the general reporting requirements for nonlethal take to apply to incidental take in the form of harm via habitat modification; rather, we require reporting when lethal or nonlethal take occurs as a result of direct interactions with the grizzly bear (
e.g.,
through self-defense, deterrence, conflict management, or vehicle collision, etc.) and clarified the reporting requirements accordingly. Incidental take of a grizzly bear in the form of harm via habitat modification is not prohibited within the NEP area. Habitat modification impacts will still be identified as a result of Federal actions on NPS or NWRS lands for which section 7(a)(2) consultation requirements remain. Any recommended reporting of habitat modification impacts will be part of the associated section 7(a)(2) biological opinion if applicable. Relatedly, as incidental take is not prohibited as a result of USFS actions within Management Area A provided the USFS maintains its `no net loss' agreement as it pertains to securing grizzly bear habitat, and the USFS is not required to consult under section 7(a)(2) on its proposed actions in the NEP area, we expect the USFS will maintain appropriate records on its `no net loss' agreement to confirm its actions are within the 10(j) rule incidental take exception.

Comment:
A commenter stated that the Service failed to provide any analysis to explain how lethal take of grizzly bears on Federal public lands to protect livestock grazing on public lands serves a conservation purpose. In addition, they stated that the proposed rule and draft EIS lacked adequate consideration of alternative mechanisms for Federal lands that would better take into account the authority that Federal land managers have to protect the reintroduced population, better fulfill the conservation purpose of section 10(j), and better align with the duty imposed on such agencies under section 7(a)(1) of the Act to further conservation of the species.

Response:
When we assess the conservation value of designating an experimental population and reintroducing a listed species, we evaluate the totality of the conservation and management actions associated with that designation, recognizing that some flexibility in managing the reintroduced population may be necessary to build support for the reintroduction. Lethal take on Federal lands in Management Area A is limited to the Service and authorized agencies only if it is not reasonably possible to otherwise eliminate the threat by nonlethal deterrence or live-capturing and releasing the grizzly bear unharmed and the taking is done in a humane manner. This is similar to the management of grizzly bears listed as threatened under the Act in other

ecosystems under the 4(d) rule. Therefore, the NEP designation does not represent a substantial change to the way grizzly bears are managed in relation to grazing allotments on Federal lands under the 4(d) rule.

Comment:
One commenter requested that the 10(j) rule authorize a grizzly bear hunting season.

Response:
The rule does not address or authorize grizzly bear hunting. Hunting regulations in Washington are established by State and Tribal authorities. Grizzly bears are currently listed as a State endangered species in Washington, and we do not expect that, even with this reintroduction, grizzly bear populations will become large enough to sustain recreational harvest anytime in the near future.

Comment:
A commenter noted that in the preamble of the proposed rule and draft EIS that we specified unintentional incidental take would be exempted provided such take is nonnegligent but noted that we did not specify it in the text of the rule itself; they considered this to misleadingly describe a more protective rule.

Response:
We updated the exceptions to the general take prohibition in the rule to clarify that take must be unintentional and nonnegligent for the incidental take exception to apply.

Comment:
One commenter expressed concern that reintroducing grizzly bears would require additional regulations that would hamper forestry activities and wildfire response on Federal and non-Federal lands. Another commenter recommended clarifying that permissible incidental take should include any habitat modification from otherwise lawful forest management activities consistent with the Forest Practices Act and pursuant to an approved habitat conservation plan, section 10(a)(1)(A) permit, or similar authorization.

Response:
The final rule is not expected to hamper forestry activities or response to wildfires on Federal or non-Federal lands. Under the 10(j) rule, as with all designated NEPs, consultation under section 7(a)(2) of the Act is not required for Federal actions if they do not occur on a National Wildlife Refuge or NPS land. On National Forest System lands, this means consultation under section 7(a)(2) is not required, even if the proposed Federal action may affect grizzly bears of the NEP; however, Federal agencies including the USFS are still required to confer with the Service, consistent with section 7(a)(4), for any agency action that is likely to jeopardize the continued existence of the listed species. In addition, provided the USFS retains its agreement regarding maintaining core secure habitat in Management Area A, incidental take from a USFS action in Management Area A is allowed. On all non-Federal land, including State-managed lands, take of a grizzly bear is allowed if the take is incidental to, and not the purpose of, an otherwise lawful activity, and reported in accordance with the rule. Private land and State-managed lands within the NEP are in Management Area C, with the most flexibility in regard to grizzly management tools. We do not expect the NEP to hamper or substantially modify forest health treatments or otherwise lawful forestry activities, including those consistent with the Forest Practices Act, on Washington Department of Natural Resources (WDNR) and National Forest System lands.

Comment:
A commenter requested that road use permits granted by the USFS on non-Federal lands be exempt from section 7(a)(2).

Response:
In accordance with our general section 10(j) regulations, USFS proposed actions, including the proposed issuance of USFS permits, will not require consultation under section 7(a)(2) within the NEP area when authorizing activities under USFS permits, which includes road use permits on non-Federal lands.

Comment:
One commenter recommended that section 7(a)(1) be applied only to the NCE Recovery Zone rather than the entire proposed NEP boundary, noting that the proposed rule recognized Management Area C as possibly unsuitable for grizzly bear.

Response:
Section 7(a)(1) of the Act requires all Federal agencies to use their authorities to carry out programs for the conservation of listed species. Under the Act, section 7(a)(1) remains applicable to all Federal agencies regardless of an NEP designation (see section 10(j)(2)(C)(i)). However, Federal agencies have broad discretion in how they fulfill their responsibilities under section 7(a)(1), and for grizzly bears within the NEP boundary, we anticipate that most agencies will focus their efforts within the NCE Recovery Zone.

Comment:
Two commenters stated that the Service provides no evidence to the claim that added flexibility under the 10(j) rule would increase social tolerance and therefore success of the population.

Response:
The need for the tools and flexibilities that a 10(j) experimental population designation provides was a recurring theme in public comment and community conversations beginning with the previous North Cascades Grizzly Restoration Plan/EIS process that was terminated in 2020. In our experience, by limiting impacts to property and safety, and providing more tools to address threats, the public's receptivity and tolerance to having grizzly bears on the landscape is likely to improve.

In the GYE, residents involved in resource extraction industries, livestock operators, and hunting guides were opposed to land-use restrictions that were perceived to place the needs of grizzly bears above human needs (Kellert 1994, p. 48; Kellert et al. 1996, p. 984). Surveys of these user groups have shown that they tolerate large predators when they are not seen as direct threats to their economic stability or personal freedoms (Kellert et al. 1996, p. 985). By increasing management flexibility, including allowing private citizens to take bears in certain situations, we believe the 10(j) rule will reduce conflicts and increase acceptance of grizzly bears.

Comment:
Several commenters were concerned about the impacts of black bear hunting on grizzly bears due to mistaken identification, and that accidental killing of grizzly bears due to mistaken identity could result in prosecution under the Act. Other commenters stated that the 10(j) rule should not include a reference to the potential for mistaken shooting prosecution because of the “McKittrick Policy.” Commenters stated concerns about the potential for hound hunting of black bears being extended to grizzly bears as allowed by recent legislation in Montana and Idaho.

Response:
The WDFW implemented a regulation that requires black bear hunters to take and pass a bear identification test when hunting black bears in specific areas within grizzly bear recovery zones, with the intent of minimizing the potential for accidental killings of grizzly bears due to mistaken identification (see
Management Efforts in the NCE and NCE Recovery Zone,
below). As to potential prosecution for mistakenly shooting a grizzly bear, the Service retains the general prohibitions against take of grizzly bears of the NEP other than as excepted by the 10(j) rule and retains the language that taking a grizzly bear that is wrongfully identified as another species is not considered “incidental take” and is not allowed under the rule. The determination of whether the shooting of a grizzly bear is a mistake is a fact-specific inquiry subject to investigation, which is not precluded by the McKittrick Policy (which is addressed to Federal prosecutors regarding appropriate jury instructions, see
WildEarth Guardians
v.
U.S. Dep't of Justice,
752 Fed. Appx.

421 (9th Cir. 2018)). The decision to pursue prosecution is subject to the discretion of the applicable authority. The McKittrick Policy would not apply to prosecution determinations by the State of Washington under State law. As such, we retain the language that prosecution may result. As to the concern about hound hunting, Washington State law prohibits the use of hounds for hunting of black bear (see Washington Administrative Code 220-413-060).

Comment:
One commenter suggested tools and actions used to address future impacts be based on prior large carnivore restoration efforts. One commenter requested we consider management tools described in the Colorado gray wolf NEP.

Response:
We evaluated a range of management tools, including those described in the Establishment of a Nonessential Experimental Population of the Gray Wolf in Colorado (88 FR 77014, November 8, 2023). Grizzly bears present different management challenges than wolves because of their life-history traits, such as long time to parturition, slow reproducing, and sensitivity to mortality. The management tools we selected were chosen to facilitate grizzly bear recovery in a landscape shared with people.

Comment:
A commenter suggested that species protections under a 10(j) rule are not adequate because the rule reduces habitat protections and may result in more bears being killed than under the 4(d) rule. One commenter stated that the 10(j) rule does not analyze how much more lethal take will occur under the rule compared to the 4(d) rule. One commenter stated that the Service should not rely on information from the NCDE and GYE to assess potential impacts to a reintroduced grizzly bear population in the NCE as the 10(j) regulation will provide less protection to the NCE population than the NCDE and GYE populations receive under the 4(d) rule.

Response:
As previously noted, the Service is currently coordinating with the NPS and USFS to update the baseline and memorialize the `no net loss' agreement for the U.S. portion of the NCE Recovery Zone, providing for the habitat security needed in support of grizzly bears in the Management Area A, the focal area for recovery of an NCE grizzly bear population. It is possible that more grizzly bears may be killed in the NCE under the 10(j) rule than had the Service decided to reintroduce grizzly bears to the ecosystem under the current 4(d) rule given the greater restrictions on lethal removal for grizzly bears under the 4(d) rule, but this is not a certainty. While designation as an NEP provides greater management flexibility than the existing 4(d) rule, that greater flexibility does not necessarily mean increased lethal take of grizzly bear. The management tools of the 10(j) rule are designed in large part to help the Service and authorized agencies to intervene to avoid situations that are likely to result in human-bear conflicts in the first place. Also, the additional management flexibility provided in the 10(j) rule is optional, not required, and lethal removal in particular is still subject to prior Service approval, with limited exceptions. In addition, the recovery plan calls for maintaining human-caused mortality below 4 percent of the population for all recovery zones (USFWS 1993, p. 20). Because we anticipate the NCE population to remain low for the near future, we will attempt to keep human-caused mortality to zero.

In terms of relying on information from the NCDE and GYE to assess potential impacts to the reintroduced population, the Service has tailored the 10(j) rule to focus on the NCE Recovery Zone, where protections similar to the 4(d) rule will apply. Therefore, we can use our experience managing grizzly bear populations in other ecosystems to assess potential effects to a reintroduced population in the NCE, particularly in Management Area A where the recovery effort is targeted. In addition, our experience managing grizzly bears under the 4(d) rule in the NCDE and GYE helped inform what additional flexibility for the NEP would be valuable in helping address issues with grizzly bears on the landscape.

Comment:
A commenter stated that the Wildlife Crossings Program needs to be implemented with any translocation to reduce the threat that car or train collisions pose to grizzly bears.

Response:
Part of what makes the NCE quality grizzly bear habitat is its large contiguous blocks of wilderness with comparatively few roads and railways, such that wildlife crossings may be less of an issue than in other areas, although the threat is not eliminated given the non-wilderness areas within the NCE. We will use a mortality management framework to ensure that total mortality rates do not approach an unsustainable level, and will limit discretionary mortalities (
i.e.,
management removals) if total mortality numbers (including any mortalities due to vehicle or train collisions) do not support an increasing population. Currently, more than 20 crossing structures over or under highways have been completed in Washington on the southern edge of the NCE Recovery Zone connecting areas south of I-90 to the NCE Recovery Zone (WSDOT 2023). Washington State Department of Transportation, their partners, and working groups continue to prioritize wildlife connectivity in Washington with special focus on I-90 and connecting the Cascades to the Kettle Mountain Range and Rocky Mountains (WSDOT 2023; Conservation Northwest 2023a; Conservation Northwest 2023b).

Comment:
A commenter requested that the EIS and 10(j) rule describe habitat management components outside of travel management (
i.e.,
motorized road management) and should include habitat management components that support prey species, such as elk and other big game species. They also recommended that the EIS and 10(j) rule include a summary of active projects designed to improve habitat for wildlife, fuels reduction, timber management, etc., within the NCE and proposed NEP boundary, and an assessment of how grizzly bear restoration will affect active forest management projects.

Response:
Consistent with other recovery areas, the Service's focus is on securing core habitat for grizzly bears, using motorized road management as the principal metric. This does not preclude partner agencies such as the NPS and USFS from providing other habitat management components, such as for prey species, through their planning processes, but these are beyond the scope of this rulemaking. The final EIS includes a cumulative effects analysis which addresses in part other ongoing and reasonably foreseeable planned projects that may affect the grizzly bear restoration plan; based on this analysis, we do not expect this NEP to affect active forest management projects.

Comment:
A commenter stated that the EIS and 10(j) rulemaking process should be delayed allowing for additional modeling of high-value grizzly bear habitat outside of the NCE Recovery Zone. Several commenters expressed concerns about the lack of more specific demographic goals and clear recovery criteria for the NCE Recovery Zone.

Response:
Recovery zones represent the Service's expectation of core areas for grizzly bear recovery in part because of their high-value habitat for grizzly bear. At approximately 9,500 mi
2
(25,000 km
2
) in size, the NCE Recovery Zone is the largest of six recovery zones and represents an area large enough and of sufficient habitat quality to support a recovered grizzly bear population. While bears will likely disperse from and occupy areas outside the NCE

Recovery Zone in the future, we expect recovery actions to remain focused there due to the quality and quantity of habitat. The NCE supplement to the Grizzly Bear Recovery Plan provides general demographic and habitat assumptions and goals, including that the population will be considered recovered when it is large enough to offset human-caused mortality, and when reproducing bears are distributed throughout the recovery area (potentially between 200-400 grizzly bears) (USFWS 1997, p. 3).

Comment:
One commenter questioned the projected annual growth rates (2-4 percent) for the reintroduced population of grizzly bears in the rule, particularly with a starting population of only 25 bears.

Response:
To estimate the number of reintroduced bears needed to reach an initial population of 25 bears, we used the survival rates of bears placed in the CYE through augmentation. This survival rate of CYE augmented bears is the best available information for the initial phase of NCE reintroduction. We use the 2-4 percent projected annual growth rate as only a range of possible growth rates based on other populations in the CYE, GYE, NCDE, and Selkirk Ecosystem. Once the population reaches 25 bears, the annual growth rate will be largely dependent upon reproduction and survival of those 25 bears with occasional additions to replace bears lost due to mortality or to maintain genetic diversity.

Comment:
A commenter suggested including additional metrics to emphasize grizzly bear mortality and adaptation resulting from climate-induced stressors. They suggested the following potential metrics: availability of food source susceptible to adverse effects due to climate change such as whitebark pine, body fat composition, hibernation den entry and exit patterns, length and elevation of hibernation, and climate-change-induced grizzly bear habitat changes.

Response:
We will monitor the reintroduced population (see
Monitoring and Evaluation,
below). If we observe changes to bear mortality rates or other characteristics mentioned in this comment, we may adjust our management or monitoring accordingly to ensure conservation of the population (see
Adaptive Management,
below).

Comment:
One commenter stated that the 10(j) rule does not allow State game agencies to manage the population of grizzly bears from the time of reintroduction to when population goals are met. They indicated there is too much time between when the Federal Government releases control to States and the implementation of a management plan.

Response:
The Service retains the lead in management of grizzly bears in the NEP as they are part of the overall efforts to recover the federally listed grizzly bear in the United States. The Service will continue to partner with the WDFW and coordinate with the IGBC as the Service implements the 10(j) rule. The Service expects this collaborative management to occur until the grizzly bear is recovered and no longer requires listing under the Act. States that seek to manage grizzly bears can speed that timeline to delisting by supporting recovery efforts, including providing State management plans and regulations that will protect the grizzly bear in absence of the Act's protection.

Comment:
A commenter suggested that a faster timeline for the translocation of bears may be better biologically and more cost effective than the 5-10 years proposed.

Response:
The capture of bears within specific sex/age categories and bears with no history of conflicts limits the number of bears available or able to be captured in a given year. The adaptive management framework provides an opportunity to adjust our methods as results indicate.

Comment:
Commenters asked what actions will be taken to ensure that relocated bears remain in the relocation area, requested more clarification about agency roles and responsibilities for the management of grizzly bears that leave the NEP area or Washington State, and expressed concern about the safety of bears emigrating into neighboring States in the event of a delisting of other distinct population segments.

Response:
If a grizzly bear needs to be relocated within the NEP, relocation sites will be identified in remote areas away from homes, developed areas, and concentrated human use (see
Management Restrictions, Protective Measures, and Other Special Management,
below). Relocated grizzly bears will be able to move freely, and the location of collared bears will be monitored via radio collars. Grizzly bears that come into conflict may be relocated to remote locations as warranted based on the type of conflict involved. Some reintroduced bears will likely leave the NCE, but due to the large distances and relatively low landscape permeability of the habitat between reintroduction areas and surrounding States, we think few bears will emigrate into adjacent States in the near future. However, if a grizzly bear from the NCE migrates into adjacent States, it will be managed by State, Federal, or Tribal authorities based on the listing status of bears in that location. Grizzly bears from the U.S. portion of the NCE emigrating into Canada will be managed by Canadian authorities.

Comment:
One commenter said the Service should commit to returning dispersing grizzly bears back to the NEP area and allow other agencies to facilitate the return of such bears to the NEP area.

Response:
Aside from grizzly bears that may move north to the NCE in Canada, it is unlikely that reintroduced grizzly bears will disperse outside of the NEP in the near future due to the limited habitat connections and to human barriers. However, in the Cabinet Mountains augmentation program, several translocated bears left the target area, likely in attempt to return home. Some translocated bears in the NCE will likely attempt to travel home; however, the distance to potential source populations is much greater than in the Cabinet Mountains program, which may limit dispersal attempts. The NCE in the United States contains large blocks of unoccupied suitable habitat with adequate food resources and relatively low landscape permeability to areas outside of the NEP area. In the unlikely event that grizzly bears move outside of the U.S. portion of the NEP during population establishment, we will work with the relevant authorities to determine the best course of action given the specific context of the situation.

Comment:
Commenters stated that notification on release sites and dates, and updates on the movement of collared bears, must be shared with agricultural producers. One commenter expressed concerns about collar technology not providing real-time data for proactive grizzly bear management. One commenter provided suggestions on how translocated bears should be monitored, pairing radio-transmitting Very High Frequency (VHF) devices with Global Navigation Satellite System Ultra High Frequency devices. Another commenter asked if translocated bears would have ear tags.

Response:
Prior to releases, the Service will coordinate with relevant land management agencies, including local staff, to ensure that no people or livestock are in close proximity to release sites. The Service will provide periodic updates on bear movements to the public, and for situations where collared grizzly bears are in areas likely to result in conflict, the Service or the authorized agency will work closely with the affected parties to reduce the potential for conflict. If collar data is available for a bear involved in conflict,

current technology often allows managers to find the bear from the ground and track its movements in real time. Remote monitoring is limited by the frequency of satellite fixes (a tradeoff to battery life); therefore, bear location information is more delayed. GPS radio telemetry devices currently used by the Service already have a VHF component that can provide other means of radio tracking in the event of a satellite transmission failure. Translocated bears will have ear tags.

Comment:
A commenter stated that a quarantine and decontamination protocol should be established for any bears considered for translocation to prevent the spread of noxious weeds.

Response:
Grizzly bears selected for translocation will typically come from backcountry areas that are limited in invasive weed presence. Bears will be held in a culvert trap after capture and during transport, which should allow any ingested material to pass through the gastrointestinal tract and be voided prior to release.

Comment:
A commenter requested that a management plan be developed to ensure a smooth and timely transition from Federal management under the Act to State management upon reaching grizzly bear population objectives.

Response:
As stated in the final rule, if grizzly bears are recovered and delisted under the Act, the experimental population designation and associated regulation will also be removed as part of the delisting rulemaking. In the event grizzly bears are considered for delisting due to recovery, we will work with the appropriate States and Tribes to develop plans for a smooth and timely transition of management responsibilities.

Comment:
A commenter suggested that bears with a history of human contact may be better suited for translocation than those without.

Response:
Bears with a history of human contact may be more prone to seek out anthropogenic foods and come into conflict. We want to give reintroduced bears the best chance to act as wild bears and avoid humans and human-occupied areas. Therefore, we retain the bear selection criteria described in
Effects on Wild Populations.

Comment:
Multiple commenters questioned if the NEP might be modified based on various factors. One commenter asked whether, if public tolerance rises to sufficient levels over the course of the restoration, could the ESA listing status of the population be changed. Another commenter noted that if bear mortality is too high the population will not be able to recover and suggests a threshold of zero human-caused mortalities in Management Area A. Yet another commenter questioned if the reintroduction effort would be stopped or the population re-designated as essential if the mortality reaches a certain threshold.

Response:
As stated in the final rule, we will consider removing the NEP designation only if (a) the reintroduction has not been successful, in which case the NEP boundaries might be altered or the regulations in the rule might be removed; or (b) the grizzly bear is recovered and delisted in accordance with the Act (see
Exit Strategy,
below). While zero human-caused mortalities is best, zero mortalities may not be practical given the need to protect human safety and property, and due to accidental mortalities (
e.g.,
vehicle collisions). As discussed above, the recovery plan calls for maintaining human-caused mortality below 4 percent of the population for all recovery zones. Because we anticipate the NCE population to remain small for the near future, we will attempt to keep human-caused mortality to zero. If grizzly bears of the NEP experience unexpectedly high natural mortality, if donor bears are not available, or if we conclude that we and our partners have insufficient funding for an extended period to support management of the NEP, we may consider ending the releases and removing the NEP designation. This would be done only after coordination with partners and a new public process where we would evaluate the NEP designation before making any decisions to exit the restoration program and remove or revise the 10(j) rule as appropriate.

Comment:
One commenter requested that the 10(j) rule include an “escape clause” that authorizes the State to lethally remove all grizzly bears in the NEP if the Service's nonessential determination for the NEP is at risk due to litigation challenging that determination.

Response:
The Service does not consider an “escape clause” appropriate for the NCE grizzly bear NEP. Lethal removal of all grizzly bears of the NEP is inconsistent with our goal of restoring grizzly bears to the NCE. If litigation results in the Service being required to reevaluate its nonessential determination for the NCE experimental population, we will evaluate our management options at that time.

Comment:
Commenters stated that we cannot designate an experimental population because the NCE is not outside of the current range or wholly geographically separate from nonexperimental populations. One commenter cited the possible presence of three female grizzly bears north of the border in British Columbia. Another commenter stated that the NCE includes land in Canada and, therefore, introducing an experimental population of grizzly bears lacks justification under the Act because it would not be wholly geographically separate from other populations of the species.

Response:
In our most recent status review, we concluded that the NCE Recovery Zone no longer contains a grizzly bear population (88 FR 41560 at 41579, June 27, 2023). We summarize why this experimental population designation would be wholly separate from nonexperimental populations in the
Is the Experimental Population Wholly Geographically Separate from Nonexperimental Populations?
section, below).

Comment:
One commenter stated that the proposal to make the 10(j) rule's management provisions effective regardless of whether any reintroduction of grizzly bears into the NCE has occurred yet is inconsistent with section 10(j) of the Act and would violate NEPA because this was not evaluated in the draft EIS.

Response:
The 10(j) rule, consistent with the Act, defines how the NEP can be identified, in this case by geographic area—the NEP area. This is also consistent with the NEPA analysis, which has an alternative (Alternative C) that includes restoration of grizzly bears with a 10(j) nonessential population designation using geographic location to identify members of the NEP. Nevertheless, in response to this comment, we carefully reviewed how we will treat any bears in the NEP area before and after translocation and have determined that it is appropriate to change our approach.

The Act and our regulations define an experimental population as a population (and any offspring arising solely therefrom) authorized for release as experimental, but only when and at such times as the population is wholly separate geographically from nonexperimental populations. Likewise, experimental population releases are required to be outside the current range of the species, and the Act and our regulations require that we provide a means to identify the experimental population. The purpose of these provisions is to ensure that nonexperimental populations do not receive the reduced protections associated with the NEP designation (49 FR 33885, August 27, 1984). Based on the Act, our regulations, and the legislative history, we have determined that the experimental population

designation should not apply before any individuals are released.

Therefore, the Service has changed its approach in this final rule to better align with the intent and purpose of identifying the experimental population, as reflected in our regulations. Any grizzly bears that are found in the NCE NEP area before the Service has translocated grizzly bears into the NEP area will be managed in accordance with the 4(d) rule. However, after our initial release of one or more grizzly bears into the NEP area, any grizzly bears—including those moving from Canada into the NEP area—will be treated as part of the NEP while they are present within the NEP area, with all of the associated ESA protections and exceptions that apply to the experimental population. As discussed under
Is the Experimental Population Wholly Geographically Separate from Nonexperimental Populations?,
we have concluded that it is unlikely that bears will move into the NEP area from other U.S. populations and it is, therefore, reasonable that any bears found after the initial release originated from the release.

Comment:
One commenter requested that the EIS and 10(j) rulemaking process be put on hold until 12-month findings are issued by the Service in response to petitions requesting the Service delist grizzly bears from the Act in the GYE and NCDE.

Response:
The Service's response to petitions requesting that we remove the grizzly bear from the List of Endangered and Threatened Wildlife is outside the scope of the rule. The 10(j) rule does not preclude revisions to the listed entity. If the Service revises the grizzly bear listed entity, the effect on this NEP, if any, will be addressed at that time.

Comment:
One commenter stated that, during grizzly bear mating seasons, a moratorium on off-highway vehicle (OHV) use should be enforced to ensure that the grizzly bears have the best chance of reproducing.

Response:
Management Area A, which is the core area targeted for recovery of grizzly bears, is already largely composed of designated wilderness, which precludes motorized access generally. In addition, for those areas outside of wilderness, the `no net loss' agreement by NPS and USFS within Management Area A will provide for the habitat security needed in support of grizzly bears in this portion of the NEP area. A moratorium on OHV use is not necessary to support the restoration program in the NCE.

Final Rule Issued Under Section 10(j) of the Act

Background and Biological Information

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

Taxonomy and Species Description

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

Historical and Current Range

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

Since their listing under the Act, grizzly bear populations in the lower 48 States have expanded in number and range. Current populations combined contain approximately 2,200 bears and occupy portions of Idaho, Montana, Wyoming, and Washington. Outside the lower 48 States, approximately 55,000 grizzly bears exist in the largely unsettled areas of Alaska and western Canada.

Grizzly Bear Ecosystems and Recovery Zones

The recovery plan refers to six grizzly bear ecosystems identified to target the species' recovery (USFWS 1993, p. 10). Currently, approximately 2,200 grizzly bears exist primarily in 4 ecosystems in the lower 48 States: the NCDE, the GYE, the CYE, and the Selkirk Ecosystem. There are no known grizzly bear populations in the remaining two ecosystems, the NCE and BE, nor any known populations outside these ecosystems, although we have documented bears, primarily solitary, outside the NCE and BE. Current populations in the NCDE, Selkirk Ecosystem, and CYE extend into Canada to varying degrees. Although there is currently no known population in the NCE, it constitutes a large block of contiguous habitat that spans the international border. The Service has not explicitly defined ecosystem boundaries, but we have identified recovery zones at the core of each ecosystem (USFWS 2022, p. 56) (figure 1). Therefore, each recovery zone pertains to a specific area within the larger ecosystem.

At the time of the original recovery plan, grizzly bear distribution within the lower 48 States was primarily within and around areas identified as recovery zones (USFWS 1993, pp. 10-13, 17-18). The Service identified the six recovery zones, which correspond with the six ecosystems. These recovery zones and the most recent grizzly bear population estimates for each zone are as follows:

(1) The GYE Recovery Zone in northwestern Wyoming, eastern Idaho, and southwestern Montana (9,200 mi
2
(24,000 km
2
)) at approximately 965 individuals inside the Demographic Monitoring Area (Gould et al. 2023, p. 37);

(2) the NCDE Recovery Zone of north-central Montana (9,600 mi
2
(25,000 km
2
)) at approximately 1,138 individuals (Costello et al. 2023, p. 10);

(3) the NCE Recovery Zone of north-central Washington (9,500 mi
2
(25,000 km
2
)), although no functional population of grizzly bears currently exists in the NCE (see
Status of Grizzly Bears in the North Cascades Ecosystem,
below);

(4) the Selkirk Ecosystem Recovery Zone of northern Idaho, northeastern Washington, and southeastern British Columbia (2,200 mi
2
(5,700 km
2
)) at approximately 83 individuals (Proctor et al. 2012, p. 31). An updated British Columbia-only estimate of 69 was made in 2022 though it includes some bears with home ranges in the United States (Proctor et al. 2023 p. 2);

(5) the CYE Recovery Zone of northwestern Montana and northern Idaho (2,600 mi
2
(6,700 km
2
)) at approximately 60-65 bears (Kasworm et al. 2023a, p. 43); and

(6) the BE Recovery Zone of central Idaho and western Montana (5,830 mi
2
(15,100 km
2
)), although no functional population of grizzly bears currently exists in the BE.

NCE and NCE Recovery Zone Relation to the Experimental Population

Although the Service considers the North Cascades
Ecosystem
to include areas within Canada, the North Cascades
Recovery Zone
is a component of the ecosystem and occurs only within the United States. Throughout this final rule, we will reference the broader North Cascades Ecosystem, which includes habitat in Canada, as the “NCE” and reference its recovery zone (solely within the United States) as the “NCE Recovery Zone.” The nonessential experimental population area (see “Experimental Population” below) in this rulemaking action encompasses the entire NCE Recovery Zone and the portion of the larger NCE within the United States.

ER03MY24.001

Behavior and Life History

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

Grizzly bears have a promiscuous mating system. Mating occurs from May through July with a peak in mid-June. Average age of first reproduction can vary from 3 to 8 years of age. Litter sizes range from one to four cubs, although two is the most common. Cubs are typically born in the den in late January or early February and typically remain with the female for 2.5 years, making the average time between litters (
i.e.,
the interbirth interval) approximately 3 years. Grizzly bears have one of the slowest reproductive rates among terrestrial mammals, resulting primarily from the late age of first reproduction, small average litter size, and the long interbirth interval. A population is made up of numerous overlapping generations. It is possible for mothers, daughters, and granddaughters to be reproductively active at the same time. Grizzly bear females typically cease reproducing some time in their mid-to-late 20s (Schwartz et al. 2003a, pp. 109-110; USFWS 2022, pp. 44-45).

Grizzly bears hibernate for 4 to 6 months each year in winter to cope with seasons of low food abundance. Grizzly bears in the lower 48 States typically enter dens between October and December. In the 2 to 4 months before den entry, bears increase their food intake dramatically during a process called hyperphagia. Grizzly bears must consume foods rich in protein and carbohydrates during this time (between August and November) in order to build up fat reserves to survive denning and post-denning periods. Grizzly bears typically hibernate alone in dens, except for females with young and subadult siblings who occasionally hibernate together. Most dens are located at higher elevations, above 8,000 feet (ft) (2,500 meters (m)) in the GYE and above 6,400 ft (1,942 m) in the NCDE and on slopes ranging from 30 to 60 degrees. Grizzly bears exit their dens between March and May; females with cubs exit later than other adults (Mace and Waller 1997, p. 37; Haroldson et al. 2002, p. 29; Kasworm et al. 2021a, pp. 51-54; Kasworm et al. 2021b, pp. 33-36; USFWS 2022, pp. 45-46).

When not hibernating, grizzly bears use a variety of cover types to rest and shelter. Grizzly bears often select bed sites with horizontal and vertical cover, especially at day bed sites, suggesting that bed site selection is important for concealment from potential threats. The relative importance of cover to grizzly bears was documented in a 4-year study of grizzly bears in the GYE. Of 2,261 aerial radio signals from 46 instrumented bears, 90 percent were located in forest cover too dense to observe the bear (Blanchard 1978, pp. 27-29).

Grizzly bears make seasonal movements within their home ranges to locations where food is abundant (
e.g.,
ungulate winter ranges and calving areas, talus slopes). They are opportunistic omnivores and display great diet plasticity, even within a population, shifting their diet according to foods that are most nutritious (
i.e.,
high in fat, protein, and/or carbohydrates) and available (USFWS 2022, pp. 47-48). They will consume almost any food available including living or dead mammals or fish, insects, worms, plants, human-related foods, garbage, livestock, and agricultural crops. Cattle and sheep depredation rates are generally higher where bear densities are higher and in later summer months (Wells et al. 2018, pp. 5-6). In areas where animal matter is less available, berries, grasses, roots, bulbs, tubers, seeds, and fungi are important in meeting protein and caloric requirements (USFWS 2022, pp. 47-48; LeFranc et al. 1987, pp. 111-114; Schwartz et al. 2003b, pp. 568-569).

In general, an individual grizzly bear's habitat needs and daily movements are largely driven by the search for food, water, mates, cover, security, or den sites. Grizzly bears display dietary adjustability across ecosystems and exploit a broad diversity of habitat types. Large intact blocks of land directly influence the quality and quantity of the species' resource needs, highlighting the importance of this habitat factor to all life stages. The larger, more intact, and ecologically diverse the block of land, it follows that high-caloric foods, dens, and cover would be more readily available to individuals. Grizzly bears also need large, intact blocks of land with limited human influence and thus low potential for displacement and human-bear or livestock-bear conflict that could result in human-caused mortality. Grizzly bears in the lower 48 States need multiple resilient ecosystems distributed across a geographical area to reduce the risk of catastrophic events. A wide distribution of multiple ecosystems ensures that all ecosystems are not exposed to the same catastrophic event at the same time, thereby reducing risk to the species. Grizzly bears also need genetic and ecological diversity across their range in the lower 48 States to adapt to changing environmental conditions (USFWS 2022, pp. 98-100).

Kasworm et al. (2014, entire) evaluated grizzly bear food data from the CYE. The CYE has a Pacific maritime climate that may be similar to the climate in the central and western Cascade Mountains. Therefore, an evaluation of grizzly bear food selection in the CYE could be useful for predicting food habits of grizzly bears in the NCE. Huckleberry (
Vaccinium
spp.) is an important component of the grizzly bear's diet in the CYE. Data were collected over several years, using both isotope analysis on hairs and scat. Isotope analysis showed a highly variable use of meat (6 percent to 37 percent of diet), and that meat was found in many scats in some months (40 percent of dry matter in April and May), including fall (carrion). Overall, mammals and shrubs (berries) constituted 64 percent of total dry matter annually. In a study analyzing grizzly bear habitat selection, fitness, and density, huckleberry patches were the most influential bottom-up factors (Proctor et al. 2023, p. 48). In a diet study of grizzly bears in several western ecosystems, researchers found that adult male grizzly bears were more carnivorous than any other age or sex class, with diets composed of around 70 percent meat (Jacoby et al. 1999, pp. 924-926). Other sex and age groups of grizzly bears displayed diets similar to black bears living in the same areas reflective of diets described by Kasworm et al. 2014 (Jacoby et al. 1999, pp. 924-926). Grizzly bear source populations may also include interior British Columbia. Grizzly bear female diets in the interior of British Columbia were based largely on plant material (58 percent) and terrestrial meat (31 percent) (Adams et al. 2017, pp. 7-10). Male diets were similar but had a higher proportion of plants (63 percent) and less terrestrial meat (8 percent). These amounts are similar to those of the CYE diets, which were largely plants (66 percent) and a lesser amount of terrestrial meat (26 percent).

Threats

Excessive human-caused mortality, including “indiscriminate illegal killing,” defense of life and property mortality, accidental mortality, and management removal, was the primary

factor contributing to rangewide grizzly bear decline during the 19th and 20th centuries, eventually leading to their listing as a threatened species in 1975 (40 FR 31734, July 28, 1975). Habitat destruction, modification, and isolation and conflict resulting from human access to formerly secure habitat were also identified as threats in the 1975 listing. In the State of Washington, the northwest fur trade was probably the primary driver of rapid grizzly bear decline in the period 1810-1870. In addition to the influx of trappers, resource e

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-09136. Public record. Not legal advice.