1752 Federal Register /Vol. 63, No. 7/Monday, January 12 ...j)_Final_Rule.pdf · Federal Register/Vol. 63, No. 7/Monday, January 12, 1998/Rules and Regulations1753 habitat alteration,

1752 Federal Register / Vol. 63, No. 7 / Monday, January 12, 1998 / Rules and Regulations

local agencies has shown them to beadequate for the implementation andenforcement of the listed NSPS andNESHAP categories, the EPA herebynotifies the public that it has delegatedthe authority for the source categorieslisted as of the dates specified in theabove tables.

The Office of Management and Budgethas exempted this rule from therequirements of section 6 of ExecutiveOrder 12866.

Authority: This document is issued underthe authority of sections 101, 110, 111, 112and 301 of the CAA, as amended (42 U.S.C.7401, 7410, 7411, 7412 and 7601).

Dated: December 3, 1997.William Rice,Acting Regional Administrator.[FR Doc. 98–552 Filed 1–9–98; 8:45 am]BILLING CODE 6560–50–U

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AD07

Endangered and Threatened Wildlifeand Plants; Establishment of aNonessential Experimental Populationof the Mexican Gray Wolf in Arizonaand New Mexico

AGENCY: Fish and Wildlife Service,Interior.ACTION: Final rule.

SUMMARY: The U.S. Fish and WildlifeService (Service) has decided toreintroduce the endangered Mexicangray wolf (Canis lupus baileyi) into theBlue Range Wolf Recovery Area, adesignated area within the subspecies’probable historic range. Thisreintroduction will be the first steptoward recovery of the Mexican wolf inthe wild. The Blue Range Wolf RecoveryArea consists of the entire Apache andGila National Forests in east-centralArizona and west-central New Mexico.If the Service later finds it to be bothnecessary for recovery and feasible, wewould reintroduce wolves into theWhite Sands Wolf Recovery Area,which also lies within the subspecies’probable historic range. This areaconsists of all land within the boundaryof the White Sands Missile Range insouth-central New Mexico together withdesignated land immediately to the westof the missile range. By this rule, theService classifies wolves to be re-established in these areas as onenonessential experimental populationunder section 10(j) of the Endangered

Species Act (Act) of 1973, as amended.This final rule sets forth managementdirections and provides for limitedallowable legal take of wolves within adefined Mexican Wolf ExperimentalPopulation Area.EFFECTIVE DATE: January 24, 1998.ADDRESSES: Send correspondenceconcerning this rule to the MexicanGray Wolf Recovery Program, U.S. Fishand Wildlife Service, P.O. Box 1306,Albuquerque, New Mexico 87103–1306.The complete file for this final rule isavailable for public inspection, byappointment, during normal businesshours at the above address.FOR FURTHER INFORMATION CONTACT: Mr.David R. Parsons (see ADDRESSESsection) at telephone (505) 248–6920;facsimile (505) 248–6922; or electronicmail at [email protected].

SUPPLEMENTARY INFORMATION:

Background

Legislative

The Endangered Species ActAmendments of 1982, Pub. L. 97–304,created section 10(j), providing for thedesignation of specific populations oflisted species as ‘‘experimentalpopulations.’’ Under previousauthorities of the Act, the Service waspermitted to re-establish (reintroduce)populations of a listed species intounoccupied portions of its historic rangefor conservation and recovery purposes.However, local opposition toreintroduction efforts, stemming fromconcerns by some about potentialrestrictions, and prohibitions on Federaland private activities contained insections 7 and 9 of the Act, reduced theeffectiveness of reintroduction as aconservation and recovery tool.

Under section 10(j), a population of alisted species re-established outside itscurrent range but within its probablehistoric range may be designated as‘‘experimental’’ at the discretion of theSecretary of the Interior (Secretary).Reintroduction of the experimentalpopulation must further theconservation of the listed species. Anexperimental population must beseparate geographically fromnonexperimental populations of thesame species. Designation of apopulation as experimental increasesthe Service’s management flexibility.

Additional management flexibilityexists if the Secretary finds theexperimental population to be‘‘nonessential’’ to the continuedexistence of the species. For purposes ofsection 7 [except section 7(a)(1), whichrequires Federal agencies to use theirauthorities to conserve listed species],

nonessential experimental populationslocated outside national wildlife refugeor national park lands are treated as ifthey are proposed for listing. Thismeans that Federal agencies are underan obligation to confer, as opposed toconsult (required for a listed species),on any actions authorized, funded, orcarried out by them that are likely tojeopardize the continued existence ofthe species. Nonessential experimentalpopulations located on national wildliferefuge or national park lands are treatedas threatened, and formal consultationmay be required. Activities undertakenon private or tribal lands are notaffected by section 7 of the Act unlessthey are authorized, funded, or carriedout by a Federal agency.

Individual animals used inestablishing an experimental populationcan be removed from a sourcepopulation if their removal is not likelyto jeopardize the continued (12.9 km2)existence of the species (see FindingsRegarding Reintroduction, below), and apermit has been issued in accordancewith 50 CFR part 17.22.

The Mexican gray wolf was listed asan endangered subspecies on April 28,1976 (41 FR 17742). The gray wolfspecies in North America south ofCanada was listed as endangered onMarch 9, 1978, except in Minnesotawhere it was listed as threatened (43 FR9607). This listing of the species as awhole continued to recognize validbiological subspecies for purposes ofresearch and conservation (43 FR 9610).

BiologicalThis final experimental population

rule addresses the Mexican gray wolf(Canis lupus baileyi), an endangeredsubspecies of gray wolf that wasextirpated from the southwesternUnited States by 1970. The gray wolfspecies (C. lupus) is native to most ofNorth America north of Mexico City. Anexception is in the southeastern UnitedStates, which was occupied by the redwolf species (C. rufus). The gray wolfoccupied areas that supportedpopulations of hoofed mammals(ungulates), its major food source.

The Mexican gray wolf historicallyoccurred over much of New Mexico,Arizona, Texas, and northern Mexico,mostly in or near forested, mountainousterrain. Numbering in the thousandsbefore European settlement, the ‘‘lobo’’declined rapidly when its reputation asa livestock killer led to concertederadication efforts. Other factorscontributing to its decline werecommercial and recreational huntingand trapping, killing of wolves by gamemanagers on the theory that more gameanimals would be available for hunters,

1753Federal Register / Vol. 63, No. 7 / Monday, January 12, 1998 / Rules and Regulations

habitat alteration, and human safetyconcerns (although no documentationexists of Mexican wolf attacks onhumans).

The subspecies is now consideredextirpated from its historic range in thesouth western United States because nowild wolf has been confirmed since1970. Occasional sightings of ‘‘wolves’’continue to be reported from U.S.locations, but none have beenconfirmed. Ongoing field research hasnot confirmed that wolves remain inMexico.

Mexican wolves were eradicatedbefore their natural history had beensystematically studied. Chapter 1 of theFinal Environmental Impact Statement(FEIS) discusses the taxonomy andprobable historic range of C. l. baileyi,as well as the genetics and otherimportant background on the captivepopulation. Appendix A of the FEISprovides life history and ecologicaldescriptions of Mexican wolves to theextent they are known or can be inferredfrom historical evidence, observations ofcaptive Mexican wolves, and studies ofgray wolves in other geographic regions.

Recovery Efforts

The Mexican Wolf Recovery Plan wasadopted by the Directors of the Serviceand the Mexican Direccion General dela Fauna Silvestre in 1982. Its objectiveis to conserve and ensure survival of thesubspecies by maintaining a captivebreeding program and re-establishing aviable, self-sustaining population of atleast 100 Mexican wolves in a 5,000square mile area within the subspecies’historic range. The plan guides recoveryefforts for the subspecies, laying out aseries of recommended actions. Therecovery plan is currently being revised;the Service expects to release a draft forpublic review in 1998. The revised planwill more precisely define populationlevels at which the Mexican wolf can bedownlisted to ‘‘threatened’’ status andremoved from protection under the Act(i.e., delisted).

A captive breeding program wasinitiated with the capture of five wildMexican wolves between 1977 and1980, from Durango and Chihuahua,Mexico. Three of these animals (twomales and a female that was pregnantwhen captured) produced offspring,founding the ‘‘certified’’ captive lineage.Two additional captive populationswere determined in July 1995 to be pureMexican wolves—each has twofounders. The captive populationincluded 148 animals as of January1997—119 are held at 25 facilities in theUnited States and 29 at five facilities inMexico.

On April 20, 1992, the Service issueda ‘‘Notice of Intent to Prepare anEnvironmental Impact Statement on theExperimental Reintroduction ofMexican Wolves (Canis lupus baileyi)into Suitable Habitat within the HistoricRange of the Subspecies’’ (57 FR 14427).This notice also announced the timeand place of public scoping meetings.The Service released the draftEnvironmental Impact Statement (DEIS),entitled ‘‘Reintroduction of the MexicanWolf within its Historic Range in theSouthwestern United States,’’ for publicreview and comment on June 27, 1995(60 FR 33224). The location and timesof 14 public meetings were alsoannounced in that notice. On September26, 1995, the Service announced thatthree public hearings would be held inOctober 1995 (60 FR 49628). Allannounced meetings and hearings wereheld. The public comment period on theDEIS closed on October 31, 1995; andapproximately 18,000 people submittedcomments. Provisions of the Service’sdraft proposed Mexican wolfexperimental population rule weresummarized in Chapter 2 of the DEISand provided in full in Appendix C ofthe DEIS.

The proposed Mexican wolfexperimental population rule waspublished in the Federal Register onMay 1, 1996 (61 FR 19237–19248) andpublic comments were accepted throughJuly 1, 1996. A May 22, 1996, FederalRegister notice (61 FR 25618–25619)announced four public meetings/hearings specific to the proposed rule,which were held in potentially affectedareas.

The Service released the FEIS onMexican wolf reintroduction onDecember 20, 1996. Chapter 5 of theFEIS contains a detailed review ofpublic comments on the DEIS, includingcomments on the draft proposed rule,and the Service’s responses. Pursuant to50 CFR 17.81(d), this experimentalpopulation rule and the FEIS weredeveloped in consultation withappropriate State fish and wildlifeagencies, local governmental entities,affected Federal agencies, affectedprivate landowners, native Americantribes, technical experts, and others. TheService has cooperated with localgovernments through meetings withcounty officials and theirrepresentatives, making backgroundinformation available, solicitinginformation, reviewing and respondingto comments and studies prepared bycounty consultants, inviting consultantswith expertise in local issues to an EISteam meeting, and other measures. Inaddition, the EIS process includedholding public comment meetings

throughout potentially affected areas,including holding a joint meeting withthe Commission of Sierra County, theonly county that so requested.

The Service is exploring additionalavenues of communication andcooperation with local governments andother stakeholders in theimplementation of Mexican wolfreintroduction.

On April 3, 1997, the Department ofthe Interior issued its Record ofDecision on the FEIS, and selected thePreferred Alternative (Alternative A inthe FEIS) for implementation (62 FR15915–15916). The Service willreintroduce captive-raised Mexicanwolves in eastern Arizona within thedesignated Blue Range Wolf RecoveryArea. Released wolves and theiroffspring will be designated anonessential experimental population.This population will be allowed tocolonize the entire Blue Range WolfRecovery Area. If the Service laterdetermines it to be both necessary forrecovery and feasible, we wouldreintroduce wolves into the WhiteSands Wolf Recovery Area, thedesignated back-up area.

Mexican Wolf Recovery AreasThe Service has determined that

reintroduction in the Blue Range WolfRecovery Area (Figure 1) is biologicallyand environmentally preferable and hasthe greatest potential for successfullyachieving the current recovery objectivefor Mexican wolves. The White SandsWolf Recovery Area (Figure 2) mayserve as a back-up reintroduction areaonly if its use is later determined to beboth necessary and feasible, accordingto criteria in the Preferred Alternative.

The two wolf recovery areas arewithin the Mexican wolf’s probablehistoric range. The Mexican wolf isconsidered extinct in the wild in theUnited States. Thus, both areas aregeographically separate from anyknown, naturally-occurring,nonexperimental populations of wildwolves.

Section 17.84(k)(9) of this ruleestablishes a larger Mexican WolfExperimental Population Area (Figure3), which also is geographically separatefrom any known, naturally-occurringnonexperimental populations of wildwolves. The Service is not proposing tore-establish Mexican wolves throughoutthis larger area. The purpose ofdesignating an experimental populationarea is to establish that any member ofthe re-established Mexican wolfpopulation found in this larger area isa member of the nonessentialexperimental population, and subject tothe provisions of this rule including, but


not limited to, its capture and return tothe designated recovery area(s).

Reintroduction ProceduresCaptive Mexican wolves are selected

for release based on genetics,reproductive performance, behavioralcompatibility, response to theadaptation process, and other factors.Selected wolves have been moved to theService’s captive wolf managementfacility on the Sevilleta NationalWildlife Refuge in central New Mexicowhere they have been paired based ongenetic and behavioral compatibilityand measures are being taken to adaptthem to life in the wild. As wolves aremoved to release pens, more will bemoved to the Sevilleta facility.Additional wolves for reintroductionmay be obtained from selectedcooperating facilities that provide anappropriate captive environment.

Initially, wolves will be reintroducedby a ‘‘soft release’’ approach designed toreduce the likelihood of quick dispersalaway from the release areas. Thisinvolves holding the animals in pens atthe release site for several weeks inorder to acclimate them and to increasetheir affinity for the area. (The softrelease approach is described in moredetail in Chapter 2 of the FEIS.) Thereleases will begin in 1998. Proceduresfor releases could be modified if newinformation warrants such changes.

In the Blue Range Wolf RecoveryArea, approximately 14 family groupswill be released over a period of 5 years,with the goal of reaching a populationof 100 wild wolves. Approximately fivefamily groups of captive raised Mexicanwolves will be released over a period of3 years into the White Sands WolfRecovery Area, if this back-up area isused, with the goal of reaching apopulation of 20 wolves.

Management of the ReintroducedPopulation

The nonessential experimentaldesignation enables the Service todevelop measures for management ofthe population that are less restrictivethan the mandatory prohibitions thatprotect species with ‘‘endangered’’status. This includes allowing limited‘‘take’’’ (see definition of take in section17.84(k)(15) of the rule) of individualwolves under narrowly definedcircumstances. Management flexibilityis needed to make reintroductioncompatible with current and plannedhuman activities, such as livestockgrazing and hunting. It is also critical toobtaining needed State, Tribal, local,and private cooperation. The Servicebelieves this flexibility will improve thelikelihood of success.

Reintroduction will occur undermanagement plans that allow dispersalby the new wolf populations beyond theprimary recovery zones where they willbe released into the secondary recoveryzones of the designated wolf recoveryarea(s) (Figures 1 and 2). The Serviceand cooperating agencies will not allowthe wolves to establish territories onpublic lands wholly outside these wolfrecovery area boundaries. Withlandowner consent, the Service alsowould prevent wolf colonization ofprivate or tribal lands outside thedesignated recovery area(s).

No measures are expected to beneeded to isolate the experimentalpopulation from naturally occurringpopulations because no Mexican wolvesare known to occur anywhere in thewild. The Service has ensured that nopopulation of naturally-occurring wildwolves exists within the recovery areas.Surveys for wolf sign in these areas havebeen conducted, and no naturallyoccurring population has beendocumented. No naturally occurringpopulation of Mexican wolves has beendocumented in Mexico following fouryears of survey efforts there. Therefore,based on the best available information,the Service concludes that futurenatural migration of wild wolves intothe experimental population area is notpossible.

Identification and Monitoring

Prior to placement in release pens, theadult-sized wolves will receivepermanent identification marks andradio collars. If pups are born in therelease pens, they will be marked andmay receive surgically implantedtransmitters prior to release. Some or allof these pups may be captured andfitted with radio collars when theyreach adult size. Captured wild-bornwolves will be given a permanentidentification mark and radio collar,unless enough animals from their familygroup (to ensure adequate monitoring ofthe group) are already radio collared.

The Service and cooperating agencieswill measure the success or failure ofthe releases by monitoring, researching,and evaluating the status of releasedwolves and their offspring. Usingadaptive management principles, theService and cooperating agencies willmodify subsequent releases dependingon what is learned from the initialreleases. The agencies will prepareperiodic progress reports, annualreports, and full evaluations after threeand five years that will recommendcontinuation, modification, ortermination of the reintroduction effort.The reports will also evaluate whether,

and how, to use the back-up WhiteSands Wolf Recovery Area.

Findings Regarding ReintroductionThe Service finds that, under the

Preferred Alternative, the reintroducedexperimental population is likely tobecome established and survive in thewild within the Mexican gray wolf’sprobable historic range. The Serviceprojects that this reintroduction willachieve the recovery goal of at least 100wolves occupying 5,000 square miles.The Blue Range Wolf Recovery Areacomprises 6,854 square miles of whichabout 95% is National Forest.

Some members of the experimentalpopulation are expected to die duringthe reintroduction efforts after removalfrom the captive population. TheService finds that even if the entireexperimental population died, thiswould not appreciably reduce theprospects for future survival of thesubspecies in the wild. That is, thecaptive population could produce moresurplus wolves and futurereintroductions still would be feasible ifthe reasons for the initial failure areunderstood. The individual Mexicanwolves selected for release will be asgenetically redundant with othermembers of the captive population aspossible, thus minimizing any adverseeffects on the genetic integrity of theremaining captive population. TheService has detailed lineage informationon each captive Mexican wolf. Thecaptive population is managed for theService under the American Zoo andAquarium Association’s SpeciesSurvival Plan program. The Associationmaintains a studbook and provides anexpert advisor for small populationmanagement.

Management of the demographic andgenetic makeup of the population isguided by the SPARKS computerprogram. Mean kinship values, whichrange from zero to one, are a measure ofthe relatedness of an individual to therest of the population. Wolves withhigher kinship values are geneticallywell-represented in the population.Individuals whose mean kinship valuesare above the mean for the captivepopulation as a whole will be used forrelease. In addition, the GENEScomputer program is used to examinethe influence of removing an individualanimal on the survival of the founders’genes. This management approach willadequately protect the genetic integrityof the captive population and thus thecontinued existence of the subspecies.The United States captive population ofMexican wolves has approximatelydoubled in the last 3 years,demonstrating the captive population’s


reproductive potential to replacereintroduced wolves that die. In view ofall these safeguards the Service findsthat the reintroduced population wouldnot be ‘‘essential’’ under 50 CFR17.81(c)(2).

The Service finds that release of theexperimental population will further theconservation of the subspecies and ofthe gray wolf species as a whole.Currently, no populations or individualsof the Mexican gray wolf subspecies areknown to exist anywhere in the wild.No wild populations of the gray wolfspecies are known to exist in the UnitedStates south of Washington, Idaho,Wyoming, North Dakota, Minnesota,Wisconsin, and Michigan. Therefore,based on the best available information,the Service finds that the re-establishedpopulation would be completelygeographically separate from any extantwild populations or individual graywolves and that future migration of wildMexican wolves into the experimentalpopulation area is not possible. TheMexican wolf is the most southerly andthe most genetically distinct of theNorth American gray wolf subspecies. Itis the rarest gray wolf subspecies andhas been given the highest recoverypriority for gray wolves worldwide bythe Wolf Specialist Group of the WorldConservation Union (IUCN).

Releasing captive-raised Mexicanwolves furthers the objective of theMexican Wolf Recovery Plan. Thisreintroduction will establish a wildpopulation of at least 100 Mexicanwolves and reduce the potentialnegative effects of keeping them incaptivity in perpetuity. If captiveMexican wolves are not reintroduced tothe wild within a reasonable period oftime, genetic, physical, or behavioralchanges resulting from prolongedcaptivity could diminish their prospectsfor recovery.

Designation of the released wolves asnonessential experimental is considerednecessary to obtain needed State, Tribal,local, and private cooperation. Thisdesignation also allows for managementflexibility to mitigate negative impacts,such as livestock depredation. Withoutsuch flexibility, intentional illegalkilling of wolves likely would harm theprospects for success.

Potential for Conflict With Federal andOther Activities.

As indicated, considerablemanagement flexibility has beenincorporated into the final experimentalpopulation rule to reduce potentialconflicts between wolves and theactivities of governmental agencies,livestock operators, hunters, and others.No major conflicts with current

management of Federal, State, private,or Tribal lands are anticipated. Mexicanwolves are not expected to be adverselyaffected by most of the current land usesin the designated wolf recovery areas.However, temporary restrictions onhuman activities may be imposedaround release sites, active dens, andrendezvous sites.

Also, the U.S. Department ofAgriculture, Animal and Plant HealthInspection Service, Wildlife Services(WS) division will discontinue use ofM–44’s and choking-type snares in‘‘occupied Mexican wolf range’’ (seedefinition in section 17.84(k)(15)). Otherpredator control activities may berestricted or modified pursuant to acooperative management agreement or aconference between the WS and theService.

The Service and other authorizedagencies may harass, take, remove, ortranslocate Mexican wolves undercertain circumstances described indetail in this rule. Private citizens alsoare given broad authority to harassMexican wolves for purposes of scaringthem away from people, buildings,facilities, pets, and livestock. They maykill or injure them in defense of humanlife or when wolves are in the act ofattacking their live stock (if certainconditions are met). In addition,ranchers can seek compensation from aprivate fund if depredation on theirlivestock occurs.

No formal consultation under section7 of the Act would be required regardingpotential impacts of land uses onnonessential experimental Mexicanwolves. Any harm to wolves resultingsolely from habitat modification causedby authorized uses of public lands thatare not in violation of the temporaryrestriction provisions or otherprovisions regarding take or harassmentwould be a legal take under this rule.Any habitat modification occurring onprivate or tribal lands would notconstitute illegal take. Based onevidence from other areas, the Servicedoes not believe that wolf recoveryrequires major changes to currentlyauthorized land uses. The mainmanagement goals are to protect wolvesfrom disturbance during vulnerableperiods, minimize illegal take, andremove individuals from the wildpopulation that depredate livestock orotherwise cause significant problems.

The Service does not intend to changethe ‘‘nonessential experimental’’designation to ‘‘essential experimental,’’‘‘threatened,’’ or ‘‘endangered’’ and theService does not intend to designatecritical habitat for the Mexican wolf.Critical habitat cannot be designatedunder the nonessential experimental

classification, 16 U.S.C. 1539(j)(2)(C)(ii).The Service foresees no likely situationwhich would result in such changes inthe future.

Conflicts With State and Local Policies.In 1994, Arizona adopted an anti-

trapping initiative (amending ARSsection 17–301), which makes the use ofseveral wildlife capture devices illegal,including leg-hold traps. However, thelaw does not prohibit ‘‘the use of snares,traps not designed to kill, or nets to takewildlife for scientific research projects,falconry, or for relocation of the wildlifeas may be defined or regulated by theArizona Game and Fish Commissionand or the Government of the UnitedStates.’’ The Service believes leg-holdtraps are an essential tool for wolfmanagement. Their use will beprimarily for research and relocationpurposes. Although the Service believesthat its primary purpose for leg-holdtrapping (wolf research and relocation)is included in the exception to theArizona law under ‘‘traps not designedto kill,’’ provisions and purposes for theuse of wolf capture devices specified inthis final experimental population rule[see section 17.84 (k)(3)(ix)] wouldpreempt State law to the extent it mayconflict with Federal law.

Catron and Sierra counties in NewMexico have land use planningordinances that call for equal authoritywith Federal agencies over decisionsaffecting Federal lands within thesecounties. Similar assertions are made byboth Apache and Greenlee counties inArizona in their Land and ResourcePolicies. The Service has not submittedthis Federal proposal to county approvalprocesses under their various planningordinances, due to legal, budget, staff,and time considerations. Wolfreintroduction under the PreferredAlternative does not directly conflictwith Catron and Sierra counties’ordinances that prohibit the release ofwolves into those counties, because nowolves will be released in thosecounties. Nevertheless, releasing wolvesin nearby counties with foreseeabledispersal into Catron and Sierracounties, as proposed here, does appearto conflict with the goals of theseordinances; and wolves may betranslocated into these counties in thefuture. The Act, Mexican wolfexperimental population rule, and otherFederal authority would preempt anyconflicting local ordinances.

Key Changes in Final Rule as a Resultof Public Comment

The following key changes orclarifications were incorporated into thefinal rule based on comments received


on or related to the proposed rule,internal Service reviews, changes inService policy, and the Service’sexperience with section (10)(j) rules forother nonessential experimentalpopulations. These individual orcumulative changes do not more thanmarginally alter the projected overallimpact of Mexican wolf reintroductionunder the Preferred Alternative as setforth in the FEIS. Other minor additionsand wording changes also have beenmade.

(1) The Blue Range Wolf RecoveryArea is identified as the biologically andenvironmentally preferable area, to beused first, with the White Sands WolfRecovery Area to be used only as theback-up area, if later determined to beboth necessary and feasible.

(2) All conditional road closure andland use restriction language, exceptlimited temporary closures aroundrelease pens, dens, and rendezvous siteshas been removed.

(3) Detailed definitions of‘‘disturbance-causing land useactivities,’’ ‘‘livestock,’’ ‘‘public land,’’and ‘‘rendezvous site’’ have been added.The definition for disturbance-causingland use activities specifically exemptscertain activities from the temporaryclosure provision.

(4) The definition of ‘‘secondaryrecovery zone’’ was modified to clarifythat, following the initial release ofwolves in the primary recovery zone,wolves may be translocated andreleased in the secondary recovery zonefor authorized management purposes.

(5) The harassment provision hasbeen expanded to allow anyone toharass Mexican wolves to scare themaway from people, buildings, facilities,livestock, other domestic animals, andpets anywhere in the ExperimentalPopulation Area. Also, the proposedrule provision that restricted publicland grazing allottees from waiting forwolves in order to harass them has beendeleted.

(6) Rule provisions have beenreordered so that provisions authorizingor prohibiting take of Mexican wolvesappear as subsections under section17.84(k)(3).

(7) Hunting was deleted from the listof examples of human activities duringwhich non-negligent and incidentalkilling or injuring of a Mexican wolfmight be considered unavoidable andunintentional take. Military training andtesting was added to that list.

(8) The provision that wolves may becaptured and/or translocated whenconflicting with a major land use wasdeleted. A provision that they may becaptured and/or translocated when they

endanger themselves by their presencein a military impact area was added.

(9) A provision was added toauthorize the take of Mexican wolves bylivestock guarding dogs when used inthe traditional manner.

(10) Language was added to clarify theauthority of the Service and designatedagencies to use leg-hold traps and othereffective devices to capture and controlwolves according to approvedmanagement plans.

(11) A provision was added to allowfor the capture, killing, and/ortranslocation of feral wolf-like animals,feral wolf hybrids, and feral dogs thatexhibit evidence of hybridization,domestication, or socialization tohumans.

(12) A provision was added thatprohibits the disturbance of dead orinjured wolves or wolf parts or the areaaround them unless instructed to do soby an authorized agent of the Service.

(13) We deleted the provisionregarding revocation of the experimentalstatus, and removal of the re-establishedwolves, if legal actions or lawsuitscompel a change in the population’slegal status to essential experimental,threatened, or endangered, or compelthe designation of critical habitat withinthe Mexican Wolf ExperimentalPopulation Area.

(14) The provision for removing thenonessential experimental populationfrom the wild if a naturally-occurringpopulation of wild wolves is discoveredwithin 90 days of the initial release wasdeleted.

(15) Language was added to clarifythat packs whose established territoriesconsist of portions of designated wolfrecovery areas and portions of adjacentpublic lands will not be routinelycaptured and translocated.

(16) The definition of public landswas revised to exclude State-ownedlands lying outside designated wolfrecovery areas.

Summary of Public ParticipationIn June 1996, public open house

meetings and formal public hearingswere held in El Paso, Texas;Alamogordo and Silver City, NewMexico; and Springerville, Arizona.About 166 people attended thesemeetings and had an opportunity tospeak with agency representatives andsubmit oral and written comments. Oraltestimony was presented by 49 people atthe hearings, and 150 people submittedwritten comments on the proposed rule.We received a petition supporting fullendangered status for reintroducedMexican wolves signed by 32 people;and a petition opposing thereintroduction of Mexican wolves

signed by 91 people. In addition, manycomments on the DEIS were specific tothe draft proposed rule or relatedmanagement considerations. Thesecomments also were considered in thisrevision of the proposed rule.

Chapter 5 of the FEIS provides asummary of the many commentsreceived on the DEIS and the Service’sresponses to those comments.Comments on the DEIS that specificallyrelated to the draft proposed rule arereproduced and responded to below,along with the many additionalcomments received during the publiccomment period specific to theproposed rule. Many comments causeda language change from the proposedrule to the final rule.

Issues Raised in Public Comments, andService Responses

Key issues raised in public commentson the proposed rule, and the Service’sresponses to them, follow. They aregrouped by the following topic areas—(1) Legal status designation; (2)Recovery areas; (3) Mexican WolfExperimental Population Area; (4)Prevention of wolf dispersal; (5)Allowable take and harassment ofwolves; (6) Livestock depredation; (7)Depredation control; (8) Definitions; (9)Land use restrictions; and (10) Otherissues.

1. Legal Status DesignationComment: The Mexican wolf is not a

valid subspecies and thus should not bethe subject of an experimentalpopulation rule. In fact, the Service inthe northern Rockies litigation has takenthe position that there are no gray wolfsubspecies.

Response: Experts on wolf taxonomyrecognize the Mexican wolf (Canislupus baileyi) as a distinct gray wolfsubspecies. The Service agrees withthese experts. Please refer to thediscussion on Taxonomy in Chapter 1 ofthe FEIS.

Comment: Wolves should be releasedas experimental essential.

Response: The Service determinedthat the nonessential experimentalclassification fits the Mexican wolf’sstatus. Only wolves surplus to thecaptive breeding program will bereleased. (See section herein onFindings Regarding Reintroduction, andFEIS Appendix D—section 7Consultation on Proposed Action,section on Effects on Mexican GrayWolf, regarding definition of ‘‘surplus’’wolves and significance of their removalfrom the captive population.) Their losswould not jeopardize the continuedsurvival of the subspecies. Further, thenonessential experimental classification


allows for management flexibilitydeemed vital to successful wolfrecovery. Experimental essential statusis neither required by section 10(j) of theAct nor the implementing regulations,and it has not been used in pastreintroductions of captive-raisedanimals, such as the red wolf, black-footed ferret, and California condor.

Comment: No theory of populationbiology would allow the FWS to reachthe conclusion that a population of only136 wolves, including immature pups,has any biologically ‘‘surplus’’ adults.

Response: The Service disagrees. Thenumber of wolves in captivity isadequate to support the proposedreintroduction, through thereintroduction of genetically surpluswolves, without significantly affectingthe likelihood of survival of thepopulation remaining in captivity. Thisis not the same as saying that the totalcaptive or wild populations (or bothcombined) would constitute a minimumviable population under conservationbiology principles. The goal of thisreintroduction effort is to initiate therecovery of the subspecies. There isstrong information from reintroductionefforts for other gray wolf populations,the red wolf, and other species that thenonessential designation is biologicallyappropriate to successfully initiate therecovery process.

Comment: Designation of the Mexicanwolf as nonessential means that it is notendangered, therefore there is no reasonto reintroduce it.

Response: The ‘‘experimentalnonessential’’ terminology in section10(j) of the Act is confusing. It does notmean that the animal is not nearextinction and it does not mean thereintroduction is just an experiment. Itis a classification designed to make thereintroduction and management ofendangered species more flexible andresponsive to public concerns toimprove the likelihood of successfullyrecovering the species.

Comment: The experimentalnonessential designation cannot legallybe used because the reintroducedpopulation would not be whollyseparate geographically fromnonexperimental populations of thesame species.

Response: The Service disagrees; Todate, despite numerous surveys, noevidence has been found that anaturally-occurring wild Mexican wolfpopulation exists or will exist in thefuture in the United States.

Comment: The wolf should stay onthe ‘‘endangered’’ list; there is potentialconfusion if experimental nonessentialis used and wild wolves recolonize thesame areas; further, the plan to relocate

any wild wolves from Mexico thatdisperse into the experimentalpopulation area (outside the recoveryareas) defeats the Act’s goal ofprotecting such wild endangeredanimals.

Response: The best availableinformation supports the Service’sconclusion that no populations of orindividual Mexican wolves existanywhere in the wild. This justifies thereintroduction of nonessentialexperimental animals.

Comment: If wild Mexican wolves didnaturally recolonize in areas where theService proposes to reintroduce captive-raised animals, this should not begrounds for canceling thereintroduction; instead it should beconsidered a plus that would increasethe chances of success of thereintroduction.

Response: See response to previouscomment.

Comment: If wild wolves didnaturally recolonize in the areas wherereintroduced wolves were established,then a ‘‘sunset clause’’ should takeeffect that results in the termination ofthe status of the reintroducedpopulation as ‘‘nonessentialexperimental’’ and results in all thewolves in the area having full-endangered status.

Response: The Service disagrees.Based on the best available information,we have determined that no wildpopulation of or individual Mexicanwolves exist in the recovery areas oranywhere else prior to reintroduction.The Service believes that it would beunwise to allow for an automatic statuschange of all wolves in the area fromexperimental to endangered if non-reintroduced wolves suddenlyappeared, which the Service considersto be an impossibility.

Comment: The provision to look for anaturally-occurring wild wolfpopulation for up to 90 days afterinitiation of the reintroduction does notseem to reconcile with the fact that theyneed to have been there at least for 2years to qualify under the Service’sdefinition of a ‘‘population’’.

Response: We agree and have deletedthis provision.

Comment: The nonessentialexperimental status is not as flexible asthe Service claims; the reintroducedwolves would still have to beconsidered in environmental analysesand planning for other projects in thedesignated recovery areas, at least as a‘‘sensitive’’ species under ‘‘cumulativeimpacts.’’ Therefore, the presence of thewolves would affect future site specific,forest-wide, and region-wide decisionmaking.

Response: The Service agrees that thepresence of the wolves may have minoreffects on future projects and plans inthe wolf recovery areas; however, thoseeffects would be reduced undernonessential experimental status ascompared to under endangered status.The agencies involved would have moreflexibility as far as addressing potentialimpacts on the wolves; and they wouldnot have to conduct formalconsultations under section 7 of the Act.

2. Recovery AreasComment: The Proposed Action in the

DEIS emphasized using the Blue RangeWolf Recovery Area and/or the WhiteSands Wolf Recovery Area while theProposed Experimental Population Ruleemphasized both areas being used; whythe difference?

Response: The draft ‘‘ProposedMexican Wolf Experimental PopulationRule’’ was written to cover the ProposedAction (in the DEIS) in its fullestapplication, that is, as if both areas wereultimately used. It should not beinterpreted as a statement that bothareas actually will be used. ThePreferred Alternative (in the FEIS)chosen in the Record of Decisionemphasizes initial use of the Blue RangeWolf Recovery Area, with possible lateruse of the White Sands Wolf RecoveryArea only if determined to be bothnecessary and feasible. The final rulereflects this preference.

Comment: The areas are too large andwill tie up too much land.

Response: The largest area, the BlueRange Wolf Recovery Area, is estimatedto be an appropriate size to support asustainable wolf population of 100animals. The White Sands WolfRecovery Area is too small to support asustainable wolf population withoutactive human management of thepopulation. The designation of theseareas carries no use restrictions with itthat will ‘‘tie up’’ the land.

Comment: There is no evidence thatthese areas were part of the historicrange of the C.l. baileyi subspecies.

Response: The Service disagrees.Chapter 1 of the FEIS includes adetailed discussion of Mexican wolftaxonomy and probable historic range.The latter takes in the two designatedwolf recovery areas. Further, Chapter 3in the FEIS discussion under‘‘Animals—History of Wolves’’ for thetwo areas includes historicaldocumentation of wolves.

Comment: The wolf recovery areaboundaries are objectionable and theareas are too small; the plan to returndispersing wolves means that they willonly be allowed to reinhabit a smallfraction of historic wolf habitat in the


Southwest within the experimentalpopulation area. Several separatedpopulations are needed to create a stablemetapopulation. They should at least beallowed to disperse south to theCoronado National Forest area.Dispersal corridors between the BlueRange Wolf Recovery Area and theWhite Sands Wolf recovery Area shouldbe provided for in the rule.

Response: The boundaries representthe areas most likely to successfullysupport wolf recovery, consistingpredominately of public land that hasrated high for wolf recovery attributes.This will be the first phase of Mexicanwolf recovery; additional recovery areaswill be needed in the future to achievethe goal of removing the Mexican wolffrom the endangered species list. Suchadditional areas could be within thedesignated experimental populationarea or outside this area, including inMexico if inter-governmentalcooperation is achieved. No decisionshave been made yet regarding futureareas. The establishment of a dispersalcorridor between the Blue Range Areaand the White Sands Area does notappear feasible. One general criterionfor dispersal corridors is that they becomprised of habitat that is suitable forthe target species. No contiguous strip ofsuitable wolf habitat exists betweenthese areas, which are separated byabout 50 miles. It is conceivable thatwolves could travel between these areas,but they would encounter considerablehuman activity and private property. Inaddition, they would have to crossInterstate Highway 25 and the RioGrande in the vicinity of Elephant Butteand Caballo Reservoirs.

3. Mexican Wolf ExperimentalPopulation Area (MWEPA)

Comment: The Mexican WolfExperimental Population Area(MWEPA) is about twice as large asneeded to administer the rule. Thewestern boundary should be movedfurther to the east and the easternboundary further to the west.

Response: The Service disagrees. Nonaturally occurring populations ofwolves exist in or anywhere near theMWEPA. The most likely naturalrecolonization areas have been excludedfrom the MWEPA (FEIS Alternative D).A smaller MWEPA might have theconfusing potential of artificiallycreating ‘‘endangered’’ Mexican wolves(if their experimental status is unclear)by allowing re-established wolves toquickly disperse outside the MWEPA.The Service believes the proposedMWEPA provides necessarymanagement flexibility.

Comment: Wolves found outside theMWEPA should not have fullendangered status under the Act; thereare no wild wolves left, therefore anywolves found in the Southwest, even ifunmarked, most likely will haveoriginated from the reintroducedpopulation.

Response: Wolves found outside theMWEPA that can be identified as amember of the experimental populationwill retain their nonessential,experimental status for managementpurposes.

4. Prevention of DispersalComment: It is not feasible to

recapture and return wolves. Wolveswill disperse to where they arecategorized as endangered under theAct.

Response: The Service disagrees. InMinnesota and other areas, the Serviceand other agencies have many years ofexperience in capturing andtranslocating wolves. Wolves that leavethe large Mexican wolf experimentalpopulation area could still be managedunder this rule.

Comment: For wolves that establishterritories on public lands outside thedesignated recovery areas, themanagement approach should not beautomatic removal; instead,consultation should be entered intowith the land managers, similar to thatprovided for private and tribal landsoutside the designated recovery areas. Ifremoval is necessary, the preferenceshould be returning them to therecovery areas rather than to captivity.The plan should also allow for changesto the recovery areas boundaries.

Response: A limited and defined areais considered necessary to allow thewolf the highest degree of acceptanceand recovery and to allow the Serviceand cooperating agencies to plan forwolf management. Allowing therecovery areas to expand outcontinually would defeat this purpose.However, if the Service determined itwas necessary to survival and recoveryof the reintroduced population, it ispossible that after thorough evaluationthe Service could recommend changesto the recovery area boundaries. Thesewould have to be proposed as a revisionto the final Mexican Wolf ExperimentalPopulation Rule and be subject toformal agency and public review underrulemaking procedures and the NationalEnvironmental Policy Act. Language hasbeen added to the rule to clarify thatmembers of wolf packs whose territoriesconsist of public lands lying both withinand outside designated recovery areaswould not routinely be captured andtranslocated. On the issue of a

preference to return captured wolves tothe recovery areas, rather than captivity,the Service prefers this option for non-problem wolves. The Service does notthink it is appropriate to write such apreference into the rule because manyfactors might enter into future case-by-case decision making on this issue.

5. Allowable Take and Harassment ofWolves

Comment: The level of legalprotection is too low.

Response: The legal protectionsafforded Mexican wolves under this ruleare considered adequate. Except fornarrowly defined exceptions, killing ofthe wolves would be a violation of theAct, and of this rule, and would subjectthe offenders to severe penalties.

Comment: Wolves that eat livestockshould not be killed, but removed fromthe area.

Response: Nonlethal control methodswill be preferred and encouraged.Depredating wolves taken alive wouldgenerally be translocated to an areawhere they are less likely to depredateor put back into the captive population.Euthanasia is a last resort.

Comment: The Service is too willingto kill or move wolves that threatenlivestock or leave the recovery areas.

Response: The Service disagrees. Themanagement strategy of removinglivestock-depredating wolves hasproved successful for wolf recoveryelsewhere, and the Service believes it isappropriate.

Comment: The provisions to kill andharass wolves for protection of humansand livestock will be abused; thenumbers of breeding pairs requiredbefore this could be allowed is too low.

Response: The Service anticipatessome level of abuse of provisions fortaking wolves, but believes thatextensive public education andinformation efforts, as well as strong lawenforcement, will keep abuse levels low.The provisions on allowable take andharassment of wolves are narrowlydrawn so that they are only to be usedin ways that enhance wolf recovery, i.e.,by removing depredating wolves and byconditioning wolves to generally avoidhumans and livestock. On the questionof the numbers of breeding pairs neededbefore allowing harassment or killing,there is no minimum number beforenonlethal harassment is allowed.Nonlethal harassment can benefit wolfrecovery by negatively conditioningwolves to humans and livestock. As faras the numbers before allowing privatekilling of livestock on public lands,under narrow conditions, the Servicebelieves that six breeding pairs on theBRWRA represent substantial progress


toward recovery objectives. Informationon progress toward these goals will bemade available to the public. Thenumber of wolves killed under thisprovision is expected to be very few, ifany, and of minor consequence to theprogress of wolf recovery once theprescribed number of pairs has beenreached.

Comment: Harassing or killing wolveson public lands should not be allowed.

Response: Public lands are multipleuse lands and the limited harassmentand killing of wolves allowed isconsidered appropriate to protect otherland uses and promote successful wolfrecovery.

Comment: The allowance ofunavoidable or unintentional take is toovague and unenforceable.

Response: The Service disagrees.Notice of general wolf locations will bepublicized. Hunters (and others) whomight shoot a wolf are responsible toidentify their targets before shooting.Information and education effortsshould minimize illegal take byshooting. Information on how to avoidunintentional trapping will be madeavailable. The few trappers in theseareas will be on notice that if they dotrap a wolf it likely would not beconsidered ‘‘unavoidable orunintentional.’’ The other area ofexpected unintended killing of wolvesis by collisions with vehicles and theService sees little point in making theunintended hitting of a wolf by avehicle illegal.

Comment: Prosecution for illegalkillings of Mexican wolves should bemandatory, instead of the ‘‘may’’ beprosecuted language used in theproposed rule.

Response: Prosecutorial discretion isimportant for successful prosecutions.The Service is committed to vigorousenforcement in appropriate cases whereevidence exists that illegal killingoccurred.

Comment: The provision allowingtake of wolves to defend human life isoffensive because there has never beena documented case of wolves killinghumans.

Response: The Service agrees thereare no documented cases of wolvesattacking and killing or severely injuringpeople in North America, but there havebeen a few instances of wolves attackingpeople, although not seriously injuringthem. The point of the provision, whichis consistent with the Act, is to make itquite clear that wolves may be killed ifthey attack humans, even though this isextremely unlikely to occur.

6. Livestock Depredation

Comment: Regarding the provisionsallowing take of wolves that attacklivestock: they are too broad, the timelimit for the private permit should bedrastically reduced from up to 45 days,and take should not be allowed unlessdepredation exceeds a certainpercentage of the herd present, e.g., 1 or2 percent. Also, the allowance for takingnuisance wolves and for using lethalmethods are too vague.

Response: The Service believes theprovisions are reasonable, can beadministered with appropriatediscretion, and will not impede wolfrecovery. It would be very difficult toaccurately monitor livestockdepredation rates attributableexclusively to wolves. Protocols forvarious management measures, such asgrounds and procedures for permitissuance for the taking of wolves andthe use of lethal methods, will bespelled out in greater detail in theService-approved management planreferenced in this rule.

Comment: Public lands ranchers willbe put out of business by theunacceptably high level of livestockdepredation, unless they are given morefreedom to kill wolves. They should notbe required to get a permit to controldepredating wolves.

Response: The Service believes thatsome ranchers could be adverselyaffected in a given year but evidencefrom other areas where wolves andranching co-exist does not support theidea that ranchers on these multiple-usepublic lands will be driven out ofbusiness without greater ability to killwolves. The permit requirement willserve to reduce unauthorized killing ofwolves and to reduce potential conflictswith other public land users, such ashikers and campers.

Comment: The private depredationcompensation fund should beincorporated into the rule, with abackup provision that if private fundingfails, then the Service will commit tocontinuing the fund.

Response: Absent additionallegislation, the Service does not believeit would be appropriate to commitgovernmental funds to back up theprivate Defenders of Wildlife fund. Thereintroduction is not contingent on theexistence of the private fund, butexperience with the fund in theNorthern Rockies indicates it is reliable.

Comment: The proposed ruleindicates it would be illegal for alivestock producer to ‘‘wait for’’ wolvesfor the purpose of scaring them away.This is counterproductive to thepurpose of allowing harassment. If a

livestock producer has reason to believehis stock have been attacked or harassedby wolves, it is only reasonable that heor she be vigilant for recurrence.

Response: The Service agrees, and therestriction on waiting for wolves in thecase of harassment has been deleted.

Comment: The provision in theproposed rule allowing livestock ownersand their agents to harass wolves in theimmediate vicinity of ‘‘people,buildings, facilities, [and] pets’’ shouldalso apply on public lands becauseseveral ranchers on public lands haveline shacks and other facilities on publiclands, where they may stay with theirchildren, pets, and so on.

Response: The Service agrees and hasexpanded the harassment provision toapply everywhere within theExperimental Population Area.

Comment: Hunting dogs are asvaluable as livestock and should beincluded as such in the rule forpurposes of deciding whether wolveshave depredated and whethercompensation is due.

Response: The use of hunting dogscarries with it an accepted risk of attackby wild animals. We believe this isconsistent with the philosophy of ‘‘fairchase’’ in the sport of hunting. Wedisagree that the killing or injuring of ahunting dog by a wolf in the wildshould be cause for controlling wolves.The Defenders of Wildlife has solediscretion to determine which acts ofdepredation are compensable.

7. Depredation ControlComment: The Arizona anti-trapping

law means that traps could not be usedto control wolves.

Response: The Service believes leg-hold traps are an essential tool for wolfmanagement. We have included specificprovisions for their use in this rulewhich we believe comply with theexception language in the Arizona lawwhich allows non-lethal trapping forscientific and research purposes. To theextent wolf trapping provisions in thisrule conflict with the State law (if theyconflict at all), this rule would preemptthe State trapping ban.

Comment: M–44’s and choking snaresshould be restricted over a much largerarea than called for in the rule; theproposed section (j)(3)(vii), basicallylimits the restriction to a 5 miles radiusbuffer around known locations of thewolves, which is inadequate to protectthem in view of their ability to travelrapidly.

Response: The Service is preparing aBiological Opinion (under provisions ofsection 7 of the Act) on the potentialeffects of the WS program on Mexicanwolves. We believe this biological


opinion combined with specialprovisions in this rule will adequatelyprotect the Mexican wolf. Ifunacceptable levels of take occur, theBiological Opinion or the rule, or both,would be revised.

Comment: Coyote control will beadversely impacted in areas where therestriction on M–44’s and choking-typeneck snares is imposed. At the most,this should be limited to the primaryrecovery zone.

Response: Selective lethal control ofcoyotes by traps, calling and shooting,and aerial shooting, as well as a varietyof nonlethal techniques are allowedunder this rule. Field research andobservations suggest that coyotepopulations may be reduced by inter-specific aggression in areas occupied bywolves.

Comment: The inability to usehelicopters in designated federalwilderness areas means that a key toolfor depredation control will not beavailable.

Response: Existing restrictions on theuse of helicopters in wilderness areasare not affected or changed by this rule.The Service believes that adequatedepredation control can beaccomplished in wilderness areas.However, we recognize that depredationcontrol in wilderness areas may be lessefficient and effective than in non-wilderness areas.

Comment: It will be very difficult inthe huge southwestern ranges to finddepredated livestock and to determinewhether a decomposed carcassrepresents a wolf depredation; therefore,the depredation control efforts andcompensation fund won’t work.

Response: The Service acknowledgesthat some livestock killed by wolvesmay not be discovered in time todetermine the cause of death; and thatranchers may not be compensated forthese losses.

8. DefinitionsComment: The lack of a definition of

‘‘problem wolves’’ gives too muchmanagement flexibility. ‘‘Harass’’ mustbe more clearly defined. ‘‘Rendezvoussites’’ needs definition.

Response: With the addition of adefinition of ‘‘rendezvous site’’, all theseterms are defined in the final rule. TheService believes management flexibilityis positive. Additional refinement of thedefinition of ‘‘problem wolves’’ couldoccur under the Service-approvedinteragency management plan thatwould be developed under the finalrule.

Comment: Better definitions areneeded of how wolves impact gamepopulations and how wolves would

conflict with a major land use. Theformer definition amounts to a subtleattempt by the Service to take over theState management of game populations.

Response: The definition in the ruleof ‘‘impact on game populations in wayswhich may further inhibit wolfrecovery’’ is considered adequate andwas developed in cooperation withState game management agencies. It isnot a mechanism to dictate State gamemanagement, rather, it defines whenwolves may be moved to lessen wolfimpacts on State-managed game herds.There was no definition of when a wolfis ‘‘conflicting with a major land use’’and the Service has decided to drop thatprovision from the Preferred Alternativeand this rule. It is vague and adequatemanagement flexibility exists underother rule provisions.

Comment: The definition of‘‘disturbance-causing land use activity’’should specifically exclude the use oflands within the national park ornational wildlife refuge systems assafety buffer zones for weapons ormissile tests or training.

Response: The Service agrees and thedefinition of this term has been revisedto reflect this.

Comment: The definition of ‘‘engagedin the act of killing, wounding, or bitinglivestock’’ should be changed so thatobserving a wolf feeding on a livestockcarcass would justify the assumptionthat the wolf had actually attacked andkilled the animal, unless the carcass wasobviously decomposed, so that thelivestock owner could shoot the wolf.

Response: The Service disagrees.Many livestock animals, especiallycalves, die from other causes. Observinga wolf feeding on a carcass is not anadequate reason to kill the wolf, but itwould be a basis to harass the wolf. Ifsubsequent investigation of the carcassshowed that the wolf did in fact kill thecarcass, then a depredation controleffort would be initiated and the rancherlikely would be entitled tocompensation.

9. Land Use Restrictions

Comment: The land use restrictionsare inadequate to protect the wolves.

Response: Land use restrictions haveproven almost entirely unnecessary inother areas where wolf recovery isoccurring. Such restrictions arecounterproductive unless they areclearly needed.

Comment: To avoid conflicts, backroads should be closed in the areasregardless of illegal wolf killing.

Response: This would createunnecessary bad will toward the wolfwithout adding a conservation benefit.

The Service has deleted the back-country road closure provision.

Comment: A radius of more than 1mile should be used for public accessrestrictions around release pens, dens,and rendezvous sites—2 to 4 miles; theradius should be on a case-by-case basisand not specified in the rule.

Response: No basis for a largerrestricted area is evident now. If such achange proved necessary, the Servicecould propose to amend theexperimental population rule toincrease the radius.

Comment: The so-called limitedclosures are in fact not minor and willvirtually shut down the denning andvaguely defined rendezvous areas tohuman use, such as logging for manymonths, at least for April throughOctober. This, together with possibleback country road closures, coulddevastate the already threatenedSouthwest timber industry. Also, theclosures around dens, etc., could resultin road closures.

Response: The Service believes thatproposed closures or use restrictionswould be minor. They would beimplemented only if deemed to benecessary to protect Mexican wolvesfrom harm; no closure would exceed anarea of about 3 square miles (4.8 km2)or a circle with a 1 mile (1.6 km2) radiuswhich is about 2,000 acres (810 ha); noclosure would be in effect for more than4 months, except possibly those aroundrelease pens; and release pen closureswould only be necessary in the primaryrecovery zones when releases areactually being made. Only one activeden site or one active rendezvous sitewould exist at any given time (exceptfor a possible overlap of 1–2 weeks) ineach active pack territory. Packterritories are expected to include about250 square miles (96.5 km2). Therefore,on average, no more than 3–6 squaremiles (7.8–15.5 km2) of every 250 squaremiles (96.6 km2) or 1.2–2.4 percent ofthe total public land area could beclosed or restricted at any time.Furthermore, no closures or userestrictions would be imposed onprivate or tribal lands without theconsent of the owner or tribalgovernment. Nevertheless, the level ofconcern expressed regarding thisprovision has caused the Service todefine ‘‘disturbance-causing land useactivities’’ in the final rule. The newdefinition specifically exempts certainland use activities from the closureprovision. In addition, the Service haseliminated the ‘‘back-country road’’closure provision because it is not clearthat it would be effective in addressingthe problem of illegal killing. Instead,


more emphasis will be placed on publiceducation and law enforcement.

Comment: The access restrictionsaround pens, dens, and rendezvous sitesshould be implemented in a way thatdoes not attract undue, potentiallydestructive, and counterproductiveattention to them.

Response: We agree and will considerthis view when determining the needfor restrictions.

Comment: The road, den, andrendezvous site access closures wouldprevent Phelps Dodge Company fromaccessing wells and equipment on theUpper Eagle Creek and prevent otherlegitimate access to, and uses of, privateproperty in the Blue Range WolfRecovery Area.

Response: The road closure provisionhas been deleted. Closures around denand rendezvous sites would be flexibleand on an as-needed basis. These wouldnot occur in such a way as to preventaccess to private property or toauthorized use locations on publicproperty. See response to the twoprevious comments.

Comment: The provision in the rulethat no land use restrictions would beimposed to protect the wolves isnegated by the citizen suit provision ofthe Act, which will be used by pro-wolfgroups to impose such restrictions.

Response: The Service disagrees thatthe citizen suit provision of the Actcould successfully impose land userestrictions, as long as the nonessentialexperimental designation is notdeclared invalid. This has not occurredin litigation against other section 10(j)rules.

10. Other Issues

Comment: Drivers on public highwaysshould be excused from accidentalhitting of wolves, but off-road drivers inwolf habitat should not be excused.

Response: It is hard to conceive thatan off-road vehicle could be moving fastenough to hit a wolf by accident or onpurpose before the wolf could move outof the way. If this proves to be aproblem, which the Service does notexpect, the rule could be revised.

Comment: Military training andtesting should be added to paragraph(j)(3)(i) as examples of legal activities.Also, in paragraph (3)(ii), militarytesting and training should be added asexamples of authorized agency actions.

Response: The suggested additionshave been made.

Comment: The statement in section(j)(9) of the proposed rule that theService would terminate thereintroductions if a court ordered theService to change the designation fromnonessential experimental to a higher

degree of protection is illegal and hasanother major flaw. If the court requiredthe Service to proceed with the changedstatus then the Service would have toproceed regardless of that statement.

Response: This provision has beendeleted.

Comment: Management of thereintroduced wolves would be better leftto local authorities, who would providemore realistic and workable solutions.The rule should provide forimplementation of the reintroductionsby local governments and much moreautonomy at the local level for decidinghow to do the reintroductions, thecriteria for continuing with them, andlaw enforcement. The Service shouldcooperate on implementation of the rulewith State fish and wildlife agencies,which should have substantialresponsibility for the effort.

Response: The Service is legallyresponsible under the Act for recoveringendangered species. We encourage non-Federal agencies with establishedwildlife management authority (such asState or Tribal wildlife managementdepartments) to develop and implementMexican wolf management plans incooperation with the Service. Theseplans must promote wolf recovery andmust be approved by the Service. Wewill develop a process for interactingwith local governments and otherstakeholders before wolves are released.

Comment: No agreements should bemade with any State or local agencieswhich would bind the FWS regardingthe terms of the reintroduction.

Response: Because of our legalresponsibilities under the Act, theService must insure that agreementswith other agencies will promoterecovery of the Mexican wolf.

Comment: A more open process isneeded to involve the public in how theactual reintroduction effort willproceed. The rule should have moreclear provisions for public involvementand information availability.

Response: The Service is exploringadditional avenues of communicationand interaction with the public in theimplementation of Mexican wolfreintroduction. A process for publicinteraction will be in place beforewolves are released. We believe that thisrule is not the appropriate place toprovide details of a public interactionprocess.

Comment: The provisions requiring24-hour notice to the Service if a wolfis taken need to be clearer about whenthe period begins and who and how tocontact to meet the requirement. Also,the Service must commit to beingavailable to be contacted.

Response: We will provideinformation in a variety of ways toresidents and users of wolf recoveryareas on how to comply with reportingrequirements in the rule. A way tonotify a Service representative will beprovided.

Comment: The Service has failed toconsult with affected landowners andagencies and to seek agreement on theMexican Wolf Experimental PopulationRule.

Response: The Service has consultedwith affected agencies and withinterested landowners and members ofthe public (see previous discussionregarding participation in the proposedrule public comment process). The DEISreview process provided substantialopportunity for review of andconsultation on the draft proposed rule.More focussed meetings, hearings, andconsultations occurred upon officialpublication of the proposed rule (61 FR19237). Several changes have been madeto the final rule based on our agreementwith comments received on theproposed rule. Given the hundreds ofprivate landowners and other entitiesinvolved, no overall agreement on allthe terms of the rule among all affectedinterests was feasible.

Comment: The proposed rule processhas been flawed because it was issuedbefore the Final EIS was issued andbefore the Record of Decision wasissued. Without these steps, the publichas had inadequate information uponwhich to make meaningful comments.

Response: We believe that thesequencing of the DEIS, proposed rule,FEIS, ROD, and final rule is legal andproper. Further, we believe that thepublic’s opportunity to review andcomment on the proposed rule hasexceeded the legal requirement. Thedraft proposed rule was an importantcomponent of the Proposed Action inthe DEIS. A draft of the proposed ruleappeared in Appendix C of the DEIS.Fourteen public meetings and threehearings were held on the DEIS. Thepublic had 126 days to comment on theDEIS. The proposed rule was thenpublished separately in the FederalRegister (61 FR 19237) with a 61-daycomment period, and four publichearings were held. All commentsaddressing provisions of the draftproposed rule in the DEIS or theproposed rule in the Federal Register(61 FR 19237) were reviewed andconsidered in this final rule. It would beimproper to issue the final rule beforethe FEIS because the final rule must beconsistent with the Record of Decision(ROD), and the ROD must, by law,follow the FEIS by at least 30 days.


Effective Date JustificationThe 30 day delay between publication

of this final rule and its effective date asprovided by the AdministrativeProcedure Act (5 U.SC. 533 (d) (3)) hasbeen reduced. This is to allow for thetimely transfer of suitable releasecandidates to soft release pens foracclimation purposes. The followingbiological considerations necessitatethis approach. The approvedreintroduction of captive wolvesinitially requires transfer from captivefacilities to soft-release pens in therecovery area and an acclimation periodof several weeks at the release site priorto actual release to the wild. Wolfexperts have recommended that thereintroduction process begin in Januarydue to the reproductive cycle of theMexican wolf, thereby allowingsufficient time for wolves to becomeaccustomed to their surroundings priorto release and thus easing theirtransition to the wild environment.Wolves typically breed from lateJanuary through early March. In ordernot to disrupt breeding, wolves need tobe moved to the soft release pens assoon as possible. Wolf experts involvedin previous wolf releases agree that thewolves should spend about 2 months inthe release pens prior to actual release.Wolves typically give birth from earlyApril to early May. The plan is torelease the Mexican wolves about 30days before they have pups to allowsufficient time for the adult wolves tofind a suitable den location andexcavate a den. Therefore, Mexicanwolves must be moved to the softrelease pens in late January and begintheir 2-month acclimation period so thatthey can be released around mid to lateMarch. This soft release protocol wasdeveloped in previous wolf releases andhas been successful.

A draft proposed rule was madeavailable for public review andcomment as part of the draft EIS for theMexican wolf reintroduction proposal.A proposed rule was later issued foradditional public review and comment.Opportunity for public discussion anddebate of rule provisions was providedat 18 public meetings and hearingsthroughout potentially affected areas.The rule making process has beenresponsive to extensive input receivedfrom public agencies and further reviewis unlikely to reveal new substantiveissues. Because of the biologicalconditions described above and theextensive public review of the proposedrule, EIS, and Record of Decision forthis action, Mexican wolf reintroductionshould begin as soon as possible afterthe publication of this rule. Therefore,

due to biological considerations and theextensive public review process alreadyconducted, good cause exists for thisrule to be effective 14 days afterpublication.

National Environmental Policy ActA FEIS on reintroduction of the

Mexican wolf in the southwesternUnited States has been prepared and isavailable to the public (see ADDRESSESsection). The FEIS should be referred tofor analysis of the Preferred Alternativechosen in the Record of Decision. Also,the FEIS contains a complete list ofreferences for the backgroundinformation provided here.

Required DeterminationsThis rule has been reviewed by the

Office of Management and Budget underExecutive Order 12866. The rule willnot have significant economic impact ona substantial number of small entitiesunder the Regulatory Flexibility Act (5U.S.C. 601, et seq.). This final ruleclassifies Mexican wolves to be re-established as a nonessentialexperimental population under section10(j) of the Act. This rule sets forthmanagement directions and provides forlimited allowable legal take of wolveswithin a defined Mexican WolfExperimental Population Area. The rulewill not significantly change costs toindustry or governments. Furthermore,the rule produces no adverse effects oncompetition, employment, investment,productivity, innovation, or the abilityof United States enterprises to competewith foreign-based enterprises indomestic or export markets. No directcosts, information collection, or recordkeeping requirements are imposed onsmall entities by this action. This finalrule is not a major rule as defined by 5U.S.C. 804(2).

This final rule contains collections ofinformation that require approval by theOffice of Management and Budget under44 U.S.C. 3501 et seq. The Service hasalready requested emergencyauthorization for this from the Office ofManagement and Budget (OMB). Noinformation will be collected for thisaction until OMB authorization isprovided.

The Service has determined andcertifies pursuant to the UnfundedMandates Act, 2 U.S.C. 1502 et seq., thatthis rulemaking will not impose a costof $100 million or more in any givenyear on local or State governments orprivate entities.

Takings implications of this final rulehave been reviewed under ExecutiveOrder 12630, the Attorney GeneralGuidelines, Department Guidelines, andthe Attorney General Supplemental

Guidelines. One issue of concern is thedepredation of livestock byreintroduced wolves; but, suchdepredation by a wild animal would notbe a ‘‘taking’’ under the 5thAmendment. One of the reasons for theexperimental nonessential designationis to allow the agency and privateentities flexibility in managing thewolves, including the elimination of awolf when there is a confirmed kill oflivestock.

The Service has determined that thisfinal rule meets the applicable standardsprovided in sections 3(a) and 3(b)(2) ofExecutive Order 12988.

This rule has been reviewed underExecutive Order 12612 to determinefederalism considerations in policyformulation and implementation. Somecounties in the vicinity of the wolfreintroduction area have enactedordinances specifically prohibiting theintroduction of the wolf (among otherspecies) within county boundaries.However, the United States Congresshas given the Secretary of the Interiorexplicit statutory authority, in section10(j) of the Act, to promulgate this rule,and under the Supremacy Clause of theUnited States Constitution, this has theeffect of preempting State regulation ofwildlife to the extent in conflict withthis rule. Nevertheless, the Service hasendeavored to cooperate with Statewildlife agencies and County and Tribalgovernments in the preparation of thisrule.

Author

The primary author of this documentis Mr. David R. Parsons (see ADDRESSESsection, above).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,Exports, Imports, Reporting and record-keeping requirements, Transportation.

Regulation Promulgation

Accordingly, the Service herebyamends part 17, subchapter B of chapterI, title 50 of the Code of FederalRegulations, as set forth below:

PART 17—[AMENDED]

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

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500, unless otherwise noted.

2. Amend section 17.11(h), revise thetable entry for ‘‘Wolf, gray’’ underMAMMALS to read as follows:

§ 17.11 Endangered and threatenedwildlife.

* * * * *


(h) * * *

SpeciesHistoric range

Vertebrate populationwhere endangered or

threatenedStatus When

listedCriticalhabitat

SpecialrulesCommon name Scientific name

Mammals

* * * * * **

Wolf, gray .................... Canis lupus ................ Holarctic ..................... U.S.A., conterm-inous (lower 48)States, except MNand where listed asan experimentalpopulation; Mexico.

E 1, 6, 13,35,561,562.

17.95(a) NA

Do ........................ ......do ......................... ......do ......................... U.S.A. (MN) ............... T 35 .......... 17.95(a) 17.40(d)Do ........................ ......do ......................... ......do ......................... U.S.A. (WY and por-

tions of ID andMT—see 17.84(i)).

XN 561, 562 NA ......... 17.84(i)

Do ........................ ......do ......................... ......do ......................... U.S.A. (portions ofAZ, NM, and TX—see 17.84(k)).

XN ........... NA ......... 17.84(k)

3. The Service amends § 17.84 byadding paragraph (k) to read as follows:

§ 17.84 Special rules—vertebrates.* * * * *

(k) Mexican gray wolf (Canis lupusbaileyi).

(1) The Mexican gray wolf (Mexicanwolf) populations reestablished in theBlue Range Wolf Recovery Area and inthe White Sands Wolf Recovery Area, ifused, within the Mexican WolfExperimental Population Area,identified in paragraph (k)(9) of thissection, are one nonessentialexperimental population. Thisnonessential experimental populationwill be managed according to thefollowing provisions.

(2) Based on the best availableinformation, the Service finds thatreintroduction of an experimentalpopulation of Mexican wolves into thesubspecies’ probable historic range willfurther the conservation of the Mexicanwolf subspecies and of the gray wolfspecies; that the experimentalpopulation is not ‘‘essential,’’ under 50CFR 17.81(c)(2); that the experimentalpopulation is wholly separategeographically from any other wild graywolf population or individual wild graywolves; that no wild Mexican wolvesare known to exist in the experimentalpopulation area or anywhere else; andthat future migration of wild Mexicanwolves into the experimentalpopulation area is not possible.

(3) No person, agency, or organizationmay ‘‘take’’ [see definition in paragraph(k)(15) of this section] any wolf in thewild within the Mexican WolfExperimental Population Area, exceptas provided in this rule. The Servicemay investigate each take of a Mexicanwolf and may refer the take of a wolf

contrary to this rule to the appropriateauthorities for prosecution.

(i) Throughout the Mexican WolfExperimental Population Area, you willnot be in violation of the Act or this rulefor ‘‘unavoidable and unintentionaltake’’ [see definition in paragraph(k)(15) of this section] of a wolf. Suchtake must be non-negligent andincidental to a legal activity, such asmilitary training and testing, trapping,driving, or recreational activities. Youmust report the take within 24 hours tothe Service’s Mexican Wolf RecoveryCoordinator or to a designatedrepresentative of the Service.

(ii) Throughout the Mexican WolfExperimental Population Area, you may‘‘harass’’ [see definition in paragraph(k)(15) of this section ] wolves that arewithin 500 yards of people, buildings,facilities, pets, ‘‘livestock’’ [seedefinition in paragraph (k)(15) of thissection], or other domestic animals inan opportunistic, noninjurious manner[see definition of ‘‘opportunistic,noninjurious harassment’’ in paragraph(k)(15) of this section] at any time—provided that wolves cannot bepurposely attracted, tracked, searchedout, or chased and then harassed. Youmust report harassment of wolveswithin 7 days to the Service’s MexicanWolf Recovery Coordinator or to adesignated representative of the Service.

(iii) Throughout the Mexican WolfExperimental Population Area,excluding areas within the national parksystem and national wildlife refugesystem, no Federal agency or theircontractors will be in violation of theAct or this rule for unavoidable orunintentional take of a wolf resultingfrom any action authorized by thatFederal agency or by the Service,

including, but not limited to, militarytraining and testing. This provision doesnot exempt agencies and theircontractors from complying withsections 7(a)(1) and 7(a)(4) of the Act,the latter of which requires a conferencewith the Service if they propose anaction that is likely to jeopardize thecontinued existence of the Mexicanwolf.

(iv) In areas within the national parksystem and national wildlife refugesystem, Federal agencies must treatMexican wolves as a threatened speciesfor purposes of complying with section7 of the Act.

(v) On private land anywhere withinthe Mexican Wolf ExperimentalPopulation Area, livestock owners ortheir agents may take (including kill orinjure) any wolf actually ‘‘engaged inthe act of killing, wounding, or bitinglivestock’’ [see definition in paragraph(k)(15) of this section]; provided thatevidence of livestock freshly woundedor killed by wolves is present; andfurther provided that the take isreported to the Service’s Mexican WolfRecovery Coordinator or a designatedrepresentative of the Service within 24hours.

(vi) On tribal reservation landanywhere within the Mexican WolfExperimental Population Area, livestockowners or their agents may take(including kill or injure) any wolfactually engaged in the act of killing,wounding, or biting livestock; providedthat evidence of livestock freshlywounded or killed by wolves is present;and further provided that the take isreported to the Service’s Mexican WolfRecovery Coordinator or a designatedrepresentative of the Service within 24hours.


(vii) On ‘‘public lands’’ [see definitionin paragraph (k)(15) of this section]allotted for grazing anywhere within theMexican Wolf Experimental PopulationArea, including within the designated‘‘wolf recovery areas’’ [see definition inparagraph (k)(15) of this section],livestock owners or their agents may beissued a permit under the Act to takewolves actually engaged in the act ofkilling, wounding, or biting ‘‘livestock’’[see definition in paragraph (k)(15) ofthis section]. Before such a permit isissued, the following conditions must bemet—livestock must be legally presenton the grazing allotment; six or more‘‘breeding pairs’’ [see definition inparagraph (k)(15) of this section] ofMexican wolves must be present in theBlue Range Wolf Recovery Area;previous loss or injury of livestock onthe grazing allotment, caused by wolves,must be documented by the Service orour authorized agent; and agency effortsto resolve the problem must becompleted. Permits issued under thisprovision will be valid for 45 days orless and will specify the maximumnumber of wolves you are allowed totake. If you take a wolf under thisprovision, evidence of livestock freshlywounded or killed by wolves must bepresent. You must report the take to theService’s Mexican Wolf RecoveryCoordinator or a designatedrepresentative of the Service within 24hours.

(viii) Throughout the Mexican WolfExperimental Population Area, take ofMexican wolves by livestock guardingdogs, when used in the traditionalmanner to protect livestock on public,tribal, and private lands, is permitted. Ifyou become aware that such take byyour guard dog has occurred, you mustreport the take to the Service’s MexicanWolf Recovery Coordinator or adesignated representative of the Servicewithin 24 hours.

(ix) Personnel authorized by theService may take any Mexican wolf inthe nonessential experimentalpopulation in a manner consistent witha Service-approved management plan,special management measure, or a validpermit issued by the Service under§ 17.32. This may include, but is notlimited to, capture and translocation ofwolves that—prey on livestock; attackpets or domestic animals other thanlivestock on private or tribal land;‘‘impact game populations in wayswhich may inhibit further wolfrecovery’’ [see definition in paragraph(k)(15) of this section]; prey on membersof the desert bighorn sheep herd foundon the White Sands Missile Range andSan Andres National Wildlife Refuge solong as the State of New Mexico lists it

as a species to be protected; areconsidered ‘‘problem wolves’’ [seedefinition in paragraph (k)(15) of thissection]; are a nuisance; endangerthemselves by their presence in amilitary impact area; need aid orveterinary care; or are necessary forauthorized scientific, research, ormanagement purposes. Lethal methodsof take may be used when reasonableattempts to capture wolves alive fail andwhen the Service determines thatimmediate removal of a particular wolfor wolves from the wild is necessary.Authorized personnel may use leg-holdtraps and any other effective device ormethod for capturing or controllingwolves to carry out any measure that isa part of a Service-approvedmanagement plan, notwithstanding anyconflicts in State or local law. Thedisposition of all wolves (live or dead)or their parts taken as part of a Service-authorized management activity mustfollow provisions in Service-approvedmanagement plans or interagencyagreements or procedures approved bythe Service on a case-by-case basis.

(x) As determined by the Service to beappropriate, the Service or any agent soauthorized by the Service may capture,kill, subject to genetic testing, place incaptivity, euthanize, or return to thewild (if found to be a pure Mexicanwolf) any feral wolf-like animal, feralwolf hybrid, or feral dog found withinthe Mexican Wolf ExperimentalPopulation Area that shows physical orbehavioral evidence of hybridizationwith other canids, such as domesticdogs or coyotes; being an animal raisedin captivity, other than as part of aService-approved wolf recoveryprogram; or being socialized orhabituated to humans.

(xi) The United States Department ofAgriculture, Animal and Plant HealthInspection Service, Wildlife Services(WS) division will discontinue use ofM–44’s and choking-type snares in‘‘occupied Mexican wolf range’’ [seedefinition in paragraph (k)(15) of thissection]. The WS division may restrictor modify other predator controlactivities pursuant to a cooperativemanagement agreement or a conferencebetween the Service and the WSdivision.

(xii) You may harass or take aMexican wolf in self defense or defenseof the lives of others, provided that youreport the harassment or take within 24hours to the Service’s Mexican WolfRecovery Coordinator or a designatedrepresentative of the Service. If theService or an authorized agencydetermines that a wolf presents a threatto human life or safety, the Service orthe authorized agency may kill it,

capture and euthanize it, or place it incaptivity.

(xiii) Intentional taking of any wolf inthe Mexican Wolf ExperimentalPopulation Area, except as describedabove, is prohibited. The Serviceencourages those authorized to takewolves to use nonlethal means whenpracticable and appropriate.

(4) You must not possess, sell, deliver,carry, transport, ship, import, or exportby any means whatsoever, any wolf orwolf part from the experimentalpopulation except as authorized in thisrule or by a valid permit issued by theService under § 17.32. If you kill orinjure a wolf or find a dead or injuredwolf or wolf parts, you must not disturbthem (unless instructed to do so by anauthorized agent of the Service), youmust minimize your disturbance of thearea around them, and you must reportthe incident to the Service’s MexicanWolf Recovery Coordinator or adesignated representative of the Servicewithin 24 hours.

(5) You must not attempt to commit,solicit another to commit, or cause to becommitted, any offense defined in thisrule.

(6) No land use restrictions will beimposed on private lands for Mexicanwolf recovery without the concurrenceof the landowner.

(7) No land use restrictions will beimposed on tribal reservation lands forMexican wolf recovery without theconcurrence of the tribal government.

(8) On public lands, the Service andcooperating agencies may temporarilyrestrict human access and ‘‘disturbance-causing land use activities’’ [seedefinition in paragraph (k)(15) of thissection] within a 1-mile radius aroundrelease pens when wolves are in them,around active dens between March 1and June 30, and around active wolf‘‘rendezvous sites’’ [see definition inparagraph 17.84(k)(15) of this section]between June 1 and September 30, asnecessary.

(9) The two designated wolf recoveryareas and the experimental populationarea for Mexican wolves classified as anonessential experimental populationby this rule are described in thefollowing subsections. Both designatedwolf recovery areas are within thesubspecies’ probable historic range andare wholly separate geographically fromthe current range of any known Mexicanwolves or other gray wolves..

(i) The Blue Range Wolf RecoveryArea includes all of the ApacheNational Forest and all of the GilaNational Forest in east-central Arizonaand west-central New Mexico (Figure 1).Initial releases of captive-raisedMexican wolves will take place,


generally as described in our PreferredAlternative in the FEIS on Mexican wolfreintroduction, within the Blue RangeWolf Recovery Area ‘‘primary recoveryzone’’ [see definition in paragraph(k)(15) of this section]. This is the areawithin the Apache National Forestbounded on the north by the Apache-Greenlee County line; on the east by the

Arizona-New Mexico state line; on thesouth by the San Francisco River(eastern half) and the southernboundary of the Apache National Forest(western half); and on the west by theGreenlee-Graham County line (SanCarlos Apache Reservation boundary).The Service will allow the wolfpopulation to expand into the Blue

Range Wolf Recovery Area ‘‘secondaryrecovery zone’’ [see definition inparagraph (k)(15) of this section], whichis the remainder of the Blue Range WolfRecovery Area not in the primaryrecovery zone.

BILLING CODE 4310–55–P


BILLING CODE 4310–55–C


(ii) The White Sands Wolf RecoveryArea in south-central New Mexicoincludes all of the White Sands MissileRange; the White Sands NationalMonument; the San Andres NationalWildlife Refuge; and the area adjacentand to the west of the Missile Rangebounded on the south by the southerlyboundary of the USDA JornadaExperimental Range and the northernboundary of the New Mexico StateUniversity Animal Science Ranch, onthe west by the New Mexico PrincipalMeridian, on the north by the PedroArmendaris Grant boundary and the

Sierra-Socorro County line, and on theeast by the western boundary of theMissile Range (Figure 2). This is theback-up reintroduction area, to be usedonly if later determined to be bothnecessary and feasible in accordancewith the Preferred Alternative as setforth in the FEIS on Mexican wolfreintroduction. If this area is used,initial releases of captive-raised wolveswould take place within the WhiteSands Wolf Recovery Area primaryrecovery zone. This is the area withinthe White Sands Missile Range boundedon the north by the road from the former

Cain Ranch Head quarters to RangeRoad 16, Range Road 16 to itsintersection with Range Road 13, RangeRoad 13 to its intersection with RangeRoad 7; on the east by Range Road 7; onthe south by Highway 70; and on thewest by the Missile Range boundary.The Service would allow the wolfpopulation to expand into the WhiteSands Wolf Recovery Area secondaryrecovery zone, which is the remainderof the White Sands Wolf Recovery Areanot in the primary recovery zone.





(iii) The boundaries of the MexicanWolf Experimental Population Area arethe portion of Arizona lying north ofInterstate Highway 10 and south ofInterstate Highway 40; the portion ofNew Mexico lying north of InterstateHighway 10 in the west, north of theNew Mexico-Texas boundary in theeast, and south of Interstate Highway 40;and the portion of Texas lying north ofUnited States Highway 62/180 andsouth of the Texas-New Mexicoboundary (Figure 3). The Service is notproposing wolf reestablishmentthroughout this area, but only withinthe Blue Range Wolf Recovery Area, andpossibly later in the White Sands WolfRecovery Area, respectively described

in paragraphs (k)(9) (i) and (ii) of thissection. If a member of the nonessentialexperimental population is capturedinside the Mexican Wolf ExperimentalPopulation Area, but outside thedesignated wolf recovery areas, it willbe re-released within the recovery area,put into the captive population, orotherwise managed according toprovisions of a Service-approvedmanagement plan or action. If a wolf isfound in the United States outside theboundaries of the Mexican WolfExperimental Population Area (and notwithin any other wolf experimentalpopulation area) the Service willpresume it to be of wild origin with fullendangered status (or threatened in

Minnesota) under the Act, unlessevidence, such as a radio collar,identification mark, or physical orbehavioral traits (see paragraph (k)(3)(x)of this section), establishes otherwise. Ifsuch evidence exists, the Service or anauthorized agency will attempt topromptly capture the wolf and re-release it within the recovery area, putit into the captive population, or carryout any other management measureauthorized by this rule or a Service-approved management plan. Such awolf is otherwise not subject to this ruleoutside the designated Mexican WolfExperimental Population Area.





(10) If Mexican wolves of theexperimental population occur onpublic lands outside the designated wolfrecovery area(s), but within the MexicanWolf Experimental Population Area, theService or an authorized agency willattempt to capture any radio-collaredlone wolf and any lone wolf or memberof an established pack causing livestock‘‘depredations’’ [see definition inparagraph (k)(15) of this section]. Theagencies will not routinely capture andreturn pack members that makeoccasional forays onto public landoutside the designated wolf recoveryarea(s) and uncollared lone wolves onpublic land. However, the Service willcapture and return to a recovery area orto captivity packs from the nonessentialexperimental population that establishterritories on public land wholly outsidethe designated wolf recovery area(s).

(11) If any wolves move onto privateland outside the designated recoveryarea(s), but within the Mexican WolfExperimental Population Area, theService or an authorized agency willdevelop management actions incooperation with the landownerincluding capture and removal of thewolf or wolves if requested by thelandowner.

(12) If any wolves move onto tribalreservation land outside the designatedrecovery area(s), but within the MexicanWolf Experimental Population Area, theService or an authorized agency willdevelop management actions incooperation with the tribal governmentincluding capture and removal of thewolf or wolves if requested by the tribalgovernment.

(13) The Service will evaluateMexican wolf reintroduction progressand prepare periodic progress reports,detailed annual reports, and fullevaluations after 3 and 5 years thatrecommend continuation, modification,or termination of the reintroductioneffort.

(14) The Service does not intend tochange the ‘‘nonessential experimental’’designation to ‘‘essential experimental,’’‘‘threatened,’’ or ‘‘endangered’’ andforesees no likely situation whichwould result in such changes. Criticalhabitat cannot be designated under thenonessential experimentalclassification, 16 U.S.C. 1539(j)(2)(C)(ii).

(15) Definitions—Key terms used inthis rule have the following definitions.

Breeding pair means an adult maleand an adult female wolf that haveproduced at least two pups during theprevious breeding season that surviveduntil December 31 of the year of theirbirth.

Depredation means the confirmedkilling or wounding of lawfully present

domestic livestock by one or morewolves. The Service, WS, or otherService-authorized agencies willconfirm cases of wolf depredation ondomestic livestock.

Disturbance-causing land use activitymeans any land use activity that theService determines could adverselyaffect reproductive success, naturalbehavior, or survival of Mexican wolves.These activities may be temporarilyrestricted within a 1-mile radius ofrelease pens, active dens, andrendezvous sites. Such activities mayinclude, but are not limited to—timberor wood harvesting, management-ignited fire, mining or minedevelopment, camping outsidedesignated campgrounds, livestockdrives, off-road vehicle use, hunting,and any other use or activity with thepotential to disturb wolves. Thefollowing activities are specificallyexcluded from this definition—

(1) Legally permitted livestock grazingand use of water sources by livestock;

(2) Livestock drives if no reasonablealternative route or timing exists;

(3) Vehicle access over establishedroads to private property and to areas onpublic land where legally permittedactivities are ongoing if no reasonablealternative route exists;

(4) Use of lands within the nationalpark or national wildlife refuge systemsas safety buffer zones for militaryactivities;

(5) Prescribed natural fire except inthe vicinity of release pens; and

(6) Any authorized, specific land usethat was active and ongoing at the timewolves chose to locate a den orrendezvous site nearby.

Engaged in the act of killing,wounding, or biting livestock means tobe engaged in the pursuit and grasping,biting, attacking, wounding, or feedingupon livestock that are alive. If wolvesare observed feeding on a livestockcarcass, you cannot assume that wolveskilled the livestock because livestockcan die from many causes and wolveswill feed on carrion.

Harass means ‘‘intentional ornegligent act or omission which createsthe likelihood of injury to the wildlifeby annoying it to such an extent as tosignificantly disrupt normal behavioralpatterns which include, but are notlimited to, breeding, feeding, orsheltering’’ (50 CFR 17.3). Thisexperimental population rule permitsonly ‘‘opportunistic, noninjuriousharassment’’ (see definition below).

Impact on game populations in wayswhich may inhibit further wolf recovery.The Service encourages states and tribesto define unacceptable impacts fromwolf predation on game populations in

Service-approved management plans.Until such time the term will mean thefollowing—2 consecutive years with acumulative 35 percent decrease inpopulation or hunter harvest estimatesfor a particular species of ungulate in agame management unit or distinct herdsegment compared to the pre-wolf 5-year average (unit or herd must containaverage of greater than 100 animals). Ifwolf predation is shown to be a primarycause of ungulate population declines(greater than 50 percent of documentedadult or young mortality), then wolvesmay be moved to reduce ungulatemortality rates and assist in herdrecovery, but only in conjunction withapplication of other common,professionally acceptable, wildlifemanagement techniques.

Livestock means cattle, sheep, horses,mules, and burros or other domesticanimals defined as livestock in Stateand Tribal wolf management plansapproved by the Service.

Occupied Mexican wolf range meansan area of confirmed presence ofresident breeding packs or pairs ofwolves or area consistently used by atleast one resident wolf over a period ofat least one month. The Service mustconfirm or corroborate wolf presence.Exact delineation of the area will bedescribed by:

(1) 5-mile (8 km) radius around alllocations of wolves and wolf signconfirmed as described above(nonradio-monitored);

(2) 5-mile (8 km) radius around radiolocations of resident wolves when fewerthan 20 radio locations are available (forradio-monitored wolves only); or

(3) 3-mile (4.8 km) radius around theconvex polygon developed from morethan 20 radio locations of a pack, pair,or single wolf acquired over a period ofat least 6 months (for radio-monitoredwolves).

This definition applies only withinthe Mexican Wolf ExperimentalPopulation Area.

Opportunistic, noninjuriousharassment (see ‘‘harass’’) means as thewolf presents itself (for example, thewolf travels onto and is observed onprivate land or near livestock). This isthe only type of harassment permittedby this rule. You cannot track, attract,search out, or chase a wolf and thenharass it. Any harassment must notcause bodily injury or death to the wolf.The basic intent of harassmentpermitted by this rule is to scare wolvesaway from the immediate area. It islimited to approaching wolves anddischarging firearms or other projectilelaunching devices in proximity to butnot in the direction of wolves; throwingobjects in the general direction of but


not at wolves; or making any loud noisein proximity to wolves.

Primary recovery zone means an areawhere the Service—

(1) Will release captive-raisedMexican wolves,

(2) May return and re-releasepreviously released Mexican wolves,

(3) May release translocated wild-bornMexican wolves, and

(4) Will actively support recovery ofthe reintroduced population.

Problem wolves means wolves that—(1) Have depredated lawfully present

domestic livestock,(2) Are members of a group or pack

(including adults, yearlings, and young-of-the-year) that were directly involvedin livestock depredations,

(3) Were fed by or are dependentupon adults involved with livestockdepredations (because young animalswill likely acquire the pack’s livestockdepredation habits),

(4) Have depredated domestic animalsother than livestock on private or triballands, two times in an area within oneyear, or

(5) Are habituated to humans, humanresidences, or other facilities.

Public land means land underadministration of Federal agenciesincluding, but not limited to theNational Park Service, Bureau of LandManagement, Fish and Wildlife Service,Forest Service, Department of Energy,and Department of Defense; and State-owned lands within the boundary of adesignated wolf recovery area. All State-owned lands within the boundary of theexperimental population area, butoutside designated wolf recovery areas,will be subject to the provisions of thisrule that apply to private lands.

Rendezvous site means a gatheringand activity area regularly used by alitter of young wolf pups after they haveemerged from the den. Typically, thesite is used for a period ranging fromabout one week to one month in thesummer. Several sites may be used insuccession.

Secondary recovery zone means anarea adjacent to a primary recovery zonein which the Service allows releasedwolves to disperse, where wolvescaptured in the wild for authorizedmanagement purposes may betranslocated and released, and wheremanagers will actively support recoveryof the reintroduced population.

Take means‘‘to harass, harm, pursue,hunt, shoot, wound, kill, trap, capture,or collect, or to attempt to engage in anysuch conduct’’ (16 U.S.C. 1532(19)).Also, see definitions of ‘‘harass’’,‘‘opportunistic, noninjuriousharassment’’, and ‘‘unavoidable andunintentional take.’’

Unavoidable and unintentional takemeans accidental, unintentional take(see definition of ‘‘Take’’) which occursdespite reasonable care, is incidental toan otherwise lawful activity, and is notdone on purpose. Examples would bestriking a wolf with an automobile andcatching a wolf in a trap outside ofknown occupied wolf range. Taking awolf with a trap, snare, or other type ofcapture device within occupied wolfrange (except as authorized in paragraph(k)(3)(ix) and (x) of this section) will notbe considered unavoidable, accidental,or unintentional take, unless due carewas exercised to avoid taking a wolf.Taking a wolf by shooting will not beconsidered unavoidable, accidental, orunintentional take. Shooters have theresponsibility to be sure of their targets.

Wolf recovery area means adesignated area where managers willactively support reestablishment ofMexican wolf populations.

Dated: January 7, 1998.William Leary,Acting Deputy Assistant Secretary for Fishand Wildlife and Parks.[FR Doc. 98–681 Filed 1–8–98; 9:20 am]BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and AtmosphericAdministration

50 CFR Part 622

[Docket No. 961204340–7087–02; I.D.010698A]

Fisheries of the Caribbean, Gulf ofMexico, and South Atlantic; CoastalMigratory Pelagic Resources of theGulf of Mexico and South Atlantic;Closure

AGENCY: National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.ACTION: Closure.

SUMMARY: NMFS closes the commercialhook-and-line fishery for king mackerelin the exclusive economic zone in theFlorida west coast subzone. This closureis necessary to protect the overfishedGulf king mackerel resource.DATES: Effective 12:01 a.m., local time,January 7, 1998, through June 30, 1998.FOR FURTHER INFORMATION CONTACT:Mark F. Godcharles, 813–570–5305.SUPPLEMENTARY INFORMATION: Thefishery for coastal migratory pelagic fish(king mackerel, Spanish mackerel, cero,cobia, little tunny, dolphin, and, in theGulf of Mexico only, bluefish) is

managed under the FisheryManagement Plan for the CoastalMigratory Pelagic Resources of the Gulfof Mexico and South Atlantic (FMP).The FMP was prepared by the Gulf ofMexico and South Atlantic FisheryManagement Councils (Councils) and isimplemented by regulations at 50 CFRpart 622 under the authority of theMagnuson-Stevens FisheryConservation and Management Act.

Based on the Councils’ recommendedtotal allowable catch and the allocationratios in the FMP, NMFS implementeda commercial quota for the Gulf ofMexico migratory group of kingmackerel in the Florida west coastsubzone of 865,000 lb (392,357 kg). Thatquota was further divided into twoequal quotas of 432,500 lb (196,179 kg)for vessels in each of two groups by geartypes: vessels fishing with run-aroundgillnets and those using hook-and-linegear (50 CFR 622.42(c)(1)(i)(A)(2)).

In accordance with 50 CFR622.43(a)(3), NMFS is required to closeany segment of the king mackerelcommercial fishery when its quota isreached, or is projected to be reached,by publishing a notification in theFederal Register. NMFS has determinedthat the commercial quota of 432,500 lb(196,179 kg) for Gulf group kingmackerel for vessels using hook-and-line gear in the Florida west coastsubzone was reached on January 6,1998. Accordingly, the commercialfishery for king mackerel for suchvessels in the Florida west coastsubzone is closed effective 12:01 a.m.,local time, January 7, 1998, throughJune 30, 1998, the end of the fishingyear.

The Florida west coast subzoneextends from 87°31’06’’ W. long. (duesouth of the Alabama/Florida boundary)to: (1) 25°20.4’ N. lat. (due east of theDade/Monroe County, FL, boundary)through March 31, 1998; and (2) 25°48’N. lat. (due west the Monroe/CollierCounty, FL, boundary) from April 1,1998, through October 31, 1998.

Classification

This action is taken under 50 CFR622.43(a)(3) and is exempt from reviewunder E.O. 12866.

Authority: 16 U.S.C. 1801 et seq.

Dated: January 6, 1998.

George H. Darcy,Acting Director, Office of SustainableFisheries, National Marine Fisheries Service.[FR Doc. 98–618 Filed 1–6–98; 4:24 pm]

BILLING CODE 3510–22–F

Documents

1752 Federal Register /Vol. 63, No. 7/Monday, January 12 ...j)_Final_Rule.pdf · Federal Register/Vol. 63, No. 7/Monday, January 12, 1998/Rules and Regulations1753 habitat alteration,