Endangered and Threatened Wildlife and Plants; Revision of the Special Rule for Nonessential Experimental Populations of Red Wolves in North Carolina and Tennessee

SUMMARY: The Service amends the special rule for the nonessential

experimental populations of red wolves (Canis rufus) in North Carolina

and Tennessee to; revise and clarify the incidental take provision;

apply the incidental take provision to both reintroduced populations;

revise the livestock owner take provision; apply the livestock owner

take provisions to both reintroduced populations; add harassment and

take provisions for red wolves on private property; revise and clarify

the vaccination and recapture provision; and apply the same taking

(including harassment) provisions to red wolves outside the

experimental population area, except for reporting requirements.

EFFECTIVE DATE: April 13, 1995.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the Asheville Field

Office, U.S. Fish and Wildlife Service, 330 Ridgefield Court,

Asheville, North Carolina 28806.

Requests for the summary report on the 5-year experimental

reintroduction at the Alligator River National Wildlife Refuge

(Alligator River) should be sent to the Alligator River National

Wildlife Refuge, P.O. Box 1969, Manteo, North Carolina 27954.

FOR FURTHER INFORMATION CONTACT: Mr. V. Gary Henry, Red Wolf

Coordinator, at the above Asheville, North Carolina, address (Telephone

704/665-1195, Ext. 226).

SUPPLEMENTARY INFORMATION

Effective Date

The usual 30-day delay between date of publication of a final rule

and its effective date may be waived for good cause, as provided by 50

CFR 424.18(b)(1) and the Administrative Procedure Act (5 U.S.C.

553(d)(3)). The Service finds that this period be waived for this rule

as its immediate promulgation is necessary to avoid potential conflict

between Federal provisions for the taking of red wolves on private

property and corresponding State of North Carolina provisions that

become effective on January 1, 1995.

Background

A proposed rule to introduce red wolves into Alligator River

National Wildlife Refuge (Alligator River), Dare County, North

Carolina, was published in the Federal Register July 24, 1986 (51 FR

26564). A final rule making a determination to implement the proposed

action with some modifications was published November 19, 1986 (51 FR

41790). The red wolf population in Dare County and adjacent Tyrrell,

Hyde, and Washington Counties was determined to be a nonessential

experimental population according to section 10(j) of the Endangered

Species Act of 1973, as amended (Act). A revision published November 4,

1991, added Beaufort County to the list of counties where the

experimental population designation would apply (56 FR 56325). The

status of the population was to be reevaluated within 5 years, and the

process was to include public meetings.

A proposed rule to introduce red wolves into the Great Smoky

Mountains National Park (Park), Haywood and Swain Counties, North

Carolina; and Blount, Cocke, and Sevier Counties, Tennessee, was

published in the Federal Register August 7, 1991 (56 FR 37513). A final

rule making determination to implement the proposed action with some

modifications was published November 4, 1991 (56 FR 56325). This

population was also determined to be a nonessential experimental

population according to section 10(j) of the Act. Graham, Jackson, and

Madison Counties, North Carolina; and Monroe County, Tennessee, were

also included in the experimental designation because of the close

proximity of these counties to the Park boundary. The reintroduction

potential of the Park was to be assessed after a 10- to 12-month

experimental phase. A positive assessment would result in initiation of

a permanent reintroduction attempt.

The red wolf is an endangered species that is currently found in

the wild only as experimental populations on the Service's Alligator

River and Pocosin Lakes National Wildlife Refuges and adjacent private

lands in Dare, Hyde, Tyrrell, and Washington Counties, North Carolina;

and in the Park in Swain County, North Carolina, and Blount and Sevier

Counties, Tennessee; and as an endangered species in three small island

propagation projects located on Bulls Island, South Carolina; Horn

Island, Mississippi; and St. Vincent Island, Florida. These five

carefully managed wild populations contain a total of approximately 60

animals. The remaining red wolves are located in 31 captive-breeding

facilities in the United States. The captive population presently

numbers approximately 180 animals.

Following are summaries of the results from the two experimental

reintroductions. A more detailed summary for Alligator River is

available (see ADDRESSES section) as Progress Report No. 6, entitled

``Reestablishment of Red Wolves in the Alligator River National

Wildlife Refuge, North Carolina, 14 September 1987 to 30 September

1992.''

Alligator River 5-Year Summary

The 5-year experiment to reestablish a population of red wolves in

Alligator River in northeastern North Carolina ended October 1, 1992.

From September 14, 1987, through September 30, 1992, 42 wolves

(adults--10 males, 9 females; yearlings--1 female; pups--12 males, 10

females) were initially released on 15 occasions. Four releases were

conducted in 1987, two in 1988, five in 1989, two in 1990, one in 1991,

and one in 1992. As of September 30, 1992, there were at least 30 free-

ranging wolves in northeastern North Carolina.

Animals were initially released as members of seven adult pairs, an

adult and a yearling, an adult and a pup, five families, and one

sibling pair. Adults are defined as animals 24 months or greater in

age, yearlings are between 12 and 24 months of age, and pups are 12

months or less in age. Released adults ranged in age from 2.25 years to

7.33 years.

Wide-ranging movements that created management situations or led to

the death of some animals soon after release were common. Of the 31

releases of adults and 22 releases of pups, 18 adults and 10 pups

either had to be returned to captivity or died within 2 months. Length

of acclimation, release area, location of resident wolves, and type of

social group released all affected a wolf's probability of successfully

establishing itself in the wild.

Of the 42 wolves released, 22 died; 7 were returned to captivity

for management reasons; 11 were free-ranging through September 30,

1992; and the fates of 2 are unknown. Length of time in the wild varied

from 16 days to 3.5 years.

Reintroduced wolves were killed by one of at least seven mortality

factors. Vehicles (n = 8), intraspecific aggression

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(n = 5), and drownings (n = 4) were the most significant sources of

mortality. It is a measure of the program's success that all but two of

the deaths were natural or accidental, not as a result of any

irresponsible action by a private citizen.

A minimum of 22 wolves were born in the wild. These animals were

members of eight litters produced by 11 adults (6 males, 5 females).

Two litters were produced in 1988, at least one in 1990, four in 1991,

and at least one in 1992. No pups were born in the wild during 1989

because there were no adult pairs together during the breeding season.

Only two wild-born wolves died, and the fate of one is unknown. As

of September 30, 1992, wild-born wolves accounted for 63 percent of the

known population (19 of 30).

Of the 11 adults that bred in the wild, 1 was wild-born and 10 were

captive-born. Wild-born offspring are evidence that captive-born-and-

reared adults can make the transition from captivity to life in the

wild.

As expected, wild-born pups exhibited wide-ranging movements as

they dispersed from natal home ranges. These animals, with the

exception of one female, traveled up to 192 km before establishing new

home ranges on private land south or west of Alligator River. One

female was killed by a vehicle before she established a new home range.

Dispersal age ranged between 7 and 22 months. The youngest dispersers

were siblings that left their natal home range after their parents were

returned to captivity. Likewise, another female dispersed at a young

age after her mother was returned to captivity. It is likely that some

or all of these pups would not have dispersed had their families

remained intact.

Twenty-four of the released wolves were recaptured 63 times, and 17

of the wild-born wolves were recaptured 39 times. Most recaptures were

necessary in order to meet program objectives (replace radio collars,

place a specific wolf with a mate, translocate an animal to a suitable

site, etc.). Every management problem was resolved without inflicting

significant long-term damage to animals and with little or no

inconvenience to residents of the area.

Captive breeding was an integral component of the reintroduction.

Since 1986, 79 wolves have been held in captivity at Alligator River

for varying periods of time. As of September 30, 1992, 10 wolves were

in captivity. During the 5-year experiment, 20 captive adult pairs

produced 34 pups. With access to 12 pens, Alligator River will continue

to be an important component of the red wolf captive-breeding program.

By almost every measure, the reintroduction experiment was

successful and generated benefits that extended beyond the immediate

preservation of red wolves to positively affect local citizens and

communities, larger conservation efforts, and other imperiled species.

During the last 5 years, four important points surfaced:

1. Since every management problem was resolved without inflicting

long-term damage to animals and with little inconvenience to residents

of the area, it is evident that red wolves can be restored in a

controlled manner.

2. Significant land-use restrictions were not necessary in order

for red wolves to survive. Indeed, hunting and trapping regulations for

Alligator River remained unchanged or were further relaxed during the

experiment. Additionally, no restrictions were needed in order for red

wolves to survive on private land.

3. Red wolves and sportsmen can coexist. Many hunters and trappers

expressed support, while others actively contributed to the success of

the experiment by reporting sightings of red wolves.

4. The reintroduction area, which encompasses about 250,000 acres

(111,750 hectares), probably cannot support 30 red wolves for an

extended period of time. Dispersal outside the reintroduction area by

wild-born red wolves has occurred and will continue. Efforts will be

made to work with private landowners to allow wolves on private

property. In addition to dispersal, the future of the red wolf

population is threatened by its smallness; many events (e.g., disease

outbreaks) can cause extinction of small populations.

Increasing the size of the wolf population minimizes threats to its

survival. The primary factor limiting population size is the size of

the reintroduction area. A larger reintroduction area would provide

habitat for dispersing wolves and provide the Service with

opportunities to release additional wolves. Fortunately, the

reintroduction area can easily be enlarged by adding to the project the

112,000-acre (45,327-hectare) Pocosin Lakes National Wildlife Refuge

(Pocosin Lakes). Purchased in 1990 and located in Washington, Tyrrell,

and Hyde Counties, North Carolina, Pocosin Lakes is ideal for probably

15 to 25 wolves because of its large size, remoteness, abundant prey

populations, and proximity to Alligator River.

Meetings with the public and local governments were held to present

the results of the first 5 years and to solicit input on a proposal to

maintain the current population and expand the reintroduction westward

to encompass Pocosin Lakes beginning in 1993. The seven public meetings

were held in the communities of Engelhard, Manteo, Stumpy Point, East

Lake, Columbia, Swanquarter, Washington, and Plymouth. Attendance at

these meetings ranged from 7 to 90 people at each and totaled 146 at

all locations. Meetings were also held with the county commissioners in

Washington, Dare, Beaufort, Tyrrell, and Hyde Counties.

Reintroductions are generally supported by local, State, and

Federal agencies; elected officials; and the general public, except for

some private landowners and the county boards of commissioners in Hyde

and Washington Counties, North Carolina. Most people who commented

supported the restoration project, although some expressed concern

about the effect of red wolves on activities on private land. The

Service assured them that, because free-ranging wolves are legally

classified as members of an experimental nonessential population, the

wolves would not negatively impact legal activities on private or

Federal land.

Some citizens used the meetings to express frustration about other

matters involving the Service. No significant complaints were voiced

specifically about the red wolf reintroduction experiment. However,

Hyde and Washington Counties did pass resolutions opposing red wolf

project expansion. These resolutions seemed to be based on anti-

government sentiment and a fear of prohibitions on private land use.

After consideration of the results from the 5-year experimental

reintroduction and public input received in public meetings and

meetings with State and local governments and agencies, the Service

determined that it would maintain the present populations at Alligator

River and has expanded this population with reintroductions at Pocosin

Lakes beginning in 1993. The reintroductions at Pocosin Lakes are

within counties previously designated for the experimental population

and require no changes in the existing rule.

Park 1-Year Summary

On November 12, 1991, the Service, in cooperation with the National

Park Service (Park Service), experimentally released a single family

group of red wolves into the Cades Cove area of the Park. This release

was designed to assess the feasibility of eventually establishing a

self-sustaining red wolf population on Park Service and

[[Page 18942]]

surrounding U.S. Forest Service property. The experimental period ended

in late September 1992 with the capture of the remaining three members

of the release group.

Specific technical objectives of the experimental release were to

document and respond to movements and activities of the wolves in

mountainous terrain and in the presence of high human activity,

livestock interests, and an increasing coyote population. However,

another objective was to establish an informative and cooperative

relationship with the involved agencies and local citizens. Through

continuous telemetric contact, direct and relayed sightings, and the

dedicated efforts of project personnel, valuable information was

gathered with respect to all of these categories; some problems were

encountered as well.

Cades Cove is unique within the Park; it possesses a great

diversity and abundance of prey species, making it highly attractive to

a large predator. As a result, the average home range for the four

released wolves was 15 km\2\ (3,700 acres), scarcely larger than Cades

Cove itself. As yet, an accurate prediction of red wolf home ranges for

habitat typical of the other 99.3 percent of the Park cannot be made.

Wolves made exploratory movements up to 16 km (10 miles) from the

release site. Individuals strayed off Park property (less than 5 miles

or less than 8 km) four times. Twice they were recaptured within

several hours, and twice they returned of their own accord within 24

hours. The primary prey species taken by the wolves were deer, rabbit,

ground-hog, and raccoon. Samples are currently being analyzed for

percentages and seasonal variation.

Wolves were sighted on numerous occasions by visitors and project

personnel throughout the experiment. This was somewhat expected in an

area where prey species are extremely visible and comfortable with the

intense attention of as many as 15,000 visitors daily. However, the two

adult wolves, especially the male, repeatedly tolerated people at close

distances. This was attributed to the amount of time (e.g., 6 years for

the male) that the adults had spent in captivity. The male was

eventually recaptured and removed from the experiment in late January

1992. The female tolerated human presence to a lesser degree, but she

presented no problems and was allowed to roam free for the duration of

the experimental period. The two female pups were often sighted

crossing roads or, at a distance, hunting in pastures. They developed

an increasing wariness to human activity as they spent more time in the

wild. The behaviors of these wolves support the theory that younger

wolves, with minimal exposure to human contact, make better release

candidates.

The private land surrounding the Park and throughout the Southern

Appalachians supports a variety of livestock interests. The perceived

potential economic threat of a large predator is perhaps the single

greatest political barrier to establishing a self-sustaining red wolf

population in the Southern Appalachians. The documentation and

management of the wolves' interaction with domestic livestock is likely

to be a major factor in deciding whether to expand the project. Thus, a

$25,000 depredation account was established to compensate livestock

owners for losses.

Throughout the experiment, the adult male was responsible for

taking one chicken and three domestic turkeys in two separate

incidents. The remaining three wolves took one of five injured or

missing newborn calves. One additional depredation attempt occurred but

did not result in injury to the calf. Reimbursements for the chicken

and the calf totaled $253. Offers to reimburse for the turkeys were

declined by the owner.

Cades Cove supports a 300-head black angus cattle-breeding

operation, leased to a private stock owner. During the 6-month calving

season, the wolves and calving operation were intensely monitored. The

wolves were located disjunct from five of six attempted depredations.

Day and night (using night-vision equipment) visual observations

revealed cooperative hunting by small groups of coyotes. Nightly

spotlight observations by the stock owner revealed continuous coyote

activity in calving pastures. Accurate records of lost calves prior to

the experimental release of wolves were not kept. Estimates by the

stock owner indicated approximately five to ten calves per year were

lost to bears, coyotes, and other predators/scavengers.

Of significance is that all of the six depredation attempts during

the experimental release involved calves less than 1 week old, and all

the events occurred along wood lines away from the main herd of cattle.

Project personnel began assisting the stock owner in moving newborn

calves into the main herd, and no further depredations by coyotes or

wolves occurred.

Prior to the red wolf release, the Service contracted the

University of Tennessee to conduct a census of coyotes in the Park and

to study interactions between resident coyotes and released wolves.

Seven coyotes were outfitted with telemetry collars and were monitored

for 18 months, or until they permanently left the study area. Only one

coyote remained ``on the air'' in Cades Cove by the time the wolves

were released. This collar expired 3 months later. Interaction data was

then gathered by direct observation.

Initial information indicated aggressive behavior between the adult

wolves and resident coyotes, with the wolves apparently dominating.

After the removal of the adult male wolf, greater numbers determined

the dominating species.

In preparation for the experimental release, project and Park

personnel met with area business, citizenry, and natural resource

organizations for comment on the proposal. Modifications to the release

plans included the addition of a ``non-injurious harassment clause'' to

the experimental rule package, prevention of reproduction in the wild,

immediate recapture of wolves straying off Park property, and recapture

of all wolves at the end of the experiment.

To facilitate information exchange, an information committee

(composed of representatives from Federal and State wildlife resource

agencies, Farm Bureau Federations, and conservation organizations) was

established. The Heartland Series, a local television environmental

program, produced a documentary entitled ``Front Runner,'' focusing on

the reestablishment effort in the Southern Appalachians. The ``Front

Runner'' video, a teacher's guide, and an activity poster were

distributed free to all requesting educational institutions. The

project gained national television exposure on ``Zoo Life with Jack

Hanna,'' a weekly public education broadcast. Presentations and

workshops were given at wildlife exhibitions and to a variety of groups

from elementary to college students and to senior citizens. Other media

contact included interviews with local and regional newspapers, popular

magazines, free-lance writers, and television news teams.

During the final weeks of the experimental period, the Service

reviewed and presented their findings to the Park Service and members

of the information committee. The decision was made to proceed with a

full reintroduction effort at a very conservative pace, with two

releases in the fall of 1992.

On October 9, 1992, a family of six red wolves (two adults, four

pups) were released into Cades Cove. To date, these wolves have shown

restricted movements and food habits very similar to the experimental

group. Within

[[Page 18943]]

several weeks after release, the adult pair had taken a large European

wild hog--an exotic species in the Park.

On December 9, 1992, a second group of six wolves (two adults, four

pups) was released from a remote backcountry site several miles east of

Cades Cove. It is expected that these animals will be more difficult to

track. However, they will provide needed information about the home

range requirements of red wolves in habitat that is typical of the vast

majority of the Park and surrounding Federal lands.

All released wolves will wear transmitters and will be monitored as

closely as the experimental group. There are no scheduled plans to

recapture these animals, except to replace aging transmitters in

approximately 2 to 3 years.

The possibility of expanding the Park reintroduction to include

adjacent national forest lands within the Nantahala and Pisgah National

Forests in North Carolina, the Cherokee National Forest in Tennessee,

and the Chattahoochee National Forest in Georgia will be evaluated over

the next few years. This evaluation will include meetings with

congressional representatives, State wildlife and agriculture agencies,

Farm Bureau Federations, local agriculture and hunting interests,

conservation organizations, county commissioners, and a variety of

local organizations. A final decision will be made after public

meetings in the local areas where reintroductions are proposed.

Special Rule Changes for Both Reintroductions

In the period since publication of the special rules for the

experimental population introduced on Alligator River and the Park,

published in the Federal Register on November 19, 1986 (51 FR 41796)

and November 4, 1991 (56 FR 56333), it has become apparent that changes

are needed in the rule for these populations. These changes will also

provide consistency by treating both reintroductions the same.

The provision for taking red wolves incidental to lawful

recreational activities (50 CFR 17.84(c)(4)(ii)) is revised and

clarified by this final rule. Current policy at Alligator River applies

this provision to all lawful activities, not just to recreational

activities. For example, 11 wolves (includes 8 within the 5-year

experimental release) have been killed by vehicles not involved in

recreational pursuits, but certainly otherwise lawful. No problems have

been encountered at Alligator River in the application of a more

liberalized provision. Therefore, the Service deletes the word

``recreational.'' In addition, incidental take was defined at Alligator

River as ``unavoidable, unintentional, and not resulting from negligent

conduct lacking reasonable due care.'' This definition is changed for

clarification and is included in the incidental take provision of the

special rule.

The Service revised the rule for the Park reintroduction, based on

input by the North Carolina Farm Bureau Federation which stated that

livestock owners should be allowed to take red wolves engaged in

livestock depredation. The Tennessee Citizens for Wilderness Planning

supported the revision. The final rule permitted private livestock

owners to harass red wolves actually engaged in the pursuit or killing

of livestock on private lands. Such conflicts must be reported to the

superintendent of the Park. Service or State officials will respond to

these conflicts within 48 hours and attempt to live-capture the

offending animals. If an early response by the Service or State

officials results in a failure to capture offending animals, the

livestock owner will be permitted to take the offending animal.

These provisions worked well in all five depredation incidents

recorded the first year. Offending animals were recaptured, when

necessary, and in at least two of the instances, private landowners did

harass the animals away but did not take offending animals. Including

the experimental release in 1991, there have been 17 incidents of

animals moving out of the Park onto private lands. In three incidents,

they returned on their own; in the other 14 incidents, they were

recaptured. No indication of abuse of these provisions were encountered

in these incidents. However, experience with offending animals has

indicated potential problems.

It is highly objectionable to owners of livestock and pets to be

unable to kill a predator that is engaged in killing their livestock or

pets. This, in turn, leads to the erosion of public support for

predator reintroductions, which is essential if this effort is to be

successful. Also, there may be a time lapse before offending animals

settle into a predictable pattern whereby they can be recaptured.

During this time period, private landowners will not be allowed to take

the animals themselves. The Service will respond to reported incidents

within 48 hours. However, the existing special rule

(Sec. 17.84(c)(4)(iv)) does not establish a definitive time when

Service or State attempts to recapture the animal are deemed

unsuccessful and the private landowner is then permitted to take the

offending animals. This is a decision that must be made by the Service

project leader or biologist in the field at the depredation location.

Therefore, a rule revision provides that private landowners will be

permitted to take offending animals upon written approval by the

Service project leader or biologist on site of the depredation. This

approval will be provided when the Service abandons attempts to capture

the offending animal and will specify the authorized personnel

(landowner and a limited number of his agents), the number of animals,

and the time period (not to exceed 6 months). Also, private landowners

will be allowed to take red wolves in the act of killing livestock or

pets on private lands without the need for Service approval.

Experience at Alligator River and the Park indicates a need to

extend the harassment and take provisions now in place for private

livestock owners to include all private landowners. Wolves that come in

close proximity to private residences may cause property damage by

killing pets or removing and/or physically defacing small property

items. In addition, private individuals may not want the animals on

their property because they fear them or consider them a nuisance.

Although currently not covered by such rule provisions, these

stipulations have been implemented as reasonable law enforcement

procedures. To date, there have been at least 15 incidents where

animals on private property were harassed by private individuals. The

special rule is revised to provide the legal basis for a provision now

being implemented as a reasonable procedure.

Currently, there are at least 12 red wolves once present at

Alligator River whose fate is unknown. Three of these wolves were

observed but never captured. Transmitters malfunctioned on the other

eight wolves. One animal, whose transmitter malfunctioned in December

1989, would now be 7 years old. The remaining 11 animals are 1 to 3

years of age, and contact with them was lost in 1991, 1992, or 1993. As

wolves are great wanderers, it is possible that some of these five

animals may have dispersed outside the experimental population

boundaries (which could also happen with future animals). There is no

possibility of such dispersing wolves mixing with populations of red

wolves that have been classified as endangered, because the only

existing red wolves in the wild are those introduced as experimental

populations (and offspring) or those introduced (and offspring) onto

isolated islands for propagation purposes. As a

[[Page 18944]]

result, animals dispersing outside the experimental population

boundaries will not contribute to the conservation of the species.

As other resident wild canid populations are hunted and trapped, it

is possible for a dispersing red wolf to be taken incidental to such

lawful activities. Dispersing red wolves could also enter upon private

property or attempt to kill livestock or pets. Providing greater

protection for dispersing red wolves than that provided for red wolves

within the experimental population boundaries would seriously erode the

public support that is so essential for the success of reintroductions.

Therefore, the special rule is revised to apply the same taking

provisions to red wolves outside the experimental population boundaries

as within, with one exception. This exception is that taking does not

need to be reported to the refuge manager or Park superintendent. Such

reporting will be encouraged to the degree possible, but it will not be

required. It is impractical to inform the general population of such

requirements outside the localized experimental population boundaries,

and red wolves taken are not likely to be recognized as red wolves,

even after such taking occurs and an animal is in hand.

The proposed rule for Alligator River provided for any person to

take red wolves incidental to lawful recreational activities (51 FR

26564). Objections to this provision from the Defenders of Wildlife,

the National Audubon Society, the Humane Society of the United States,

and the National Wildlife Federation, based on lack of necessity and

risk of misinterpretation, resulted in its deletion from the final

rule. Instead, the enforcement policy of the Service was clarified in

the preamble to the final rule to the effect that there would be no

penalty for taking incidental to otherwise lawful activity providing

the taking was unavoidable, unintentional, and did not result from

negligent conduct lacking reasonable due care, and providing the taking

was immediately reported to the refuge manager. Experience at Alligator

River did detect a need for this provision and did not detect any

misinterpretation of the policy by private citizens. Eleven red wolves

were killed by vehicles; one wolf was killed in a trapping incident;

and two were shot, one close to a private residence. The vehicle deaths

were interpreted as incidental to lawful activity, which required

little investigation. The trapping and shooting incidents were

investigated and settlements were reached in two cases. In addition,

the incidental take provision originally proposed and then deleted at

Alligator River was included in the final rule for the Park. No taking

of red wolves has occurred despite several instances of wolves visiting

and having been seen on private lands. Therefore, this is additional

evidence that the provision is not being misinterpreted by private

individuals in order to indiscriminately take red wolves. As now

promulgated for Alligator River, the incidental taking provision is

ambiguous. The language used for defining incidental take under

Sec. 17.84(c)(4)(i) used the terms ``unavoidable'', ``unintentional,''

and ``lack of reasonable due care,'' which are subject to differing

legal interpretations. Therefore, for this final rule the Service

changes the provisions by stating that only intentional or willful take

will be prosecuted on private lands. The final rule does not change the

standard for lands owned or managed by Federal, State, or local

government agencies.

The basic premise is that a red wolf that is incidentally taken in

any type of legal activity on private lands will not be a violation of

the special rule. However, a higher standard of conduct is expected on

public lands, where the conservation of red wolves is an objective.

This incidental taking provision places trust in the public to be

responsible citizens by obeying the special rule. The Service intends

to revisit this issue to determine if excessive taking of red wolves is

occurring because of the revised special rule.

Extensive review of the special rule during preparation of proposed

and final revisions detected additional needs for clarification. The

current special rule (Sec. 17.84(c)(10)) provides for the close

monitoring of reintroduced populations, vaccination against diseases

prior to release, and immediate recapture of wolves that need special

care or that move off of Federal lands. Early in the project all

animals were vaccinated because the entire population consisted of

released animals. As the project progressed, released wolves and their

progeny reproduced and expanded their range and population.

Obviously, vaccination cannot be implemented for wild wolves that

have never been captured. Therefore, the special rule is clarified by

revising the statement to the effect that all ``released or captured''

wolves will be vaccinated. At present, most wolves are vaccinated

because the majority of wolves born in the wild are eventually

captured. However, as populations continue to expand, the percentage of

wolves that have not been captured will increase. Rule modifications

also recognize that it may be impossible to capture some wolves.

However, other provisions provide for the control of wolves that are

causing conflicts but cannot be captured.

The intent of the special rule regarding the recapture of wolves

leaving Federal lands was that it would be implemented only when such

wolves caused conflicts and/or the landowner wanted the wolves removed.

This intent is not clear. Red wolves had established themselves on

private lands within 2 years (1989) of the first reintroduction

releases, and several private landowners have agreed to allow the

wolves to inhabit their property. Obviously, there is no need to remove

wolves from private lands when the landowner has no problem with the

wolves being there. Therefore, the special rule is modified to provide

that all landowner requests to remove wolves from their property will

be honored, but wolves that inhabit lands where the landowner agrees to

allow them to reside will not be recaptured unless they cause a

conflict.

Special Rule Changes for Alligator River

Experiences at Alligator River indicate that a need exists for

application of the private landowner harassment and take provisions to

this population as well. Twenty-seven incidents have been reported at

Alligator River, some of which probably did not involve red wolves. The

provisions could have been utilized in some of these incidents and may

have altered the final outcome in a positive manner with regard to

reducing adverse impacts and increasing public support. As these

provisions have worked well in incidents in the Park population, with

no difficulties encountered in their interpretation or application,

this rule will extend these provisions to the Alligator River

population.

The proposed rule called for the addition of Martin and Bertie

Counties as a buffer zone. However, after further consideration, the

Service has determined that this addition lacks sufficient

justification and the counties are not being added to the designated

reintroduction area (see Issue 7 in the following section).

Summary of Comments and Recommendations

In the November 24, 1993, proposed rule (58 FR 62086), all

interested parties were requested to submit comments or recommendations

that might contribute to the development of a final rule. Appropriate

county, State, and Federal agencies; scientific, environmental, and

[[Page 18945]]

land use organizations; and other interested parties were notified and

requested to submit questions or comments on the proposed rule. On

December 6, 1993, the Service mailed copies of the proposed rule to 270

persons and organizations. A 30-day comment period was provided. Nine

comments were received, including three from individuals, three from

State agencies and organizations, and three from national agencies and

organizations. Six of the nine respondents took the opportunity to

comment on the reintroductions; there were three who supported the

reintroductions and three who did not. The three responses supporting

the reintroductions were from two individuals and one national

organization. The three responses not supporting the reintroductions

were from one State agency (North Carolina Department of Agriculture),

one State organization (North Carolina Farm Bureau Federation), and one

individual.

Comments received are presented below as a series of issues, with

each being followed by the Service's response.

Issue 1: The North Carolina Department of Agriculture and the North

Carolina Farm Bureau Federation specifically addressed their nonsupport

with regard to the expansion of the Alligator River reintroduction to

Pocosin Lakes. Also, the one individual voicing nonsupport was located

in the expansion area.

Service Response: Pocosin Lakes did not exist in 1986 when

regulations were finalized for the reintroduction of red wolves at

Alligator River. The final rule stated that the project would be

reevaluated after 5 years and such reevaluation would include public

meetings. The result of the reevaluation, which included public

meetings, was to expand the reintroduction project to Pocosin Lakes.

This was a logical decision based on the success of the reintroduction

to that point in time, the establishment of Pocosin Lakes as one of our

national wildlife refuges which are mandated to conserve and recover

endangered species, and the location of Pocosin Lakes within the

existing experimental population boundaries established in the final

rule of November 19, 1986 (51 FR 41790). The reintroductions per se

have previously been through the rulemaking process and are outside the

scope of this revision to the existing rule.

Issue 2: One individual was opposed, in general, to classifying

endangered animals as nonessential experimental and, within this

designation, relaxing protection for them. This individual favored

more, not less, protection and wondered why the provisions would be

extended to animals outside the experimental population areas and if

the provisions would apply in the future to the island propagation

sites.

Service Response: The provisions for classifying listed species as

nonessential experimental were provided by 1982 amendments to the Act.

These provisions were designed to resolve the dilemma of significant

local opposition to translocation efforts due to concerns over the

rigid protection and prohibitions surrounding listed species under the

Act. The resolution was to provide new administrative flexibility for

selectively applying the prohibitions of the Act to experimental

populations. Final regulations establishing procedures for designation

of experimental populations, determination of such populations as

``essential'' or ``nonessential,'' and promulgation of appropriate

protective regulatory measures were published in the Federal Register

on August 27, 1984 (49 FR 33885). These provisions were necessary to

obtain public support for attempts to reintroduce red wolves and were,

therefore, an essential ingredient in success at reestablishment of the

species. Prior to these provisions, attempts to reintroduce red wolves

and other endangered species, particularly predators, were routinely

unsuccessful because of local opposition.

The reasons for extending the provisions of this rule to animals

outside the experimental population boundaries are believed to be

adequately explained in the Background section of this rule. These

provisions do not apply to the island propagation projects, and the

Service has no intention of declaring these animals nonessential

experimental in the future.

Issue 3: Responses from the North Carolina Wildlife Resources

Commission (Commission), North Carolina Department of Agriculture

(Department), and North Carolina Farm Bureau Federation (Federation)

addressed the reporting requirements. The Department and Federation

believe that livestock owners should be allowed to take red wolves

engaged in depredation without notifying the Service and awaiting

recapture attempts. At the other extreme, the Humane Society of the

United States (Society) wants no provision for private citizens to take

red wolves for any purpose. The Commission recommended that

``immediately'' be defined as 5 business days, and the Commission and

Federation recommended that ``immediately'' be deleted from the

provision for taking outside the designated experimental population

area. The Commission also pointed out that local residents are more

familiar with and are more likely to call the local State wildlife

enforcement officer through an available toll free number.

Service Response: The Service agrees to delete the word

``immediately'' from the provision for taking outside of the designated

experimental population area because the intent was to delete reporting

requirements altogether. In addition, the term ``immediately'' has been

replaced by ``within 24 hours'' for areas within the experimental

population areas. It is important to report taking and harassment

incidents quickly so that Service personnel can respond right away in

order to minimize conflicts and retrieve any carcasses for necropsy

before such carcasses deteriorate to the degree that necropsy results

are compromised. Five days, as recommended by the Commission, would not

allow such a quick response. Telephone access is such that reporting

incidents within 24 hours should pose no burden on the public.

Changes are made to allow private landowners to take wolves that

are in the act of killing livestock or pets prior to reporting such

incidents to the Service.

The Service contacted the Tennessee Wildlife Resources Agency to

obtain approval to also list the local State wildlife enforcement

officer in that State as a contact for meeting the reporting

requirements. Such approval was received, and this change, as

recommended by the Commission, has been made. The State enforcement

officer will, in turn, notify the Park superintendent or refuge manager

so that Service personnel can respond to such incidents.

Issue 4: The Commission, Society, Federation, and American Sheep

Industry Association (Association) commented on the incidental taking

provision. The Federation supported the inclusion of lawful activities,

other than recreational, in the provision. The Commission recommended

that ``incidental'' be defined as ``unavoidable, unintentional, or not

resulting from negligent conduct, taking reasonable due care'' in order

to prevent the prosecution of well-intentioned citizens who may kill a

red wolf, believing it to be a coyote. The Society, on the other hand,

believes that the broad definition will invite abuse. The Association

was concerned about whether the provision would be applied to livestock

owners outside the Park, as well as inside, and who would make the

decision on negligent conduct.

[[Page 18946]]

Service Response: The Service found it necessary to change the

language in this provision to clarify the intent and to remove any

ambiguity. Experience during the past several years indicates that

direct human-induced red wolf mortality is rare. The Service has

therefore determined that it is appropriate to modify the language of

the special rule to implement section 9 provisions for the red wolf by

limiting the section 9 prohibition on private lands to cover

intentional and willful taking only. Unlike the protection afforded all

endangered and most threatened species, this provision will make the

taking of a red wolf on private lands a specific intent crime. This

provision will apply to all private landowners. The concept of a

general intent violation (i.e. avoidable take or take through mistaken

identity) that was present in the earlier rule is now used only on

lands owned or managed by Federal, State, or local government agencies.

Issue 5: In addition to comments addressed under reporting

requirements, the Association's comments indicated overall support for

the provision but recommended that a maximum of 48 hours Service

response time be included and that the biologist ``on site of the

depredation'' give approval in a reasonable time period. The Commission

recommended that approval be given within 5 days and that takings be

reported to the Service project leader or biologist. The Federation

also supported expanding the harassment provisions to private

individuals around residences. However, the Department and the

Federation felt that the take provisions did not go far enough in

protecting the interests of livestock owners and thought that a time

period should be specified for approval of livestock owners to ``take''

offending animals. As indicated in the comments on reporting

requirements, the Society recommends that private citizens not be

allowed to take red wolves for any reason and that other provisions in

the rule are sufficient to protect private residences without allowing

the taking of animals by private citizens. The Society also believes

private citizens should have the responsibility to protect pets and

private property from wildlife.

Service Response: The Service has revised the provision to allow

private landowners to harass wolves in an opportunistic manner at any

time on their property and to take such animals with Service approval

if the Service's attempts to take the animals are unsuccessful.

Notification would allow the Service to remove the offending animals,

which are still valuable to the recovery objectives as breeding

animals. If unsuccessful in removing the animals, the Service will

permit the landowner to take action to remove any returning animals.

The provision has also been revised to make it clear that the Service

project leader or biologist on site of the depredation will provide

approval to the private landowner and has indicated in the previous

sections explaining the rule changes that such approval will be

provided when the Service abandons attempts to capture the offending

animal. A definite time period for such approval cannot be provided

because of the variation in individual wolf behavior; e.g., one wolf

may stay in the vicinity or return daily, while others may not return

for days. The Service also adopts the 48-hour Service response time to

reported incidents, as recommended and indicated in the previous

sections explaining the rule changes. The Service project leader or

biologist has been added as a contact for reporting any taking,

although it was intended that reports to this individual would meet the

provision as previously stated, because the Service project leader or

biologist serves as the representative of the Park superintendent or

refuge manager.

While the position of the Society regarding responsibility of

private citizens to protect pets and property is reasonable with regard

to naturally occurring wildlife species, programs to purposely

reintroduce predators, such as the red wolf, must be accompanied by

provisions to protect private property from the presence of such

reintroduced animals if the landowner does not want them on his

property. Such protection is necessary in order to obtain local public

support, which is essential to success. Without such support,

reintroductions are doomed, because the animals can be efficiently

eliminated, as evidenced by past history.

Issue 6: The Federation did not understand the need to list the

North Carolina counties as part of the historic range of the species

and stated that it should be presented in the information section

unless it is absolutely necessary to establish the nonessential

experimental use population designation.

Service Response: The Service believes that it is helpful to

establish experimental population boundaries for reintroduction

efforts.

Issue 7: The Commission objected to the addition of any counties to

the experimental population area because (1) it would increase the

public's perception of ``government land-grabbing'' and (2) it is

unnecessary since the provisions for red wolves within the designated

experimental population area will also be applied to red wolves outside

the designated experimental population area, except for reporting

requirements.

The Association expressed concerns that as red wolves continue to

disperse from ``core areas,'' the areas will increase in size and more

private property will be brought under the experimental population

designation. The Association also expressed concerns that the provision

for allowing the ``take'' of red wolves under certain circumstances on

property outside the buffer zone will eventually be removed.

Service Response: The proposed addition of Martin and Bertie

Counties was to provide a buffer around the release area. Although red

wolves would not be released in these counties, their proposed

addition, for management purposes, was because of their close

proximity. The Service would expend efforts within these counties to

provide information on the project and would quickly respond and handle

any problems caused by dispersing red wolves. Such rapid response would

necessitate the reporting of such problems to the Service as soon as

possible. Because the Service will be monitoring the animals and will

be contacting individual landowners regarding the capture of dispersing

animals, the more intensive broad-scale management within the counties

may not be necessary. Therefore, the Service agrees to not designate

additional counties for the experimental population area.

The Service has no intention of removing the ``take'' provisions on

property outside the buffer zone. Reintroduced red wolves will continue

to be managed as experimental populations until the recovery objective

of 220 red wolves in the wild is met. At that time, the species would

be delisted and managed as a resident species by the State.

National Environmental Policy Act

Environmental assessments were prepared under the authority of the

National Environmental Policy Act of 1969 and are available for

inspection by the public at the Service's Asheville Field Office (see

ADDRESSES section). These assessments formed the basis for a decision

that these actions are not major Federal actions which would

significantly affect the quality of the human environment within the

meaning of section 102(2)(C) of the National Environmental Policy Act

(implemented at 40 CFR Parts 1500-1508). These minor rule changes do

not require

[[Page 18947]]

revision of the environmental assessments.

Executive Order 12866, Paperwork Reduction Act, and Regulatory

Flexibility Act

This rule has been reviewed under Executive Order 12866. The Fish

and Wildlife Service has determined that the rule would not have a

significant economic effect on a substantial number of small entities

as described in the Regulatory Flexibility Act (Pub. L. 96-354). No

private entities will be affected by this action. The rule does not

contain any information collection or recordkeeping requirements as

defined in the Paperwork Reduction Act of 1980 (Pub. L. 96-511).

Author

The principal author of this final rule is V. Gary Henry (see

ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations is amended as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues 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 Sec. 17.11(h) by revising the entries for red wolf to read

as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) ***

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species

-------------------------------------------------------- Historic range Vertebrate population where Status When Critical Special

Common name Scientific name endangered or threatened listed habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

MAMMALS:

* * * * * * *

Wolf, red.............. Canis rufus............... U.S.A. (SE U.S.A., Entire, except where listed as E 1, 248, NA NA

west to central TX). Experimental Populations below 449,

579

do..................... do........................ do.................. U.S.A. (portions of NC and TN--see XN 248, NA 17.84(C)

Sec. 17.84(c)(9)) 449,

579

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Section 17.84 is amended by revising paragraphs (c)(4),

(c)(9)(i) and (c)(10) of the section to read as follows:

Sec. 17.84 Special rules--vertebrates.

* * * * *

(c) * * *

(4)(i) Any person may take red wolves found on private land in the

areas defined in paragraphs (c)(9) (i) and (ii) of this section,

Provided that such taking is not intentional or willful, or is in

defense of that person's own life or the lives of others; and that such

taking is reported within 24 hours to the refuge manager (for the red

wolf population defined in paragraph (c)(9)(i) of this section), the

Park superintendent (for the red wolf population defined in paragraph

(c)(9)(ii) of this section), or the State wildlife enforcement officer

for investigation.

(ii) Any person may take red wolves found on lands owned or managed

by Federal, State, or local government agencies in the areas defined in

paragraphs (c)(9) (i) and (ii) of this section, Provided that such

taking is incidental to lawful activities, is unavoidable,

unintentional, and not exhibiting a lack of reasonable due care, or is

in defense of that person's own life or the lives of others, and that

such taking is reported within 24 hours to the refuge manager (for the

red wolf population defined in paragraph (c)(9)(i) of this section),

the Park superintendent (for the red wolf population defined in

paragraph (c)(9)(ii) of this section), or the State wildlife

enforcement officer for investigation.

(iii) Any private landowner, or any other individual having his or

her permission, may take red wolves found on his or her property in the

areas defined in paragraphs (c)(9) (i) and (ii) of this section when

the wolves are in the act of killing livestock or pets, Provided that

freshly wounded or killed livestock or pets are evident and that all

such taking shall be reported within 24 hours to the refuge manager

(for the red wolf population defined in paragraph (c)(9)(i) of this

section), the Park superintendent (for the red wolf population defined

in paragraph (c)(9)(ii) of this section), or the State wildlife

enforcement officer for investigation.

(iv) Any private landowner, or any other individual having his or

her permission, may harass red wolves found on his or her property in

the areas defined in paragraphs (c)(9) (i) and (ii) of this section,

Provided that all such harassment is by methods that are not lethal or

physically injurious to the red wolf and is reported within 24 hours to

the refuge manager (for the red wolf population defined in paragraph

(c)(9)(i) of this section), the Park superintendent (for the red wolf

population defined in paragraph (c)(9)(ii) of this section), or the

State wildlife enforcement officer, as noted in paragraph (c)(6) of

this section for investigation.

(v) Any private landowner may take red wolves found on his or her

property in the areas defined in paragraphs (c)(9) (i) and (ii) of this

section after efforts by project personnel to capture such animals have

been abandoned, Provided that the Service project leader or biologist

has approved such actions in writing and all such taking shall be

reported within 24 hours to the Service project leader or biologist,

the refuge manager (for the red wolf population defined in paragraph

(c)(9)(i) of this section), the Park superintendent (for the red wolf

population defined in paragraph (c)(9)(ii) of this section), or the

State wildlife enforcement officer for investigation.

(vi) The provisions of paragraphs (4) (i) through (v) of this

section apply to red wolves found in areas outside the areas defined in

paragraphs (c)(9) (i) and (ii) of this section, with the exception that

reporting of taking or harassment to the refuge manager, Park

superintendent, or State wildlife enforcement officer, while

encouraged, is not required.

* * * * *

[[Page 18948]]

(9)(i) The Alligator River reintroduction site is within the

historic range of the species in North Carolina, in Dare, Hyde,

Tyrrell, and Washington Counties; because of its proximity and

potential conservation value, Beaufort County is also included in the

experimental population designation.

* * * * *

(10) The reintroduced populations will be monitored closely for the

duration of the project, generally using radio telemetry as

appropriate. All animals released or captured will be vaccinated

against diseases prevalent in canids prior to release. Any animal that

is determined to be in need of special care or that moves onto lands

where the landowner requests their removal will be recaptured, if

possible, by Service and/or Park Service and/or designated State

wildlife agency personnel and will be given appropriate care. Such

animals will be released back into the wild as soon as possible, unless

physical or behavioral problems make it necessary to return the animals

to a captive-breeding facility.

* * * * *

Dated: December 27, 1994

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 95-9291 Filed 4-12-95; 8:45 am]

BILLING CODE 4310-55-P