Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Mexican Gray Wolf in Arizona and New Mexico

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD07

Endangered and Threatened Wildlife and Plants; Establishment of a

Nonessential Experimental Population of the Mexican Gray Wolf in

Arizona and New Mexico

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) has decided to

reintroduce the endangered Mexican gray wolf (Canis lupus baileyi) into

the Blue Range Wolf Recovery Area, a designated area within the

subspecies' probable historic range. This reintroduction will be the

first step toward recovery of the Mexican wolf in the wild. The Blue

Range Wolf Recovery Area consists of the entire Apache and Gila

National Forests in east-central Arizona and west-central New Mexico.

If the Service later finds it to be both necessary for recovery and

feasible, we would reintroduce wolves into the White Sands Wolf

Recovery Area, which also lies within the subspecies' probable historic

range. This area consists of all land within the boundary of the White

Sands Missile Range in south-central New Mexico together with

designated land immediately to the west of the missile range. By this

rule, the Service classifies wolves to be re-established in these areas

as one nonessential experimental population under section 10(j) of the

Endangered Species Act (Act) of 1973, as amended. This final rule sets

forth management directions and provides for limited allowable legal

take of wolves within a defined Mexican Wolf Experimental Population

Area.

EFFECTIVE DATE: January 24, 1998.

ADDRESSES: Send correspondence concerning this rule to the Mexican Gray

Wolf Recovery Program, U.S. Fish and Wildlife Service, P.O. Box 1306,

Albuquerque, New Mexico 87103-1306. The complete file for this final

rule is available for public inspection, by appointment, during normal

business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. David R. Parsons (see ADDRESSES

section) at telephone (505) 248-6920; facsimile (505) 248-6922; or

electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

Background

Legislative

The Endangered Species Act Amendments of 1982, Pub. L. 97-304,

created section 10(j), providing for the designation of specific

populations of listed species as ``experimental populations.'' Under

previous authorities of the Act, the Service was permitted to re-

establish (reintroduce) populations of a listed species into unoccupied

portions of its historic range for conservation and recovery purposes.

However, local opposition to reintroduction efforts, stemming from

concerns by some about potential restrictions, and prohibitions on

Federal and private activities contained in sections 7 and 9 of the

Act, reduced the effectiveness of reintroduction as a conservation and

recovery tool.

Under section 10(j), a population of a listed species re-

established outside its current range but within its probable historic

range may be designated as ``experimental'' at the discretion of the

Secretary of the Interior (Secretary). Reintroduction of the

experimental population must further the conservation of the listed

species. An experimental population must be separate geographically

from nonexperimental populations of the same species. Designation of a

population as experimental increases the Service's management

flexibility.

Additional management flexibility exists if the Secretary finds the

experimental population to be ``nonessential'' to the continued

existence of the species. For purposes of section 7 [except section

7(a)(1), which requires Federal agencies to use their authorities to

conserve listed species], nonessential experimental populations located

outside national wildlife refuge or national park lands are treated as

if they are proposed for listing. This means that Federal agencies are

under an obligation to confer, as opposed to consult (required for a

listed species), on any actions authorized, funded, or carried out by

them that are likely to jeopardize the continued existence of the

species. Nonessential experimental populations located on national

wildlife refuge or national park lands are treated as threatened, and

formal consultation may be required. Activities undertaken on private

or tribal lands are not affected by section 7 of the Act unless they

are authorized, funded, or carried out by a Federal agency.

Individual animals used in establishing an experimental population

can be removed from a source population if their removal is not likely

to jeopardize the continued (12.9 km2) existence of the

species (see Findings Regarding Reintroduction, below), and a permit

has been issued in accordance with 50 CFR part 17.22.

The Mexican gray wolf was listed as an endangered subspecies on

April 28, 1976 (41 FR 17742). The gray wolf species in North America

south of Canada was listed as endangered on March 9, 1978, except in

Minnesota where it was listed as threatened (43 FR 9607). This listing

of the species as a whole continued to recognize valid biological

subspecies for purposes of research and conservation (43 FR 9610).

Biological

This final experimental population rule addresses the Mexican gray

wolf (Canis lupus baileyi), an endangered subspecies of gray wolf that

was extirpated from the southwestern United States by 1970. The gray

wolf species (C. lupus) is native to most of North America north of

Mexico City. An exception is in the southeastern United States, which

was occupied by the red wolf species (C. rufus). The gray wolf occupied

areas that supported populations of hoofed mammals (ungulates), its

major food source.

The Mexican gray wolf historically occurred over much of New

Mexico, Arizona, Texas, and northern Mexico, mostly in or near

forested, mountainous terrain. Numbering in the thousands before

European settlement, the ``lobo'' declined rapidly when its reputation

as a livestock killer led to concerted eradication efforts. Other

factors contributing to its decline were commercial and recreational

hunting and trapping, killing of wolves by game managers on the theory

that more game animals would be available for hunters,

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habitat alteration, and human safety concerns (although no

documentation exists of Mexican wolf attacks on humans).

The subspecies is now considered extirpated from its historic range

in the south western United States because no wild wolf has been

confirmed since 1970. Occasional sightings of ``wolves'' continue to be

reported from U.S. locations, but none have been confirmed. Ongoing

field research has not confirmed that wolves remain in Mexico.

Mexican wolves were eradicated before their natural history had

been systematically studied. Chapter 1 of the Final Environmental

Impact Statement (FEIS) discusses the taxonomy and probable historic

range of C. l. baileyi, as well as the genetics and other important

background on the captive population. Appendix A of the FEIS provides

life history and ecological descriptions of Mexican wolves to the

extent they are known or can be inferred from historical evidence,

observations of captive Mexican wolves, and studies of gray wolves in

other geographic regions.

Recovery Efforts

The Mexican Wolf Recovery Plan was adopted by the Directors of the

Service and the Mexican Direccion General de la Fauna Silvestre in

1982. Its objective is to conserve and ensure survival of the

subspecies by maintaining a captive breeding program and re-

establishing a viable, self-sustaining population of at least 100

Mexican wolves in a 5,000 square mile area within the subspecies'

historic range. The plan guides recovery efforts for the subspecies,

laying out a series of recommended actions. The recovery plan is

currently being revised; the Service expects to release a draft for

public review in 1998. The revised plan will more precisely define

population levels at which the Mexican wolf can be downlisted to

``threatened'' status and removed from protection under the Act (i.e.,

delisted).

A captive breeding program was initiated with the capture of five

wild Mexican wolves between 1977 and 1980, from Durango and Chihuahua,

Mexico. Three of these animals (two males and a female that was

pregnant when captured) produced offspring, founding the ``certified''

captive lineage. Two additional captive populations were determined in

July 1995 to be pure Mexican wolves--each has two founders. The captive

population included 148 animals as of January 1997--119 are held at 25

facilities in the United States and 29 at five facilities in Mexico.

On April 20, 1992, the Service issued a ``Notice of Intent to

Prepare an Environmental Impact Statement on the Experimental

Reintroduction of Mexican Wolves (Canis lupus baileyi) into Suitable

Habitat within the Historic Range of the Subspecies'' (57 FR 14427).

This notice also announced the time and place of public scoping

meetings. The Service released the draft Environmental Impact Statement

(DEIS), entitled ``Reintroduction of the Mexican Wolf within its

Historic Range in the Southwestern United States,'' for public review

and comment on June 27, 1995 (60 FR 33224). The location and times of

14 public meetings were also announced in that notice. On September 26,

1995, the Service announced that three public hearings would be held in

October 1995 (60 FR 49628). All announced meetings and hearings were

held. The public comment period on the DEIS closed on October 31, 1995;

and approximately 18,000 people submitted comments. Provisions of the

Service's draft proposed Mexican wolf experimental population rule were

summarized in Chapter 2 of the DEIS and provided in full in Appendix C

of the DEIS.

The proposed Mexican wolf experimental population rule was

published in the Federal Register on May 1, 1996 (61 FR 19237-19248)

and public comments were accepted through July 1, 1996. A May 22, 1996,

Federal Register notice (61 FR 25618-25619) announced four public

meetings/hearings specific to the proposed rule, which were held in

potentially affected areas.

The Service released the FEIS on Mexican wolf reintroduction on

December 20, 1996. Chapter 5 of the FEIS contains a detailed review of

public comments on the DEIS, including comments on the draft proposed

rule, and the Service's responses. Pursuant to 50 CFR 17.81(d), this

experimental population rule and the FEIS were developed in

consultation with appropriate State fish and wildlife agencies, local

governmental entities, affected Federal agencies, affected private

landowners, native American tribes, technical experts, and others. The

Service has cooperated with local governments through meetings with

county officials and their representatives, making background

information available, soliciting information, reviewing and responding

to comments and studies prepared by county consultants, inviting

consultants with expertise in local issues to an EIS team meeting, and

other measures. In addition, the EIS process included holding public

comment meetings throughout potentially affected areas, including

holding a joint meeting with the Commission of Sierra County, the only

county that so requested.

The Service is exploring additional avenues of communication and

cooperation with local governments and other stakeholders in the

implementation of Mexican wolf reintroduction.

On April 3, 1997, the Department of the Interior issued its Record

of Decision on the FEIS, and selected the Preferred Alternative

(Alternative A in the FEIS) for implementation (62 FR 15915-15916). The

Service will reintroduce captive-raised Mexican wolves in eastern

Arizona within the designated Blue Range Wolf Recovery Area. Released

wolves and their offspring will be designated a nonessential

experimental population. This population will be allowed to colonize

the entire Blue Range Wolf Recovery Area. If the Service later

determines it to be both necessary for recovery and feasible, we would

reintroduce wolves into the White Sands Wolf Recovery Area, the

designated back-up area.

Mexican Wolf Recovery Areas

The Service has determined that reintroduction in the Blue Range

Wolf Recovery Area (Figure 1) is biologically and environmentally

preferable and has the greatest potential for successfully achieving

the current recovery objective for Mexican wolves. The White Sands Wolf

Recovery Area (Figure 2) may serve as a back-up reintroduction area

only if its use is later determined to be both necessary and feasible,

according to criteria in the Preferred Alternative.

The two wolf recovery areas are within the Mexican wolf's probable

historic range. The Mexican wolf is considered extinct in the wild in

the United States. Thus, both areas are geographically separate from

any known, naturally-occurring, nonexperimental populations of wild

wolves.

Section 17.84(k)(9) of this rule establishes a larger Mexican Wolf

Experimental Population Area (Figure 3), which also is geographically

separate from any known, naturally-occurring nonexperimental

populations of wild wolves. The Service is not proposing to re-

establish Mexican wolves throughout this larger area. The purpose of

designating an experimental population area is to establish that any

member of the re-established Mexican wolf population found in this

larger area is a member of the nonessential experimental population,

and subject to the provisions of this rule including, but

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not limited to, its capture and return to the designated recovery

area(s).

Reintroduction Procedures

Captive Mexican wolves are selected for release based on genetics,

reproductive performance, behavioral compatibility, response to the

adaptation process, and other factors. Selected wolves have been moved

to the Service's captive wolf management facility on the Sevilleta

National Wildlife Refuge in central New Mexico where they have been

paired based on genetic and behavioral compatibility and measures are

being taken to adapt them to life in the wild. As wolves are moved to

release pens, more will be moved to the Sevilleta facility. Additional

wolves for reintroduction may be obtained from selected cooperating

facilities that provide an appropriate captive environment.

Initially, wolves will be reintroduced by a ``soft release''

approach designed to reduce the likelihood of quick dispersal away from

the release areas. This involves holding the animals in pens at the

release site for several weeks in order to acclimate them and to

increase their affinity for the area. (The soft release approach is

described in more detail in Chapter 2 of the FEIS.) The releases will

begin in 1998. Procedures for releases could be modified if new

information warrants such changes.

In the Blue Range Wolf Recovery Area, approximately 14 family

groups will be released over a period of 5 years, with the goal of

reaching a population of 100 wild wolves. Approximately five family

groups of captive raised Mexican wolves will be released over a period

of 3 years into the White Sands Wolf Recovery Area, if this back-up

area is used, with the goal of reaching a population of 20 wolves.

Management of the Reintroduced Population

The nonessential experimental designation enables the Service to

develop measures for management of the population that are less

restrictive than the mandatory prohibitions that protect species with

``endangered'' status. This includes allowing limited ``take''' (see

definition of take in section 17.84(k)(15) of the rule) of individual

wolves under narrowly defined circumstances. Management flexibility is

needed to make reintroduction compatible with current and planned human

activities, such as livestock grazing and hunting. It is also critical

to obtaining needed State, Tribal, local, and private cooperation. The

Service believes this flexibility will improve the likelihood of

success.

Reintroduction will occur under management plans that allow

dispersal by the new wolf populations beyond the primary recovery zones

where they will be released into the secondary recovery zones of the

designated wolf recovery area(s) (Figures 1 and 2). The Service and

cooperating agencies will not allow the wolves to establish territories

on public lands wholly outside these wolf recovery area boundaries.

With landowner consent, the Service also would prevent wolf

colonization of private or tribal lands outside the designated recovery

area(s).

No measures are expected to be needed to isolate the experimental

population from naturally occurring populations because no Mexican

wolves are known to occur anywhere in the wild. The Service has ensured

that no population of naturally-occurring wild wolves exists within the

recovery areas. Surveys for wolf sign in these areas have been

conducted, and no naturally occurring population has been documented.

No naturally occurring population of Mexican wolves has been documented

in Mexico following four years of survey efforts there. Therefore,

based on the best available information, the Service concludes that

future natural migration of wild wolves into the experimental

population area is not possible.

Identification and Monitoring

Prior to placement in release pens, the adult-sized wolves will

receive permanent identification marks and radio collars. If pups are

born in the release pens, they will be marked and may receive

surgically implanted transmitters prior to release. Some or all of

these pups may be captured and fitted with radio collars when they

reach adult size. Captured wild-born wolves will be given a permanent

identification mark and radio collar, unless enough animals from their

family group (to ensure adequate monitoring of the group) are already

radio collared.

The Service and cooperating agencies will measure the success or

failure of the releases by monitoring, researching, and evaluating the

status of released wolves and their offspring. Using adaptive

management principles, the Service and cooperating agencies will modify

subsequent releases depending on what is learned from the initial

releases. The agencies will prepare periodic progress reports, annual

reports, and full evaluations after three and five years that will

recommend continuation, modification, or termination of the

reintroduction effort. The reports will also evaluate whether, and how,

to use the back-up White Sands Wolf Recovery Area.

Findings Regarding Reintroduction

The Service finds that, under the Preferred Alternative, the

reintroduced experimental population is likely to become established

and survive in the wild within the Mexican gray wolf's probable

historic range. The Service projects that this reintroduction will

achieve the recovery goal of at least 100 wolves occupying 5,000 square

miles. The Blue Range Wolf Recovery Area comprises 6,854 square miles

of which about 95% is National Forest.

Some members of the experimental population are expected to die

during the reintroduction efforts after removal from the captive

population. The Service finds that even if the entire experimental

population died, this would not appreciably reduce the prospects for

future survival of the subspecies in the wild. That is, the captive

population could produce more surplus wolves and future reintroductions

still would be feasible if the reasons for the initial failure are

understood. The individual Mexican wolves selected for release will be

as genetically redundant with other members of the captive population

as possible, thus minimizing any adverse effects on the genetic

integrity of the remaining captive population. The Service has detailed

lineage information on each captive Mexican wolf. The captive

population is managed for the Service under the American Zoo and

Aquarium Association's Species Survival Plan program. The Association

maintains a studbook and provides an expert advisor for small

population management.

Management of the demographic and genetic makeup of the population

is guided by the SPARKS computer program. Mean kinship values, which

range from zero to one, are a measure of the relatedness of an

individual to the rest of the population. Wolves with higher kinship

values are genetically well-represented in the population. Individuals

whose mean kinship values are above the mean for the captive population

as a whole will be used for release. In addition, the GENES computer

program is used to examine the influence of removing an individual

animal on the survival of the founders' genes. This management approach

will adequately protect the genetic integrity of the captive population

and thus the continued existence of the subspecies. The United States

captive population of Mexican wolves has approximately doubled in the

last 3 years, demonstrating the captive population's

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reproductive potential to replace reintroduced wolves that die. In view

of all these safeguards the Service finds that the reintroduced

population would not be ``essential'' under 50 CFR 17.81(c)(2).

The Service finds that release of the experimental population will

further the conservation of the subspecies and of the gray wolf species

as a whole. Currently, no populations or individuals of the Mexican

gray wolf subspecies are known to exist anywhere in the wild. No wild

populations of the gray wolf species are known to exist in the United

States south of Washington, Idaho, Wyoming, North Dakota, Minnesota,

Wisconsin, and Michigan. Therefore, based on the best available

information, the Service finds that the re-established population would

be completely geographically separate from any extant wild populations

or individual gray wolves and that future migration of wild Mexican

wolves into the experimental population area is not possible. The

Mexican wolf is the most southerly and the most genetically distinct of

the North American gray wolf subspecies. It is the rarest gray wolf

subspecies and has been given the highest recovery priority for gray

wolves worldwide by the Wolf Specialist Group of the World Conservation

Union (IUCN).

Releasing captive-raised Mexican wolves furthers the objective of

the Mexican Wolf Recovery Plan. This reintroduction will establish a

wild population of at least 100 Mexican wolves and reduce the potential

negative effects of keeping them in captivity in perpetuity. If captive

Mexican wolves are not reintroduced to the wild within a reasonable

period of time, genetic, physical, or behavioral changes resulting from

prolonged captivity could diminish their prospects for recovery.

Designation of the released wolves as nonessential experimental is

considered necessary to obtain needed State, Tribal, local, and private

cooperation. This designation also allows for management flexibility to

mitigate negative impacts, such as livestock depredation. Without such

flexibility, intentional illegal killing of wolves likely would harm

the prospects for success.

Potential for Conflict With Federal and Other Activities.

As indicated, considerable management flexibility has been

incorporated into the final experimental population rule to reduce

potential conflicts between wolves and the activities of governmental

agencies, livestock operators, hunters, and others. No major conflicts

with current management of Federal, State, private, or Tribal lands are

anticipated. Mexican wolves are not expected to be adversely affected

by most of the current land uses in the designated wolf recovery areas.

However, temporary restrictions on human activities may be imposed

around release sites, active dens, and rendezvous sites.

Also, the U.S. Department of Agriculture, Animal and Plant Health

Inspection Service, Wildlife Services (WS) division will discontinue

use of M-44's and choking-type snares in ``occupied Mexican wolf

range'' (see definition in section 17.84(k)(15)). Other predator

control activities may be restricted or modified pursuant to a

cooperative management agreement or a conference between the WS and the

Service.

The Service and other authorized agencies may harass, take, remove,

or translocate Mexican wolves under certain circumstances described in

detail in this rule. Private citizens also are given broad authority to

harass Mexican wolves for purposes of scaring them away from people,

buildings, facilities, pets, and livestock. They may kill or injure

them in defense of human life or when wolves are in the act of

attacking their live stock (if certain conditions are met). In

addition, ranchers can seek compensation from a private fund if

depredation on their livestock occurs.

No formal consultation under section 7 of the Act would be required

regarding potential impacts of land uses on nonessential experimental

Mexican wolves. Any harm to wolves resulting solely from habitat

modification caused by authorized uses of public lands that are not in

violation of the temporary restriction provisions or other provisions

regarding take or harassment would be a legal take under this rule. Any

habitat modification occurring on private or tribal lands would not

constitute illegal take. Based on evidence from other areas, the

Service does not believe that wolf recovery requires major changes to

currently authorized land uses. The main management goals are to

protect wolves from disturbance during vulnerable periods, minimize

illegal take, and remove individuals from the wild population that

depredate livestock or otherwise cause significant problems.

The Service does not intend to change the ``nonessential

experimental'' designation to ``essential experimental,''

``threatened,'' or ``endangered'' and the Service does not intend to

designate critical habitat for the Mexican wolf. Critical habitat

cannot be designated under the nonessential experimental

classification, 16 U.S.C. 1539(j)(2)(C)(ii). The Service foresees no

likely situation which would result in such changes in the future.

Conflicts With State and Local Policies.

In 1994, Arizona adopted an anti-trapping initiative (amending ARS

section 17-301), which makes the use of several wildlife capture

devices illegal, including leg-hold traps. However, the law does not

prohibit ``the use of snares, traps not designed to kill, or nets to

take wildlife for scientific research projects, falconry, or for

relocation of the wildlife as may be defined or regulated by the

Arizona Game and Fish Commission and or the Government of the United

States.'' The Service believes leg-hold traps are an essential tool for

wolf management. Their use will be primarily for research and

relocation purposes. Although the Service believes that its primary

purpose for leg-hold trapping (wolf research and relocation) is

included in the exception to the Arizona law under ``traps not designed

to kill,'' provisions and purposes for the use of wolf capture devices

specified in this final experimental population rule [see section 17.84

(k)(3)(ix)] would preempt State law to the extent it may conflict with

Federal law.

Catron and Sierra counties in New Mexico have land use planning

ordinances that call for equal authority with Federal agencies over

decisions affecting Federal lands within these counties. Similar

assertions are made by both Apache and Greenlee counties in Arizona in

their Land and Resource Policies. The Service has not submitted this

Federal proposal to county approval processes under their various

planning ordinances, due to legal, budget, staff, and time

considerations. Wolf reintroduction under the Preferred Alternative

does not directly conflict with Catron and Sierra counties' ordinances

that prohibit the release of wolves into those counties, because no

wolves will be released in those counties. Nevertheless, releasing

wolves in nearby counties with foreseeable dispersal into Catron and

Sierra counties, as proposed here, does appear to conflict with the

goals of these ordinances; and wolves may be translocated into these

counties in the future. The Act, Mexican wolf experimental population

rule, and other Federal authority would preempt any conflicting local

ordinances.

Key Changes in Final Rule as a Result of Public Comment

The following key changes or clarifications were incorporated into

the final rule based on comments received

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on or related to the proposed rule, internal Service reviews, changes

in Service policy, and the Service's experience with section (10)(j)

rules for other nonessential experimental populations. These individual

or cumulative changes do not more than marginally alter the projected

overall impact of Mexican wolf reintroduction under the Preferred

Alternative as set forth in the FEIS. Other minor additions and wording

changes also have been made.

(1) The Blue Range Wolf Recovery Area is identified as the

biologically and environmentally preferable area, to be used first,

with the White Sands Wolf Recovery Area to be used only as the back-up

area, if later determined to be both necessary and feasible.

(2) All conditional road closure and land use restriction language,

except limited temporary closures around release pens, dens, and

rendezvous sites has been removed.

(3) Detailed definitions of ``disturbance-causing land use

activities,'' ``livestock,'' ``public land,'' and ``rendezvous site''

have been added. The definition for disturbance-causing land use

activities specifically exempts certain activities from the temporary

closure provision.

(4) The definition of ``secondary recovery zone'' was modified to

clarify that, following the initial release of wolves in the primary

recovery zone, wolves may be translocated and released in the secondary

recovery zone for authorized management purposes.

(5) The harassment provision has been expanded to allow anyone to

harass Mexican wolves to scare them away from people, buildings,

facilities, livestock, other domestic animals, and pets anywhere in the

Experimental Population Area. Also, the proposed rule provision that

restricted public land grazing allottees from waiting for wolves in

order to harass them has been deleted.

(6) Rule provisions have been reordered so that provisions

authorizing or prohibiting take of Mexican wolves appear as subsections

under section 17.84(k)(3).

(7) Hunting was deleted from the list of examples of human

activities during which non-negligent and incidental killing or

injuring of a Mexican wolf might be considered unavoidable and

unintentional take. Military training and testing was added to that

list.

(8) The provision that wolves may be captured and/or translocated

when conflicting with a major land use was deleted. A provision that

they may be captured and/or translocated when they endanger themselves

by their presence in a military impact area was added.

(9) A provision was added to authorize the take of Mexican wolves

by livestock guarding dogs when used in the traditional manner.

(10) Language was added to clarify the authority of the Service and

designated agencies to use leg-hold traps and other effective devices

to capture and control wolves according to approved management plans.

(11) A provision was added to allow for the capture, killing, and/

or translocation of feral wolf-like animals, feral wolf hybrids, and

feral dogs that exhibit evidence of hybridization, domestication, or

socialization to humans.

(12) A provision was added that prohibits the disturbance of dead

or injured wolves or wolf parts or the area around them unless

instructed to do so by an authorized agent of the Service.

(13) We deleted the provision regarding revocation of the

experimental status, and removal of the re-established wolves, if legal

actions or lawsuits compel a change in the population's legal status to

essential experimental, threatened, or endangered, or compel the

designation of critical habitat within the Mexican Wolf Experimental

Population Area.

(14) The provision for removing the nonessential experimental

population from the wild if a naturally-occurring population of wild

wolves is discovered within 90 days of the initial release was deleted.

(15) Language was added to clarify that packs whose established

territories consist of portions of designated wolf recovery areas and

portions of adjacent public lands will not be routinely captured and

translocated.

(16) The definition of public lands was revised to exclude State-

owned lands lying outside designated wolf recovery areas.

Summary of Public Participation

In June 1996, public open house meetings and formal public hearings

were held in El Paso, Texas; Alamogordo and Silver City, New Mexico;

and Springerville, Arizona. About 166 people attended these meetings

and had an opportunity to speak with agency representatives and submit

oral and written comments. Oral testimony was presented by 49 people at

the hearings, and 150 people submitted written comments on the proposed

rule. We received a petition supporting full endangered status for

reintroduced Mexican wolves signed by 32 people; and a petition

opposing the reintroduction of Mexican wolves signed by 91 people. In

addition, many comments on the DEIS were specific to the draft proposed

rule or related management considerations. These comments also were

considered in this revision of the proposed rule.

Chapter 5 of the FEIS provides a summary of the many comments

received on the DEIS and the Service's responses to those comments.

Comments on the DEIS that specifically related to the draft proposed

rule are reproduced and responded to below, along with the many

additional comments received during the public comment period specific

to the proposed rule. Many comments caused a language change from the

proposed rule to the final rule.

Issues Raised in Public Comments, and Service Responses

Key issues raised in public comments on the proposed rule, and the

Service's responses to them, follow. They are grouped by the following

topic areas--(1) Legal status designation; (2) Recovery areas; (3)

Mexican Wolf Experimental Population Area; (4) Prevention of wolf

dispersal; (5) Allowable take and harassment of wolves; (6) Livestock

depredation; (7) Depredation control; (8) Definitions; (9) Land use

restrictions; and (10) Other issues.

1. Legal Status Designation

Comment: The Mexican wolf is not a valid subspecies and thus should

not be the subject of an experimental population rule. In fact, the

Service in the northern Rockies litigation has taken the position that

there are no gray wolf subspecies.

Response: Experts on wolf taxonomy recognize the Mexican wolf

(Canis lupus baileyi) as a distinct gray wolf subspecies. The Service

agrees with these experts. Please refer to the discussion on Taxonomy

in Chapter 1 of the FEIS.

Comment: Wolves should be released as experimental essential.

Response: The Service determined that the nonessential experimental

classification fits the Mexican wolf's status. Only wolves surplus to

the captive breeding program will be released. (See section herein on

Findings Regarding Reintroduction, and FEIS Appendix D--section 7

Consultation on Proposed Action, section on Effects on Mexican Gray

Wolf, regarding definition of ``surplus'' wolves and significance of

their removal from the captive population.) Their loss would not

jeopardize the continued survival of the subspecies. Further, the

nonessential experimental classification

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allows for management flexibility deemed vital to successful wolf

recovery. Experimental essential status is neither required by section

10(j) of the Act nor the implementing regulations, and it has not been

used in past reintroductions of captive-raised animals, such as the red

wolf, black-footed ferret, and California condor.

Comment: No theory of population biology would allow the FWS to

reach the conclusion that a population of only 136 wolves, including

immature pups, has any biologically ``surplus'' adults.

Response: The Service disagrees. The number of wolves in captivity

is adequate to support the proposed reintroduction, through the

reintroduction of genetically surplus wolves, without significantly

affecting the likelihood of survival of the population remaining in

captivity. This is not the same as saying that the total captive or

wild populations (or both combined) would constitute a minimum viable

population under conservation biology principles. The goal of this

reintroduction effort is to initiate the recovery of the subspecies.

There is strong information from reintroduction efforts for other gray

wolf populations, the red wolf, and other species that the nonessential

designation is biologically appropriate to successfully initiate the

recovery process.

Comment: Designation of the Mexican wolf as nonessential means that

it is not endangered, therefore there is no reason to reintroduce it.

Response: The ``experimental nonessential'' terminology in section

10(j) of the Act is confusing. It does not mean that the animal is not

near extinction and it does not mean the reintroduction is just an

experiment. It is a classification designed to make the reintroduction

and management of endangered species more flexible and responsive to

public concerns to improve the likelihood of successfully recovering

the species.

Comment: The experimental nonessential designation cannot legally

be used because the reintroduced population would not be wholly

separate geographically from nonexperimental populations of the same

species.

Response: The Service disagrees; To date, despite numerous surveys,

no evidence has been found that a naturally-occurring wild Mexican wolf

population exists or will exist in the future in the United States.

Comment: The wolf should stay on the ``endangered'' list; there is

potential confusion if experimental nonessential is used and wild

wolves recolonize the same areas; further, the plan to relocate any

wild wolves from Mexico that disperse into the experimental population

area (outside the recovery areas) defeats the Act's goal of protecting

such wild endangered animals.

Response: The best available information supports the Service's

conclusion that no populations of or individual Mexican wolves exist

anywhere in the wild. This justifies the reintroduction of nonessential

experimental animals.

Comment: If wild Mexican wolves did naturally recolonize in areas

where the Service proposes to reintroduce captive-raised animals, this

should not be grounds for canceling the reintroduction; instead it

should be considered a plus that would increase the chances of success

of the reintroduction.

Response: See response to previous comment.

Comment: If wild wolves did naturally recolonize in the areas where

reintroduced wolves were established, then a ``sunset clause'' should

take effect that results in the termination of the status of the

reintroduced population as ``nonessential experimental'' and results in

all the wolves in the area having full-endangered status.

Response: The Service disagrees. Based on the best available

information, we have determined that no wild population of or

individual Mexican wolves exist in the recovery areas or anywhere else

prior to reintroduction. The Service believes that it would be unwise

to allow for an automatic status change of all wolves in the area from

experimental to endangered if non-reintroduced wolves suddenly

appeared, which the Service considers to be an impossibility.

Comment: The provision to look for a naturally-occurring wild wolf

population for up to 90 days after initiation of the reintroduction

does not seem to reconcile with the fact that they need to have been

there at least for 2 years to qualify under the Service's definition of

a ``population''.

Response: We agree and have deleted this provision.

Comment: The nonessential experimental status is not as flexible as

the Service claims; the reintroduced wolves would still have to be

considered in environmental analyses and planning for other projects in

the designated recovery areas, at least as a ``sensitive'' species

under ``cumulative impacts.'' Therefore, the presence of the wolves

would affect future site specific, forest-wide, and region-wide

decision making.

Response: The Service agrees that the presence of the wolves may

have minor effects on future projects and plans in the wolf recovery

areas; however, those effects would be reduced under nonessential

experimental status as compared to under endangered status. The

agencies involved would have more flexibility as far as addressing

potential impacts on the wolves; and they would not have to conduct

formal consultations under section 7 of the Act.

2. Recovery Areas

Comment: The Proposed Action in the DEIS emphasized using the Blue

Range Wolf Recovery Area and/or the White Sands Wolf Recovery Area

while the Proposed Experimental Population Rule emphasized both areas

being used; why the difference?

Response: The draft ``Proposed Mexican Wolf Experimental Population

Rule'' was written to cover the Proposed Action (in the DEIS) in its

fullest application, that is, as if both areas were ultimately used. It

should not be interpreted as a statement that both areas actually will

be used. The Preferred Alternative (in the FEIS) chosen in the Record

of Decision emphasizes initial use of the Blue Range Wolf Recovery

Area, with possible later use of the White Sands Wolf Recovery Area

only if determined to be both necessary and feasible. The final rule

reflects this preference.

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

Response: The largest area, the Blue Range Wolf Recovery Area, is

estimated to be an appropriate size to support a sustainable wolf

population of 100 animals. The White Sands Wolf Recovery Area is too

small to support a sustainable wolf population without active human

management of the population. The designation of these areas carries no

use restrictions with it that will ``tie up'' the land.

Comment: There is no evidence that these areas were part of the

historic range of the C.l. baileyi subspecies.

Response: The Service disagrees. Chapter 1 of the FEIS includes a

detailed discussion of Mexican wolf taxonomy and probable historic

range. The latter takes in the two designated wolf recovery areas.

Further, Chapter 3 in the FEIS discussion under ``Animals--History of

Wolves'' for the two areas includes historical documentation of wolves.

Comment: The wolf recovery area boundaries are objectionable and

the areas are too small; the plan to return dispersing wolves means

that they will only be allowed to reinhabit a small fraction of

historic wolf habitat in the

[[Page 1758]]

Southwest within the experimental population area. Several separated

populations are needed to create a stable metapopulation. They should

at least be allowed to disperse south to the Coronado National Forest

area. Dispersal corridors between the Blue Range Wolf Recovery Area and

the White Sands Wolf recovery Area should be provided for in the rule.

Response: The boundaries represent the areas most likely to

successfully support wolf recovery, consisting predominately of public

land that has rated high for wolf recovery attributes. This will be the

first phase of Mexican wolf recovery; additional recovery areas will be

needed in the future to achieve the goal of removing the Mexican wolf

from the endangered species list. Such additional areas could be within

the designated experimental population area or outside this area,

including in Mexico if inter-governmental cooperation is achieved. No

decisions have been made yet regarding future areas. The establishment

of a dispersal corridor between the Blue Range Area and the White Sands

Area does not appear feasible. One general criterion for dispersal

corridors is that they be comprised of habitat that is suitable for the

target species. No contiguous strip of suitable wolf habitat exists

between these areas, which are separated by about 50 miles. It is

conceivable that wolves could travel between these areas, but they

would encounter considerable human activity and private property. In

addition, they would have to cross Interstate Highway 25 and the Rio

Grande in the vicinity of Elephant Butte and Caballo Reservoirs.

3. Mexican Wolf Experimental Population Area (MWEPA)

Comment: The Mexican Wolf Experimental Population Area (MWEPA) is

about twice as large as needed to administer the rule. The western

boundary should be moved further to the east and the eastern boundary

further to the west.

Response: The Service disagrees. No naturally occurring populations

of wolves exist in or anywhere near the MWEPA. The most likely natural

recolonization areas have been excluded from the MWEPA (FEIS

Alternative D). A smaller MWEPA might have the confusing potential of

artificially creating ``endangered'' Mexican wolves (if their

experimental status is unclear) by allowing re-established wolves to

quickly disperse outside the MWEPA. The Service believes the proposed

MWEPA provides necessary management flexibility.

Comment: Wolves found outside the MWEPA should not have full

endangered status under the Act; there are no wild wolves left,

therefore any wolves found in the Southwest, even if unmarked, most

likely will have originated from the reintroduced population.

Response: Wolves found outside the MWEPA that can be identified as

a member of the experimental population will retain their nonessential,

experimental status for management purposes.

4. Prevention of Dispersal

Comment: It is not feasible to recapture and return wolves. Wolves

will disperse to where they are categorized as endangered under the

Act.

Response: The Service disagrees. In Minnesota and other areas, the

Service and other agencies have many years of experience in capturing

and translocating wolves. Wolves that leave the large Mexican wolf

experimental population area could still be managed under this rule.

Comment: For wolves that establish territories on public lands

outside the designated recovery areas, the management approach should

not be automatic removal; instead, consultation should be entered into

with the land managers, similar to that provided for private and tribal

lands outside the designated recovery areas. If removal is necessary,

the preference should be returning them to the recovery areas rather

than to captivity. The plan should also allow for changes to the

recovery areas boundaries.

Response: A limited and defined area is considered necessary to

allow the wolf the highest degree of acceptance and recovery and to

allow the Service and cooperating agencies to plan for wolf management.

Allowing the recovery areas to expand out continually would defeat this

purpose. However, if the Service determined it was necessary to

survival and recovery of the reintroduced population, it is possible

that after thorough evaluation the Service could recommend changes to

the recovery area boundaries. These would have to be proposed as a

revision to the final Mexican Wolf Experimental Population Rule and be

subject to formal agency and public review under rulemaking procedures

and the National Environmental Policy Act. Language has been added to

the rule to clarify that members of wolf packs whose territories

consist of public lands lying both within and outside designated

recovery areas would not routinely be captured and translocated. On the

issue of a preference to return captured wolves to the recovery areas,

rather than captivity, the Service prefers this option for non-problem

wolves. The Service does not think it is appropriate to write such a

preference into the rule because many factors might enter into future

case-by-case decision making on this issue.

5. Allowable Take and Harassment of Wolves

Comment: The level of legal protection is too low.

Response: The legal protections afforded Mexican wolves under this

rule are considered adequate. Except for narrowly defined exceptions,

killing of the wolves would be a violation of the Act, and of this

rule, and would subject the offenders to severe penalties.

Comment: Wolves that eat livestock should not be killed, but

removed from the area.

Response: Nonlethal control methods will be preferred and

encouraged. Depredating wolves taken alive would generally be

translocated to an area where they are less likely to depredate or put

back into the captive population. Euthanasia is a last resort.

Comment: The Service is too willing to kill or move wolves that

threaten livestock or leave the recovery areas.

Response: The Service disagrees. The management strategy of

removing livestock-depredating wolves has proved successful for wolf

recovery elsewhere, and the Service believes it is appropriate.

Comment: The provisions to kill and harass wolves for protection of

humans and livestock will be abused; the numbers of breeding pairs

required before this could be allowed is too low.

Response: The Service anticipates some level of abuse of provisions

for taking wolves, but believes that extensive public education and

information efforts, as well as strong law enforcement, will keep abuse

levels low. The provisions on allowable take and harassment of wolves

are narrowly drawn so that they are only to be used in ways that

enhance wolf recovery, i.e., by removing depredating wolves and by

conditioning wolves to generally avoid humans and livestock. On the

question of the numbers of breeding pairs needed before allowing

harassment or killing, there is no minimum number before nonlethal

harassment is allowed. Nonlethal harassment can benefit wolf recovery

by negatively conditioning wolves to humans and livestock. As far as

the numbers before allowing private killing of livestock on public

lands, under narrow conditions, the Service believes that six breeding

pairs on the BRWRA represent substantial progress

[[Page 1759]]

toward recovery objectives. Information on progress toward these goals

will be made available to the public. The number of wolves killed under

this provision is expected to be very few, if any, and of minor

consequence to the progress of wolf recovery once the prescribed number

of pairs has been reached.

Comment: Harassing or killing wolves on public lands should not be

allowed.

Response: Public lands are multiple use lands and the limited

harassment and killing of wolves allowed is considered appropriate to

protect other land uses and promote successful wolf recovery.

Comment: The allowance of unavoidable or unintentional take is too

vague and unenforceable.

Response: The Service disagrees. Notice of general wolf locations

will be publicized. Hunters (and others) who might shoot a wolf are

responsible to identify their targets before shooting. Information and

education efforts should minimize illegal take by shooting. Information

on how to avoid unintentional trapping will be made available. The few

trappers in these areas will be on notice that if they do trap a wolf

it likely would not be considered ``unavoidable or unintentional.'' The

other area of expected unintended killing of wolves is by collisions

with vehicles and the Service sees little point in making the

unintended hitting of a wolf by a vehicle illegal.

Comment: Prosecution for illegal killings of Mexican wolves should

be mandatory, instead of the ``may'' be prosecuted language used in the

proposed rule.

Response: Prosecutorial discretion is important for successful

prosecutions. The Service is committed to vigorous enforcement in

appropriate cases where evidence exists that illegal killing occurred.

Comment: The provision allowing take of wolves to defend human life

is offensive because there has never been a documented case of wolves

killing humans.

Response: The Service agrees there are no documented cases of

wolves attacking and killing or severely injuring people in North

America, but there have been a few instances of wolves attacking

people, although not seriously injuring them. The point of the

provision, which is consistent with the Act, is to make it quite clear

that wolves may be killed if they attack humans, even though this is

extremely unlikely to occur.

6. Livestock Depredation

Comment: Regarding the provisions allowing take of wolves that

attack livestock: they are too broad, the time limit for the private

permit should be drastically reduced from up to 45 days, and take

should not be allowed unless depredation exceeds a certain percentage

of the herd present, e.g., 1 or 2 percent. Also, the allowance for

taking nuisance wolves and for using lethal methods are too vague.

Response: The Service believes the provisions are reasonable, can

be administered with appropriate discretion, and will not impede wolf

recovery. It would be very difficult to accurately monitor livestock

depredation rates attributable exclusively to wolves. Protocols for

various management measures, such as grounds and procedures for permit

issuance for the taking of wolves and the use of lethal methods, will

be spelled out in greater detail in the Service-approved management

plan referenced in this rule.

Comment: Public lands ranchers will be put out of business by the

unacceptably high level of livestock depredation, unless they are given

more freedom to kill wolves. They should not be required to get a

permit to control depredating wolves.

Response: The Service believes that some ranchers could be

adversely affected in a given year but evidence from other areas where

wolves and ranching co-exist does not support the idea that ranchers on

these multiple-use public lands will be driven out of business without

greater ability to kill wolves. The permit requirement will serve to

reduce unauthorized killing of wolves and to reduce potential conflicts

with other public land users, such as hikers and campers.

Comment: The private depredation compensation fund should be

incorporated into the rule, with a backup provision that if private

funding fails, then the Service will commit to continuing the fund.

Response: Absent additional legislation, the Service does not

believe it would be appropriate to commit governmental funds to back up

the private Defenders of Wildlife fund. The reintroduction is not

contingent on the existence of the private fund, but experience with

the fund in the Northern Rockies indicates it is reliable.

Comment: The proposed rule indicates it would be illegal for a

livestock producer to ``wait for'' wolves for the purpose of scaring

them away. This is counterproductive to the purpose of allowing

harassment. If a livestock producer has reason to believe his stock

have been attacked or harassed by wolves, it is only reasonable that he

or she be vigilant for recurrence.

Response: The Service agrees, and the restriction on waiting for

wolves in the case of harassment has been deleted.

Comment: The provision in the proposed rule allowing livestock

owners and their agents to harass wolves in the immediate vicinity of

``people, buildings, facilities, [and] pets'' should also apply on

public lands because several ranchers on public lands have line shacks

and other facilities on public lands, where they may stay with their

children, pets, and so on.

Response: The Service agrees and has expanded the harassment

provision to apply everywhere within the Experimental Population Area.

Comment: Hunting dogs are as valuable as livestock and should be

included as such in the rule for purposes of deciding whether wolves

have depredated and whether compensation is due.

Response: The use of hunting dogs carries with it an accepted risk

of attack by wild animals. We believe this is consistent with the

philosophy of ``fair chase'' in the sport of hunting. We disagree that

the killing or injuring of a hunting dog by a wolf in the wild should

be cause for controlling wolves. The Defenders of Wildlife has sole

discretion to determine which acts of depredation are compensable.

7. Depredation Control

Comment: The Arizona anti-trapping law means that traps could not

be used to control wolves.

Response: The Service believes leg-hold traps are an essential tool

for wolf management. We have included specific provisions for their use

in this rule which we believe comply with the exception language in the

Arizona law which allows non-lethal trapping for scientific and

research purposes. To the extent wolf trapping provisions in this rule

conflict with the State law (if they conflict at all), this rule would

preempt the State trapping ban.

Comment: M-44's and choking snares should be restricted over a much

larger area than called for in the rule; the proposed section

(j)(3)(vii), basically limits the restriction to a 5 miles radius

buffer around known locations of the wolves, which is inadequate to

protect them in view of their ability to travel rapidly.

Response: The Service is preparing a Biological Opinion (under

provisions of section 7 of the Act) on the potential effects of the WS

program on Mexican wolves. We believe this biological

[[Page 1760]]

opinion combined with special provisions in this rule will adequately

protect the Mexican wolf. If unacceptable levels of take occur, the

Biological Opinion or the rule, or both, would be revised.

Comment: Coyote control will be adversely impacted in areas where

the restriction on M-44's and choking-type neck snares is imposed. At

the most, this should be limited to the primary recovery zone.

Response: Selective lethal control of coyotes by traps, calling and

shooting, and aerial shooting, as well as a variety of nonlethal

techniques are allowed under this rule. Field research and observations

suggest that coyote populations may be reduced by inter-specific

aggression in areas occupied by wolves.

Comment: The inability to use helicopters in designated federal

wilderness areas means that a key tool for depredation control will not

be available.

Response: Existing restrictions on the use of helicopters in

wilderness areas are not affected or changed by this rule. The Service

believes that adequate depredation control can be accomplished in

wilderness areas. However, we recognize that depredation control in

wilderness areas may be less efficient and effective than in non-

wilderness areas.

Comment: It will be very difficult in the huge southwestern ranges

to find depredated livestock and to determine whether a decomposed

carcass represents a wolf depredation; therefore, the depredation

control efforts and compensation fund won't work.

Response: The Service acknowledges that some livestock killed by

wolves may not be discovered in time to determine the cause of death;

and that ranchers may not be compensated for these losses.

8. Definitions

Comment: The lack of a definition of ``problem wolves'' gives too

much management flexibility. ``Harass'' must be more clearly defined.

``Rendezvous sites'' needs definition.

Response: With the addition of a definition of ``rendezvous site'',

all these terms are defined in the final rule. The Service believes

management flexibility is positive. Additional refinement of the

definition of ``problem wolves'' could occur under the Service-approved

interagency management plan that would be developed under the final

rule.

Comment: Better definitions are needed of how wolves impact game

populations and how wolves would conflict with a major land use. The

former definition amounts to a subtle attempt by the Service to take

over the State management of game populations.

Response: The definition in the rule of ``impact on game

populations in ways which may further inhibit wolf recovery'' is

considered adequate and was developed in cooperation with State game

management agencies. It is not a mechanism to dictate State game

management, rather, it defines when wolves may be moved to lessen wolf

impacts on State-managed game herds. There was no definition of when a

wolf is ``conflicting with a major land use'' and the Service has

decided to drop that provision from the Preferred Alternative and this

rule. It is vague and adequate management flexibility exists under

other rule provisions.

Comment: The definition of ``disturbance-causing land use

activity'' should specifically exclude the use of lands within the

national park or national wildlife refuge systems as safety buffer

zones for weapons or missile tests or training.

Response: The Service agrees and the definition of this term has

been revised to reflect this.

Comment: The definition of ``engaged in the act of killing,

wounding, or biting livestock'' should be changed so that observing a

wolf feeding on a livestock carcass would justify the assumption that

the wolf had actually attacked and killed the animal, unless the

carcass was obviously decomposed, so that the livestock owner could

shoot the wolf.

Response: The Service disagrees. Many livestock animals, especially

calves, die from other causes. Observing a wolf feeding on a carcass is

not an adequate reason to kill the wolf, but it would be a basis to

harass the wolf. If subsequent investigation of the carcass showed that

the wolf did in fact kill the carcass, then a depredation control

effort would be initiated and the rancher likely would be entitled to

compensation.

9. Land Use Restrictions

Comment: The land use restrictions are inadequate to protect the

wolves.

Response: Land use restrictions have proven almost entirely

unnecessary in other areas where wolf recovery is occurring. Such

restrictions are counterproductive unless they are clearly needed.

Comment: To avoid conflicts, back roads should be closed in the

areas regardless of illegal wolf killing.

Response: This would create unnecessary bad will toward the wolf

without adding a conservation benefit. The Service has deleted the

back-country road closure provision.

Comment: A radius of more than 1 mile should be used for public

access restrictions around release pens, dens, and rendezvous sites--2

to 4 miles; the radius should be on a case-by-case basis and not

specified in the rule.

Response: No basis for a larger restricted area is evident now. If

such a change proved necessary, the Service could propose to amend the

experimental population rule to increase the radius.

Comment: The so-called limited closures are in fact not minor and

will virtually shut down the denning and vaguely defined rendezvous

areas to human use, such as logging for many months, at least for April

through October. This, together with possible back country road

closures, could devastate the already threatened Southwest timber

industry. Also, the closures around dens, etc., could result in road

closures.

Response: The Service believes that proposed closures or use

restrictions would be minor. They would be implemented only if deemed

to be necessary to protect Mexican wolves from harm; no closure would

exceed an area of about 3 square miles (4.8 km2) or a circle

with a 1 mile (1.6 km2) radius which is about 2,000 acres

(810 ha); no closure would be in effect for more than 4 months, except

possibly those around release pens; and release pen closures would only

be necessary in the primary recovery zones when releases are actually

being made. Only one active den site or one active rendezvous site

would exist at any given time (except for a possible overlap of 1-2

weeks) in each active pack territory. Pack territories are expected to

include about 250 square miles (96.5 km2). Therefore, on

average, no more than 3-6 square miles (7.8-15.5 km2) of

every 250 square miles (96.6 km2) or 1.2-2.4 percent of the

total public land area could be closed or restricted at any time.

Furthermore, no closures or use restrictions would be imposed on

private or tribal lands without the consent of the owner or tribal

government. Nevertheless, the level of concern expressed regarding this

provision has caused the Service to define ``disturbance-causing land

use activities'' in the final rule. The new definition specifically

exempts certain land use activities from the closure provision. In

addition, the Service has eliminated the ``back-country road'' closure

provision because it is not clear that it would be effective in

addressing the problem of illegal killing. Instead,

[[Page 1761]]

more emphasis will be placed on public education and law enforcement.

Comment: The access restrictions around pens, dens, and rendezvous

sites should be implemented in a way that does not attract undue,

potentially destructive, and counterproductive attention to them.

Response: We agree and will consider this view when determining the

need for restrictions.

Comment: The road, den, and rendezvous site access closures would

prevent Phelps Dodge Company from accessing wells and equipment on the

Upper Eagle Creek and prevent other legitimate access to, and uses of,

private property in the Blue Range Wolf Recovery Area.

Response: The road closure provision has been deleted. Closures

around den and rendezvous sites would be flexible and on an as-needed

basis. These would not occur in such a way as to prevent access to

private property or to authorized use locations on public property. See

response to the two previous comments.

Comment: The provision in the rule that no land use restrictions

would be imposed to protect the wolves is negated by the citizen suit

provision of the Act, which will be used by pro-wolf groups to impose

such restrictions.

Response: The Service disagrees that the citizen suit provision of

the Act could successfully impose land use restrictions, as long as the

nonessential experimental designation is not declared invalid. This has

not occurred in litigation against other section 10(j) rules.

10. Other Issues

Comment: Drivers on public highways should be excused from

accidental hitting of wolves, but off-road drivers in wolf habitat

should not be excused.

Response: It is hard to conceive that an off-road vehicle could be

moving fast enough to hit a wolf by accident or on purpose before the

wolf could move out of the way. If this proves to be a problem, which

the Service does not expect, the rule could be revised.

Comment: Military training and testing should be added to paragraph

(j)(3)(i) as examples of legal activities. Also, in paragraph (3)(ii),

military testing and training should be added as examples of authorized

agency actions.

Response: The suggested additions have been made.

Comment: The statement in section (j)(9) of the proposed rule that

the Service would terminate the reintroductions if a court ordered the

Service to change the designation from nonessential experimental to a

higher degree of protection is illegal and has another major flaw. If

the court required the Service to proceed with the changed status then

the Service would have to proceed regardless of that statement.

Response: This provision has been deleted.

Comment: Management of the reintroduced wolves would be better left

to local authorities, who would provide more realistic and workable

solutions. The rule should provide for implementation of the

reintroductions by local governments and much more autonomy at the

local level for deciding how to do the reintroductions, the criteria

for continuing with them, and law enforcement. The Service should

cooperate on implementation of the rule with State fish and wildlife

agencies, which should have substantial responsibility for the effort.

Response: The Service is legally responsible under the Act for

recovering endangered species. We encourage non-Federal agencies with

established wildlife management authority (such as State or Tribal

wildlife management departments) to develop and implement Mexican wolf

management plans in cooperation with the Service. These plans must

promote wolf recovery and must be approved by the Service. We will

develop a process for interacting with local governments and other

stakeholders before wolves are released.

Comment: No agreements should be made with any State or local

agencies which would bind the FWS regarding the terms of the

reintroduction.

Response: Because of our legal responsibilities under the Act, the

Service must insure that agreements with other agencies will promote

recovery of the Mexican wolf.

Comment: A more open process is needed to involve the public in how

the actual reintroduction effort will proceed. The rule should have

more clear provisions for public involvement and information

availability.

Response: The Service is exploring additional avenues of

communication and interaction with the public in the implementation of

Mexican wolf reintroduction. A process for public interaction will be

in place before wolves are released. We believe that this rule is not

the appropriate place to provide details of a public interaction

process.

Comment: The provisions requiring 24-hour notice to the Service if

a wolf is taken need to be clearer about when the period begins and who

and how to contact to meet the requirement. Also, the Service must

commit to being available to be contacted.

Response: We will provide information in a variety of ways to

residents and users of wolf recovery areas on how to comply with

reporting requirements in the rule. A way to notify a Service

representative will be provided.

Comment: The Service has failed to consult with affected landowners

and agencies and to seek agreement on the Mexican Wolf Experimental

Population Rule.

Response: The Service has consulted with affected agencies and with

interested landowners and members of the public (see previous

discussion regarding participation in the proposed rule public comment

process). The DEIS review process provided substantial opportunity for

review of and consultation on the draft proposed rule. More focussed

meetings, hearings, and consultations occurred upon official

publication of the proposed rule (61 FR 19237). Several changes have

been made to the final rule based on our agreement with comments

received on the proposed rule. Given the hundreds of private landowners

and other entities involved, no overall agreement on all the terms of

the rule among all affected interests was feasible.

Comment: The proposed rule process has been flawed because it was

issued before the Final EIS was issued and before the Record of

Decision was issued. Without these steps, the public has had inadequate

information upon which to make meaningful comments.

Response: We believe that the sequencing of the DEIS, proposed

rule, FEIS, ROD, and final rule is legal and proper. Further, we

believe that the public's opportunity to review and comment on the

proposed rule has exceeded the legal requirement. The draft proposed

rule was an important component of the Proposed Action in the DEIS. A

draft of the proposed rule appeared in Appendix C of the DEIS. Fourteen

public meetings and three hearings were held on the DEIS. The public

had 126 days to comment on the DEIS. The proposed rule was then

published separately in the Federal Register (61 FR 19237) with a 61-

day comment period, and four public hearings were held. All comments

addressing provisions of the draft proposed rule in the DEIS or the

proposed rule in the Federal Register (61 FR 19237) were reviewed and

considered in this final rule. It would be improper to issue the final

rule before the FEIS because the final rule must be consistent with the

Record of Decision (ROD), and the ROD must, by law, follow the FEIS by

at least 30 days.

[[Page 1762]]

Effective Date Justification

The 30 day delay between publication of this final rule and its

effective date as provided by the Administrative Procedure Act (5 U.SC.

533 (d) (3)) has been reduced. This is to allow for the timely transfer

of suitable release candidates to soft release pens for acclimation

purposes. The following biological considerations necessitate this

approach. The approved reintroduction of captive wolves initially

requires transfer from captive facilities to soft-release pens in the

recovery area and an acclimation period of several weeks at the release

site prior to actual release to the wild. Wolf experts have recommended

that the reintroduction process begin in January due to the

reproductive cycle of the Mexican wolf, thereby allowing sufficient

time for wolves to become accustomed to their surroundings prior to

release and thus easing their transition to the wild environment.

Wolves typically breed from late January through early March. In order

not to disrupt breeding, wolves need to be moved to the soft release

pens as soon as possible. Wolf experts involved in previous wolf

releases agree that the wolves should spend about 2 months in the

release pens prior to actual release. Wolves typically give birth from

early April to early May. The plan is to release the Mexican wolves

about 30 days before they have pups to allow sufficient time for the

adult wolves to find a suitable den location and excavate a den.

Therefore, Mexican wolves must be moved to the soft release pens in

late January and begin their 2-month acclimation period so that they

can be released around mid to late March. This soft release protocol

was developed in previous wolf releases and has been successful.

A draft proposed rule was made available for public review and

comment as part of the draft EIS for the Mexican wolf reintroduction

proposal. A proposed rule was later issued for additional public review

and comment. Opportunity for public discussion and debate of rule

provisions was provided at 18 public meetings and hearings throughout

potentially affected areas. The rule making process has been responsive

to extensive input received from public agencies and further review is

unlikely to reveal new substantive issues. Because of the biological

conditions described above and the extensive public review of the

proposed rule, EIS, and Record of Decision for this action, Mexican

wolf reintroduction should begin as soon as possible after the

publication of this rule. Therefore, due to biological considerations

and the extensive public review process already conducted, good cause

exists for this rule to be effective 14 days after publication.

National Environmental Policy Act

A FEIS on reintroduction of the Mexican wolf in the southwestern

United States has been prepared and is available to the public (see

ADDRESSES section). The FEIS should be referred to for analysis of the

Preferred Alternative chosen in the Record of Decision. Also, the FEIS

contains a complete list of references for the background information

provided here.

Required Determinations

This rule has been reviewed by the Office of Management and Budget

under Executive Order 12866. The rule will not have significant

economic impact on a substantial number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601, et seq.). This final rule

classifies Mexican wolves to be re-established as a nonessential

experimental population under section 10(j) of the Act. This rule sets

forth management directions and provides for limited allowable legal

take of wolves within a defined Mexican Wolf Experimental Population

Area. The rule will not significantly change costs to industry or

governments. Furthermore, the rule produces no adverse effects on

competition, employment, investment, productivity, innovation, or the

ability of United States enterprises to compete with foreign-based

enterprises in domestic or export markets. No direct costs, information

collection, or record keeping requirements are imposed on small

entities by this action. This final rule is not a major rule as defined

by 5 U.S.C. 804(2).

This final rule contains collections of information that require

approval by the Office of Management and Budget under 44 U.S.C. 3501 et

seq. The Service has already requested emergency authorization for this

from the Office of Management and Budget (OMB). No information will be

collected for this action until OMB authorization is provided.

The Service has determined and certifies pursuant to the Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not

impose a cost of $100 million or more in any given year on local or

State governments or private entities.

Takings implications of this final rule have been reviewed under

Executive Order 12630, the Attorney General Guidelines, Department

Guidelines, and the Attorney General Supplemental Guidelines. One issue

of concern is the depredation of livestock by reintroduced wolves; but,

such depredation by a wild animal would not be a ``taking'' under the

5th Amendment. One of the reasons for the experimental nonessential

designation is to allow the agency and private entities flexibility in

managing the wolves, including the elimination of a wolf when there is

a confirmed kill of livestock.

The Service has determined that this final rule meets the

applicable standards provided in sections 3(a) and 3(b)(2) of Executive

Order 12988.

This rule has been reviewed under Executive Order 12612 to

determine federalism considerations in policy formulation and

implementation. Some counties in the vicinity of the wolf

reintroduction area have enacted ordinances specifically prohibiting

the introduction of the wolf (among other species) within county

boundaries. However, the United States Congress has given the Secretary

of the Interior explicit statutory authority, in section 10(j) of the

Act, to promulgate this rule, and under the Supremacy Clause of the

United States Constitution, this has the effect of preempting State

regulation of wildlife to the extent in conflict with this rule.

Nevertheless, the Service has endeavored to cooperate with State

wildlife agencies and County and Tribal governments in the preparation

of this rule.

Author

The primary author of this document is Mr. David R. Parsons (see

ADDRESSES section, 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 hereby amends part 17, subchapter B of

chapter I, title 50 of the Code of Federal Regulations, 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 section 17.11(h), revise the table entry for ``Wolf,

gray'' under MAMMALS to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

[[Page 1763]]

(h) * * *

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

Species Vertebrate

---------------------------------------------------- population where Critical

Historic range endangered or Status When listed habitat Special rules

Common name Scientific name threatened

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

Mammals

* * * * * * *

Wolf, gray..................... Canis lupus....... Holarctic......... U.S.A., conterm- E 1, 6, 13, 35, 17.95(a)...... NA

inous (lower 48) 561, 562.

States, except

MN and where

listed as an

experimental

population;

Mexico.

Do......................... ......do.......... ......do.......... U.S.A. (MN)...... T 35............ 17.95(a)...... 17.40(d)

Do......................... ......do.......... ......do.......... U.S.A. (WY and XN 561, 562...... NA............ 17.84(i)

portions of ID

and MT--see

17.84(i)).

Do......................... ......do.......... ......do.......... U.S.A. (portions XN ............ NA............ 17.84(k)

of AZ, NM, and

TX--see

17.84(k)).

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

3. The Service amends Sec. 17.84 by adding paragraph (k) to read as

follows:

Sec. 17.84 Special rules--vertebrates.

* * * * *

(k) Mexican gray wolf (Canis lupus baileyi).

(1) The Mexican gray wolf (Mexican wolf) populations reestablished

in the Blue Range Wolf Recovery Area and in the White Sands Wolf

Recovery Area, if used, within the Mexican Wolf Experimental Population

Area, identified in paragraph (k)(9) of this section, are one

nonessential experimental population. This nonessential experimental

population will be managed according to the following provisions.

(2) Based on the best available information, the Service finds that

reintroduction of an experimental population of Mexican wolves into the

subspecies' probable historic range will further the conservation of

the Mexican wolf subspecies and of the gray wolf species; that the

experimental population is not ``essential,'' under 50 CFR 17.81(c)(2);

that the experimental population is wholly separate geographically from

any other wild gray wolf population or individual wild gray wolves;

that no wild Mexican wolves are known to exist in the experimental

population area or anywhere else; and that future migration of wild

Mexican wolves into the experimental population area is not possible.

(3) No person, agency, or organization may ``take'' [see definition

in paragraph (k)(15) of this section] any wolf in the wild within the

Mexican Wolf Experimental Population Area, except as provided in this

rule. The Service may investigate each take of a Mexican wolf and may

refer the take of a wolf contrary to this rule to the appropriate

authorities for prosecution.

(i) Throughout the Mexican Wolf Experimental Population Area, you

will not be in violation of the Act or this rule for ``unavoidable and

unintentional take'' [see definition in paragraph (k)(15) of this

section] of a wolf. Such take must be non-negligent and incidental to a

legal activity, such as military training and testing, trapping,

driving, or recreational activities. You must report the take within 24

hours to the Service's Mexican Wolf Recovery Coordinator or to a

designated representative of the Service.

(ii) Throughout the Mexican Wolf Experimental Population Area, you

may ``harass'' [see definition in paragraph (k)(15) of this section ]

wolves that are within 500 yards of people, buildings, facilities,

pets, ``livestock'' [see definition in paragraph (k)(15) of this

section], or other domestic animals in an opportunistic, noninjurious

manner [see definition of ``opportunistic, noninjurious harassment'' in

paragraph (k)(15) of this section] at any time--provided that wolves

cannot be purposely attracted, tracked, searched out, or chased and

then harassed. You must report harassment of wolves within 7 days to

the Service's Mexican Wolf Recovery Coordinator or to a designated

representative of the Service.

(iii) Throughout the Mexican Wolf Experimental Population Area,

excluding areas within the national park system and national wildlife

refuge system, no Federal agency or their contractors will be in

violation of the Act or this rule for unavoidable or unintentional take

of a wolf resulting from any action authorized by that Federal agency

or by the Service, including, but not limited to, military training and

testing. This provision does not exempt agencies and their contractors

from complying with sections 7(a)(1) and 7(a)(4) of the Act, the latter

of which requires a conference with the Service if they propose an

action that is likely to jeopardize the continued existence of the

Mexican wolf.

(iv) In areas within the national park system and national wildlife

refuge system, Federal agencies must treat Mexican wolves as a

threatened species for purposes of complying with section 7 of the Act.

(v) On private land anywhere within the Mexican Wolf Experimental

Population Area, livestock owners or their agents may take (including

kill or injure) any wolf actually ``engaged in the act of killing,

wounding, or biting livestock'' [see definition in paragraph (k)(15) of

this section]; provided that evidence of livestock freshly wounded or

killed by wolves is present; and further provided that the take is

reported to the Service's Mexican Wolf Recovery Coordinator or a

designated representative of the Service within 24 hours.

(vi) On tribal reservation land anywhere within the Mexican Wolf

Experimental Population Area, livestock owners or their agents may take

(including kill or injure) any wolf actually engaged in the act of

killing, wounding, or biting livestock; provided that evidence of

livestock freshly wounded or killed by wolves is present; and further

provided that the take is reported to the Service's Mexican Wolf

Recovery Coordinator or a designated representative of the Service

within 24 hours.

[[Page 1764]]

(vii) On ``public lands'' [see definition in paragraph (k)(15) of

this section] allotted for grazing anywhere within the Mexican Wolf

Experimental Population Area, including within the designated ``wolf

recovery areas'' [see definition in paragraph (k)(15) of this section],

livestock owners or their agents may be issued a permit under the Act

to take wolves actually engaged in the act of killing, wounding, or

biting ``livestock'' [see definition in paragraph (k)(15) of this

section]. Before such a permit is issued, the following conditions must

be met--livestock must be legally present on the grazing allotment; six

or more ``breeding pairs'' [see definition in paragraph (k)(15) of this

section] of Mexican wolves must be present in the Blue Range Wolf

Recovery Area; previous loss or injury of livestock on the grazing

allotment, caused by wolves, must be documented by the Service or our

authorized agent; and agency efforts to resolve the problem must be

completed. Permits issued under this provision will be valid for 45

days or less and will specify the maximum number of wolves you are

allowed to take. If you take a wolf under this provision, evidence of

livestock freshly wounded or killed by wolves must be present. You must

report the take to the Service's Mexican Wolf Recovery Coordinator or a

designated representative of the Service within 24 hours.

(viii) Throughout the Mexican Wolf Experimental Population Area,

take of Mexican wolves by livestock guarding dogs, when used in the

traditional manner to protect livestock on public, tribal, and private

lands, is permitted. If you become aware that such take by your guard

dog has occurred, you must report the take to the Service's Mexican

Wolf Recovery Coordinator or a designated representative of the Service

within 24 hours.

(ix) Personnel authorized by the Service may take any Mexican wolf

in the nonessential experimental population in a manner consistent with

a Service-approved management plan, special management measure, or a

valid permit issued by the Service under Sec. 17.32. This may include,

but is not limited to, capture and translocation of wolves that--prey

on livestock; attack pets or domestic animals other than livestock on

private or tribal land; ``impact game populations in ways which may

inhibit further wolf recovery'' [see definition in paragraph (k)(15) of

this section]; prey on members of the desert bighorn sheep herd found

on the White Sands Missile Range and San Andres National Wildlife

Refuge so long as the State of New Mexico lists it as a species to be

protected; are considered ``problem wolves'' [see definition in

paragraph (k)(15) of this section]; are a nuisance; endanger themselves

by their presence in a military impact area; need aid or veterinary

care; or are necessary for authorized scientific, research, or

management purposes. Lethal methods of take may be used when reasonable

attempts to capture wolves alive fail and when the Service determines

that immediate removal of a particular wolf or wolves from the wild is

necessary. Authorized personnel may use leg-hold traps and any other

effective device or method for capturing or controlling wolves to carry

out any measure that is a part of a Service-approved management plan,

notwithstanding any conflicts in State or local law. The disposition of

all wolves (live or dead) or their parts taken as part of a Service-

authorized management activity must follow provisions in Service-

approved management plans or interagency agreements or procedures

approved by the Service on a case-by-case basis.

(x) As determined by the Service to be appropriate, the Service or

any agent so authorized by the Service may capture, kill, subject to

genetic testing, place in captivity, euthanize, or return to the wild

(if found to be a pure Mexican wolf) any feral wolf-like animal, feral

wolf hybrid, or feral dog found within the Mexican Wolf Experimental

Population Area that shows physical or behavioral evidence of

hybridization with other canids, such as domestic dogs or coyotes;

being an animal raised in captivity, other than as part of a Service-

approved wolf recovery program; or being socialized or habituated to

humans.

(xi) The United States Department of Agriculture, Animal and Plant

Health Inspection Service, Wildlife Services (WS) division will

discontinue use of M-44's and choking-type snares in ``occupied Mexican

wolf range'' [see definition in paragraph (k)(15) of this section]. The

WS division may restrict or modify other predator control activities

pursuant to a cooperative management agreement or a conference between

the Service and the WS division.

(xii) You may harass or take a Mexican wolf in self defense or

defense of the lives of others, provided that you report the harassment

or take within 24 hours to the Service's Mexican Wolf Recovery

Coordinator or a designated representative of the Service. If the

Service or an authorized agency determines that a wolf presents a

threat to human life or safety, the Service or the authorized agency

may kill it, capture and euthanize it, or place it in captivity.

(xiii) Intentional taking of any wolf in the Mexican Wolf

Experimental Population Area, except as described above, is prohibited.

The Service encourages those authorized to take wolves to use nonlethal

means when practicable and appropriate.

(4) You must not possess, sell, deliver, carry, transport, ship,

import, or export by any means whatsoever, any wolf or wolf part from

the experimental population except as authorized in this rule or by a

valid permit issued by the Service under Sec. 17.32. If you kill or

injure a wolf or find a dead or injured wolf or wolf parts, you must

not disturb them (unless instructed to do so by an authorized agent of

the Service), you must minimize your disturbance of the area around

them, and you must report the incident to the Service's Mexican Wolf

Recovery Coordinator or a designated representative of the Service

within 24 hours.

(5) You must not attempt to commit, solicit another to commit, or

cause to be committed, any offense defined in this rule.

(6) No land use restrictions will be imposed on private lands for

Mexican wolf recovery without the concurrence of the landowner.

(7) No land use restrictions will be imposed on tribal reservation

lands for Mexican wolf recovery without the concurrence of the tribal

government.

(8) On public lands, the Service and cooperating agencies may

temporarily restrict human access and ``disturbance-causing land use

activities'' [see definition in paragraph (k)(15) of this section]

within a 1-mile radius around release pens when wolves are in them,

around active dens between March 1 and June 30, and around active wolf

``rendezvous sites'' [see definition in paragraph 17.84(k)(15) of this

section] between June 1 and September 30, as necessary.

(9) The two designated wolf recovery areas and the experimental

population area for Mexican wolves classified as a nonessential

experimental population by this rule are described in the following

subsections. Both designated wolf recovery areas are within the

subspecies' probable historic range and are wholly separate

geographically from the current range of any known Mexican wolves or

other gray wolves..

(i) The Blue Range Wolf Recovery Area includes all of the Apache

National Forest and all of the Gila National Forest in east-central

Arizona and west-central New Mexico (Figure 1). Initial releases of

captive-raised Mexican wolves will take place,

[[Page 1765]]

generally as described in our Preferred Alternative in the FEIS on

Mexican wolf reintroduction, within the Blue Range Wolf Recovery Area

``primary recovery zone'' [see definition in paragraph (k)(15) of this

section]. This is the area within the Apache National Forest bounded on

the north by the Apache-Greenlee County line; on the east by the

Arizona-New Mexico state line; on the south by the San Francisco River

(eastern half) and the southern boundary of the Apache National Forest

(western half); and on the west by the Greenlee-Graham County line (San

Carlos Apache Reservation boundary). The Service will allow the wolf

population to expand into the Blue Range Wolf Recovery Area ``secondary

recovery zone'' [see definition in paragraph (k)(15) of this section],

which is the remainder of the Blue Range Wolf Recovery Area not in the

primary recovery zone.

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[[Page 1767]]

(ii) The White Sands Wolf Recovery Area in south-central New Mexico

includes all of the White Sands Missile Range; the White Sands National

Monument; the San Andres National Wildlife Refuge; and the area

adjacent and to the west of the Missile Range bounded on the south by

the southerly boundary of the USDA Jornada Experimental Range and the

northern boundary of the New Mexico State University Animal Science

Ranch, on the west by the New Mexico Principal Meridian, on the north

by the Pedro Armendaris Grant boundary and the Sierra-Socorro County

line, and on the east by the western boundary of the Missile Range

(Figure 2). This is the back-up reintroduction area, to be used only if

later determined to be both necessary and feasible in accordance with

the Preferred Alternative as set forth in the FEIS on Mexican wolf

reintroduction. If this area is used, initial releases of captive-

raised wolves would take place within the White Sands Wolf Recovery

Area primary recovery zone. This is the area within the White Sands

Missile Range bounded on the north by the road from the former Cain

Ranch Head quarters to Range Road 16, Range Road 16 to its intersection

with Range Road 13, Range Road 13 to its intersection with Range Road

7; on the east by Range Road 7; on the south by Highway 70; and on the

west by the Missile Range boundary. The Service would allow the wolf

population to expand into the White Sands Wolf Recovery Area secondary

recovery zone, which is the remainder of the White Sands Wolf Recovery

Area not in the primary recovery zone.

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[[Page 1768]]

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[[Page 1769]]

(iii) The boundaries of the Mexican Wolf Experimental Population

Area are the portion of Arizona lying north of Interstate Highway 10

and south of Interstate Highway 40; the portion of New Mexico lying

north of Interstate Highway 10 in the west, north of the New Mexico-

Texas boundary in the east, and south of Interstate Highway 40; and the

portion of Texas lying north of United States Highway 62/180 and south

of the Texas-New Mexico boundary (Figure 3). The Service is not

proposing wolf reestablishment throughout this area, but only within

the Blue Range Wolf Recovery Area, and possibly later in the White

Sands Wolf Recovery Area, respectively described in paragraphs (k)(9)

(i) and (ii) of this section. If a member of the nonessential

experimental population is captured inside the Mexican Wolf

Experimental Population Area, but outside the designated wolf recovery

areas, it will be re-released within the recovery area, put into the

captive population, or otherwise managed according to provisions of a

Service-approved management plan or action. If a wolf is found in the

United States outside the boundaries of the Mexican Wolf Experimental

Population Area (and not within any other wolf experimental population

area) the Service will presume it to be of wild origin with full

endangered status (or threatened in Minnesota) under the Act, unless

evidence, such as a radio collar, identification mark, or physical or

behavioral traits (see paragraph (k)(3)(x) of this section),

establishes otherwise. If such evidence exists, the Service or an

authorized agency will attempt to promptly capture the wolf and re-

release it within the recovery area, put it into the captive

population, or carry out any other management measure authorized by

this rule or a Service-approved management plan. Such a wolf is

otherwise not subject to this rule outside the designated Mexican Wolf

Experimental Population Area.

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[[Page 1770]]

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[[Page 1771]]

(10) If Mexican wolves of the experimental population occur on

public lands outside the designated wolf recovery area(s), but within

the Mexican Wolf Experimental Population Area, the Service or an

authorized agency will attempt to capture any radio-collared lone wolf

and any lone wolf or member of an established pack causing livestock

``depredations'' [see definition in paragraph (k)(15) of this section].

The agencies will not routinely capture and return pack members that

make occasional forays onto public land outside the designated wolf

recovery area(s) and uncollared lone wolves on public land. However,

the Service will capture and return to a recovery area or to captivity

packs from the nonessential experimental population that establish

territories on public land wholly outside the designated wolf recovery

area(s).

(11) If any wolves move onto private land outside the designated

recovery area(s), but within the Mexican Wolf Experimental Population

Area, the Service or an authorized agency will develop management

actions in cooperation with the landowner including capture and removal

of the wolf or wolves if requested by the landowner.

(12) If any wolves move onto tribal reservation land outside the

designated recovery area(s), but within the Mexican Wolf Experimental

Population Area, the Service or an authorized agency will develop

management actions in cooperation with the tribal government including

capture and removal of the wolf or wolves if requested by the tribal

government.

(13) The Service will evaluate Mexican wolf reintroduction progress

and prepare periodic progress reports, detailed annual reports, and

full evaluations after 3 and 5 years that recommend continuation,

modification, or termination of the reintroduction effort.

(14) The Service does not intend to change the ``nonessential

experimental'' designation to ``essential experimental,''

``threatened,'' or ``endangered'' and foresees no likely situation

which would result in such changes. Critical habitat cannot be

designated under the nonessential experimental classification, 16

U.S.C. 1539(j)(2)(C)(ii).

(15) Definitions--Key terms used in this rule have the following

definitions.

Breeding pair means an adult male and an adult female wolf that

have produced at least two pups during the previous breeding season

that survived until December 31 of the year of their birth.

Depredation means the confirmed killing or wounding of lawfully

present domestic livestock by one or more wolves. The Service, WS, or

other Service-authorized agencies will confirm cases of wolf

depredation on domestic livestock.

Disturbance-causing land use activity means any land use activity

that the Service determines could adversely affect reproductive

success, natural behavior, or survival of Mexican wolves. These

activities may be temporarily restricted within a 1-mile radius of

release pens, active dens, and rendezvous sites. Such activities may

include, but are not limited to--timber or wood harvesting, management-

ignited fire, mining or mine development, camping outside designated

campgrounds, livestock drives, off-road vehicle use, hunting, and any

other use or activity with the potential to disturb wolves. The

following activities are specifically excluded from this definition--

(1) Legally permitted livestock grazing and use of water sources by

livestock;

(2) Livestock drives if no reasonable alternative route or timing

exists;

(3) Vehicle access over established roads to private property and

to areas on public land where legally permitted activities are ongoing

if no reasonable alternative route exists;

(4) Use of lands within the national park or national wildlife

refuge systems as safety buffer zones for military activities;

(5) Prescribed natural fire except in the vicinity of release pens;

and

(6) Any authorized, specific land use that was active and ongoing

at the time wolves chose to locate a den or rendezvous site nearby.

Engaged in the act of killing, wounding, or biting livestock means

to be engaged in the pursuit and grasping, biting, attacking, wounding,

or feeding upon livestock that are alive. If wolves are observed

feeding on a livestock carcass, you cannot assume that wolves killed

the livestock because livestock can die from many causes and wolves

will feed on carrion.

Harass means ``intentional or negligent act or omission which

creates the likelihood of injury to the wildlife by annoying it to such

an extent as to significantly disrupt normal behavioral patterns which

include, but are not limited to, breeding, feeding, or sheltering'' (50

CFR 17.3). This experimental population rule permits only

``opportunistic, noninjurious harassment'' (see definition below).

Impact on game populations in ways which may inhibit further wolf

recovery. The Service encourages states and tribes to define

unacceptable impacts from wolf predation on game populations in

Service-approved management plans. Until such time the term will mean

the following--2 consecutive years with a cumulative 35 percent

decrease in population or hunter harvest estimates for a particular

species of ungulate in a game management unit or distinct herd segment

compared to the pre-wolf 5-year average (unit or herd must contain

average of greater than 100 animals). If wolf predation is shown to be

a primary cause of ungulate population declines (greater than 50

percent of documented adult or young mortality), then wolves may be

moved to reduce ungulate mortality rates and assist in herd recovery,

but only in conjunction with application of other common,

professionally acceptable, wildlife management techniques.

Livestock means cattle, sheep, horses, mules, and burros or other

domestic animals defined as livestock in State and Tribal wolf

management plans approved by the Service.

Occupied Mexican wolf range means an area of confirmed presence of

resident breeding packs or pairs of wolves or area consistently used by

at least one resident wolf over a period of at least one month. The

Service must confirm or corroborate wolf presence. Exact delineation of

the area will be described by:

(1) 5-mile (8 km) radius around all locations of wolves and wolf

sign confirmed as described above (nonradio-monitored);

(2) 5-mile (8 km) radius around radio locations of resident wolves

when fewer than 20 radio locations are available (for radio-monitored

wolves only); or

(3) 3-mile (4.8 km) radius around the convex polygon developed from

more than 20 radio locations of a pack, pair, or single wolf acquired

over a period of at least 6 months (for radio-monitored wolves).

This definition applies only within the Mexican Wolf Experimental

Population Area.

Opportunistic, noninjurious harassment (see ``harass'') means as

the wolf presents itself (for example, the wolf travels onto and is

observed on private land or near livestock). This is the only type of

harassment permitted by this rule. You cannot track, attract, search

out, or chase a wolf and then harass it. Any harassment must not cause

bodily injury or death to the wolf. The basic intent of harassment

permitted by this rule is to scare wolves away from the immediate area.

It is limited to approaching wolves and discharging firearms or other

projectile launching devices in proximity to but not in the direction

of wolves; throwing objects in the general direction of but

[[Page 1772]]

not at wolves; or making any loud noise in proximity to wolves.

Primary recovery zone means an area where the Service--

(1) Will release captive-raised Mexican wolves,

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

(3) May release translocated wild-born Mexican wolves, and

(4) Will actively support recovery of the 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 involved in livestock

depredations,

(3) Were fed by or are dependent upon adults involved with

livestock depredations (because young animals will likely acquire the

pack's livestock depredation habits),

(4) Have depredated domestic animals other than livestock on

private or tribal lands, two times in an area within one year, or

(5) Are habituated to humans, human residences, or other

facilities.

Public land means land under administration of Federal agencies

including, but not limited to the National Park Service, Bureau of Land

Management, Fish and Wildlife Service, Forest Service, Department of

Energy, and Department of Defense; and State-owned lands within the

boundary of a designated wolf recovery area. All State-owned lands

within the boundary of the experimental population area, but outside

designated wolf recovery areas, will be subject to the provisions of

this rule that apply to private lands.

Rendezvous site means a gathering and activity area regularly used

by a litter of young wolf pups after they have emerged from the den.

Typically, the site is used for a period ranging from about one week to

one month in the summer. Several sites may be used in succession.

Secondary recovery zone means an area adjacent to a primary

recovery zone in which the Service allows released wolves to disperse,

where wolves captured in the wild for authorized management purposes

may be translocated and released, and where managers will actively

support recovery of the reintroduced population.

Take means``to harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect, or to attempt to engage in any such

conduct'' (16 U.S.C. 1532(19)). Also, see definitions of ``harass'',

``opportunistic, noninjurious harassment'', and ``unavoidable and

unintentional take.''

Unavoidable and unintentional take means accidental, unintentional

take (see definition of ``Take'') which occurs despite reasonable care,

is incidental to an otherwise lawful activity, and is not done on

purpose. Examples would be striking a wolf with an automobile and

catching a wolf in a trap outside of known occupied wolf range. Taking

a wolf with a trap, snare, or other type of capture device within

occupied wolf range (except as authorized in paragraph (k)(3)(ix) and

(x) of this section) will not be considered unavoidable, accidental, or

unintentional take, unless due care was exercised to avoid taking a

wolf. Taking a wolf by shooting will not be considered unavoidable,

accidental, or unintentional take. Shooters have the responsibility to

be sure of their targets.

Wolf recovery area means a designated area where managers will

actively support reestablishment of Mexican wolf populations.

Dated: January 7, 1998.

William Leary,

Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 98-681 Filed 1-8-98; 9:20 am]

BILLING CODE 4310-55-P