[Federal Register Volume 72, Number 129 (Friday, July 6, 2007)]
[Proposed Rules]
[Pages 36942-36949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3268]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV39


Endangered and Threatened Wildlife and Plants; Proposed Revision 
of Special Regulation for the Central Idaho and Yellowstone Area 
Nonessential Experimental Populations of Gray Wolves in the Northern 
Rocky Mountains

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 
revisions to the 2005 special rule for the central Idaho and 
Yellowstone area nonessential experimental population of the gray wolf 
(Canis lupus) in the northern Rocky Mountains (NRM). Specifically, this 
rule proposes to modify the definition of ``unacceptable impacts'' to 
wild ungulate populations so that States and Tribes with Service-
approved post-delisting wolf management plans can better address the 
impacts of a biologically recovered wolf population on ungulate 
populations and herds while wolves remain listed. We also propose to 
modify the 2005 special rule to allow private citizens in States or on 
Tribal lands with approved post-delisting wolf management plans to take 
wolves that are in the act of attacking their stock animals or dogs. 
All other provisions of the 2005 special rule, including the process to 
obtain Service approval and the conditions for reporting all wolf take, 
would remain unchanged. As under the existing terms of the 2005 special 
rule, these proposed modifications would not apply with respect to 
States or Tribes without approved post-delisting wolf management plans 
and would not impact wolves outside the Yellowstone or central Idaho 
nonessential experimental population areas. A draft environmental 
assessment will be prepared on this proposed action.

DATES: Comments from all parties on both the proposal and the draft 
environmental assessment must be received by August 6, 2007. We will 
hold three public hearings on this proposed rule in July. See 
SUPPLEMENTARY INFORMATION for the dates, times, and locations.

ADDRESSES: If you wish to comment, you may submit comments and 
materials concerning this proposal, identified by ``RIN 1018-AV39,'' by 
any of the following methods:
    1. You may mail or hand deliver written comments to the U.S. Fish 
and Wildlife Service, Western Gray Wolf Recovery Coordinator, 585 
Shepard Way, Helena, Montana 59601;
    2. You may send comments by electronic mail (e-mail) directly to 
the Service at <a href="/cdn-cgi/l/email-protection#e7b0888b81b5928b82a48f86898082a7819094c9808891"><span class="__cf_email__" data-cfemail="6b3c04070d391e070e28030a050c0e2b0d1c18450c041d">[email protected]</span></a>. Include ``RIN number 1018-Av39'' 
in the subject line of the message. See the Public Comments Solicited 
section below for file format for electronic filing; or
    3. You may submit your comments through the Federal e-Rulemaking 
Portal--http://www.regulations.gov. Follow the instructions for 
submitting comments.
    Comments and materials received, as well as supporting 
documentation used in preparation of this proposed action, will be 
available for inspection following the close of the comment period, by 
appointment, during normal business hours, at our Helena office (see 
ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Edward E. Bangs, Western Gray Wolf 
Recovery Coordinator, U.S. Fish and Wildlife Service, at our Helena 
office (see ADDRESSES) or telephone (406) 449-5225, extension 204.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, data, comments, 
new information, or suggestions from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule are hereby solicited. We 
particularly seek comments concerning (1) our proposed modifications to 
the 2005 experimental population rule to allow private citizens to take 
wolves in the act of attacking their stock animals or dogs; and (2) our 
establishing a reasonable process for States and Tribes with approved 
post-delisting wolf management plans to allow removal of wolves that 
are scientifically demonstrated to be impacting ungulate populations to 
the degree that they are not meeting respective State and Tribal 
management goals. We specifically ask for comments regarding whether 
the proposed modifications would reasonably address conflicts between 
wolves and domestic animals or wild ungulate populations; would provide 
sufficient safeguards to prevent misuse of the modified rule; would 
provide an appropriate and transparent public process that ensures 
decisions are science-based; and would provide adequate guarantees that 
wolf recovery will not be compromised.
    If you wish to comment, you may submit your comments and materials 
concerning this proposed rule by any one of several methods, as listed 
above in the ADDRESSES section. If you submit comments by e-mail, 
please submit them in ASCII file format and avoid the use of special 
characters and encryption. Please note that the e-mail address will be 
closed at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Before including your address, phone number, e-mail 
address, or other personal identifying information in your comment, you 
should be aware that your entire comment--including your personal 
identifying information--may be made publicly available at any time. 
While you can ask us in your comment to withhold your personal 
identifying information from public review, we cannot guarantee that we 
will be able to do so. Comments and materials received will be 
available for public inspection, by appointment, during normal business 
hours (see ADDRESSES section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), and the Office of Management 
and Budget's (OMB) Final Information Quality Bulletin for Peer Review, 
dated December 16, 2004, we will seek independent review of the science 
in this rule. The purpose of such review is to ensure that our final 
rule is based on scientifically sound data, assumptions, and analyses. 
We will send peer reviewers copies of this proposed rule immediately 
following publication in the Federal Register. We will invite these 
peer reviewers to comment,

[[Page 36943]]

during the public comment period, on the specific assumptions and 
conclusions regarding the proposed rule.
    We will take into consideration all comments, including peer review 
comments, and any additional information received during the comment 
period on this proposed rule during the preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Three open houses will be held on:

July 17, 2007, Tuesday at Cody Auditorium Facility, 1240 Beck Avenue, 
Cody, Wyoming; open house 12:30 p.m. to 1:30 p.m. and public hearing 
1:30 p.m. to 3:30 p.m.;
July 18, 2007, Wednesday at Jorgenson's Inn & Suites, 1714 11th Avenue, 
Helena, Montana; open house 6 p.m. to 7 p.m. and public hearing 7 p.m. 
to 9 p.m.; and
July 19, 2007, Thursday at Boise Convention Center on the Grove, 850 
Front Street, Boise, Idaho; open house 6 p.m. to 7 p.m. and public 
hearing 7 p.m. to 9 p.m.

    Anyone wishing to make an oral statement for the record is 
encouraged to provide a written copy of their statement and present it 
to us at the hearing. In the event there is a large attendance, the 
time allotted for oral statements may be limited. Those that wish to 
speak must sign up at the open houses and hearing. Oral and written 
statements receive equal consideration. There are no limits on the 
length of written comments submitted to us. If you have any questions 
concerning the public hearings, please contact Sharon Rose (303) 236-
4580. Persons needing reasonable accommodations in order to attend and 
participate in the public hearing in Idaho should contact Joan Jewett 
(503) 231-6211, and for hearings in Montana or Wyoming, please contact 
Sharon Rose at (303) 236-4580, as soon as possible in order to allow 
sufficient time to process requests. Please call no later than 1 week 
before the hearing date. Information regarding the proposal is 
available in alternative formats upon request.

Previous Federal Actions

    In 1974, four subspecies of gray wolf were listed as endangered 
including the northern Rocky Mountains gray wolf (Canis lupus 
irremotus), the eastern timber wolf (C. l. lycaon) in the northern 
Great Lakes region, the Mexican wolf (C. l. baileyi) in Mexico and the 
southwestern United States, and the Texas gray wolf (C. l. 
monstrabilis) of Texas and Mexico (39 FR 1171, January 4, 1974). In 
1978, we published a rule (43 FR 9607, March 9, 1978) relisting the 
gray wolf as endangered at the species level (C. lupus) throughout the 
conterminous 48 States and Mexico, except for Minnesota, where it was 
reclassified as threatened. In 2007, we published a rule (72 FR 6052) 
which delisted the Western Great Lakes population of wolves that 
included all of Minnesota, Wisconsin, Michigan, and parts of North and 
South Dakota, Iowa, Illinois, Indiana, and Ohio. The northern Rocky 
Mountain Wolf Recovery Plan was approved in 1980 (Service 1980, p. i) 
and revised in 1987 (Service 1987, p. i).
    On November 22, 1994, we designated unoccupied portions of Idaho, 
Montana, and Wyoming as two nonessential experimental population areas 
for the gray wolf under section 10(j) of the Endangered Species Act of 
1973, as amended (Act) (59 FR 60252, November 22, 1994; 59 FR 60266, 
November 22, 1994). One area was the Yellowstone National Park 
experimental population area which included all of Wyoming, and parts 
of southern Montana and eastern Idaho (59 FR 60252, November 22, 1994). 
The other was the central Idaho experimental population area that 
included most of Idaho and parts of southwestern Montana (59 FR 60266, 
November 22, 1994). In 1995 and 1996, we reintroduced wolves from 
southwestern Canada into these areas (Bangs and Fritts 1996, pp. 407-
409; Fritts et al. 1997, p. 7; Bangs et al. 1998, pp. 785-786). This 
reintroduction and accompanying management programs greatly expanded 
the numbers and distribution of wolves in the northern Rocky Mountains. 
At the end of 2000, the northern Rocky Mountain population first met 
its numerical and distributional recovery goal of a minimum of 30 
breeding pairs and over 300 wolves well-distributed among Montana, 
Idaho, and Wyoming (68 FR 15804, April 1, 2003; Service et al. 2001, 
Table 4). This minimum recovery goal was again exceeded in 2001, 2002, 
2003, 2004, 2005, and 2006 (Service et al. 2002-2006, Table 4).
    On January 6, 2005, we published a revised nonessential 
experimental population special rule increasing management flexibility 
for these recovered populations (70 FR 1286, January 6, 2005). For 
additional detailed information on previous Federal actions see the 
1994 and 2005 special rules (59 FR 60252, November 22, 1994; 59 FR 
60266, November 22, 1994; 70 FR 1286, January 6, 2005), the 2003 
reclassification rule (68 FR 15804, April 1, 2003), the Advanced Notice 
of Proposed Rulemaking to designate the NRM gray wolf population as a 
Distinct Population Segment (DPS) and remove the Act's protections for 
this population (71 FR 6634, February 8, 2006) and the 2007 proposal to 
designate the NRM gray wolf population as a DPS and remove the Act's 
protections for this population (i.e., delist) (72 FR 6106, February 8, 
2007).

Background

    Given the recovered status of the wolf population and the practical 
limitations on implementing the current nonessential experimental 
rules, we propose to slightly modify the 2005 rule (70 FR 1286, January 
6, 2005). Additional background on nonessential experimental rules 
implemented under section 10(j) of the Act can be found in the 1994 
rules (59 FR 60252, November 22, 1994; 59 FR 60266, November 22, 1994) 
and the 2005 rule (70 FR 1286, January 6, 2005).
    Addressing Unacceptable Impacts on Wild Ungulate Populations--
States and Tribes have the expertise to make determinations of 
unacceptable impacts to ungulate populations. Both the 1994 
Environmental Impact Statement for wolf reintroduction (Service 1994, 
pp. 6, 8) and the 1994 nonessential experimental special rules 
addressed the potential impact of wolf restoration on State and Tribal 
objectives for wild ungulate management. Specifically, the 1994 rules 
stated, ``Potentially affected States and Tribes may capture and 
translocate wolves to other areas within an experimental population 
area as described in paragraph (i)(7), Provided, the level of wolf 
predation is negatively impacting localized ungulate populations at an 
unacceptable level. Such translocations cannot inhibit wolf population 
recovery. The States and Tribes will define such unacceptable impacts, 
how they would be measured, and identify other possible mitigation in 
their State or Tribal wolf management plans. These plans must be 
approved by the Service before such movement of wolves may be 
conducted'' (59 FR 60264, November 22, 1994; 59 FR 60279, November 22, 
1994). The ``plans'' referenced in the 1994 rules related to the 
management of the listed nonessential experimental wolves.
    Two examples of conflicts that might warrant relocation outlined in 
the preamble of the 1994 rules were ``(1) when wolf predation is 
dramatically affecting prey availability because of unusual habitat or 
weather conditions; and (2) when wolves cause prey to move onto private 
property and mix with livestock, increasing potential conflicts''

[[Page 36944]]

(59 FR 60257, November 22, 1994; 59 FR 60272, November 22, 1994).
    No such State plans for managing listed wolves were adopted; 
therefore, no wolves were ever moved for ungulate conflicts under the 
1994 regulations. Only Wyoming had requested that wolves be moved by 
the Service. In that situation, Wyoming reported that wolves were 
occasionally chasing elk with high rates of brucellosis infection off 
winter elk feed grounds causing them to temporarily mix more frequently 
with nearby domestic cattle. The Service suggested that the State 
identify the sites in Wyoming where they would prefer the wolves to be 
moved, but no sites were ever identified and no wolves were ever moved.
    On January 6, 2005, we finalized a new special rule that allowed 
greater management flexibility for managing a recovered wolf population 
in the experimental population area of States and Tribal reservations 
for States and Tribes which had Service approved, post-delisting wolf 
management plans (70 FR 1286). It also allowed additional opportunities 
for the public to take wolves in order to protect their private 
property.
    The 2005 rule's provision for ``take in response to wild ungulate 
impacts'' states at 70 FR 1308 that:

    ``If wolf predation is having an unacceptable impact on wild 
ungulate populations (deer, elk, moose, bighorn sheep, mountain 
goats, antelope, or bison) as determined by the respective State or 
Tribe, a State or Tribe may lethally remove the wolves in question.
    (A) In order for this provision to apply, the States or Tribes 
must prepare a science-based document that:
    (1) Describes what data indicate that ungulate herd is below 
management objectives, what data indicate the impact of wolf 
predation on the ungulate population, why wolf removal is a 
warranted solution to help restore the ungulate herd to State or 
Tribal management objectives, the level and duration of wolf removal 
being proposed, and how ungulate population response to wolf removal 
will be measured;
    (2) Identifies possible remedies or conservation measures in 
addition to wolf removal; and
    (3) Provides an opportunity for peer review and public comment 
on their proposal prior to submitting it to the Service for written 
concurrence.
    (B) We must determine that such actions are scientifically based 
and will not reduce the wolf population below recovery levels before 
we authorize lethal wolf removal.''

    The 2005 rule authorized lethal take because we recognized that the 
wolf population had exceeded its recovery goals, that extra management 
flexibility was required to address conflicts given the recovered 
status of the population, that most of the suitable wolf habitat in 
Montana, Idaho, and Wyoming was occupied by resident wolf packs 
(Oakleaf et al. 2006), and that absent high-quality unoccupied suitable 
habitat, wolf translocations were likely to fail (70 FR 1294, January 
6, 2005; Bradley et al. 2005, p. 1506).
    The 2005 rule's definition of ``Unacceptable impact'' is a ``State 
or Tribally-determined decline in a wild ungulate population or herd, 
primarily caused by wolf predation, so that the population or herd is 
not meeting established State or Tribal management goals. The State or 
Tribal determination must be peer-reviewed and reviewed and commented 
on by the public, prior to a final determination by the Service that an 
unacceptable impact has occurred, and that wolf removal is not likely 
to impede wolf recovery'' (70 FR 1307, January 6, 2005).
    In our definition of ``Unacceptable impact'' in the 2005 rule, we 
set a threshold that has not provided the intended flexibility to allow 
States and Tribes to resolve conflicts between wolves and ungulate 
populations. Current information does not indicate that wolf predation 
alone is likely to be the primary cause of a reduction of any ungulate 
population in Montana, Idaho, or Wyoming (Bangs et al. 2004, pp. 89-
100). There are no populations of wild ungulates in Montana, Idaho, or 
Wyoming where wolves are the sole predator. Wolf predation is unlikely 
to impact ungulate population trends substantially unless other 
contributing factors are in operation, such as habitat quality and 
quantity (National Research Council 1997, pp. 185-186; Mech and 
Peterson 2003, p. 159), other predators (bear predation on neonates) 
(Barber et al. 2005, p. 42-43; Smith et al. 2006, p. vii), high harvest 
by hunters (Vucetich et al. 2005, p. 259; White and Garrott 2005, p. 
942; Evans et al. 2006, p. 1372; Hamlin 2006, p. 27-32), weather (Mech 
and Peterson 2003, pp. 138-139), and other factors (Pletscher et al. 
1991, pp. 545-548; Garrott et al. 2005, p. 1245; Smith et al. 2006, pp. 
246-250). However, in combination with any of these factors, wolf 
predation can have a substantial impact to some wild ungulate herds 
(National Research Council 1997, p. 183; Mech and Peterson 2003, pp. 
155-157; Evans et al. 2006, p. 1377) with the potential of reducing 
them below State and Tribal herd management objectives.
    The unattainable nature of the threshold set in the 2005 rule 
became apparent soon after its completion. In 2005, the State of Idaho 
submitted a proposal to the Service that indicated wolf predation was 
impacting the survival of adult cow elk in the Clearwater area of 
central Idaho and that the elk population was below State management 
objectives (Idaho Fish and Game 2006). In the Clearwater proposal, the 
State of Idaho and the peer reviewers clearly concluded that wolf 
predation was not ``primarily'' the cause of the elk population's 
decline, but was one of the major factors maintaining the elk herd's 
status below State management objectives. Declining habitat quality due 
to forest maturation was the primary factor affecting the herd's 
status, but black bear predation on young elk calves, mountain lion 
predation on adults, and the harsh winter in 1996 to 97 also were major 
factors. Data also clearly indicated that wolf predation was one of the 
major causes of mortality of adult female elk, which contributed to the 
elk herd remaining below State management objectives. After discussions 
with the Service, Idaho put their proposal on hold because the proposal 
did not meet the regulatory standard for an ``Unacceptable impact'' set 
by the 2005 special rule.
    We are now proposing to redefine the term ``Unacceptable impact'' 
to achieve the originally intended management flexibility. 
Specifically, we propose to define ``Unacceptable impact'' as ``State 
or Tribally determined impact to a wild ungulate population or herd, 
with wolves as one of the major causes of the population or herd not 
meeting established State or Tribal population or herd management 
goals. The State or Tribal determination must be peer-reviewed and 
reviewed and commented on by the public prior to a final determination 
by the Service that an unacceptable impact has occurred and that wolf 
removal is not likely to impede wolf recovery.'' This definition 
expands the potential impacts for which wolf removal might be warranted 
beyond direct predation or those causing immediate population declines. 
It would, in certain circumstances, allow wolf pack removal when wolves 
are a major cause of the population or herd not meeting established 
State or Tribal population or herd management goals. Management goals 
might include cow/calf ratios, movements, use of key feeding areas, 
survival rates, behavior, nutrition, and other factors.
    Under this proposal, as in the 2005 rule, science-based proposals 
from a State or Tribe with an approved post-delisting wolf management 
plan would have to undergo both public and peer review. Based on that 
peer review and public comment, the State or Tribe would finalize the 
plan and then submit it to the Service for a final

[[Page 36945]]

determination. The Service expects the following to be addressed in the 
State or Tribal proposal: (1) What data indicate that the ungulate herd 
is below management objectives; (2) what data indicate impact by wolf 
predation on the ungulate population; (3) why wolf removal is a 
warranted solution to help restore the ungulate herd to State or Tribal 
management objectives; (4) the level and duration of wolf removal being 
proposed; (5) how ungulate population response to wolf removal will be 
measured; and (6) possible remedies or conservation measures in 
addition to wolf removal. Before wolf removals can be authorized, the 
Service must determine if the State or Tribe followed the rule's 
procedures for developing a proposal to remove wolves in response to 
unacceptable impacts; if the proposal meets the definition of 
unacceptable impact; if the science presented supports the recommended 
action; and if the proposal is science-based.
    The recovery goal for the NRM wolf population requires that it be 
comprised of at least 30 breeding pairs and 300 wolves that are 
equitably distributed in potentially suitable habitat in Montana, 
Idaho, and Wyoming. To ensure this goal is achieved, each of the three 
States (Wyoming, Montana, and Idaho) committed to manage for an 
equitable distribution of the overall population and assume a 
management target of 15 breeding pairs in mid-winter within each State. 
The 15 breeding pair management target was not intended to be the 
minimum goal for each State. It was an objective so that each State's 
management would provide a reasonable cushion to ensure each State's 
share of the wolf population did not fall below the 10 breeding pairs 
requirement and that the 30 breeding pairs minimum would always be met 
or exceeded.
    While this change will likely result in more wolf control than is 
currently occurring, we propose to establish controls to ensure that 
wolf control for ungulate management purposes would not undermine 
recovery goals. Specifically, before any lethal control of wolf 
populations can be authorized, we must determine that such actions will 
not reduce the wolf population in the State below 20 breeding pairs and 
200 wolves. This assures that the wolf population is large enough to 
easily rebound from such removal, that a large safety margin is 
provided against unseen mortality events that might occur after such 
removal, and that a substantial margin of safety is provided to ensure 
that recovery objectives would never be compromised. This limit is a 
necessary and advisable precaution while wolves remain listed to ensure 
the conservation of the species given the additional take that might be 
authorized pursuant to this proposed rule. Once delisted, Montana, 
Idaho, and Wyoming will manage for no less than 15 breeding pairs.
    By the end of 2006, the northern Rocky Mountain wolf population was 
estimated to contain 1,300 wolves in 86 breeding pairs (nearly three 
times the minimum numeric recovery goal for breeding pairs and more 
than four times the minimum population goal), and for the 7th 
consecutive year it exceeded minimum recovery levels. Montana had an 
estimated 316 wolves in 21 breeding pairs, Idaho had 673 wolves in 40 
breeding pairs, and Wyoming had 311 wolves in 25 breeding pairs. Wolf 
biology allows for rapid recovery from severe disruptions. After severe 
declines, wolf populations can more than double in just 2 years if 
mortality is reduced; and increases of nearly 100 percent per year have 
been documented in low-density suitable habitat (Fuller et al. 2003, 
pp. 181-183; Service et al. 2007, Table 4). The literature suggests 
that wolf populations can maintain themselves despite a sustained 
human-caused mortality rate of 30 percent or more per year (Keith 1983, 
p. 66; Fuller et al. 2003, pp. 182-184).
    Our data indicate that the human-caused mortality rate in the 
adult-sized segment of the northern Rocky Mountain wolf population was 
nearly 26 percent per year from 1994 to 2004 (Smith 2005), and that the 
wolf population still continued to expand at about 26 percent annually 
(Service et al. 2007, Table 4). This data indicates that the current 
annual mortality rate of about 26 percent in the adult portion of the 
wolf population could be nearly doubled and the wolf population could 
still maintain itself at current levels. Collectively, these factors 
mean that wolf populations are quite resilient to human-caused 
mortality if it is regulated.
    The wolf population now occupies most of the suitable wolf habitat 
in the northern Rocky Mountains (72 FR 6106-6139, February 8, 2007; 
Oakleaf et al. 2006, p. 559). The population is unlikely to 
significantly expand its overall distribution beyond the outer 
boundaries of the current population because little unoccupied suitable 
habitat is available. Given current population density and these 
habitat limitations, we believe the overall numbers of wolf breeding 
pairs and numbers of wolves cannot continue to sustain a growth rate of 
26 percent per year. Thus, we do not believe any increased take as a 
result of this rule, if finalized, would have an impact on the 
recovered status of the northern Rocky Mountain wolf population in 
Montana, Idaho, or Wyoming, as long as it remains managed under a 
science-based plan.
    Addressing Take To Protect Stock Animals and Dogs--The 1994 
experimental population rules stated that ``any livestock producers on 
their private land may take (including to kill or injure) a wolf in the 
act of killing, wounding, or biting livestock'' (defined as cattle, 
sheep, horses, and mules) (59 FR 60264, November 22, 1994; 59 FR 60279, 
November 22, 1994). Similar provisions applied to producers on public 
land if they obtained a permit from the Service (59 FR 60264, November 
22, 1994; 59 FR 60279, November 22, 1994).
    The 2005 special rule expanded this provision in States with 
approved post-delisting wolf management plans to allow private citizens 
to also lethally take wolves that were ``in the act of attacking'' 
their livestock and dogs on private land and any livestock or herding 
and guarding dogs on active public grazing allotments or special use 
areas. ``In the act of attacking'' is defined in 50 CFR 17.84(n)(3) as 
``the actual biting, wounding, grasping, or killing of livestock or 
dogs, or chasing, molesting, or harassing by wolves that would indicate 
to a reasonable person that such biting, wounding, grasping, or killing 
of livestock or dogs is likely to occur at any moment.'' Such incidents 
had to be reported to the Service or our designated agent(s) within 24 
hours and physical evidence of such an attack had to be present.
    This rule proposes to add a new provision for lethal take of wolves 
in States with approved post-delisting wolf management plans when in 
defense of ``stock animals'' (defined as ``a horse, mule, donkey, or 
llama used to transport people or their possessions'') or dogs. 
Specifically, the proposed modification states that ``any legally 
present private citizen on private or public land may immediately take 
a wolf that is in the act of attacking the individuals' legally present 
stock animal or dog, provided there is no evidence of intentional 
baiting, feeding, or deliberate attractants of wolves. The citizen must 
be able to provide evidence of stock animals or dogs recently (less 
than 24 hours) wounded, harassed, molested, or killed by wolves, and we 
or our designated agents must be able to confirm that the stock animals 
or dogs were wounded, harassed, molested, or killed by wolves. To 
preserve evidence that the take of a wolf was conducted according to 
this

[[Page 36946]]

rule, the carcass of the wolf and the area surrounding should not be 
disturbed. The take of any wolf without such evidence of a direct and 
immediate threat may be referred to the appropriate authorities for 
prosecution.''
    Since 1995, only 43 wolves (about 8 percent of the 538 wolves 
legally removed in agency-authorized control actions) have been legally 
killed by private citizens in defense of their private property or by 
shoot-on-sight permits as authorized by either the 1994 or 2005 
experimental population special rules. There has been no documentation 
of wolf depredations on stock animals that were accompanied by their 
owners in the past 12 years, but a few instances of stock animals being 
spooked by wolves have been reported. While this proposed revision will 
provide additional opportunity for private citizens to protect their 
private property, we expect minor impacts on the wolf population.
    Ninety-one dogs have been confirmed to be killed by wolves from 
1987 to 2007 (Service et al. 2007, Table 5). No pet dogs have been 
confirmed to be killed by wolves while they were accompanied by their 
owners, and no wolves have been killed solely to protect dogs. However, 
35 hunting hounds have been killed by wolves, primarily on public land. 
In only a few of those instances, the hounds' owners were close enough 
that they might have been able to better protect their dogs by shooting 
at the wolves involved. We expect that take of wolves involved in 
conflicts with pet dogs or hunting hounds would be rare. This proposed 
modification would allow for private citizens to protect their dogs 
from wolf attack while not meaningfully increasing the rate of wolf 
removal.

Required Determinations

    Regulatory Planning and Review--In accordance with the criteria in 
Executive Order 12866, this rule is a significant regulatory action and 
subject to OMB review. An economic analysis is not required because 
this rule will result in only minor and positive economic effects on a 
small percentage of private citizens in Idaho and Montana, and possibly 
Wyoming if it develops an approved post-delisting wolf management plan.
    (a) This regulation does not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A brief assessment to 
clarify the costs and benefits associated with this rule follows.
    Costs Incurred--Under the 2005 special rule, which this rule 
proposes to modify, management of wolves by States or Tribes with 
Service-approved post-delisting wolf management plans is voluntary. 
Therefore, associated costs would be discretionary. While we do not 
quantify these expected expenditures, these costs may consist of staff 
time and salary as well as transportation and equipment necessary to 
control wolves unacceptably impacting ungulate populations or herds.
    We have funded State and Tribal wolf monitoring, research, and 
management efforts for gray wolves in Montana, Idaho, and Wyoming, and 
intend to continue to do so as long as wolves are listed. For the past 
several years Congress has targeted funding for wolf management to 
Montana, Idaho, and Wyoming, and the Nez Perce. In addition, Federal 
grant programs are available that fund wildlife management programs by 
the States and Tribes.
    Benefits Accrued--The objectives of the proposed rule change are 
(1) to allow States and Tribes with Service-approved post-delisting 
wolf management plans to address the unacceptable impacts of a 
biologically recovered wolf population to ungulate populations and 
herds, and (2) to allow private citizens in States or on Tribal lands 
with approved post-delisting wolf management plans to take wolves that 
are in the act of attacking their stock animals or dogs. Allowing wolf 
removal in response to unacceptable impacts will help maintain ungulate 
populations or herds at or above State or Tribal objectives. Balancing 
the needs of wolves and elk provides substantial and sustainable 
economic benefits. Allowing take of wolves in the act of attacking 
stock animals or dogs would have a beneficial economic impact by 
allowing citizens to protect such private property. This proposed 
amendment could prevent the need for these citizens to replace and 
retrain these animals. An additional potential benefit may be a lower 
level of illegal take of wolves due to higher local public tolerance of 
wolves resulting from reduced conflicts between wolves and humans.
    (b) This regulation does not create inconsistencies with other 
agencies' actions. It is exactly the same as the nonessential 
experimental population rules currently in effect regarding agency 
responsibilities under section 7 of the Act. This rule reflects 
continuing success in recovering the gray wolf through long-standing 
cooperative and complementary programs by a number of Federal, State, 
and Tribal agencies. Implementation of Service-approved State or Tribal 
post-delisting wolf management plans supports these existing 
partnerships.
    (c) This rule will not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs, or the rights and obligations of 
their recipients because we do not foresee any new impacts or 
restrictions to existing human uses of lands in Idaho or Montana as a 
result of this rule, nor in Wyoming or any Tribal reservations that 
remain under the 1994 10(j) rules.
    (d) This rule does not raise novel legal or policy issues. Instead 
it proposes to reduce the restrictions on take of wolves. Similar take 
provisions are already in place through the 1994 and 2005 special rules 
(59 FR 60252, November 22, 1994; 59 FR 60266, November 22, 1994; 70 FR 
1286, January 6, 2005). No new novel legal or policy issues are raised 
by the amendments offered in this proposed rule.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever a Federal agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. The SBREFA also amended the Regulatory Flexibility Act to 
require a certification statement. Based on the information that is 
available to us at this time, we certify that this regulation will not 
have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    The majority of wolves in the West are currently protected under 
the nonessential experimental population designations that cover 
Wyoming, most of Idaho, and southern Montana that treat wolves as a 
threatened species. Special regulations exist for these experimental 
populations that currently allow government employees and

[[Page 36947]]

designated agents, as well as livestock producers and private citizens, 
to take problem wolves. This proposed regulation modification does not 
change the nonessential experimental designation, but does contain 
additional special regulations that allow States and Tribes with 
approved post-delisting wolf management plans more flexibility in 
managing nonessential experimental wolves.
    These changes are applicable only where States or Tribes (on Tribal 
reservations) that have an approved post-delisting management plan for 
gray wolves. Within the northern Rocky Mountain gray wolf population's 
range, only the States of Idaho and Montana have approved plans. 
Therefore, the regulation is expected to result in a small reduction of 
economic losses to some private citizens in States with approved post-
delisting wolf management plans (i.e., Idaho and Montana) within the 
boundary of the nonessential experimental populations of the northern 
Rocky Mountain gray wolf population (Central Idaho nonessential 
experimental population area and Yellowstone nonessential experimental 
population area) (59 FR 60252, November 22, 1994; 59 FR 60266, November 
22, 1994).
    In anticipation of the possible delisting the northern Rocky 
Mountain gray wolf population, we have worked closely with States to 
ensure that their plans provide the protection and flexibility 
necessary to manage wolves at or above recovery levels after delisting. 
Approved plans are those plans that have passed peer review and Service 
scrutiny aimed at ensuring that the requirements under the Act are met 
and that recovery levels are maintained. It is appropriate for States 
that have met this approval standard to manage wolves prior to 
delisting for several reasons. States with approved post-delisting wolf 
management plans (Montana and Idaho) worked with their elected 
officials and public to develop biologically and socially accepted 
State regulatory frameworks to conduct wolf management. They have 
already assumed an important role in the management of this species and 
have developed extensive field experience and expertise, garnered 
considerable public trust, and exceeded the goals for recovery. A 
gradual transfer of responsibilities while the wolves are protected 
under the Act provides an adjustment period for the State wildlife 
agencies, Federal agencies, and Tribes to work out any unforeseen 
issues that may arise.

Small Business Regulatory Enforcement Fairness Act

    This regulation is not a major rule under 5 U.S.C. 801 et seq., the 
SBREFA.
    (a) This regulation will not have an annual effect on the economy 
of $100 million or more and is fully expected to have no significant 
economic impacts. The proposed regulation further reduces the effect 
that wolves will have on a few private citizens by increasing the 
opportunity for them to protect their stock animals and dogs. Since 
there are so few small businesses impacted by this regulation, the 
combined economic effects are minimal.
    (b) This regulation will not cause a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions and will impose no 
additional regulatory restraints in addition to those already in 
operation.
    (c) This regulation will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based enterprises to compete with foreign-
based enterprises. Based on the analysis of identified factors, we have 
determined that no individual industries within the United States will 
be significantly affected and that no changes in the demography of 
populations are anticipated. The intent of this special rule is to 
facilitate and continue existing commercial activities while providing 
for the conservation of species by better addressing the concerns of 
affected landowners and the impacts of a biologically recovered wolf 
population.

Unfunded Mandates Reform Act

    The 2005 special rule, which this proposed rule suggests amending, 
defines a process for voluntary and cooperative transfer of management 
responsibilities for a listed species back to the States. Therefore, in 
accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, et 
seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. As stated 
above, this regulation will result in only minor positive economic 
effects for a very small percentage of livestock producers.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year; that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This rule is not 
expected to have any significant economic impacts nor will it impose 
any unfunded mandates on other Federal, State, or local government 
agencies to carry out specific activities.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, this rule will not have 
significant implications concerning taking of private property by the 
Federal Government. This rule will substantially advance a legitimate 
government interest (conservation and recovery of listed species) and 
will not present a bar to all reasonable and expected beneficial use of 
private property. Because this proposed rule change pertains only to 
the relaxation of restrictions on lethal removal of wolves, it would 
not result in any takings of private property.

Federalism (Executive Order 13132)

    This proposed rule maintains the existing relationship between the 
States and the Federal Government. The State wildlife agencies in 
Montana, Idaho, and Wyoming requested that we undertake this rulemaking 
in order to assist the States in reducing conflicts with local 
landowners and returning wolf management to the States or Tribes. We 
have cooperated with the States in preparation of this rule. 
Maintaining the recovery goals for these wolves will contribute to 
their eventual delisting and their return to State management. 
Utilizing the 2005 special rule, which this rule proposes to modify, is 
voluntary. This rule will not have substantial direct effects on the 
States, on the relationship between the States and the Federal 
Government, or on the distribution of power and responsibilities among 
the various levels of government. No intrusion on State policy or 
administration is expected; roles or responsibilities of Federal or 
State governments will not change; and fiscal capacity will not be 
substantially directly affected. Therefore, this rule does not have 
significant Federalism effects or implications to warrant the 
preparation of a Federalism Assessment pursuant to the provisions of 
Executive Order 13132.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Department of the 
Interior has determined that this rule does not unduly burden the 
judicial system and meets the applicable standards provided in sections 
3(a) and 3(b)(2) of the order.

Paperwork Reduction Act

    The OMB regulations at 5 CFR 1320, which implement provisions of 
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) require that 
Federal

[[Page 36948]]

agencies obtain approval from OMB before collecting information from 
the public. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information, unless it displays 
a currently valid control number. This rule does not contain any new 
collections of information other than those permit application forms 
already approved under the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., and assigned OMB clearance number 1018-0095.

National Environmental Policy Act

    In compliance with all provisions of the National Environmental 
Policy Act (NEPA), we are analyzing the impact of this rule 
modification and will determine if there are any new significant 
impacts or effects caused by this rule. A draft environmental 
assessment will be prepared on this proposed action and will be 
available for public inspection and comments when completed. All 
appropriate NEPA documents will be finalized before this rule is 
finalized.

Government-to-Government Relationship With Tribes (Executive Order 
13175)

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have been coordinating with affected Tribes within the experimental 
population areas of Montana, Idaho, and Wyoming on this rule. We will 
fully consider all of the comments on the proposed special regulations 
that are submitted by Tribes and Tribal members during the public 
comment period and will attempt to address those concerns, new data, 
and new information where appropriate.

Energy Supply, Distribution or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211 
requiring agencies to prepare Statements of Energy Effects when 
undertaking certain actions that significantly affect energy supply, 
distribution, and use. This rule is not expected to significantly 
affect energy supplies, distribution, or use. Therefore, this action is 
not a significant energy action and no Statement of Energy Effects is 
required.

Clarity of the Rule

    Executive Order 12866 requires agencies to write regulations that 
are easy to understand. We invite comments on how to make this proposal 
easier to understand, including answers to questions such as the 
following: Are the requirements in the document clearly stated? Does 
the rule contain technical language or jargon that interferes with the 
clarity? Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.) aid or reduce its clarity? And is 
the description of the proposed rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the proposed rule? 
What else could we do to make the rule easier to understand? We 
requested that any comments about how we could make this rule easier to 
understand be sent to--Office of Regulatory Affairs, Department of the 
Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. People 
also could e-mail comments to <a href="/cdn-cgi/l/email-protection#2e6b565d4b4d6e47415d004a414700494158"><span class="__cf_email__" data-cfemail="db9ea3a8beb89bb2b4a8f5bfb4b2f5bcb4ad">[email protected]</span></a>. We will review all 
public comments and incorporate them in the final rule to make it 
easier to understand.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from our Helena office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend 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 Sec.  17.84 by amending paragraph (n) as follows:
    a. In paragraph (n)(3), revise the term ``unacceptable impact'' 
and, in alphabetical order, add the terms ``stock animal'' and 
``ungulate population or herd'', to read as set forth below; and
    b. In paragraph (n)(4), revise the first sentence following the 
heading and paragraph (n)(4)(v)(B), and add paragraph (n)(4)(xiii), to 
read as set forth below.


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (n) * * *
    (3) * * *
* * * * *
    Stock animal--A horse, mule, donkey, or llama used to transport 
people or their possessions.
    Unacceptable impact--State or Tribally determined impact to a wild 
ungulate population or herd, with wolves as one of the major causes of 
the population or herd not meeting established State or Tribal 
population or herd management goals. The State or Tribal determination 
must be peer-reviewed and reviewed and commented on by the public, 
prior to a final determination by the Service that an unacceptable 
impact has occurred, and that wolf removal is not likely to impede wolf 
recovery.
    Ungulate population or herd--An assemblage of wild ungulates living 
in a given area.
* * * * *
    (4) Allowable forms of take of gray wolves. The following 
activities, only in the specific circumstances described under this 
paragraph (n)(4), are allowed: Opportunistic harassment; intentional 
harassment; take on private land; take on public land; take in response 
to impacts on wild ungulate populations; take in defense of human life; 
take to protect human safety; take by designated agents to remove 
problem wolves; incidental take; take under permits; take per 
authorizations for employees of designated agents; take for research 
purposes; and take to protect stock animals and dogs. * * *
* * * * *
    (v) * * *
    (B) We must determine that such actions are science-based and will 
not reduce the wolf population in the State below 20 breeding pairs and 
200 wolves before we authorize lethal wolf removal.
* * * * *
    (xiii) Take to protect stock animals and dogs. Any legally present 
private citizen on private or public land may immediately take a wolf 
that is in the act of attacking the individual's legally present stock 
animal or dog, provided that there is no evidence of intentional 
baiting, feeding, or deliberate attractants of wolves. The citizen must 
be able to provide evidence of stock animals or dogs recently (less 
than 24 hours) wounded, harassed, molested, or killed by wolves, and we 
or our designated agents must be able to confirm that the stock animals 
or dogs were wounded, harassed, molested, or killed by wolves. To 
preserve evidence that the take of a wolf was conducted according to 
this rule, the citizen must not disturb the carcass and the area 
surrounding it. The take of any wolf without such evidence of a direct 
and immediate threat may be

[[Page 36949]]

referred to the appropriate authorities for prosecution.
* * * * *

    Dated: June 28, 2007.
Kevin Adams,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 07-3268 Filed 7-2-07; 11:20 am]
BILLING CODE 4310-55-P


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