[Federal Register Volume 88, Number 215 (Wednesday, November 8, 2023)]
[Rules and Regulations]
[Pages 77014-77039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24514]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2022-0100; FXES11130600000-223-FF06E00000]
RIN 1018-BG79


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of the Gray Wolf in Colorado

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), establish a 
nonessential experimental population (NEP) of the gray wolf (Canis 
lupus) in the State of Colorado, under the Endangered Species Act of 
1973, as amended (Act). The State of Colorado (Colorado Parks and 
Wildlife or CPW) requested that the Service establish an NEP in 
conjunction with their State-led gray wolf reintroduction effort. 
Establishment of this NEP provides for allowable, legal, purposeful, 
and incidental taking of the gray wolf within a defined NEP area while 
concurrently providing for the conservation of the species. The 
geographic boundary of the NEP is the entire State of Colorado. The 
best available data indicate that reintroduction of the gray wolf into 
Colorado is biologically feasible and will promote the conservation of 
the species.

DATES: This rule is effective December 8, 2023.

ADDRESSES: This final rule, public comments on our February 17, 2023, 
proposed rule, a final environmental impact statement, and the record 
of decision, are available on the internet at https://www.regulations.gov at Docket No. FWS-R6-ES-2022-0100.
    Information Collection Requirements: Written comments and 
suggestions on the information collection requirements may be submitted 
at any time to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), 
Falls Church, VA 22041-3803 (mail); or <a href="/cdn-cgi/l/email-protection#1851767e77475b777474587e6f6b367f776e"><span class="__cf_email__" data-cfemail="276e4941487864484b4b6741505409404851">[email protected]</span></a> (email). 
Please reference ``OMB Control Number 1018-BG79'' in the subject line 
of your comments.

FOR FURTHER INFORMATION CONTACT: Liisa Niva, Acting Field Supervisor, 
U.S. Fish and Wildlife Service, Colorado Ecological Services Field 
Office, 134 Union Boulevard, Suite 670, Lakewood, CO 80228; telephone 
303-236-4773. Individuals in the United States who are deaf, deafblind, 
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: The Service is establishing a nonessential 
experimental population (NEP) of the gray wolf (Canis lupus) in the 
State of Colorado, under section 10(j) of the Act.

Previous Federal Actions

    Please refer to the proposed section 10(j) rule for the gray wolf 
in Colorado published on February 17, 2023 (88 FR 10258), for a 
detailed description of previous Federal actions concerning this 
species.

Peer Review

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

Summary of Changes From the Proposed Rule

    As a result of comments, additional data received during the 
comment period, and additional analysis, several changes were made to 
the rule we proposed on February 17, 2023 (88 FR 10258). In this final 
rule, we:
    <bullet> Improved consistency with the State of Colorado's Wolf 
Restoration and Management Plan (State Plan) (CPW 2023b, entire) by 
clarifying that take of gray wolves attacking pets is not excepted but 
take of gray wolves that are attacking ``working dogs,'' or dogs that 
guard or herd livestock, is excepted.
    <bullet> Recognized the sovereignty of Tribal nations by adding a 
provision to allow take of gray wolves that are significantly impacting 
ungulate populations on Tribal reservation lands of the Ute Mountain 
Ute and Southern Ute Tribes in the State of Colorado.
    <bullet> Changed several terms: In regard to justification for 
written take authorization, ``shoot-on-sight'' is now ``depredation''; 
we have changed references in the proposed rule from ``problem wolves'' 
to ``depredating'' wolves; and ``sport hunting'' is now ``recreational 
harvest.''
    <bullet> Clarified that a ``designated agent'' is an employee of a 
Federal, State, or Tribal agency who is authorized or directed by the 
Service to conduct management activities for the gray wolf.
    <bullet> Removed the term ``relocate'' from the definition of 
``remove.''
    <bullet> Removed the term ``substantial income'' from the 
definition of ``livestock producer.''
    <bullet> Clarified that take would not be excepted if there is any 
evidence of baiting of gray wolves, including the use of unusual 
attractants, artificial feeding, or intentional feeding.

Summary of Comments and Recommendations

    In the proposed rule published on February 17, 2023 (88 FR 10258), 
we requested that all interested parties submit written comments on the 
proposal by April 18, 2023. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. We held 
public information meetings to present information and obtain feedback 
on March 14, 15, 16, 22, and 28, 2023. We issued news releases and 
posted them

[[Page 77015]]

on our website announcing the proposal and the dates of the public 
meetings. During the 60-day comment period, we received over 20,000 
separate comments associated with 4,290 pieces of correspondence, 
including form letters with multiple signatures, such as 1 
correspondence having 16,233 signatures.
    Below, we summarize the substantive comments pertinent to the 
rulemaking and our responses to those comments. We considered 
substantive comments to be those that provided information relevant to 
our requested action, such as data, pertinent anecdotal information, or 
opinions backed by relevant experience or information, and literature 
citations. Due to the similarity of many comments, we combined multiple 
comments into a single, synthesized comment for many issues. We 
considered nonsubstantive those comments that expressed a statement or 
opinion without providing supporting information or relevance, restated 
data or information that we already have but without an alternate 
perspective to consider, or were beyond the scope of our proposed 
action. Comments from peer reviewers, Federal agencies, State agencies, 
and Tribes are grouped separately. All substantive information provided 
during the comment periods has either been incorporated directly into 
this final determination or is addressed below. Appendix D of our final 
environmental impact statement provides a full summary report of our 
response to comments that we received on the proposed rule.

Peer Reviewer Comments

    As discussed in Peer Review above, we received comments on our 
proposed rule from four peer reviewers. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the contents of the proposed rule. We summarize 
substantive peer reviewer comments below.
    The peer reviewers generally concurred with our methods and 
conclusions and provided additional literature, information, 
clarifications, and suggestions to improve the final rule. For example, 
all four peer reviewers agreed that our description and analysis of the 
biology, habitat, population trends, conservation status, and 
distribution of the species is accurate and that our conclusions are 
accurate and supported by the provided evidence. Three peer reviewers 
shared that our proposed rule did not have any significant oversights, 
omissions, or inconsistencies, while one peer reviewer recommended that 
we more fully consider the dispersal and expansion capabilities of the 
species in terms of the geographic separation of the NEP. Three peer 
reviewers also recommended that we more fully explore the potential for 
individuals in the NEP to interact with the Mexican wolf (Canis lupus 
baileyi), and one peer reviewer commented that we should clarify 
whether the NEP would include Mexican wolves. In Comments from States, 
below, we have provided additional information regarding the Mexican 
wolf and clarified that this NEP applies only to the gray wolf. 
Finally, the peer reviewers provided additional literature for our 
consideration, such as an additional citation regarding the dispersal 
of the gray wolf into Colorado, and we incorporated the recommended 
literature, as needed. We address specific comments from the peer 
reviewers below.
    Comment: A peer reviewer suggested that we may have overestimated 
the ability for small, newly established populations of the gray wolf 
to withstand high rates of human-caused mortality due to life-history 
traits such as high reproductive potential and dispersal capabilities.
    Our response: In the past, reintroduced populations of the gray 
wolf in the Northern Rocky Mountains (NRM) population area demonstrated 
steady population growth despite low levels of human-caused mortality. 
However, in the final rule we have clarified that high levels of 
natural and human-caused mortality during the early establishment 
period may limit population growth and make the State of Colorado's 
gray wolf population goals more challenging (see Actions and Activities 
in Colorado That May Affect Introduced Gray Wolves, below).
    Comment: A peer reviewer commented that the proposed rule provides 
take provisions for gray wolves without addressing the possibility that 
unusual attractants, artificial feeding, or intentional feeding may 
have been involved.
    Our response: In the final rule, we have clarified that take would 
not be excepted if there is any evidence of baiting of gray wolves, 
including the use of unusual attractants, artificial feeding, or 
intentional feeding.
    Comment: A peer reviewer recommended that we more thoroughly 
discuss or define the State of Colorado's definition of success for 
their reintroduction efforts.
    Our response: In the final rule, we have summarized the State of 
Colorado's reintroduction objectives, as outlined in their management 
plan (CPW 2023b, entire), and clarified that our success objectives for 
the NEP are similar.

Federal Agency Comments

    One Federal agency, the U.S. Department of Agriculture (USDA) 
Forest Service, provided comments on the proposed rule:
    Comment: The USDA Forest Service indicated general support for the 
action but provided comments regarding the potential for gray wolves to 
disperse south out of the NEP.
    Response: We provide additional information regarding this issue in 
Comments From States, below. To summarize, any wolf originating from 
the Colorado NEP area and dispersing beyond its borders may be managed 
by the wolf management regulations established for that area or may be 
returned to the Colorado NEP area at least until the State of Colorado 
achieves its recovery goals for the gray wolf.

Comments From States

    We received comments from five State wildlife agencies and one 
State agriculture agency. The States that commented were generally 
supportive of the proposed rule. Three of the States expressed concern 
over reintroduced wolves dispersing out of the NEP and potentially 
interacting with the Mexican wolf and specifically requested research 
and scientific collection permits under section 10(a)(1)(A) of the Act 
to be able to return wolves to Colorado. The State of Colorado has 
agreed to accept the return of gray wolves to the State, until their 
recovery goals are achieved, at which time they will revisit this 
commitment (CPW 2023a). The State of Colorado's acceptance of returned 
gray wolves is to ensure that their restoration plan is successful. To 
help minimize potential interactions and to help protect Mexican wolf 
genetic integrity, we have simultaneously issued a section 10(a)1(A) 
permit to be held by the Service, which will authorize our designated 
agents to assist in the capture and return of wolves originating from 
the Colorado NEP.
    Comment: Commenters stated that the Mexican wolf was listed as a 
separate subspecies of gray wolf in 2015, and that this listing 
recognized the unique physical, ecological, and genetic differences of 
the Mexican wolves from all other gray wolves. The commenters stated 
that these unique differences occurred and evolved over time due to 
separation of Mexican wolves from the larger gray wolves to the north, 
so were concerned that the proposed release and establishment of an 
experimental

[[Page 77016]]

population of larger northern wolves in Colorado closer to the wild 
Mexican wolf population will dramatically increase the risk of strong 
and irreversible genetic swamping of the Mexican wolf.
    Our response: We recognize the unique characteristics of the 
Mexican wolf and the recovery efforts of our agency and the States of 
Arizona and New Mexico. We have simultaneously issued a section 
10(a)(1)(A) permit to allow our designated agents to capture gray 
wolves that venture out of the NEP so that they may be returned to 
Colorado. Additionally, we do not intend to initiate or allow adaptive 
introgression between gray wolves and Mexican wolves as part of the 
genetic management of Mexican wolves (87 FR 39357, July 1, 2022).
    Comment: A commenter suggested that we include information in the 
final rule about the State of Wyoming's predator management area, where 
licensing for lethal take is not needed.
    Our response: This rule applies only to management activities for 
the gray wolf that take place within the NEP's boundary in the State of 
Colorado, so we have not included additional information regarding 
activities in the State of Wyoming.
    Comment: A commenter recommended that the final rule provide 
assurances that the NEP wolves in Colorado will not be considered 
``sensitive species'' by other Federal agencies, such as the Bureau of 
Land Management or the USDA Forest Service.
    Our response: We do not have the authority to dictate which species 
receive sensitive species status under other Federal agencies' 
conservation frameworks.
    Comment: A commenter recommended that the final rule consider all 
gray wolves that may disperse into the State of Utah as part of the 
NEP, which could allow for their immediate capture and return to the 
State of Colorado.
    Our response: The exceptions provided in the rule are limited to 
the NEP area identified in the regulation (i.e. the State of Colorado). 
We use this boundary as a means to identify the NEP as required by our 
regulations. Any gray wolf that enters Utah will take on endangered 
status under the Act. Relocation of gray wolves to Colorado will be 
conducted under other authorities under the Act.
    Comment: A commenter stated that we inconsistently define 
``occupied range'' and that the State of Colorado's proposed 
reintroduction zones are within the species' current range.
    Our response: We have verified that we use the term ``occupied 
range'' consistently throughout the rule. Additionally, although two 
male gray wolves are known to occur within the State of Colorado, they 
do not meet the definition of a population or a pack, as explained in 
this preamble to the final rule, so the NEP is wholly geographically 
separate from other populations of the species.
    Comment: A commenter noted that the rule's requirement to report 
lethal or injurious take within 24 hours may be impractical due to the 
remoteness of some areas.
    Our response: In response to this comment, we added language to the 
reporting requirement to give additional time when necessary.
    Comment: A commenter noted that the rule should be consistent with 
CPW's State Plan (CPW 2023b, entire), which does not allow killing of a 
wolf that is attacking pets.
    Our response: We have updated the final rule accordingly, so that 
it does not provide an exception for take of gray wolves that are 
attacking pets. This change improves consistency with the State of 
Colorado's plan. Additionally, we have added a definition for ``working 
dogs'' and a take exception for gray wolves that are attacking working 
dogs that are guarding or herding livestock. Pets are typically under 
the immediate control of their owner, so the owner may 
opportunistically harass wolves if they are encountered.
    Comment: A commenter stated that annual reporting should be 
required for only 5 years post-reintroduction but did not provide any 
rationale or information to support this suggestion.
    Our response: The regulatory requirements under section 10(j) of 
the Act for designation of a nonessential experimental population 
require a process for periodic review and evaluation of success or 
failure of the release and the effect on recovery of the species. While 
annual reporting is not specifically required, we must continue to 
periodically assess the effects of the NEP on recovery for as long as 
the species is federally listed. We have determined that annual 
reporting is appropriate, because this frequency of reporting allows 
for more quickly adjusting management and responding to changing 
conditions.
    Comment: In the exception for take by landowners on their private 
land, the word ``their'' should be removed, because it would exclude 
the exception for individuals who lease private lands for livestock 
production but do not own the property.
    Our response: We have removed the term ``their'' from the 
exception, such that a lessee would also be able to protect their 
livestock under the exception.

Comments From Tribes

    We received one comment letter from a Tribe, the Southern Ute 
Indian Tribe. The Southern Ute Indian Tribe generally supports the 
action and provided comments that we summarize below along with our 
responses.
    Comment: The Southern Ute Indian Tribe requested that the final 
rule include a provision to take gray wolves if they are unacceptably 
reducing ungulate populations. The Tribe requested that we add this 
provision to recognize the sovereignty of Tribal nations and to be 
consistent with the State of Colorado's management plan (CPW 2023b, 
entire) that also recognizes Tribal sovereignty.
    Our response: In response to this comment, we added a provision to 
the rule to allow Tribes in the State of Colorado to take wolves that 
are having an unacceptable impact on wild ungulate herds or 
populations. However, the exception is limited to Tribal lands, does 
not include areas outside of Tribal reservation lands, and requires a 
science-based, peer-reviewed determination that the impacts to the 
ungulate populations are significant before take of gray wolves can be 
authorized.
    Comment: The Southern Ute Indian Tribe requested that wolf 
management options in the rule include the removal of problem wolves 
(which we are now referring to as ``depredating wolves'') from Tribal 
land upon request.
    Our response: The rule allows the Tribes to become designated 
agents, which will allow them to address wolf management issues. 
Additionally, we will be available to assist through education and 
training, and will continue to coordinate and assist the State and the 
Tribes to help resolve conflicts, as time and resources allow.

Public Comments

    Comment: Commenters both supported and opposed the provisions of 
the rule that would allow for the lethal control of gray wolves. Some 
commenters asked that we prohibit most forms of lethal take of gray 
wolves in the NEP, with some supporting lethal take only in defense of 
human life. Some commenters requested that the allowable take be more 
liberal, while others felt that lethal control can lead to less public 
respect and tolerance of wolves and may encourage more poaching. Some 
commenters

[[Page 77017]]

recommended several nonlethal measures to manage depredating wolves.
    Our response: The final rule recognizes that lethal take is a 
management tool for the gray wolf that may be necessary in specific 
situations, such as when nonlethal management actions are ineffective 
and may not resolve conflict. Nonlethal tools may be appropriate and 
effective in some situations, but their effectiveness depends on 
various characteristics of the area and individual livestock 
operations. For instance, many tools such as fladry (strips of fabric 
mounted along fencelines to deter wolves), radioactivated guard boxes, 
and electric fencing, are effective only in small, localized areas, and 
innovative tools, such as diversionary feeding, range riding, and 
hazing, have reduced wolf depredations in certain situations. We 
anticipate that lethal removal will be used as a last resort to balance 
conserving the species and preventing depredations.
    Comment: Commenters noted that the regulations for depredation 
(formerly called ``shoot-on-sight'' in the proposed rule) and 
opportunistic and intentional harassment are too vague and that key 
terms like ``harassing'' and ``molesting'' are not clearly defined.
    Our response: In the final rule, we have clarified the definition 
of ``in the act of attacking'' and provided examples of harassment 
activities. Our definition is consistent with section 3 of the Act and 
other section 10(j) rules. Additionally, the final rule now specifies 
the requirements to qualify for a ``depredation'' (called ``shoot-on-
sight'' in the proposed rule) authorization. The terms ``take,'' 
``harm,'' and ``harass'' are defined in section 3 of the Act, so we 
have not defined them in this rule.

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

Background

    We provide detailed background information on gray wolves in the 
lower 48 United States in a separate Gray Wolf Biological Report 
(Service 2020, entire) and the 2020 final rule to delist the two 
currently listed C. lupus entities under the Act (85 FR 69778, November 
3, 2020). Information in these documents is relevant to reintroduction 
efforts for gray wolves that may be undertaken in Colorado, and the 
report can be found along with this rule at https://www.regulations.gov 
in Docket No. FWS-R6-ES-2022-0100 (see Supplemental Documents). We 
summarize relevant information from these documents below.
Species Description
    Gray wolves are the largest wild members of the canid (dog) family, 
with adults ranging in weight from 18 to 80 kilograms (40 to 175 
pounds), depending on sex and geographic locale. Gray wolves are highly 
territorial, social animals that live and hunt in packs. They are well 
adapted to traveling fast and far in search of food, and to catching 
and eating large mammals. In North America, they are primarily 
predators of medium to large mammals, including deer, elk, and other 
species, and are efficient at shifting their diet to take advantage of 
available food resources (Service 2020, p. 6).
Historical and Current Range
    Gray wolves have a broad circumpolar range. In the lower 48 United 
States, the range and number of gray wolves declined significantly 
during the 19th and 20th centuries primarily due to humans killing 
wolves through poisoning, unregulated trapping and shooting, and 
government-funded wolf extermination efforts (Service 2020, pp. 9-14). 
When we first listed two subspecies of the gray wolf under the Act in 
1974, gray wolves had been eliminated from most of their historical 
range within the lower 48 United States. Outside of Alaska, wolves 
occurred in only 2 places within the lower 48 United States: An 
estimated 1,000 wolves persisted in northeastern Minnesota, and a 
small, isolated group of about 40 wolves occurred on Isle Royale, 
Michigan (Service 2020, pp. 12-14).
    During the years since the species was reclassified in 1978, gray 
wolves within the lower 48 United States expanded in distribution and 
increased in number (Service 2020, pp. 10, 14). Gray wolves within the 
lower 48 United States now exist primarily in two large, stable or 
growing metapopulations in two separate geographic areas in the lower 
48 United States--one in the western Great Lakes area of the Eastern 
United States and one in the Western United States (figure 1) (Service 
2020, p. 27). Subpopulations of gray wolves within each of these 
metapopulations are well-connected as evidenced by documented movements 
between States and high levels of genetic diversity (Service 2020, p. 
27). The western Great Lakes metapopulation consists of more than 4,200 
individuals broadly distributed across the northern portions of 
Michigan, Minnesota, and Wisconsin (Service 2020, p. 27). This 
metapopulation is also connected, via documented dispersals, to the 
large and expansive population of about 12,000-14,000 wolves in eastern 
Canada. As a result, gray wolves in the Great Lakes area do not 
function as an isolated metapopulation of 4,200 individuals in 3 
States, but rather as part of a much larger ``Great Lakes and Eastern 
Canada'' metapopulation (Service 2020, pp. 27-28).
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TR08NO23.023

BILLING CODE 4333-15-C
    Gray wolves in the Western United States are distributed across the 
NRM and into western Oregon, western Washington, northern California, 
and most recently in north-central Colorado (figure 1, above; Service 
2020, p. 28). Based on the most current abundance estimates of gray 
wolves, Idaho estimated 1,337 gray wolves inhabited the State as of 
August 2022 (Idaho Department of Fish and Game (IDFG) 2023, 
unpaginated), and Montana had an estimated 1,087 gray wolves at the end 
of 2022 (Parks et al. 2023, pp. 9-11). In addition, the most recent 
year-end minimum counts for 2022 indicated at least 338 gray wolves in 
Wyoming, 216 wolves in Washington, 178 wolves in Oregon, and 18 in 
California (California Department of Fish and Wildlife (CDFW) 2022, 
unpaginated; Oregon Department of Fish and Wildlife (ODFW) 2023, p. 2; 
Washington Department of Fish and Wildlife (WDFW) et al. 2023, pp. 2-3; 
Wyoming Game and Fish Department (WGFD) et al. 2023, p. 3).
    Until recently, only lone wolves had been confirmed in Colorado, 
beginning with a dispersing individual that died in 2004 from a vehicle 
collision (CPW 2023b, p. 4). A disperser from Wyoming was first 
documented in north-central Colorado during the summer of 2019 and 
paired up with another wolf during the winter of 2020-2021 (CPW 2023b, 
p. 4). This pair produced offspring in spring 2021, becoming the first 
documented reproductively active pack in Colorado in recent history. 
However, as of June 2023, only two males from this pack remain in 
Colorado (Eric Odell, pers. comm., CPW, June 26, 2023). The two 
individual wolves do not meet the definition of a population of gray 
wolves used by the Service for previous NEP designations in the NRM 
(i.e., two breeding pairs successfully raising at least two pups for 2 
consecutive years; Service 1994, appendix 8). In January of 2020, CPW 
personnel also confirmed at least six wolves traveling together in 
Moffatt County in northwestern Colorado (Service 2020, p. 9). Later 
that year, CPW personnel documented only one wolf in that area, and, at 
present, there is no indication that any wolf or wolves remain in that 
part of Colorado. As such, we do not consider any gray wolves currently 
found in Colorado to constitute a population.
Life Cycle
    Gray wolves are highly territorial social animals and group 
hunters, normally living in packs of 7 or fewer but sometimes attaining 
pack sizes of 20 or more (Service 2020, p. 6). Wolves reach sexual 
maturity at 1-4 years for males and 1-5 years for females (Mech et al. 
2016, entire; Wikenros et al. 2021, entire) and, once paired with a 
mate, may produce young annually until they are over 10 years old. 
Litters are born from early April into May and can range from 1 to 11 
pups but generally include 5 to 6 pups (Service 2020, p. 6). Normally a 
pack has a single litter annually, however, multiple litters have been 
documented in approximately 25 percent of packs annually in Yellowstone 
National Park (Stahler et al.

[[Page 77019]]

2020, p. 52). Offspring usually remain with their parents for 10-54 
months before dispersing (reviewed by Mech and Boitani 2003, p. 7; 
Jimenez et al. 2017, p. 1).
Habitat Use
    The gray wolf is highly adaptable and can successfully occupy a 
wide range of habitats provided adequate prey (primarily ungulates) 
exists and human-caused mortality is sufficiently regulated (Mech 2017, 
pp. 312-315). Wolf packs typically occupy and defend a territory of 33 
to more than 2,600 square kilometers (km\2\) (13 to more than 1,004 
square miles (mi\2\)), with territories tending to be smaller at lower 
latitudes (Mech and Boitani 2003, p. 163; Fuller et al. 2003, pp. 187-
188). The large variability in territory size is likely due to 
differences in pack size; prey size, distribution, and availability; 
lag time in population responses to changes in prey abundance; and 
variation in prey vulnerability (e.g., seasonal age structure in 
ungulates) (Mech and Boitani 2003, p. 163).
    To identify areas of suitable wolf habitat in the conterminous 
United States, researchers have used models that relate the 
distribution of wolves to characteristics of the landscape. These 
models have shown the presence of wolves is correlated with prey 
availability and density, livestock density, road density, human 
density, land ownership, habitat patch size, and forest cover 
(Mladenoff et al. 1995, pp. 284-292; Mladenoff et al. 1999, pp. 41-43; 
Carroll et al. 2003, entire; Carroll et al. 2006, p. 542; Oakleaf et 
al. 2006, pp. 558-559; Hanley et al. 2018, pp. 6-8).
    In the Western United States, habitat models have identified 
suitable wolf habitat in the northern Rocky Mountains, southern Rocky 
Mountains (including Colorado and Utah), the Cascade Mountains of 
Washington and Oregon, and a small portion of the northern Sierra 
Nevada (Bennett 1994, entire; Switalski et al. 2002, entire; Carroll et 
al. 2003, entire; Carroll et al. 2006, entire; Larsen and Ripple 2006, 
entire; Oakleaf et al. 2006, pp. 558-559; Maletzke et al. 2015, entire; 
ODFW 2015, entire; Ditmer et al. 2022, entire). Large blocks of 
suitable habitat have been identified in the central and southern Rocky 
Mountains but are currently unoccupied, with the exception of 
occasional dispersing wolves and two male wolves in north-central 
Colorado.
Movement Ecology
    Gray wolves rarely disperse before 10 months of age, and most 
commonly disperse between 1-3 years of age (Gese and Mech 1991, p. 
2949; Treves et al. 2009, entire; Jimenez et al. 2017, p. 589). 
Generally, by the age of 3 years, most wolves will have dispersed from 
their natal pack to locate social openings in existing packs or find a 
mate and form a new pack (Service 2020, p. 7). Dispersers may become 
nomadic and cover large areas as lone animals, or they may locate 
unoccupied habitats and members of the opposite sex to establish their 
own territorial pack (Jimenez et al. 2017, p. 589). Dispersal distances 
in North America typically range from 65 to 154 kilometers (km) (40 to 
96 miles) (Jimenez et al. 2017, p. 585), although dispersal distances 
of several hundred kilometers are occasionally reported (Jimenez et al. 
2017, p. 588). The ability to disperse long distances allows 
populations of gray wolves to quickly expand and recolonize vacant 
habitats provided rates of human-caused mortality are not excessive 
(e.g., Mech 1995, pp. 272-273; Boyd and Pletcher 1999, entire; Treves 
et al. 2009, entire; Jimenez et al. 2017, entire; Mech 2017, entire). 
However, the rate of recolonization can be affected by the extent of 
intervening unoccupied habitat between the source population and newly 
colonized area, as Allee effects (reduced probability of finding a mate 
at low densities) are stronger at greater distances from source 
populations (Hurford et al. 2006, p. 250; Stenglein and Van Deelen 
2016, entire).
Causes of Decline and Threats
    Targeted extirpation programs and unregulated, human-caused 
mortality was the primary factor that caused population declines of 
gray wolves across the lower 48 States during the late 1800s and early 
1900s. Although there are some places wolves are not likely to persist 
long term due to high human or livestock densities, the regulation of 
human-caused mortality has been a primary factor contributing to 
increased wolf abundance and distribution in the lower 48 States. 
Regulation of human-caused mortality has significantly reduced the 
number of wolf mortalities caused by humans, and, although illegal and 
accidental killing of wolves is likely to continue with or without the 
protections of the Act, at current levels those mortalities have had 
minimal impact on the abundance or distribution of gray wolves. The 
high reproductive potential of wolves, and their innate behavior to 
disperse and locate social openings or vacant suitable habitats, allows 
populations of gray wolves to withstand relatively high rates of human-
caused mortality (Service 2020, pp. 8-9). See Historical and Current 
Range and Habitat Use sections, above, for additional information.
Recovery Efforts to Date
    Following our 1978 reclassification of the species under the Act, 
our national wolf strategy focused on conservation of gray wolves in 
three regions: the western Great Lakes; the NRM; and Mexican wolves in 
the Southwest and Mexico. We drafted recovery plans and implemented 
recovery programs for gray wolves in these three regions (Service 1987, 
entire; Service 1992, entire; Service 2017, entire). The revised NRM 
Wolf Recovery Plan established recovery criteria for wolves in three 
recovery areas across Idaho, Montana, and Wyoming (Service 1987, 
entire), while the Recovery Plan for the Eastern Timber Wolf (Service 
1992, entire) addressed populations of gray wolves in the upper 
Midwest. Mexican wolves have been listed separately as an endangered 
subspecies of gray wolf since 2015 and are not addressed in this rule.
    The currently listed entity of gray wolf, to which the Colorado NEP 
belongs, includes all or parts of 44 States; this listed entity 
encompasses populations of gray wolves in the Great Lakes States of 
Minnesota, Michigan, and Wisconsin as well as wolves outside the 
delisted NRM in the Western United States. We have not included gray 
wolves outside the NRM and western Great Lakes in any recovery plan. 
However, as noted above, the presence of gray wolves in California, 
western Oregon, and western Washington, as well as the two remaining 
wolves in Colorado, is a result of dispersal and recolonization from 
core populations in the NRM in addition to reproduction and dispersal 
from resident packs in these States and neighboring Canadian provinces.
    There are no Federal recovery plans addressing wolf recovery in 
western States outside of Idaho, Montana, and Wyoming. However, the 
States of California, Colorado, Oregon, Washington, and Utah have 
demonstrated a commitment to wolf conservation by developing management 
plans or codifying laws and regulations that provide mechanisms to 
regulate wolf mortality, similar to most other species of wildlife 
managed under State authority. This includes the passage of a voter-led 
initiative in Colorado calling specifically for the reintroduction of 
gray wolves to the western portion of the State (Colorado Revised 
Statute 33-2-105.8). At the end of 2022, 10 packs of gray wolves 
(totaling at least 52 wolves and 6 breeding pairs) were

[[Page 77020]]

documented in western Washington where wolves are federally listed 
(WDFW et al. 2023, p. 17). In the western two-thirds of Oregon, where 
gray wolves are federally listed, there were a minimum of 38 wolves in 
10 groups (ODFW defines a group as 2 or more wolves traveling together 
(ODFW 2023, p. 4)); 4 of these groups were considered breeding pairs at 
the end of 2022 (ODFW 2023, pp. 5-6). Wolves originating from Oregon 
have also expanded their range into California, where a minimum of 18 
wolves in 3 packs were documented at the end of 2022 (CDFW 2022, 
entire).
    In addition to gray wolves found in the western States outside of 
the delisted NRM population, the Great Lakes metapopulation, consisting 
of more than 4,200 wolves, is broadly distributed across Minnesota, 
Michigan, and Wisconsin (Erb and Humpal 2022, entire; Wisconsin 
Department of Natural Resources (WI DNR) 2022, entire; Michigan 
Department of Natural Resources (MI DNR) 2023, entire). Recently, both 
Michigan and Minnesota updated their State wolf management plans (MI 
DNR 2022, entire; Minnesota Department of Natural Resources 2023, 
entire). The WI DNR recently revised their draft wolf management plan 
and will present it to their Natural Resource Board in October 2023 to 
determine next steps to finalize the plan (WI DNR 2023, entire).
    The NRM Wolf Recovery Plan was approved in 1980 (Service 1980, p. 
i) and revised in 1987 (Service 1987, p. i). The recovery goal for the 
NRM was reevaluated and, when necessary, modified as new scientific 
information warranted (Service 1987, p. 12; Service 1994, appendices 8 
and 9; Fritts and Carbyn 1995, p. 26; Bangs 2002, p. 1; 73 FR 10514, 
February 27, 2008; 74 FR 15123, April 2, 2009). The Service's resulting 
recovery goal for the NRM population of gray wolves was 30 or more 
breeding pairs, defined as an adult male and an adult female wolf that 
have produced at least 2 pups that survived until December 31 of the 
year of their birth during the previous breeding season (Service 1994), 
comprising at least 300 wolves equitably distributed among Idaho, 
Montana, and Wyoming for 3 consecutive years, with genetic exchange 
(either natural or, if necessary, agency managed) between 
subpopulations. To provide a buffer above these minimum recovery 
levels, each State was to manage for at least 15 breeding pairs and 150 
wolves in midwinter (77 FR 55530 at 55538-55539, September 10, 2012; 74 
FR 15123 at 15132, April 2, 2009). For additional information on NRM 
wolf recovery goals, see 74 FR 15123 (April 2, 2009) at pp. 15130-15135 
and references therein.
    Wolves in the NRM distinct population segment (DPS) have recovered 
and were delisted. The NRM population achieved its numerical and 
distributional recovery goals at the end of 2000 (Service et al. 2008, 
table 4). The temporal portion of the recovery goal was achieved in 
2002 when the numerical and distributional recovery goals were exceeded 
for the third successive year (Service et al. 2008, table 4). In 2009, 
we concluded that gray wolves in the NRM far exceeded recovery goals. 
We also concluded that the NRM population: (1) Had at least 45 
reproductively successful packs and 450 individual wolves each winter 
(near the low point in the annual cycle of a wolf population); (2) was 
equitably distributed within the 250,000-km\2\ (100,000-mi\2\) area 
containing 3 areas of large core refugia (National Parks, wilderness 
areas, large blocks of remote secure public land) and at least 170,228 
km\2\ (65,725 mi\2\) of suitable wolf habitat; and (3) was genetically 
diverse and had demonstrated successful genetic exchange through 
natural dispersal and human-assisted migration management between all 3 
core refugia (74 FR 15123, April 2, 2009). Gray wolves in the NRM 
remain well above the recovery goals established for this region (see 
Historical and Current Range, above).
Reintroduction
    To date, purposeful reintroduction of gray wolves to Colorado has 
not occurred; current wolf occupancy in Colorado is the result of 
natural wolf dispersal from the NRM population (Service 2020, pp. 15-
19, 28; see Historical and Current Range, above). The reintroduction of 
gray wolves in Idaho and Wyoming in the 1990s contributed to achieving 
the recovery goals for the NRM population in 2002 (Service et al. 
2008). For additional details on NRM reintroduction efforts, please see 
our biological report (Service 2020, entire) and Release Procedures in 
this document, below.

Regulatory Framework

    Section 9 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the prohibitions afforded to 
threatened and endangered species. Section 9 of the Act prohibits take 
of endangered wildlife. ``Take'' is defined by the Act as harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt 
to engage in any such conduct. Section 7 of the Act outlines the 
procedures for Federal interagency cooperation to conserve federally 
listed species and protect designated critical habitat. It mandates 
that all Federal agencies use their existing authorities to further the 
purposes of the Act by carrying out programs for the conservation of 
listed species. It also requires that Federal agencies, in consultation 
with the Service, ensure that any action they authorize, fund, or carry 
out is not likely to jeopardize the continued existence of a listed 
species or result in the destruction or adverse modification of 
designated critical habitat. Section 7 of the Act does not affect 
activities undertaken on private land unless they are authorized, 
funded, or carried out by a Federal agency.
    The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included 
the addition of section 10(j), which allows for populations of listed 
species planned to be reintroduced to be designated as ``experimental 
populations.'' The provisions of section 10(j) were enacted to 
ameliorate concerns that reintroduced populations will negatively 
impact landowners and other private parties, by giving the Secretary of 
the Interior greater regulatory flexibility and discretion in managing 
the reintroduced species to encourage recovery in collaboration with 
partners, especially private landowners. Under section 10(j) of the 
Act, and our implementing regulations at 50 CFR 17.81, the Service may 
designate as an experimental population a population of an endangered 
or threatened species that will be released into habitat that is 
capable of supporting the experimental population outside the species' 
current range. Under section 10(j) of the Act, we determine whether or 
not an experimental population is essential to the continued existence 
of the species based on the best available science. Our regulations 
define an essential population as one whose loss would be likely to 
appreciably reduce the likelihood of the survival of the species in the 
wild. All other experimental populations are to be classified as 
``nonessential'' (50 CFR 17.80(b)).
    We treat any population determined by the Secretary to be an 
experimental population as if we had listed it as a threatened species 
for the purposes of establishing protective regulations with respect to 
that population (50 CFR 17.82). The designation as an experimental 
population and treatment as a threatened species allows us to develop 
tailored ``take'' prohibitions that are necessary and advisable to 
provide for the conservation of the species. The protective regulations

[[Page 77021]]

adopted for an experimental population will contain applicable 
prohibitions, as appropriate, and exceptions for that population, 
allowing us discretion in devising management programs to provide for 
the conservation of the species.
    Section 7(a)(2) of the Act requires that Federal agencies, in 
consultation with the Service, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or adversely modify its critical habitat. For the 
purposes of section 7 of the Act, we treat an NEP as a threatened 
species when the population is located within a National Wildlife 
Refuge or unit of the National Park Service (50 CFR 17.83; see 16 
U.S.C. 1539(j)(2)(C)(i)). When NEPs are located outside of a National 
Wildlife Refuge or National Park Service unit, for the purposes of 
section 7, we treat the population as proposed for listing and only 
sections 7(a)(1) (50 CFR 17.83) and 7(a)(4) (50 CFR 402.10) of the Act 
apply (50 CFR 17.83). In these instances, NEPs provide additional 
flexibility in managing the nonessential population because Federal 
agencies are not required to consult with us under section 7(a)(2). 
Section 7(a)(1) requires all Federal agencies to use their authorities 
to carry out programs for the conservation of listed species. Section 
7(a)(4) requires Federal agencies to confer (rather than consult) with 
the Service on actions that are likely to jeopardize the continued 
existence of a species proposed to be listed. As a result, NEPs provide 
additional flexibility in managing the nonessential population.
    Section 10(j)(2)(C)(ii) of the Act states that critical habitat 
shall not be designated for any experimental population that is 
determined to be nonessential. Accordingly, we cannot designate 
critical habitat in areas where we establish an NEP.
    Before authorizing the release as an experimental population of any 
population (including eggs, propagules, or individuals) of an 
endangered or threatened species, and before authorizing any necessary 
transportation to conduct the release, the Service must find by 
regulation that such release will further the conservation of the 
species. In making such a finding the Service uses the best scientific 
and commercial data available to consider:
    (1) Any possible adverse effects on extant populations of a species 
as a result of removal of individuals, eggs, or propagules for 
introduction elsewhere (see Effects on Wild Populations, below);
    (2) The likelihood that any such experimental population will 
become established and survive in the foreseeable future (see 
Likelihood of Population Establishment and Survival, below);
    (3) The relative effects that establishment of an experimental 
population will have on the recovery of the species (see Effects of the 
NEP on Recovery Efforts, below);
    (4) The extent to which the introduced population may be affected 
by existing or anticipated Federal or State actions or private 
activities within or adjacent to the experimental population area (see 
Likelihood of Population Establishment and Survival, below); and
    (5) When an experimental population is being established outside of 
its historical range, any possible adverse effects to the ecosystem 
that may result from the experimental population being established.
    Furthermore, as set forth at 50 CFR 17.81(c), all regulations 
designating experimental populations under section 10(j) of the Act 
must provide:
    (1) Appropriate means to identify the experimental population, 
including, but not limited to, its actual or proposed location, actual 
or anticipated migration, number of specimens released or to be 
released, and other criteria appropriate to identify the experimental 
population (see Experimental Population and Experimental Population 
Regulation Requirements, below);
    (2) A finding, based solely on the best scientific and commercial 
data available, and the supporting factual basis, on whether the 
experimental population is, or is not, essential to the continued 
existence of the species in the wild (see Is the Experimental 
Population Essential or Nonessential?, below);
    (3) Management restrictions, protective measures, or other special 
management concerns for that population, which may include, but are not 
limited to, measures to isolate, remove, and/or contain the 
experimental population designated in the regulations from 
nonexperimental populations (see Management Restrictions, Protective 
Measures, and Other Special Management, below); and
    (4) A process for periodic review and evaluation of the success or 
failure of the release and the effect of the release on the 
conservation and recovery of the species (see Review and Evaluation of 
the Success or Failure of the NEP, below).
    Under 50 CFR 17.81(e), the Service must consult with appropriate 
State fish and wildlife agencies, affected Tribal governments, local 
governmental entities, affected Federal agencies, and affected private 
landowners in developing and implementing experimental population 
rules. To the maximum extent practicable, section 10(j) rules represent 
an agreement between the Service, the affected State and Federal 
agencies, Tribal governments, local governments, and persons holding 
any interest in land or water that may be affected by the establishment 
of an experimental population.

Experimental Population

    We are designating this NEP at the request of CPW, to facilitate 
their planned reintroduction of gray wolves to the State per the 
requirements of Proposition 114 (now codified as Colorado Revised 
Statute 33-2-105.8), which directs the CPW Commission to take the steps 
necessary to reintroduce gray wolves to lands west of the Continental 
Divide by December 31, 2023.

Reintroduction Areas and Release Sites

    The NEP area is the entire State of Colorado. This scale is 
appropriate, given that CPW has proposed a discrete release area 
(figure 2), and gray wolves have high dispersal ability (Jimenez et al. 
2017, p. 582). Furthermore, gray wolves released on the west side of 
the Continental Divide may move to locations beyond the western portion 
of the State, including east of the Continental Divide. Within the 
statewide NEP designation, CPW proposes to release gray wolves obtained 
from the delisted NRM population (Idaho, Montana, eastern Oregon, 
eastern Washington, Wyoming) at multiple sites west of the Continental 
Divide. Individual release sites will be located on private or State 
lands with high habitat suitability and low wolf-livestock conflict 
risk based on models developed by Ditmer et al. (2022, entire). All 
release sites will be located west of the Continental Divide (Colorado 
Revised Statute 33-2-105.8) (figure 2). CPW proposes to release a total 
of 10 to 15 wolves at a 50:50 sex ratio each year during winter for 3 
to 5 years (CPW 2023b, p. 20), although exact numbers and sex ratios 
may vary due to factors associated with capture from source populations 
(CPW 2023b, Appendix B, p. B-34). After initial releases are completed, 
CPW will monitor the success of reintroduction efforts and document 
wolf abundance and distribution annually to evaluate progress toward 
meeting State wolf recovery objectives (CPW 2023b, p. 22).

[[Page 77022]]

[GRAPHIC] [TIFF OMITTED] TR08NO23.024

Release Procedures

    CPW officials plan to capture wild gray wolves in cooperating 
States in the Western United States where wolves are federally delisted 
(Montana, Idaho, Wyoming, the eastern third of Washington and Oregon, 
and north-central Utah) using a combination of net gunning, helicopter 
darting, or trapping. Wolf captures will be conducted in accordance 
with approved protocols specific to each jurisdiction from which donor 
wolves are to come. Animals will be a mix of sex and age classes, with 
a sex ratio of 50:50 preferred, and ideally donor animals will be 
unrelated and of dispersing age (2 years and older). Each wolf selected 
for transport will be photographed, examined to evaluate condition and 
to obtain biological measurements and samples, tested for diseases, 
vaccinated for a wide variety of diseases, and treated for internal and 
external parasites. Additionally, wolves will be fitted with either a 
global positioning system (GPS) or a very high frequency (VHF) radio 
transmitter as well as other markers to assist with individual 
identification. Captured animals will be transported to Colorado in 
large, aluminum crates (similar to those used for wolf reintroduction 
in the NRM) by aircraft, ground transportation, or a mix of techniques, 
with a goal of releasing captured animals as quickly as possible to 
minimize time in captivity and capture-related stress. All animals will 
be ``hard released'' (released shortly after transport to 
reintroduction sites with no preconditioning; CPW 2021b, pp. 19-21) 
during winter (November through March), with no acclimation time 
between capture, transport, and release. The Final Report on Wolf 
Restoration Logistics Recommendations developed by the Colorado Wolf 
Restoration and Management Plan Technical Working Group (CPW 2021b, 
entire) provides additional details regarding the proposed release 
procedures.

Reintroduction Site Management

    As noted in Reintroduction Areas and Release Sites and Release 
Procedures above, the CPW plans to ``hard release'' gray wolves on 
State or private lands within a discrete release area (figure 2, 
above). Given that gray wolves released in this manner are more likely 
to disperse immediately from the release site rather than remain 
together at the site (CPW 2021b, entire), CPW does not plan to 
implement any special management practices at individual release sites. 
For additional information, please see the State of Colorado's Final 
Report on Wolf Restoration Logistics Recommendations (CPW 2021b, 
entire).

How will the NEP further the conservation of the species?

    Under 50 CFR 17.81(b), before authorizing the release as an 
experimental population, the Service must find by regulation that such 
release will further the conservation of the species. We explain our 
rationale for making our finding below. In making such a finding, we 
must consider effects on donor populations, the likelihood of 
establishment and survival of the experimental population, the effects 
that establishment of the experimental population will have on recovery 
of the species, and the extent to which the

[[Page 77023]]

experimental population will be affected by Federal, State, or private 
activities.

Effects on Wild Populations

    Our regulations at 50 CFR 17.81 require that we consider any 
possible adverse effects on extant populations of a species as a result 
of removal of individuals, eggs, or propagules for introduction 
elsewhere. The preferred donor population for the reintroduction of 
gray wolves to Colorado is the delisted NRM population. Gray wolves in 
these States are managed by State fish and wildlife agencies and 
Tribes. These wolves are an appropriate source for the Colorado 
reintroduction because they share similarities in habitat and preferred 
prey; one of the wolves in Colorado dispersed from the NRM population; 
and the NRM population reached numerical, spatial, and temporal 
recovery goals by the end of 2002 (Service 2020, p. 15; see Recovery 
Efforts to Date, above). The NRM wolf population continues to 
demonstrate stable to slightly increasing demographic trends with an 
estimated 1,337 wolves in Idaho as of August 2022 and slightly more 
than 1,800 wolves in Montana, Oregon, Washington, and Wyoming at the 
end of 2022 (IDFG 2023, unpaginated; ODFW 2023, p. 2; Parks et al. 
2023, pp. 9-11; WDFW et al. 2023, pp. 2-3; WGFD et al 2023, p. 3). 
Further, the NRM population is part of a larger metapopulation of 
wolves that encompasses all of Western Canada (Service 2020, p. 29). 
Given the demonstrated resilience and recovery trajectory of the NRM 
population and limited number of animals that will be captured for 
translocation, we expect negative impacts to the donor population to be 
negligible.

Likelihood of Population Establishment and Survival

    In our findings for designation of an NEP, we must consider if the 
reintroduced population will become established and survive in the 
foreseeable future. In this portion of the preamble, we address the 
likelihood that populations introduced into the NEP will become 
established and survive. In defining the experimental population 
boundary, we attempted to encompass the area where the population is 
likely to become established in the foreseeable future. The term 
``foreseeable future'' appears in the Act in the statutory definition 
of ``threatened species.'' However, the Act does not define the term 
``foreseeable future.'' Similarly, our implementing regulations 
governing the establishment of an NEP under section 10(j) of the Act 
use the term ``foreseeable future'' (50 CFR 17.81(b)(2)) but do not 
define the term. However, our implementing regulations at 50 CFR 
424.11(d) set forth a framework for evaluating the foreseeable future 
on a case-by-case basis.
    The term foreseeable future extends only so far into the future as 
we can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. While we use the term ``foreseeable future'' here in a 
different context (to determine the likelihood of population 
establishment and to establish boundaries for identification of the 
experimental population), we apply a similar conceptual framework. 
Analysis of the foreseeable future uses the best scientific and 
commercial data available and should consider the timeframes applicable 
to the relevant effects of release and management of the species and to 
the species' likely responses in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    For the purposes of this rule, we define the foreseeable future for 
our evaluation of the likelihood of survival and establishment as 
approximately 13 years, which reflects 3 wolf generations of 
approximately 4-4.5 years per generation (vonHoldt et al. 2008, p. 257; 
Mech et al. 2016, pp. 1,6), and the time horizon within which we can 
reasonably forecast population expansion of gray wolves in Colorado 
given the results of previous reintroduction efforts of gray wolves in 
the NRM. This timeframe is also similar to the amount of time it took 
wolves to begin recolonizing areas outside of the core of the NRM 
(Idaho, Montana, and Wyoming) in Oregon and Washington (Service 2020, 
p. 28).
    In evaluating the likelihood of establishment and survival of this 
NEP in the foreseeable future, we considered the extent to which causes 
of extirpation in the NEP area have been addressed, habitat suitability 
and prey availability within the NEP area, and existing scientific and 
technical expertise and experience with reintroduction efforts. As 
discussed below, we expect that gray wolves will become established 
during this time span, given the species' adaptability and dispersal 
ability.

Addressing Causes of Extirpation Within the Experimental Population 
Area

    Investigating the causes for the extirpation of gray wolves is 
necessary to understand whether we are sufficiently addressing threats 
to the species in the NEP so that reintroduction efforts are likely to 
be successful. The International Union for the Conservation of Nature's 
Guidelines for Reintroduction and Other Conservation Translocations 
(IUCN 2013, p. 4) identifies several criteria to consider prior to 
undertaking a reintroduction, including ``strong evidence that the 
threat(s) that caused any previous extinction have been correctly 
identified and removed or sufficiently reduced.'' Wolves depend on 
abundant prey (primarily ungulates) and can successfully colonize and 
occupy a wide range of habitats as long as human-caused mortality is 
adequately managed (Mech 2017, pp. 312-315). Historical wolf declines 
in Colorado resulted from purposeful efforts to eradicate the species 
by State and Federal authorities, primarily due to conflicts with 
domestic livestock production (Service 2020, pp. 9-14; see Habitat Use 
and Causes of Decline and Threats, above, for additional information). 
In 2004, CPW created a Wolf Management Working Group, largely in 
response to dispersal of wolves from the NRM population to Colorado and 
other western States. The working group developed a series of 
recommendations for wolf management in Colorado, including recognition 
of the ecological value of wolves and an intent to accept their 
presence in Colorado (Colorado Wolf Management Working Group 2004, p. 
3). The recommendations of the Wolf Management Working Group were 
formally adopted by the Colorado Wildlife Commission in 2005 and were 
reaffirmed by the CPW Commission in 2016 (85 FR 69778 at 69837, 
November 3, 2020).
    The State of Colorado currently classifies the gray wolf as an 
endangered species; this classification regulates take. The State of 
Colorado expanded its conservation efforts for gray wolves through the 
passage of Proposition 114 (now codified as Colorado Revised Statute 
33-2-105.8), which directs the CPW Commission to take the steps 
necessary to reintroduce gray wolves to lands west of the Continental 
Divide by December 31, 2023. Colorado Revised Statute 33-2-105.8 calls 
for the development and implementation of a Colorado Wolf Restoration 
and Management Plan, which was finalized

[[Page 77024]]

and approved by the CPW Commission in May 2023 (CPW 2023b, entire). The 
plan follows a phased approach whereby the conservation status of gray 
wolves is linked with numerical and temporal population targets (CPW 
2023b, pp. 24-25). Although agency-directed lethal control may be used 
to mitigate conflicts with specific individual wolves and/or packs that 
repeatedly depredate livestock, purposeful eradication of wolves in 
Colorado is no longer a tool used for wolf management. Lethal control 
may consist of removing wolves that repeatedly depredate on livestock, 
whereas purposeful eradication likely involves removal of all wolves 
within the State. Based on the elimination of purposeful eradication, 
and the fact that gray wolves are protected under State and Federal 
laws, we do not anticipate the original cause of wolf extirpation from 
Colorado to be repeated.

Habitat Suitability/Prey Availability

    Excluding occasional dispersing wolves and two known individual 
wolves presently in north-central Colorado, large blocks of gray wolf 
habitat in the central and southern Rocky Mountains are not currently 
occupied by gray wolves. Models developed to assess habitat suitability 
and the probability of wolf occupancy indicate that Colorado contains 
adequate habitat to support a population of gray wolves, although the 
number of wolves that the State could support varies among the models. 
One model estimated that the State could support between 407 and 814 
wolves based on prey and habitat availability (Bennett 1994, pp. 112, 
275-280).
    Carroll et al. (2003, entire) examined multiple models to evaluate 
suitable wolf habitat, occupancy, and the probability of wolf 
persistence given various landscape changes and potential increases in 
human density in the southern Rocky Mountains, which includes portions 
of southeastern Wyoming, Colorado, and northern New Mexico. Using a 
resource selection function (RSF) model developed for wolves in the 
Greater Yellowstone Ecosystem and projecting it to Colorado, Carroll et 
al. (2003, pp. 541-542) identified potential wolf habitat across north-
central and northwest Colorado and the southwestern part of the State. 
RSF model predictions indicate that Colorado could support an estimated 
1,305 wolves with nearly 87 percent of wolves occupying public lands in 
the State. Carroll et al. (2003, entire) also used a dynamic model that 
incorporated population viability analysis to evaluate occupancy of 
gray wolves and persistence based on current conditions as well as 
potential changes resulting from increased road and human densities in 
the future. The dynamic model based on current conditions predicted 
similar distribution and wolf population estimates as the RSF model; 
however, as predicted, as road and human densities increased in 
Colorado, the availability of suitable habitat and the estimated number 
of wolves that habitat could support declined (Carroll et al. 2003, pp. 
541-543).
    An analysis similar to that of Carroll et al. (2003, entire) was 
conducted for the entirety of the Western United States and indicated 
that high-quality wolf habitat exists in Colorado and Utah, but that 
wolves recolonizing Colorado and Oregon would be most vulnerable to 
landscape changes because these areas lack, and are greater distances 
from, large core refugia (Carroll et al. 2006, pp. 33-36). The authors 
proposed that habitat improvements, primarily in the form of road 
removal or closures, could mitigate these effects (Carroll et al. 2006, 
p. 36). Switalski et al. (2002, pp. 12-13) and Carroll et al. (2003, p. 
545) also cautioned that model predictions may be inaccurate because 
they did not account for the presence of livestock and the potential 
use of lethal removal to mitigate conflicts, which could affect the 
long-term persistence of wolves in some areas (Mech et al. 2019, 
entire).
    Recognizing the limitations of wolf habitat suitability models that 
do not account for the presence of livestock, Ditmer et al. (2022, 
entire) used voting records for proposition 114 in Colorado to quantify 
and map an index of tolerance for wolves and combined it with spatially 
explicit data on livestock distributions and land ownership to predict 
wolf conflict risk in Colorado (Ditmer et al. 2022, p. 1). Conflict 
risk was juxtaposed with estimates of wolf ecological suitability 
developed using seasonal prey densities along with environmental and 
anthropogenic features that influence wolf habitat use (Ditmer et al. 
2022, p. 1) to predict areas of high habitat suitability and increased 
conflict risk in summer and winter for gray wolves across Colorado. The 
models predicted over 58 million acres (23 million hectares) of 
potential suitable gray wolf habitat occurs on the western slope of 
Colorado. Approximately 56 percent of this total, or 32.5 million acres 
(13.2 million hectares) was considered suitable seasonal wolf habitat 
that contained high ecological suitability and low conflict risk 
(Ditmer et al. 2022, p. 11). However, approximately 14 percent, or 8.3 
million acres (3.4 million hectares), the majority of which occurs in 
the northern part of the western slope of Colorado, were identified as 
being potential conflict hotspots where significant overlap between 
ecological suitability and conflict risk was predicted (Ditmer et al. 
2022, pp. 9-11).
    Wolves can successfully occupy a wide range of habitats provided 
adequate prey exists (Mech 2017, pp. 312-315). Wolves in the Western 
United States rely on habitats containing large prey such as mule deer, 
elk, and moose (Smith et al. 2010, entire). CPW manages wild ungulate 
populations, such as moose, elk, bighorn sheep, and mule deer, etc., 
using herd management plans, which establish population objective 
minimums and maximums for each ungulate herd in the State (CPW 2020, 
entire). The herd management plans consider both biological and social 
factors when setting herd objective ranges (CPW 2020, entire). Like 
other Western States, mule deer in Colorado have declined due to a 
multitude of factors since the 1970s to a statewide post-hunt 
population estimate of 416,430 animals in 2021, which was well below 
the target statewide population objective of 484,100. In 2021, of 54 
mule deer herds in Colorado, 18 were below their population objective 
minimum with the western part of the State being the most affected. In 
contrast, elk populations in Colorado are stable with a 2021 post-hunt 
population estimate of 308,920 elk. Although 34 of 42 elk herds are 
within or above the population objective range, the ratio of calves per 
100 cows (a measure of overall herd fitness) has been on the decline in 
some southwestern herd units (CPW 2020, p. 7).
    Moose are not native to Colorado so, to create hunting and wildlife 
viewing opportunities, CPW transplanted moose to the State beginning in 
1978. Since then, they transplanted moose on four other occasions 
through 2010. The 2021 post-hunt moose population was estimated at 
3,510 animals and continues to increase as moose expand into new areas 
of Colorado. In summary, while deer and elk numbers are down from their 
peak populations in some parts of Colorado, they still number in the 
hundreds of thousands of individuals, and the State is actively 
managing populations to meet objectives (CPW 2020, entire). Introduced 
moose provide an additional potential food resource for wolves in some 
parts of the State. Therefore, wolf habitat and prey are suitable and 
abundant within the NEP area and would support population establishment 
and survival.

[[Page 77025]]

Reintroduction Expertise/Experience/Track Record

    Conservation efforts to reintroduce gray wolves to the NRM began in 
1995, with the reintroduction of wolves to portions of Idaho and 
Wyoming and the continued natural recolonization of wolves in 
northwestern Montana. Following their release, wolves rapidly increased 
in abundance and distribution in the region due to natural reproduction 
and the availability of high-quality, suitable wolf habitat in the NRM. 
Between 1995 and 2008, populations of gray wolves in the NRM increased 
an average of 24 percent annually, reaching 1,655 wolves by the end of 
2008 (Service et al. 2016, table 6b), while total mortality averaged 
approximately 16 percent annually between 1999 and 2008 (Service et al. 
2000-2009, entire). Wolf numbers and distribution in Idaho, Montana, 
and Wyoming stabilized after 2008 as suitable habitat became 
increasingly saturated (74 FR 15123 at 15160, April 2, 2009).
    Between 2009 and 2015, when gray wolves were managed primarily 
under State authority due to delisting (73 FR 10514, February 27, 2008; 
74 FR 15123, April 2, 2009; 76 FR 25590, May 5, 2011; 77 FR 55530, 
September 10, 2012), Idaho, Montana, and Wyoming began to manage wolves 
with the objective of reversing or stabilizing population growth while 
continuing to maintain populations well above Federal recovery targets 
for the NRM population. During this period, States began to use public 
harvest as a management tool to achieve State-specific management 
objectives. As a result, during those years when legal harvest 
occurred, total wolf mortality in the NRM increased to an average of 29 
percent of the minimum known population (Service et al. 2010-2016, 
entire), while population growth declined to an average of 
approximately 1 percent annually (Service et al. 2010-2016, entire). 
Although this mortality rate was significantly higher than mortality 
rates during the previous decade, the NRM population demonstrated an 
ability to sustain itself, consistent with scientific information 
demonstrating that the species' reproductive and dispersal capacity can 
compensate for a range of mortality rates (Service 2020, pp. 8-9).
    As of 2015, the final year of a combined NRM wolf count at the end 
of federally required post-delisting monitoring in Idaho and Montana, 
wolves in the NRM remained well above minimum recovery levels with a 
minimum known population of 1,704 wolves distributed across Idaho, 
Montana, and Wyoming. An additional 177 wolves were documented in the 
NRM portions of Oregon and Washington at the end of 2015. Wolves in the 
NRM continue to remain above minimum recovery levels, demonstrating 
availability of technical expertise to successfully reintroduce gray 
wolf populations. For more information regarding the success of 
reintroduction efforts in the NRM, please see Recovery Efforts to Date, 
above.
    Based on the success of past gray wolf reintroduction efforts in 
the NRM where biological recovery was achieved within 7 years, the 
availability of suitable wolf habitat and adequate wild ungulate prey 
in the NEP (see Habitat suitability/prey availability, above), the 
demonstrated resiliency of gray wolves in the United States, and the 
development of a comprehensive Gray Wolf Restoration and Management 
Plan in Colorado, the best available scientific data indicate that the 
reintroduction of gray wolves into suitable habitat in Colorado 
supports the likely success of establishment and survival of the 
reintroduced population, and the experimental population has a high 
likelihood of becoming established within the foreseeable future.

Effects of the NEP on Recovery Efforts

    We are designating an experimental population of gray wolf in 
Colorado to support CPW's planned effort to reintroduce gray wolves to 
the State of Colorado and to further the conservation of the currently 
listed 44-State entity. CPW developed a Gray Wolf Restoration and 
Management Plan for the reintroduction and management of gray wolves in 
the State, with the goal of restoring the species to Colorado in a 
phased approach to the point where it no longer needs protection under 
State statute (CPW 2023b, entire). This management plan focuses on the 
primary threat to gray wolf populations, which is human-caused 
mortality (e.g., Fuller et al. 2003, entire; Mech 2017, pp. 311-312; 
Hill et al. 2022, entire).
    As noted in Recovery Efforts to Date, above, populations of gray 
wolves in the 44-State listed entity number more than 4,300 individuals 
and occupy portions of California, Michigan, Minnesota, Oregon, 
Washington, and Wisconsin (CDFW 2022, unpaginated; Erb and Humpal 2022, 
unpaginated; WI DNR 2022, p. 4; ODFW 2023, p. 2; WDFW et al. 2023, pp. 
2-3). Two gray wolves are currently known to be present in Colorado, 
and they do not currently meet our definition of a gray wolf 
population, which is two breeding pairs of gray wolves that each 
successfully raise at least two young to December 31 of their birth 
year for 2 consecutive years (Service 1994). As explained above in 
Recovery Efforts to Date, there is no recovery plan that addresses the 
entire currently listed entity. In the absence of a recovery plan, we 
evaluate how the experimental population will contribute to the 
conservation of the species by considering the conservation biology 
principles of redundancy, resiliency, and representation.
    Reintroduction efforts in Colorado will provide additional 
redundancy and representation for the 44-State listed entity. 
Redundancy is the ability for the species to withstand catastrophic 
events, for which adaptation is unlikely, and is associated with the 
number and distribution of populations. Representation is the ability 
of a species to adapt to changes in the environment and is associated 
with its ecological, genetic, behavioral, and morphological diversity. 
Once established, the reintroduction in the NEP will improve redundancy 
by increasing the number of populations at the southern extent of the 
currently occupied range and representation by increasing the 
ecological diversity of the habitats occupied by the listed entity. For 
these reasons, reintroduction efforts undertaken by CPW will increase 
the redundancy and representation, and hence viability, of the 
currently listed 44-State entity (e.g., Smith et al. 2018).
    Previous NEP designations have conserved and recovered gray wolves 
in other regions of the United States, particularly in the NRM. 
Additional management flexibility, relative to the mandatory 
prohibitions covering nonessential experimental species under the Act, 
is expected to help address local, State, and Tribal concerns about 
wolf-related conflicts in Colorado, similar to those experienced in 
other NRM States. Addressing these concerns proactively may result in 
greater human acceptance of gray wolves and other species of concern. 
Based on past modeling efforts, it has been estimated that Colorado 
could biologically support approximately 400 to 1,200 wolves (Bennett 
1994, pp. 112, 275-280; Carroll et al. 2006, p. 33), but due to social 
constraints that could limit the distribution of wolves in the State 
(Ditmer et al. 2022, p. 12), the total number of wolves that Colorado 
could support may be slightly lower. Nonetheless, this action will 
contribute to the conservation of the listed entity by increasing 
redundancy and representation.

[[Page 77026]]

Actions and Activities in Colorado That May Affect Introduced Gray 
Wolves

    A large proportion of Colorado is composed of publicly owned 
Federal lands (approximately 36 percent; Congressional Research Service 
2020). Public lands include National Forests, National Parks, National 
Monuments, and National Wildlife Refuges, which comprise approximately 
63 percent of all public lands in Colorado. In addition, the Bureau of 
Land Management manages approximately 35 percent of public land in 
Colorado, much of which is located in the western portion of the State 
where reintroduction efforts for gray wolves will take place (figure 2, 
above). Although much of this public land is largely unavailable and/or 
unsuitable for intensive development and contains an abundance of wild 
ungulates, livestock grazing does occur on public lands in Colorado, 
which may increase the potential for mortality of gray wolves from 
lethal control of chronically depredating packs. However, in both 
Minnesota and the northern Rocky Mountains, lethal control of 
depredating wolves has had little effect on wolf distribution and 
abundance (Service 2020, p. 22; 85 FR 69778 at 69842, November 3, 
2020).
    Humans sparsely inhabit most of the NEP area containing suitable 
habitat for gray wolves. However, the NEP area contains human 
infrastructure and activities that pose some risk to success of the 
NEP. Risks include wolves killed as a result of mistaken identity, 
accidental capture during animal damage control activities, and high-
speed vehicular traffic. Human-caused mortality includes both 
controllable and uncontrollable sources of mortality. Controllable 
sources of mortality are discretionary, can be limited by the managing 
agency, and include permitted take, recreational harvest, and direct 
agency control. Sources of mortality that will be difficult to limit, 
or may be uncontrollable, occur regardless of population size and 
include things such as natural mortalities, illegal take, and 
accidental deaths (e.g., vehicle collisions, capture-related 
mortalities) (85 FR 69778, November 3, 2020). Although the effects of 
uncontrollable sources of mortality may be greatest for wolf 
populations that are small in size, which is most likely to occur 
during the early phases of recovery in Colorado, based on experiences 
with wolf recovery in the NRM (where uncontrollable sources of 
mortality were also present) and the availability of suitable habitat 
in Colorado, we expect that these sources of mortality will have 
minimal effect on gray wolf population growth and persistence in the 
State. If population levels and controllable sources of mortality are 
adequately regulated, the life-history characteristics of wolf 
populations provide natural resiliency to relatively high levels of 
human-caused mortality (85 FR 69778, November 3, 2020).
    In conjunction with previous reintroduction efforts, implementation 
of this final rule reflects continuing success in recovering gray 
wolves through longstanding cooperative and complementary programs by 
several Federal, State, and Tribal agencies. In particular, the 
stakeholder engagement process developed by CPW in support of its Gray 
Wolf Restoration and Management Plan (CPW 2023b, entire) development is 
broadly based and includes a diverse array of stakeholders in the 
State, which has helped to address potential adverse effects to gray 
wolves through Federal, State, or private actions. Therefore, Federal, 
State, or private actions and activities in Colorado that are ongoing 
and expected to continue are not likely to have significant adverse 
effects on gray wolves within the NEP area.

Experimental Population Regulation Requirements

    Our regulations at 50 CFR 17.81(c) include a list of what we should 
provide in regulations designating experimental populations under 
section 10(j) of the Act. We explain what our regulations include and 
provide our rationale for those regulations, below.

Means To Identify the Experimental Population

    Our regulations require that we provide appropriate means to 
identify the experimental population, which may include geographic 
locations, number of individuals to be released, anticipated movements, 
and other information or criteria. The Colorado NEP area encompasses 
the entire State. As discussed below, we conclude that after initial 
releases, any gray wolves found in Colorado will, with a high degree of 
likelihood, have originated from and be members of the NEP. However, we 
recognize that absent identifying tags or collars, it may be very 
difficult for members of the public to easily determine the origin of 
any individual gray wolf. Therefore, we will use geographic location to 
identify members of the NEP. As such, any gray wolf within the State of 
Colorado will be considered part of the NEP regardless of its origin. 
Similarly, any wolf outside of the State will take on the status of 
that location. For example, a wolf moving from Wyoming into Colorado 
will take on the NEP status, whereas a wolf moving from Colorado into 
Wyoming will take on a not-listed status, or endangered status if it 
moves into any other adjacent State.
    By the end of 2022, a minimum count of two wolves were known to 
occupy Colorado and do not constitute a population (see Historical and 
Current Range, above). While an adult female wolf dispersed from 
Wyoming to Colorado in 2019 to form half of the first reproductively 
active pack in the State in recent history, the origins of her mate are 
unknown. It is likely the male dispersed from the Greater Yellowstone 
area (approximately 480 km (300 miles) north and west of their current 
location), but his exact origin is uncertain (CPW 2021a, entire). The 
mean dispersal distance of male wolves in the NRM is 98.1 km (60 miles) 
(Jimenez et al. 2017, p. 585). The nearest known pack in Wyoming is 
more than 200 km (124 miles) from the Colorado border, which is more 
than two times the average dispersal distance for gray wolves. In 
addition, Wyoming manages gray wolves in northwestern Wyoming via a 
trophy management area, which restricts the number of gray wolves that 
can be harvested in that area. The southern extent of the trophy 
management area generally coincides with the southern extent of the 
gray wolf current range in the NRM (figure 1, above). Outside of the 
trophy management area, wolves are managed as predators and can be 
harvested at any time without a license and with no harvest limit. Gray 
wolf packs are unlikely to persist long term in portions of Wyoming 
where they are designated as predatory animals (85 FR 69778, November 
3, 2020), which further limits the ability for individuals to enter 
Colorado from Wyoming.
    Despite these challenges, it is possible that gray wolves 
dispersing from the NRM population could successfully enter the NEP. 
However, these movements would likely be infrequent given the NEP's 
distance from existing populations, and the normal dispersal distances 
for gray wolves. Additionally, the small numbers of individuals likely 
to occupy the NEP following the release and the sizable distances 
between populations makes any potential interaction between individuals 
or a merging of populations highly unlikely. Further, even if gray 
wolves from the NRM or other populations were to disperse into the NEP, 
the presence of one or a few individual dispersing gray wolves would 
not constitute a population, as described above.

[[Page 77027]]

Therefore, gray wolves reintroduced into Colorado will be wholly 
geographically separate from the delisted portion of the NRM population 
as well as the remainder of the currently listed 44-State entity. Based 
on this geographic separation, we conclude that any gray wolves found 
in Colorado after the initial release will, with a high degree of 
likelihood, be members of the NEP; therefore, we conclude that 
geographic location is an appropriate means to identify members of the 
NEP.
    As noted in Release Procedures, above, CPW plans to fit individual 
animals reintroduced to the Colorado NEP with GPS collars or a mix of 
GPS and VHF collars, with GPS preferred in the early stages of the 
reintroduction effort. Reintroduced wolves fitted with radio telemetry 
collars and other identifiable marks prior to release will enable CPW 
to determine if animals within Colorado are members of the reintroduced 
NEP and not extant wolves from other populations (e.g., the delisted 
NRM population). However, as reintroduced wolves begin to reproduce and 
disperse from Colorado packs, wolf abundance and distribution will 
increase in Colorado and the ability to capture and mark a high 
proportion of the population will decline. Given the challenges 
associated with marking a high number of wolves as the population 
increases and the distance from known packs in Wyoming and other 
populations of gray wolves, we will consider all gray wolves found in 
the State of Colorado to be members of the NEP.

Is the experimental population essential or nonessential?

    When we establish experimental populations under section 10(j) of 
the Act, we must determine whether or not that population is essential 
to the continued existence of the species. This determination is based 
solely on the best scientific and commercial data available. Our 
regulations (50 CFR 17.80(b)) state that an experimental population is 
considered essential if its loss would be likely to appreciably reduce 
the likelihood of survival of that species in the wild. We are 
designating the population of gray wolves in Colorado as nonessential 
for the following reason.
    Populations of gray wolves within the 44-state listed entity 
include the Great Lakes metapopulation and growing populations in 
California, Oregon, and Washington. Multiple large, growing, or stable 
metapopulations of gray wolves inhabiting separate and ecologically 
diverse areas ensure that the survival of the listed species does not 
rely on any single population. Therefore, the loss of the Colorado NEP 
would not be likely to appreciably reduce the likelihood of survival of 
the species in the wild, and we find that the Colorado NEP is not 
essential to the continued existence of the species.

Management Restrictions, Protective Measures, and Other Special 
Management

    We have included management measures to address potential conflicts 
between wolves and humans and wolves and livestock. Management of the 
nonessential experimental population would allow gray wolves in the NEP 
to be hazed, killed, or relocated by the Service or our designated 
agent(s) for livestock depredations. Under special conditions, the 
public may harass or kill wolves in the act of attacking livestock 
(defined below). We have also included an exception to allow nonlethal 
and lethal management of gray wolves that are having an unacceptable 
impact to ungulate herds or populations on Tribal lands (defined 
below). This exception requires a science-based proposal that must, at 
a minimum, include the following information: (1) the basis of ungulate 
population or herd management objectives; (2) data indicating that the 
ungulate herd is below management objectives; (3) what data indicate 
that wolves are a major cause of the ungulate population decline; (4) 
why wolf removal is a warranted solution to help restore the ungulate 
herd to management objectives; (5) the level and duration of wolf 
removal being proposed; (6) how ungulate population response to wolf 
removal will be measured and control actions adjusted for 
effectiveness; and (7) demonstration that attempts were and are being 
made to address other identified major causes of ungulate herd or 
population declines or of Tribal government commitment to implement 
possible remedies or conservation measures in addition to wolf removal.
    The proposal must be subjected to both public and peer review prior 
to it being finalized and submitted to the Service for review. At least 
three independent peer reviewers with relevant expertise in the subject 
matter that are not staff of the Tribe submitting the proposal must be 
used to review the proposal. Upon Service review, and before wolf 
removals can be authorized, the Service will evaluate the information 
provided by the requesting Tribe and provide a written determination to 
the requesting Tribal game and fish agency on whether such actions are 
scientifically based and warranted.
    As the lead agency for reintroduction efforts for gray wolves in 
Colorado, CPW will coordinate with the Service on releases, monitoring, 
and other tasks as needed to ensure successful reintroduction of the 
species to the State. Definitions pertaining to special management 
provisions are listed below:
    Depredating wolves--Gray wolves that have been confirmed by the 
Service or our designated agent as having depredated on livestock at 
least once within the last 30 days, and are routinely present and 
present a significant risk to the health and safety of livestock.
    Designated agent--An employee of a Federal, State, or Tribal agency 
that is authorized or directed by the Service to conduct gray wolf 
management consistent with this rule.
    The State of Colorado and Tribes within the State with wolf 
management plans also may become designated agents by submitting a 
request to the Service to establish a memorandum of agreement (MOA) 
under this rule. Once accepted by the Service, the MOA may allow the 
State of Colorado or Tribes within the State to assume lead authority 
for wolf conservation and management within their respective 
jurisdictions and to implement the portion of their State or Tribal 
wolf management plans that does not exceed the exceptions provided in 
this rule. The Service oversight (aside from Service law enforcement 
investigations) under an MOA is limited to monitoring compliance with 
this rule, issuing written authorizations for wolf take on reservations 
without wolf management plans, and an annual review of the State or 
Tribal program to ensure consistency with this rule. Under either a 
cooperative agreement or an MOA, no management outside the provisions 
of this rule is allowed unless we solicit additional public comment, 
and this rule is modified accordingly.
    Incidental take--Experimental population rules contain specific 
prohibitions and exceptions regarding the taking of individual animals 
under the Act. These rules are compatible with most routine human 
activities in the NEP area (e.g., resource monitoring, invasive species 
management, and research; see How Will the NEP Further the Conservation 
of the Species? above). Section 3(19) of the Act defines ``take'' as 
``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct.'' ``Incidental 
take'' is further defined as take that is incidental to, and

[[Page 77028]]

not the purpose of, the carrying out of an otherwise lawful activity. 
See table 1 below for additional details on incidental take of gray 
wolves within the NEP area.
    Intentional harassment--The deliberate and pre-planned harassment 
of wolves, including by less-than-lethal munitions that are designed to 
cause physical discomfort and temporary physical injury but not death. 
The term does not apply if there is evidence of unusual attractants or 
artificial or intentional feeding.
    Interagency consultation--For purposes of section 7(a)(2) of the 
Act, section 10(j) of the Act and our regulations (at 50 CFR 17.83) 
provide that nonessential experimental populations are treated as 
species proposed for listing under the Act except on National Park 
Service and National Wildlife Refuge System lands, where they are 
treated as threatened species for the purposes of section 7(a)(2) of 
the Act. Where actions may affect gray wolves within units of the 
National Wildlife Refuge system or National Park Service in Colorado 
the Service will coordinate with the National Park Service and National 
Wildlife Refuge system to address their section 7(a)(2) obligations.
    In the act of attacking--The actual biting, wounding, grasping, or 
killing of livestock or working 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. This definition does not apply if there 
is evidence of unusual attractants or artificial or intentional 
feeding.
    Landowner--An owner or lessee of private land, or their immediate 
family members, or the owner's employees, contractors, or volunteers 
who are currently employed to actively work on that private land. In 
addition, the owners (or their employees or contractors) of livestock 
that are currently and legally grazed on that private land and other 
leaseholders on that private land (such as outfitters or guides who 
lease hunting rights from private landowners), are considered 
landowners on that private land for the purposes of this regulation. 
Private land, under this rule, also includes all non-Federal land and 
land within Tribal reservations. Individuals legally using Tribal lands 
are considered landowners for the purposes of this rule.
    Livestock--Cattle, sheep, pigs, horses, mules, goats, domestic 
bison, and herding and guarding animals (alpacas, llamas, donkeys, and 
certain breeds of dogs commonly used for herding or guarding 
livestock). Livestock excludes dogs that are not being used for 
livestock guarding or herding.
    Livestock producer--A person who is actively engaged in farming/
ranching and receives income from the production of livestock.
    Non-injurious--Does not cause either temporary or permanent 
physical damage or death.
    Opportunistic harassment--Harassment without the conduct of prior 
purposeful actions to attract, track, wait for, or search out the wolf. 
Opportunistic harassment includes scaring wolves with noise (e.g., 
yelling or shooting firearms into the air), movement (e.g., running or 
driving toward the wolf), or objects (e.g., throwing a rock at a wolf 
or releasing bear pepper spray).
    Private land--All land other than that under Federal Government 
ownership and administration and including Tribal reservations.
    Public land--Federal land such as that administered by the National 
Park Service, U.S. Fish and Wildlife Service, Bureau of Land 
Management, USDA Forest Service, Bureau of Reclamation, Department of 
Defense, or other agencies with the Federal Government.
    Public land permittee--A person or that person's employee who has 
an active, valid Federal land-use permit to use specific Federal lands 
to graze livestock or operate as an outfitter or guiding business that 
uses livestock. This definition does not include private individuals or 
organizations who have Federal permits for other activities on public 
land such as collecting firewood, mushrooms, antlers, or Christmas 
trees, or logging, mining, oil or gas development, or other uses that 
do not require livestock. In recognition of the special and unique 
authorities of Tribes and their relationship with the U.S. Government, 
for the purposes of this rule, the definition includes Tribal members 
who legally graze their livestock on ceded public lands under 
recognized Tribal treaty rights.
    Relocation--Capture and movement to another location within the 
NEP.
    Remove--Place in captivity or kill.
    Research--Scientific studies resulting in data that will lend to 
enhancement of the survival of gray wolves.
    Rule--``This rule'' in the regulatory text refers to the NEP 
regulations.
    Tribal land--any lands where title is either held in trust by the 
United States for the benefit of an Indian Tribe or individual Indian 
or held by an Indian Tribe or individual Indian subject to restrictions 
by the United States against alienation (i.e., sale or transfer).
    Unacceptable impact--Tribally determined decline in a wild ungulate 
population or herd, where wolf predation is a major cause of the 
population or herd not meeting established Tribal management goals on 
Tribal land. The Tribal determination must be peer-reviewed and 
reviewed and commented on by the public prior to a final, written 
determination by the Service that an unacceptable impact has occurred 
and that wolf removal will benefit the affected ungulate herd or 
population.
    Working dogs--Guard or herding dogs used in livestock production.
    Wounded--Exhibiting scraped or torn hide or flesh, bleeding, or 
other evidence of physical damage caused by a wolf or wolves.

  Table 1--Allowable Forms of Take for Gray Wolves in the Colorado NEP
                                  Area
------------------------------------------------------------------------
                                       Description of provision in the
          Take provision                experimental population rule
------------------------------------------------------------------------
Take in defense of human life.....  Any person may take a wolf in
                                     defense of the individual's life or
                                     the life of another person. The
                                     unauthorized taking of a wolf
                                     without demonstration of an
                                     immediate and direct threat to
                                     human life may be referred to the
                                     appropriate authorities for
                                     prosecution.
Agency take of wolves determined    The Service, or our designated
 to be a threat to human life and    agents, may promptly remove (that
 safety.                             is, place in captivity or kill) any
                                     wolf determined by the Service or
                                     designated agent to be a threat to
                                     human life or safety.
Opportunistic harassment..........  Anyone may conduct opportunistic
                                     harassment of any gray wolf in a
                                     non-injurious manner at any time.
                                     Opportunistic harassment must be
                                     reported to the Service or our
                                     designated agent within 7 days.

[[Page 77029]]

 
Intentional harassment............  After the Service, or our designated
                                     agent, has confirmed wolf activity
                                     on private land or on a public land
                                     grazing allotment, the Service or
                                     our designated agent may issue
                                     written take authorization valid
                                     for not longer than 1 year to any
                                     landowner or public land permittee
                                     to intentionally harass wolves in a
                                     nonlethal, injurious manner. The
                                     harassment must occur in the area
                                     and under the conditions as
                                     specifically identified in the
                                     written take authorization.
                                     Intentional harassment must be
                                     reported to the Service or a
                                     designated agent within 7 days.
                                     This exception does not apply if
                                     there is evidence of unusual
                                     attractants or artificial or
                                     intentional feeding.
Taking wolves ``in the act of       Consistent with State or Tribal
 attacking'' livestock on PRIVATE    requirements, any landowner may
 land.                               take (injure or kill) a gray wolf
                                     in the act of attacking (wounding,
                                     harassing, molesting, or killing)
                                     livestock or working dogs on their
                                     private land. Any wolf taken in the
                                     act must be reported to the Service
                                     or our designated agent within 24
                                     hours. We will allow additional
                                     reasonable time if access to the
                                     site is limited. The carcass of any
                                     wolf taken and surrounding area
                                     must not be disturbed in order to
                                     preserve physical evidence that the
                                     livestock or working dogs were
                                     recently attacked by a wolf or
                                     wolves. The Service or our
                                     designated agent must be able to
                                     confirm that the livestock or dog
                                     were wounded, harassed, molested,
                                     or killed by a wolf or wolves. The
                                     taking of any wolf without such
                                     evidence may be referred to the
                                     appropriate authorities for
                                     prosecution. This exception to the
                                     prohibition on take does not apply
                                     if there is evidence of unusual
                                     attractants or artificial or
                                     intentional feeding.
Taking wolves ``in the act of       Consistent with State or Tribal
 attacking'' livestock on PUBLIC     requirements, any livestock
 land.                               producer and public land permittee
                                     who is legally using public land
                                     under a valid Federal land-use
                                     permit may take a gray wolf in the
                                     act of attacking their livestock or
                                     working dogs on the person's
                                     allotment or other area authorized
                                     for their use without prior written
                                     authorization from the Service. The
                                     Service or our designated agent
                                     must be able to confirm that the
                                     livestock or working dogs were
                                     wounded, harassed, molested, or
                                     killed by a wolf or wolves. The
                                     carcass of any wolf taken and the
                                     area surrounding it must not be
                                     disturbed to preserve physical
                                     evidence that the take was
                                     conducted according to this rule.
                                     Any person legally present on
                                     public land may immediately take a
                                     wolf that is in the act of
                                     attacking the individual's stock
                                     animal or working dog, provided
                                     conditions noted in taking of
                                     wolves in the act on private land
                                     are met. Any take or method of take
                                     on public land must be consistent
                                     with the rules and regulations on
                                     those public lands. Any lethal or
                                     injurious take must be reported to
                                     the Service or a designated agent
                                     within 24 hours. We will allow
                                     additional reasonable time if
                                     access to the site is limited. This
                                     exception to the prohibition on
                                     take does not apply if there is
                                     evidence of unusual attractants or
                                     artificial or intentional feeding.
Additional taking by private        At the Service's or our designated
 citizens on their PRIVATE land.     agents' direction, the Service or
                                     designated agent may issue a
                                     ``depredation'' written take
                                     authorization of limited duration
                                     (45 days or less) to a landowner or
                                     their employees to take up to a
                                     specified (by the Service or our
                                     designated agent) number of wolves
                                     on their private land if: (1) The
                                     landowner has had at least one
                                     depredation by wolves on livestock
                                     that has been confirmed by the
                                     Service or our designated agent
                                     within the last 30 days; and (2)
                                     the Service or our designated agent
                                     has determined that depredating
                                     wolves are routinely present on the
                                     private land and present a
                                     significant risk to the health and
                                     safety of livestock; and (3) the
                                     Service or our designated agent has
                                     authorized lethal removal of wolves
                                     from that same private land. These
                                     authorizations may be terminated at
                                     any time once threats have been
                                     resolved or minimized. Any lethal
                                     or injurious take must be reported
                                     to the Service or a designated
                                     agent within 24 hours. We will
                                     allow additional reasonable time if
                                     access to the site is limited. This
                                     exception does not apply if there
                                     is evidence of unusual attractants
                                     or artificial or intentional
                                     feeding.
Additional taking by grazing        At the Service's or our designated
 permittees on PUBLIC land.          agents' direction, the Service or
                                     designated agent may issue a
                                     ``depredation'' written take
                                     authorization of limited duration
                                     (45 days or less) to a public land
                                     grazing permittee to take up to a
                                     specified (by the Service or our
                                     designated agent) number of wolves
                                     on that permittee's active
                                     livestock grazing allotment if: (1)
                                     The grazing allotment has had at
                                     least one depredation by wolves on
                                     livestock that has been confirmed
                                     by the Service or our designated
                                     agent within the last 30 days; and
                                     (2) the Service or our designated
                                     agent has determined that
                                     depredating wolves are routinely
                                     present on that allotment and
                                     present a significant risk to the
                                     health and safety of livestock; and
                                     (3) the Service or our designated
                                     agent has authorized lethal removal
                                     of wolves from that same allotment.
                                     These authorizations may be
                                     terminated at any time once threats
                                     have been resolved or minimized.
                                     Any take or method of take on
                                     public land must be consistent with
                                     the rules and regulations on those
                                     public lands. Any lethal or
                                     injurious take must be reported to
                                     the Service or a designated agent
                                     within 24 hours. We will allow
                                     additional reasonable time if
                                     access to the site is limited. This
                                     exception does not apply if there
                                     is evidence of unusual attractants
                                     or artificial or intentional
                                     feeding.
Agency take of wolves that          The Service or our designated agent
 depredate livestock.                may carry out harassment, nonlethal
                                     control measures, relocation,
                                     placement in captivity, or lethal
                                     control of depredating wolves. The
                                     Service or our designated agent
                                     will consider: (1) Evidence of
                                     wounded livestock or working dogs
                                     or remains of livestock or working
                                     dogs that show that the injury or
                                     death was caused by wolves, or
                                     evidence that wolves were in the
                                     act of attacking livestock or
                                     working dogs; (2) the likelihood
                                     that additional wolf-caused losses
                                     or attacks may occur if no control
                                     action is taken; (3) evidence of
                                     unusual attractants or artificial
                                     or intentional feeding of wolves;
                                     and (4) evidence that animal
                                     husbandry practices recommended in
                                     approved allotment plans and annual
                                     operating plans were followed.
Incidental take...................  Any person may take a gray wolf if
                                     the take is incidental to an
                                     otherwise lawful activity, if
                                     reasonable due care was practiced
                                     to avoid such taking, and such
                                     taking is reported within 24 hours.
                                     We will allow additional reasonable
                                     time if access to the site is
                                     limited. Shooting a wolf as a
                                     result of mistaking it for another
                                     species is not considered
                                     incidental take and may be referred
                                     to the appropriate authorities for
                                     prosecution.
Permits for recovery actions that   Permits are available and required,
 include take of gray wolves.        except as otherwise allowed by this
                                     rule, for scientific purposes,
                                     enhancement of propagation or
                                     survival, educational purposes, or
                                     other purposes consistent with the
                                     Act (50 CFR 17.32).

[[Page 77030]]

 
Additional taking provisions for    Any Service employee or our
 agency employees and our            designated agent may take a gray
 designated agents.                  wolf from the NEP: (1) For take
                                     related to the release, tracking,
                                     monitoring, recapture, and
                                     management for the NEP; (2) to aid
                                     or euthanize sick, injured, or
                                     orphaned wolves or transfer to a
                                     licensed veterinarian for care; (3)
                                     to dispose of a dead specimen; (4)
                                     to salvage a dead specimen that may
                                     be used for scientific study; (5)
                                     to aid in law enforcement
                                     investigations involving wolves
                                     (collection of specimens for
                                     necropsy, etc.); or (6) to remove
                                     wolves with abnormal physical or
                                     behavioral characteristics, as
                                     determined by the Service or our
                                     designated agent, to prevent these
                                     gray wolves from passing on or
                                     teaching those traits to other
                                     wolves.
Take of gray wolves that are        This would allow nonlethal and/or
 contributing to unacceptable        lethal management of gray wolves
 impacts to wild ungulate            that are having an unacceptable
 populations or herds on Tribal      impact to wild ungulate herds or
 land.                               populations on Tribal lands. This
                                     exception requires Tribes to
                                     develop a science-based proposal
                                     that must, at a minimum, include
                                     the following information: (1) the
                                     basis of ungulate population or
                                     herd management objectives; (2)
                                     data indicating that the ungulate
                                     herd is below management
                                     objectives; (3) data indicating
                                     that wolves are a major cause of
                                     the ungulate population decline;
                                     (4) why wolf removal is a warranted
                                     solution to help restore the
                                     ungulate herd to management
                                     objectives; (5) the level and
                                     duration of wolf removal being
                                     proposed; (6) how ungulate
                                     population response to wolf removal
                                     will be measured and control
                                     actions adjusted for effectiveness;
                                     and (7) demonstration that attempts
                                     were and are being made to address
                                     other identified major causes of
                                     ungulate herd or population
                                     declines or of Tribal government
                                     commitment to implement possible
                                     remedies or conservation measures
                                     in addition to wolf removal. The
                                     proposal must be subjected to both
                                     public and peer review prior to it
                                     being finalized and submitted to
                                     the Service for review. At least
                                     three independent peer reviewers
                                     with relevant expertise in the
                                     subject matter that are not staff
                                     of the Tribe submitting the
                                     proposal must be used to review the
                                     proposal. Upon Service review, and
                                     before wolf removals can be
                                     authorized, the Service will
                                     evaluate the information provided
                                     by the requesting Tribe and provide
                                     a written determination to the
                                     requesting Tribal game and fish
                                     agency on whether such actions are
                                     scientifically based and warranted.
------------------------------------------------------------------------

Review and Evaluation of the Success or Failure of the NEP

    CPW plans to use ground and aerial monitoring techniques to 
document wolf reproductive success, abundance, and distribution in 
Colorado post-release. This information will be summarized in an annual 
report by CPW that describes wolf conservation and management 
activities that occurred in Colorado each calendar or biological year 
to evaluate progress toward achieving the State of Colorado's 
downlisting and recovery criteria. A copy of the report will be 
submitted annually to the Service by June 30th and posted on CPW's 
website. The annual report may include, but not be limited to, post-
release wolf movements and behavior; wolf minimum counts or abundance 
estimates; reproductive success and recruitment; territory use and 
distribution; cause-specific wolf mortalities; and a summary of wolf 
conflicts and associated management activities to minimize wolf 
conflict risk. For additional details, please see CPW 2021b (entire) 
and Release Procedures, above.
    The Service will evaluate Colorado's wolf reintroduction and 
management program in an annual summary report. Additionally, 5 years 
after the last reintroductions are completed, the Service will evaluate 
whether the wolf population is meeting the State's recovery goals and 
conservation of the species. During this evaluation, we will assess the 
reintroduction program and coordinate with CPW if it is determined that 
modifications to reintroduction protocols are necessary. We believe 
that 5 years after the reintroductions is a reasonable timeline for 
this evaluation because that timeline would allow for evaluation of the 
success of the management program and of wolf population growth and 
abundance in order to assess progress toward achieving the State of 
Colorado's recovery goals. If modifications to wolf monitoring and 
management activities are needed, the Service will coordinate closely 
with CPW to ensure progress toward achieving recovery goals while 
concurrently minimizing wolf-related conflicts in Colorado.

Other Considerations

    Above, we considered potential effects of the release on wild 
populations of the delisted NRM potential donor populations. We also 
considered potential effects of the release on the Mexican wolf. The 
number of gray wolves in Colorado could continue to grow and expand, 
which could increase the likelihood that gray wolves in Colorado 
disperse far enough south to encounter Mexican wolves. The timing and 
extent of any potential future contact are uncertain and difficult to 
project, but if contact were to occur, interbreeding is a concern for 
the Mexican wolf. If gray wolves come to occupy Mexican wolf recovery 
areas, these physically larger wolves are likely to dominate smaller 
Mexican wolves and quickly occupy breeding positions, as will their 
hybrid offspring. Hybrid population(s) thus derived will not contribute 
towards recovery of Mexican wolves because they will significantly 
threaten integrity of the listed entity (Odell et al. 2018, entire). 
However, potential inbreeding would be unlikely to have significant 
effects on the gray wolf, given the narrow geographic range in which 
such contact would likely occur relative to the species' overall range. 
Additionally, we do not intend to initiate or allow adaptive 
introgression between gray wolves and Mexican wolves as part of the 
genetic management of Mexican wolves (87 FR 39357, July 1, 2022). To 
help minimize interactions and protect Mexican wolf genetic integrity, 
we have simultaneously issued a section 10(a)(1)(A) permit to be held 
by the Service, which would authorize our designated agents to assist 
in the capture and return of wolves originating from the Colorado NEP.

Findings

    Based on the best scientific and commercial data available (in 
accordance with 50 CFR 17.81), we find that releasing gray wolves into 
the State of Colorado with the regulatory provisions in this rulemaking 
will further the conservation of the species in the currently listed 
44-State entity. The NEP status is appropriate for the introduced 
population; the potential loss of the experimental population would not 
appreciably reduce the likelihood of the survival of the species in the 
44-State listed entity since more than 4,600 wolves are distributed 
across at least 6 different States in the Western

[[Page 77031]]

United States and the western Great Lakes.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866, 13563, and 
14094)

    Executive Order (E.O.) 14094 reaffirms the principles of E.O. 12866 
and E.O. 13563 and states that regulatory analysis should facilitate 
agency efforts to develop regulations that serve the public interest, 
advance statutory objectives, and are consistent with E.O. 12866, E.O. 
13563, and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this final rule in a manner consistent with 
these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget will review all significant rules. OIRA 
has determined that this rule is not significant.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effect 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 an agency certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. 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.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    This rule is modeled after previous NEP designations in Idaho, 
Montana, and Wyoming that contributed to the recovery of gray wolves 
while allowing for the control and management of wolves that caused 
conflicts and economic impacts on livestock producers. The majority of 
gray wolves in the Western United States are part of the NRM 
population, which is no longer protected under the Act. Despite 
increased incidences of human-caused mortality in the NRM population 
after delisting, this population is stable to increasing.(Service 2020, 
pp. 14-19; 85 FR 69778, November 3, 2020).
    The State of Colorado has recognized the utility of NEP 
designations in reintroducing gray wolves while addressing the concerns 
of local, State, and Tribal governments, as well as private entities, 
and engaged in an extensive stakeholder outreach process to develop a 
State management plan with broad-based support (CPW 2022). This 
process, which involved a Stakeholder Advisory Group comprising a 
diverse array of stakeholders such as agricultural producers, hunting 
guides, wolf conservation advocates, and other interests and a 
Technical Working Group comprising gray wolf experts, assisted in the 
formulation of an impact-based management matrix and the overall 
Colorado Gray Wolf Management and Restoration Plan.
    The reduced restrictions on taking depredating wolves (see 
definition above under Management Restrictions, Protective Measures, 
and Other Special Management) in this rule, relative to endangered 
species that receive the full protections of sections 7 and 9 of the 
Act, will make the management of wolves easier and more effective, thus 
reducing the economic losses that result from depredation of wolves on 
livestock and guard animals and working dogs. Furthermore, a State 
program to compensate livestock producers who experience livestock 
losses caused by wolves is being developed and will be implemented upon 
CPW Commission approval. As a point of reference, compensation for 
livestock losses in Montana in 2021 totaled $103,815.95 (Parks et al. 
2022, p. 19), and compensation in Wyoming for 2022 totaled $187,382.00 
(WGFD et al. 2023, pp. 24). The potential effect on livestock producers 
in western States is very small, but more flexible wolf management will 
provide benefits to stakeholders and livestock producers by providing 
options to protect assets.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the comment period on the 
proposed rule (88 FR 10258, February 17, 2023) that may pertain to our 
consideration of the probably incremental economic impacts of this NEP 
designation. Based on this information, we affirm our certification 
that this NEP designation under section 10(j) of the Act will not have 
a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare statements of energy effects ``to the extent 
permitted by law'' when undertaking actions identified as significant 
energy actions (66 FR 28355, May 22, 2001). E.O. 13211 defines a 
``significant energy action'' as an action that (i) is a significant 
regulatory action under E.O. 12866 (or any successor order, including 
most recently E.O. 14094 (88 FR 21879, April 11, 2023)); and (ii) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This rule is not a significant 
regulatory action under E.O. 12866 or 14094. Therefore, this action is 
not a significant energy action, and there is no requirement to prepare 
a statement of energy effects for this action.

[[Page 77032]]

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This NEP designation 
for gray wolves in Colorado would not impose any additional management 
or protection requirements on the States or other entities. In general, 
a Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7).
    ``Federal intergovernmental mandate'' includes a regulation that 
``would impose an enforceable duty upon State, local, or Tribal 
governments'' with two exceptions. It excludes ``a condition of Federal 
assistance.'' It also excludes ``a duty arising from participation in a 
voluntary Federal program,'' unless the regulation ``relates to a then-
existing Federal program under which $500,000,000 or more is provided 
annually to State, local, and Tribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; Aid to Families with Dependent Children work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it would not impose a cost of $100 
million or more in any given year on local or State governments or 
private entities and it would not place additional requirements on any 
city, county, or other local municipalities. Therefore, a small 
government agency plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
determined that 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 of a listed species) and will not present a bar to all 
reasonable and expected beneficial use of private property. 
Additionally, because of the regulatory flexibility provided by NEP 
designations under section 10(j) of the Act, the increased flexibility 
provided by this rule for State or Tribal-led gray wolf management will 
reduce regulatory restrictions on private lands and will result in 
minor positive economic effects for a small percentage of livestock 
producers. Therefore, we conclude that this rulemaking for the gray 
wolf does not pose significant taking implications.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132, this rule does not have 
significant federalism effects. 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. CPW requested 
that we undertake this rulemaking to support the conservation of wolves 
in the 44-State entity and in Colorado and to provide increased take 
authority to resolve gray wolf conflicts, which will assist with 
conservation of the species. 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 affected. This rule operates to maintain the existing 
relationship between the States and the Federal Government and is being 
undertaken at the request of CPW. We cooperated with CPW and other 
State agencies in the preparation of this rule. 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 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule would not 
unduly burden the judicial system and would meet the requirements of 
sections (3)(a) and (3)(b)(2) of the Order. We are designating the NEP 
in accordance with the provisions of the Act. To assist the public in 
understanding the NEP, this rule presents the areas of the NEP on a map 
and the rule provides several options for the interested public to 
obtain more detailed location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule contains existing and new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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 OMB 
control number. The OMB previously reviewed the new information 
collection requirements contained in this rulemaking related to the 
establishment of an NEP of the gray wolf (Canis lupus) in the State of 
Colorado, under section 10(j) of the ESA and assigned OMB Control 
Number 1018-0189. OMB has previously approved the information 
collection requirements associated with permitting requirements 
associated with native endangered and threatened species, and 
experimental populations, and assigned OMB Control Number 1018-0094, 
``Federal Fish and Wildlife Permit Applications and Reports--Native 
Endangered and Threatened Species; 50 CFR parts 10, 13, and 17'' 
(expires January 31, 2024).
    Experimental populations established under section 10(j) of the 
Act, as amended, require information collection and reporting to the 
Service. We will collect information on the gray wolf NEP to help 
further the recovery of the species and to assess the success of the 
reintroduced populations. There are no forms associated with this 
information collection. The respondents notify us when an incident 
occurs, so there is no set frequency for collecting the information. 
Other Federal agencies provide us with the vast majority of the 
information on experimental populations under cooperative agreements 
for the conduct of the recovery programs. However, the public also 
provides some information to us. The new information collection

[[Page 77033]]

requirements identified below require approval by OMB:
    1. Appointment of designated agent--A designated agent is an 
employee of a Federal, State, or Tribal agency that is authorized or 
directed by the Service to conduct gray wolf management. A prospective 
designated agent submits a letter to the Service requesting designated 
agent status. The letter includes a proposal for the work to be 
completed, a list of individuals that may perform the work, and a 
resume (or similar) demonstrating qualifications of each individual to 
competently perform the work. The Service will then respond to the 
requester with a letter authorizing them to complete the work.
    2. Request for written take authorization--After receiving 
confirmation of wolf activity on private land or on a public land 
grazing allotment, we or the designated agent may issue written take 
authorization valid for not longer than 1 year, with appropriate 
conditions, to any landowner or public land permittee to intentionally 
harass wolves. The harassment must occur in the area and under the 
conditions as specifically identified in the written take 
authorization.
    3. Request for ``depredation'' written take authorization--The 
Service or designated agent may issue a ``depredation'' written take 
authorization of limited duration (45 days or fewer) to a landowner or 
their employees, or to a public land grazing permittee, to take up to a 
specified (by the Service or our designated agent) number of wolves.
    4. Reporting requirements--Except as otherwise specified in this 
rule or in an authorization, any take of a gray wolf must be reported 
to the Service, or our designated agent as follows (additional 
reasonable time will be allowed if access to the site is limited):
    a. Lethal take must be reported within 24 hours. We will allow 
additional reasonable time if access to the site is limited.
    b. Opportunistic or intentional harassment must be reported within 
7 days.
    c. Gray wolves taken into captivity for care or to be euthanized 
must be reported to the Service within 24 hours, or as soon as 
reasonably appropriate.
    5. Annual report--To evaluate progress toward achieving State 
downlisting and delisting criteria, CPW will summarize monitoring 
information in an annual report. The report, due by June 30 of each 
year, will describe wolf conservation and management activities that 
occurred in Colorado for as long as the gray wolf is federally listed 
during any portion of a calendar or biological year. The annual report 
will include, but not be limited to:
    <bullet> post-release wolf movements and behavior;
    <bullet> wolf minimum counts or abundance estimates;
    <bullet> reproductive success and recruitment;
    <bullet> territory use and distribution;
    <bullet> cause-specific wolf mortalities; and
    <bullet> a summary of wolf conflicts and associated management 
activities to minimize wolf conflict risk.
    6. Recovery or reporting of dead individuals and specimen 
collection from experimental populations--This type of information is 
for the purpose of documenting incidental or authorized scientific 
collection. Specimens are to be retained or disposed of only in 
accordance with directions from the Service. Most of the contacts with 
the public deal primarily with the reporting of sightings of 
experimental population animals, or the inadvertent discovery of an 
injured or dead individual.
    7. Proposal--Take of Gray Wolves on Tribal Lands (NEW in Final 
Rule)--The exception to allow take of gray wolves that are contributing 
to unacceptable impacts to wild ungulate population or herds on Tribal 
land requires Tribes to develop a science-based proposal that must, at 
a minimum, include the following information:
    <bullet> The basis of ungulate population or herd management 
objectives;
    <bullet> Data indicating that the ungulate herd is below management 
objectives;
    <bullet> Data indicating that wolves are a major cause of the 
ungulate population decline;
    <bullet> Why wolf removal is a warranted solution to help restore 
the ungulate herd to management objectives;
    <bullet> The level and duration of wolf removal being proposed;
    <bullet> How ungulate population response to wolf removal will be 
measured and control actions adjusted for effectiveness; and
    <bullet> Demonstration that attempts were and are being made to 
address other identified major causes of ungulate herd or population 
declines or of Tribal government commitment to implement possible 
remedies or conservation measures in addition to wolf removal. The 
proposal must be subjected to both public and peer review prior to it 
being finalized and submitted to the Service for review. At least three 
independent peer reviewers with relevant expertise in the subject 
matter that are not staff of the Tribe submitting the proposal must be 
used to review the proposal. Upon Service review, and before wolf 
removals can be authorized, the Service will evaluate the information 
provided by the requesting Tribe and provide a written determination to 
the requesting Tribal game and fish agency on whether such actions are 
scientifically based and warranted.
    We will use the information described above to assess the 
effectiveness of control activities and develop means to reduce 
problems with livestock where depredation is a problem. Service 
recovery specialists use the information to determine the success of 
reintroductions in relation to established recovery plan goals for the 
threatened and endangered species involved.
    Title of Collection: Endangered and Threatened Wildlife, 
Experimental Populations--Colorado Gray Wolf (50 CFR 17.84).
    OMB Control Number: 1018-0189.
    Form Numbers: None.
    Type of Review: New.
    Respondents/Affected Public: Individuals; private sector; and 
State/local/Tribal governments.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: Annually for annual report and on occasion 
for other requirements.
    Total Estimated Annual Non-Hour Burden Cost: None.

----------------------------------------------------------------------------------------------------------------
                                                      Number of                                           Total
                                         Number of     annual    Total annual                             annual
             Requirement                  annual      responses    responses    Average completion time   burden
                                        respondents     each                                              hours
----------------------------------------------------------------------------------------------------------------
Appointment of Designated Agent:
    Individuals......................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    Private Sector...................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    State/Local/Tribal Gov't.........             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
Request for Written Take
 Authorization:
    Individuals......................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).

[[Page 77034]]

 
    Private Sector...................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    State/Local/Tribal Gov't.........             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
Request for ``Depredation'' Written
 Take Authorization:
    Individuals......................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    Private Sector...................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    State/Local/Tribal Gov't.........             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
Reporting Requirement--Lethal Take:
    Individuals......................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    Private Sector...................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    State/Local/Tribal Gov't.........             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
Reporting Requirement--Opportunistic
 or Intentional Harassment:
    Individuals......................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    Private Sector...................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    State/Local/Tribal Gov't.........             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
Reporting Requirement--Captivity for
 Care or to be Euthanized:
    Individuals......................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    Private Sector...................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    State/Local/Tribal Gov't.........             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
Annual Report:
    Individuals......................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    Private Sector...................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    State/Local/Tribal Gov't.........             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
Notification--Recovery or Reporting
 of Dead Specimen and Specimen
 Collection:
    Individuals......................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    Private Sector...................             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
    State/Local/Tribal Gov't.........             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
Proposal--Take of Gray Wolves on
 Tribal Lands (NEW in Final Rule):
    State/Local/Tribal Gov't.........             1           1             1  30 min (reporting); 30          1
                                                                                min (recordkeeping).
                                      --------------------------------------------------------------------------
        Totals.......................            25  ..........            25  ........................       25
----------------------------------------------------------------------------------------------------------------

    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) How might the agency minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of response.
    We will accept and consider all public comments concerning the 
information collection requirements received in response to this final 
rule. Send your written comments and suggestions on this information 
collection to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), 
Falls Church, VA 22041-3803 (mail); or <a href="/cdn-cgi/l/email-protection#4f06212920100c2023230f29383c61282039"><span class="__cf_email__" data-cfemail="bdf4d3dbd2e2fed2d1d1fddbcace93dad2cb">[email protected]</span></a> (email). 
Please reference ``OMB Control Number 1018-BG79'' in the subject line 
of your comments.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have prepared a final environmental impact statement (FEIS) 
pursuant to the National Environmental Policy Act of 1969 (NEPA; 42 
U.S.C. 4321 et seq.) in connection with this rule to designate the 
Colorado nonessential experimental population of gray wolves. The 
purpose of the FEIS is to identify and disclose the environmental 
consequences resulting from the designation of the gray wolf in 
Colorado. The FEIS is an outgrowth of the public scoping process we 
conducted from July 21, 2022, to August 22, 2022, and the public and 
peer review comments we received on the draft environmental impact 
statement (DEIS) (see 88 FR 10318, February 17, 2023), and our February 
17, 2023, proposed rule (88 FR 10258). We used the FEIS, which we 
announced in the Federal Register on September 19, 2023 (88 FR 64399), 
to inform our final decision for this rulemaking.

Government-to-Government Relationship With Tribes

    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 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a government-to-government basis. We have considered possible 
effects of this rule on federally recognized Indian Tribes. In 
accordance with Secretaries'

[[Page 77035]]

Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act), we 
readily acknowledge our responsibilities to work directly with Tribes 
in developing programs for healthy ecosystems, to acknowledge that 
Tribal lands are not subject to the same controls as Federal public 
lands, to remain sensitive to Indian culture, and to make information 
available to Tribes. In July 2022, we sent notification letters to the 
Native American Tribes within and adjacent to the NEP about this rule, 
and to determine their interest in participating in Tribal consultation 
under Secretaries' Order 3206 for this action. We invited the Ute 
Mountain Ute and the Southern Ute Indian Tribes to serve as cooperating 
agencies in the development of the environmental impact statement. In 
October 2022, we provided an informational webinar to the interested 
Tribes and in January 2023, we participated in government-to-government 
consultation with the Southern Ute Indian Tribe. In February 2023, we 
participated in an informational meeting with the Ute Mountain Ute 
Indian Tribe. If future activities resulting from this rule may affect 
Tribal resources, the Service will communicate and consult on a 
government-to-government basis with any affected Native American Tribes 
in order to find a mutually agreeable solution.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Colorado Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the 
Colorado Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we hereby amend part 17, subchapter B of chapter I, 
title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.


0
2. Amend Sec.  17.11, in paragraph (h), by revising the entry for 
``Wolf, gray'' under Mammals in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                               Listing citations
           Common name              Scientific name         Where listed           Status       and applicable
                                                                                                     rules
----------------------------------------------------------------------------------------------------------------
                                                     Mammals
 
                                                  * * * * * * *
Wolf, gray......................  Canis lupus.......  U.S.A.: All of AL, AR,   E              32 FR 4001, 3/11/
                                                       CA, CT, DE, FL, GA,                     1967; 41 FR
                                                       IA, IN, IL, KS, KY,                     24062, 6/14/1976;
                                                       LA, MA, MD, ME, MI,                     43 FR 9607, 3/9/
                                                       MO, MS, NC, ND, NE,                     1978; 73 FR
                                                       NH, NJ, NV, NY, OH,                     75356, 12/11/
                                                       OK, PA, RI, SC, SD,                     2008; 74 FR
                                                       TN, TX, VA, VT, WI,                     47483, 9/16/2009;
                                                       and WV; and portions                    80 FR 9218, 2/20/
                                                       of AZ, NM, OR, UT, and                  2015; 50 CFR
                                                       WA as follows:                          17.95(a).\CH\
                                                      (1) Northern AZ (that
                                                       portion north of the
                                                       centerline of
                                                       Interstate Highway
                                                       40);.
                                                      (2) Northern NM (that
                                                       portion north of the
                                                       centerline of
                                                       Interstate Highway
                                                       40);.
                                                      (3) Western OR (that
                                                       portion of OR west of
                                                       the centerline of
                                                       Highway 395 and
                                                       Highway 78 north of
                                                       Burns Junction and
                                                       that portion of OR
                                                       west of the centerline
                                                       of Highway 95 south of
                                                       Burns Junction);
                                                      (4) Most of UT (that
                                                       portion of UT south
                                                       and west of the
                                                       centerline of
                                                       Interstate Highway 84
                                                       and that portion of UT
                                                       south of Interstate
                                                       Highway 80 from Echo
                                                       to the UT/WY
                                                       Stateline); and
                                                      (5) Western WA (that
                                                       portion of WA west of
                                                       the centerline of
                                                       Highway 97 and Highway
                                                       17 north of Mesa and
                                                       that portion of WA
                                                       west of the centerline
                                                       of Highway 395 south
                                                       of Mesa); Mexico.
Wolf, gray [Colorado XN]........  Canis lupus.......  U.S.A. (CO)............  XN             88 FR [Insert
                                                                                               Federal Register
                                                                                               page where the
                                                                                               document begins],
                                                                                               11/8/2023; 50 CFR
                                                                                               17.84(n).\10j\
Wolf, gray......................  Canis lupus.......  U.S.A. (MN)............  T              43 FR 9607, 3/9/
                                                                                               1978; 50 CFR
                                                                                               17.40(d);\4(d)\
                                                                                               50 CFR
                                                                                               17.95(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 77036]]


0
3. Amend Sec.  17.84 by adding paragraph (n) to read as follows:


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (n) Wolf, gray (Canis lupus). (1) Purpose. The regulations in this 
paragraph (n) set forth the provisions of a rule to establish an 
experimental population of gray wolves. The Service finds that 
establishment of an experimental population of gray wolves as described 
in this paragraph (n) will further the conservation of the species.
    (2) Determinations. The gray wolves identified in paragraph (n)(3) 
of this section constitute a nonessential experimental population (NEP) 
under Sec.  17.81(c)(2). These wolves will be managed in accordance 
with the provisions of this rule in the boundaries of the NEP area 
within the State of Colorado or any Tribal reservation found in the 
State that has a wolf management plan, as further provided in this 
rule. Furthermore, the State of Colorado or any Tribe within the State 
that has a wolf management plan consistent with this rule can request 
to assume the lead authority for wolf management under this rule within 
the borders of the NEP area in the State or reservation as set forth in 
paragraph (n)(10) of this section.
    (3) Designated area. The Colorado NEP area encompasses the entire 
State of Colorado. All gray wolves found in the wild within the 
boundary of the Colorado NEP area are considered nonessential 
experimental animals. Any gray wolf that is outside the Colorado NEP 
area, with the exception of wolves in the States of Idaho, Minnesota, 
Montana, Wyoming, and portions of the States of Oregon, Washington, and 
Utah, is considered endangered. Any wolf originating from the Colorado 
NEP area and dispersing beyond its borders may be managed by the wolf 
management regulations established for that area or may be returned to 
the Colorado NEP area.
    (4) Definitions. Key terms used in this rule have the following 
meanings:
    Depredating wolves--Gray wolves that have been confirmed by the 
Service or our designated agent as having depredated on livestock at 
least once within the last 30 days, and are routinely present and 
present a significant risk to the health and safety of livestock.
    Designated agent--An employee of a Federal, State, or Tribal agency 
that is authorized or directed by the Service to conduct gray wolf 
management consistent with this rule.
    Intentional harassment--The deliberate and pre-planned harassment 
of wolves, including by less-than-lethal munitions that are designed to 
cause physical discomfort and temporary physical injury but not death.
    In the act of attacking--The actual biting, wounding, grasping, or 
killing of livestock or working 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 working 
dogs is likely to occur at any moment.
    Landowner--Any of the following entities:
    (A) An owner or lessee of private land, or their immediate family 
members, or the owner's employees, contractors, or volunteers who are 
currently employed to actively work on that private land.
    (B) The owners, or their employees or contractors, of livestock 
that are currently and legally grazed on private land and herding and 
guarding animals (such as alpacas, llamas, or donkeys) and other 
leaseholders on private land, such as outfitters or guides who lease 
hunting rights from private landowners.
    (C) Individuals legally using Tribal lands in the State of 
Colorado.
    Livestock--Cattle, sheep, pigs, horses, mules, goats, domestic 
bison, and herding and guarding animals (alpacas, llamas, donkeys, and 
certain breeds of dogs commonly used for herding or guarding 
livestock). Livestock excludes dogs that are not being used for 
livestock guarding or herding.
    Livestock producer--A person who is actively engaged in farming/
ranching and receives income from the production of livestock.
    Non-injurious--Does not cause either temporary or permanent 
physical damage or death.
    Opportunistic harassment--Harassment without the conduct of prior 
purposeful actions to attract, track, wait for, or search out the wolf. 
Opportunistic harassment includes scaring wolves with noise (e.g., 
yelling or shooting firearms into the air), movement (e.g., running or 
driving toward the wolf), or objects (e.g., throwing a rock at a wolf 
or releasing bear pepper spray).
    Private land--All land other than that under Federal Government 
ownership and administration and including Tribal reservations.
    Public land--Federal land such as that administered by the National 
Park Service, U.S. Fish and Wildlife Service, Bureau of Land 
Management, Bureau of Reclamation, U.S. Department of Agriculture's 
Forest Service, Department of Defense, or other agencies within the 
Federal Government.
    Public land permittee--A person or that person's employee who has 
an active, valid Federal land-use permit to use specific Federal lands 
to graze livestock or operate an outfitter or guiding business that 
uses livestock and Tribal members who legally graze their livestock on 
ceded public lands under recognized Tribal treaty rights. This term 
does not include private individuals or organizations who have Federal 
permits for other activities on public land such as collecting 
firewood, mushrooms, antlers, or Christmas trees, logging, mining, oil 
or gas development, or other uses that do not require livestock.
    Relocation--Capture and movement to another location.
    Remove--Place in captivity or kill.
    Research--Scientific studies resulting in data that will lend to 
enhancement of the survival of the gray wolf.
    Rule--The regulations in this paragraph (n).
    Tribal land--Any lands where title is either held in trust by the 
United States for the benefit of an Indian Tribe or individual Indian 
or held by an Indian Tribe or individual Indian subject to restrictions 
by the United States against alienation (i.e., sale or transfer).
    Unacceptable impact--Tribally determined decline in a wild ungulate 
population or herd where wolf predation is a major cause of the 
population or herd not meeting established Tribal management goals on 
Tribal land. The Tribal determination must be peer-reviewed and 
reviewed and commented on by the public prior to a final, written 
determination by the Service that an unacceptable impact has occurred 
and that wolf removal will benefit the affected ungulate herd or 
population.
    Working dogs--Guard or herding dogs typically used in livestock 
production.
    Wounded--Exhibiting scraped or torn hide or flesh, bleeding, or 
other evidence of physical damage caused by a wolf.
    (5) Allowable forms of take of gray wolves. Take of gray wolves in 
the experimental population is allowed without a permit only in these 
specific circumstances: opportunistic harassment; intentional 
harassment; take in defense of human life; take to protect human 
safety; take by designated agents to remove depredating wolves; 
incidental take; take under any previously authorized permits issued by 
the Service; take per authorizations for employees of designated 
agents; take for research purposes; and take to protect livestock 
animals and working dogs. Consistent with the requirements of the State 
or

[[Page 77037]]

Tribe, take is allowed on private land. Take on public land is allowed 
as specified in paragraph (n)(5)(iv)(A) of this section. Other than as 
expressly provided by the regulations in this rule, all other forms of 
take are considered a violation of section 9 of the Act. Any wolf or 
wolf part taken legally must be turned over to the Service unless 
otherwise specified in this rule. Any take of wolves must be reported 
as set forth in paragraph (n)(6) of this section.
    (i) Opportunistic harassment. Anyone may conduct opportunistic 
harassment of any gray wolf in a non-injurious manner at any time. 
Opportunistic harassment must be reported to the Service or a 
designated agent within 7 days as set forth in paragraph (n)(6) of this 
section.
    (ii) Intentional harassment. After we or a designated agent have 
confirmed wolf activity on private land or a public land grazing 
allotment, we or the designated agent may issue written take 
authorization, with appropriate conditions, valid for not longer than 1 
year to any landowner or public land permittee to intentionally harass 
wolves. The harassment must occur in the area and under the conditions 
as specifically identified in the written take authorization. 
Intentional harassment must be reported to the Service or a designated 
agent(s) within 7 days as set forth in paragraph (n)(6) of this 
section. The provisions in this paragraph (n)(5)(ii) do not apply if 
there is evidence of unusual attractants or artificial or intentional 
feeding.
    (iii) Take by landowners on their private land. Landowners may take 
wolves on their private land in the following two additional 
circumstances:
    (A) Consistent with State or Tribal requirements, any landowner may 
take a gray wolf in the act of attacking livestock or working dogs on 
private land (owned or leased), provided that there is no evidence of 
intentional baiting, feeding, or deliberate attractants of wolves. To 
preserve physical evidence that the livestock or working dogs were 
recently attacked by a wolf or wolves, the carcass of any wolf taken 
and surrounding area must not be disturbed. The Service or designated 
agent must be able to confirm that the livestock or dogs were wounded, 
harassed, molested, or killed by wolves. The take of any wolf without 
such evidence of a direct and immediate threat may be referred to the 
appropriate authorities for prosecution.
    (B) The Service or designated agent may issue a ``depredation'' 
written take authorization of limited duration (45 days or fewer) to a 
landowner or their employees to take up to a specified (by the Service 
or our designated agent) number of wolves on their private land if:
    (1) The landowner has had at least one depredation by wolves on 
livestock that has been confirmed by the Service or our designated 
agent within the last 30 days; and
    (2) The Service or our designated agent has determined that 
depredating wolves routinely occur on the private land and present a 
significant risk to the health and safety of livestock; and
    (3) The Service or our designated agent has authorized lethal 
removal of wolves from those same private lands.
    (4) The authorizations set forth by this paragraph (n)(5)(iii)(B) 
may be terminated at any time once threats have been resolved or 
minimized.
    (iv) Take on public land. Consistent with State or Tribal 
requirements, any livestock producer and public land permittee (see 
definitions in paragraph (n)(4) of this section) who is legally using 
public land under a valid Federal land-use permit may, without prior 
written authorization, take a gray wolf in the act of attacking 
livestock or working dogs on the person's allotment or other area 
authorized for the person's use.
    (A) The Service or designated agent must be able to confirm that 
the livestock or working dog was wounded, harassed, molested, or killed 
by a wolf or wolves. To preserve physical evidence that the take was 
conducted according to this rule, the carcass of any wolf taken and the 
area surrounding it should not be disturbed. Any person legally present 
on public land may immediately take a wolf that is in the act of 
attacking the individual's livestock animal or working dog, provided 
conditions described in paragraph (n)(5)(iii)(A) of this section for 
private land (i.e., ``in the act of attacking'') are met. Any take or 
method of take on public land must be consistent with the laws and 
regulations on those public lands.
    (B) The Service or our designated agent may issue a ``depredation'' 
written take authorization of limited duration (45 days or fewer) to a 
public land grazing permittee to take up to a specified (by the Service 
or our designated agent) number of wolves on that permittee's active 
livestock grazing allotment if all of the following situations occur:
    (1) The grazing allotment has had at least one depredation by 
wolves on livestock that has been confirmed by the Service or our 
designated agent within the last 30 days; and
    (2) The Service or our designated agent has determined that 
depredating wolves routinely occur on that allotment and present a 
significant risk to the health and safety of livestock; and
    (3) The Service or our designated agent has authorized lethal 
removal of wolves from that same allotment.
    (4) The authorizations set forth by this paragraph (n)(5)(iv)(B) 
may be terminated at any time once threats have been resolved or 
minimized.
    (5) Any take or method of take on public land must be consistent 
with the rules and regulations on those public lands.
    (v) Agency take of wolves that depredate livestock. The Service or 
our designated agent may carry out harassment, nonlethal control 
measures, relocation, placement in captivity, or lethal control of 
depredating wolves. The Service or our designated agent will consider:
    (A) Evidence of wounded livestock or working dogs or remains of 
livestock or working dogs that show that the injury or death was caused 
by wolves, or evidence that wolves were in the act of attacking 
livestock or working dogs;
    (B) The likelihood that additional wolf-caused losses or attacks 
may occur if no control action is taken;
    (C) Any evidence of unusual attractants or artificial or 
intentional feeding of wolves; and
    (D) Evidence that animal husbandry practices recommended in 
approved allotment plans and annual operating plans were followed.
    (vi) Take in defense of human life. Any person may take a gray wolf 
in defense of the individual's life or the life of another person. The 
taking of a wolf without an immediate and direct threat to human life 
may be referred to the appropriate authorities for prosecution.
    (vii) Take to protect human safety. The Service or our designated 
agent may promptly remove any wolf that we or our designated agent 
determines to be a threat to human life or safety.
    (viii) Incidental take. Take of a gray wolf is allowed if the take 
is accidental and/or incidental to an otherwise lawful activity and if 
reasonable due care was practiced to avoid such take and such take is 
reported within 24 hours as set forth at paragraph (n)(6) of this 
section. We may refer incidental take that does not meet these 
provisions to the appropriate authorities for prosecution. Shooters 
have the responsibility to identify their target before shooting. 
Shooting a wolf as a result of mistaking it for another species is not 
considered incidental take and may be referred to the appropriate 
authorities for prosecution.

[[Page 77038]]

    (ix) Take under permits. Any person with a valid permit issued by 
the Service under 50 CFR 17.32, or our designated agent, may take 
wolves in the wild, pursuant to terms of the permit.
    (x) Additional take authorization for agency employees. When acting 
in the course of official duties, any employee of the Service or a 
designated agent may take a wolf, when necessary, in regard to the 
release, tracking, monitoring, recapture, and management of the NEP or 
to:
    (A) Aid or euthanize a sick, injured, or orphaned wolf and transfer 
it to a licensed veterinarian for care;
    (B) Dispose of a dead specimen;
    (C) Salvage a dead specimen that may be used for scientific study;
    (D) Aid in law enforcement investigations involving wolves 
(collection of specimens for necropsy, etc.); or
    (E) Remove wolves with abnormal physical or behavioral 
characteristics, as determined by the Service or our designated agent, 
from passing on or teaching those traits to other wolves.
    (F) Such take must be reported to the Service as set forth in 
paragraph (n)(6) of this section, and specimens are to be retained or 
disposed of only in accordance with directions from the Service.
    (xi) Take of gray wolves that are contributing to unacceptable 
impacts to wild ungulate populations or herds on Tribal land. This 
exception requires Tribes to develop a science-based proposal that 
must, at a minimum, include the following information:
    (A) The basis of ungulate population or herd management objectives;
    (B) Data indicating that the ungulate herd is below management 
objectives;
    (C) Data indicating that wolves are a major cause of the ungulate 
population decline;
    (D) Why wolf removal is a warranted solution to help restore the 
ungulate herd to management objectives;
    (E) The level and duration of wolf removal being proposed;
    (F) How ungulate population response to wolf removal will be 
measured and control actions adjusted for effectiveness; and
    (G) Demonstration that attempts were and are being made to address 
other identified major causes of ungulate herd or population declines 
or of Tribal government commitment to implement possible remedies or 
conservation measures in addition to wolf removal.
    (H) The proposal described in this paragraph (n)(5)(xi) must be 
subjected to both public and peer review prior to being finalized and 
submitted to the Service for review. Peer review must include at least 
three independent peer reviewers with relevant expertise in the subject 
matter who are not staff of the Tribe submitting the proposal. Before 
wolf removals can be authorized, the Service will evaluate the 
information in the proposal and provide a written determination to the 
requesting Tribal game and fish agency on whether such actions are 
scientifically based and warranted.
    (xii) Take for research purposes. Permits are available and 
required, except as otherwise allowed by this rule, for scientific 
purposes, enhancement of propagation or survival, educational purposes, 
or other purposes consistent with the Act (50 CFR 17.32). Scientific 
studies should be reasonably expected to result in data that will lead 
to development of sound management of the gray wolf and to enhancement 
of its survival as a species.
    (6) Reporting requirements. Except as otherwise specified in this 
rule or in an authorization, any take of a gray wolf must be reported 
to the Service or our designated agent as follows: Lethal take must be 
reported within 24 hours, and opportunistic or intentional harassment 
must be reported within 7 days. We will allow additional reasonable 
time if access to the site is limited.
    (i) Report any take of wolves, including opportunistic harassment 
or intentional harassment, to U.S. Fish and Wildlife Service, Colorado 
Ecological Services Field Office Supervisor (134 Union Boulevard, Suite 
670, Lakewood, Colorado 80225; <a href="/cdn-cgi/l/email-protection#f0b39f9c9f8291949fb5a3b0968783de979f86"><span class="__cf_email__" data-cfemail="1b58747774697a7f745e485b7d6c68357c746d">[email protected]</span></a>), or a Service-
designated agent of another Federal, State, or Tribal agency.
    (ii) Unless otherwise specified in this paragraph (n), any wolf or 
wolf part taken legally must be turned over to the Service, which will 
determine the disposition of any live or dead wolves.
    (7) Prohibitions. Take of any gray wolf in the NEP is prohibited, 
except as provided in paragraphs (n)(5) and (8) of this section. 
Specifically, the following actions are prohibited by this rule:
    (i) No person shall possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any wolf or part thereof 
from the experimental population taken in violation of the regulations 
in this paragraph (n) or in violation of applicable State or Tribal 
fish and wildlife laws or regulations or the Act.
    (ii) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed any offense defined in this 
paragraph (n).
    (8) Monitoring. Gray wolves in the NEP area will be monitored by 
radio telemetry or other standard wolf population monitoring techniques 
as appropriate. Any animal that is sick, injured, or otherwise in need 
of special care may be captured by authorized personnel of the Service 
or our designated agent and given appropriate care. Such an animal will 
be released back into its respective area as soon as possible, unless 
physical or behavioral problems make it necessary to return the animal 
to captivity or euthanize it. If a gray wolf is taken into captivity 
for care or is euthanized, it must be reported to the Service within 24 
hours or as soon as reasonably appropriate.
    (9) Review and evaluation of the success or failure of the NEP. 
Radio transmitters, remote cameras, surveys of roads and trails to 
document wolf sign, and other monitoring techniques will be used to 
document wolf reproductive success, abundance, and distribution in 
Colorado post-release.
    (i) To evaluate progress toward achieving State downlisting and 
delisting criteria, the State of Colorado will summarize monitoring 
information in an annual report. The report, due by June 30 of each 
year, will describe wolf conservation and management activities that 
occurred in Colorado for as long as the gray wolf is federally listed 
during any portion of a calendar or biological year. The annual report 
may include, but not be limited to: post-release wolf movements and 
behavior; wolf minimum counts or abundance estimates; reproductive 
success and recruitment; territory use and distribution; cause-specific 
wolf mortalities; and a summary of wolf conflicts and associated 
management activities to minimize wolf conflict risk.
    (ii) To assess the reintroduction program, the Service will 
evaluate Colorado's wolf reintroduction and management program in a 
summary report each year that wolf reintroductions occur in the State 
and for a minimum of 5 years after reintroductions are complete. If the 
Service determines that modifications to reintroduction protocols and 
wolf monitoring and management activities are needed, the Service will 
coordinate closely with the State to ensure progress toward achieving 
their State recovery goals while concurrently minimizing wolf-related 
conflicts in Colorado.
    (10) Memorandum of Agreement (MOA). The State of Colorado or any 
Tribe within the State, subject to the terms of this rule, may request 
an MOA from the Service to take over lead management responsibility and 
authority to implement this rule by managing the nonessential 
experimental gray wolves in the State or on a Tribal reservation, and 
implement all parts of

[[Page 77039]]

their State or Tribal plan that are consistent with this rule, provided 
that the State or Tribe has a wolf management plan approved by the 
Service.
    (i) The State or Tribal request for wolf management under an MOA 
must demonstrate:
    (A) That authority and management capability reside in the State or 
Tribe to conserve the gray wolf throughout the geographical range of 
the experimental population within the State of Colorado or within the 
Tribal reservation;
    (B) That the State or Tribe has an acceptable conservation program 
for the gray wolf, throughout the NEP area within the State or Tribal 
reservation, including the requisite authority and capacity to carry 
out that conservation program;
    (C) Exactly what parts of the State or Tribal plan the State or 
Tribe intends to implement within the framework of this rule; and
    (D) That the State or Tribal management progress will be reported 
to the Service on at least an annual basis so the Service can determine 
if State or Tribal management was conducted in full compliance with 
this rule.
    (ii) The Service will approve such a request upon a finding that 
the applicable criteria are met and that approval is not likely to 
jeopardize the continued existence of the gray wolf.
    (iii) If the Service approves the request, the Service will enter 
into an MOA with the State or Tribe.
    (iv) An MOA for State or Tribal management as provided in this rule 
may allow the State of Colorado or any Tribe within the State to become 
designated agents and lead management of the nonessential experimental 
gray wolf population within the borders of their jurisdictions in 
accordance with the State's or Tribe's wolf management plan, except 
that:
    (A) The MOA may not provide for any form of management inconsistent 
with the protection provided to the species under this rule, without 
further opportunity for appropriate public comment and review and 
amendment of this rule.
    (B) The MOA cannot vest the State of Colorado or any Tribe within 
the State with any authority over matters concerning section 4 of the 
Act (determining whether a species warrants listing).
    (C) In the absence of a Tribal wolf management plan or cooperative 
agreement, the MOA cannot vest the State of Colorado with the authority 
to issue written authorizations for wolf take on reservations. The 
Service will retain the authority to issue these written authorizations 
until a Tribal wolf management plan is developed.
    (D) The MOA for State or Tribal wolf management must provide for 
joint law enforcement responsibilities to ensure that the Service also 
has the authority to enforce the State or Tribal management program 
prohibitions on take.
    (E) The MOA may not authorize wolf take beyond that stated in the 
rule but may be more restrictive.
    (v) The authority for the MOA will be the Act, the Fish and 
Wildlife Act of 1956 (16 U.S.C. 742a-742j), and the Fish and Wildlife 
Coordination Act (16 U.S.C. 661-667e), and any applicable treaty.
    (vi) In order for the MOA to remain in effect, the Service must 
find, on an annual basis, that the management under the MOA is not 
jeopardizing the continued existence of the gray wolf in the NEP. The 
Service or State or Tribe may terminate the MOA upon 90 days' notice 
if:
    (A) Management under the MOA is likely to jeopardize the continued 
existence of the gray wolf in the NEP;
    (B) The State or Tribe has failed materially to comply with this 
rule, the MOA, or any relevant provision of the State or Tribal wolf 
management plan;
    (C) The Service determines that biological circumstances within the 
range of the gray wolf indicate that delisting the species is 
warranted; or
    (D) The States or Tribes determine that they no longer want the 
wolf management authority vested in them by the Service in the MOA.
* * * * *

Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-24514 Filed 11-7-23; 8:45 am]
BILLING CODE 4333-15-P


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