39348 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

This action does not contain any 

information collections subject to OMB 

approval under the Paperwork 

Reduction Act (PRA) (44 U.S.C. 3501 et 

seq.), nor does it require any special 

considerations under Executive Order 

12898, entitled ‘‘Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations’’ (59 FR 7629, February 16, 

1994). 

Since tolerances and exemptions that 

are established on the basis of a petition 

under FFDCA section 408(d), such as 

the exemption in this final rule, do not 

require the issuance of a proposed rule, 

the requirements of the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601 et 

seq.), do not apply. 

This action directly regulates growers, 

food processors, food handlers, and food 

retailers, not States or Tribes, nor does 

this action alter the relationships or 

distribution of power and 

responsibilities established by Congress 

in the preemption provisions of FFDCA 

section 408(n)(4). As such, the Agency 

has determined that this action will not 

have a substantial direct effect on States 

or Tribal Governments, on the 

relationship between the National 

Government and the States or Tribal 

Governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

Tribes. Thus, the Agency has 

determined that Executive Order 13132, 

entitled ‘‘Federalism’’ (64 FR 43255, 

August 10, 1999) and Executive Order 

13175, entitled ‘‘Consultation and 

Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

9, 2000) do not apply to this action. In 

addition, this action does not impose 

any enforceable duty or contain any 

unfunded mandate as described under 

Title II of the Unfunded Mandates 

Reform Act (UMRA) (2 U.S.C. 1501 et 

seq.). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act 

(NTTAA) (15 U.S.C. 272 note). 

VIII. Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: June 22, 2022. 

Marietta Echeverria, 

Acting Director, Registration Division, Office 

of Pesticide Programs. 

Therefore, for the reasons stated in the 

preamble, EPA is amending 40 CFR 

chapter I as follows: 

PART 180—TOLERANCES AND 

EXEMPTIONS FOR PESTICIDE 

CHEMICAL RESIDUES IN FOOD 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. In § 180.940, amend Table 1 to 

Paragraph (a) by adding, in alphabetical 

order, an entry for ‘‘Sodium dioctyl 

sulfosuccinate’’ to read as follows: 

§ 180.940 Tolerance exemptions for active 

and inert ingredients for use in 

antimicrobial formulations (Food-contact 

surface sanitizing solutions). 

* * * * * 

TABLE 1 TO PARAGRAPH (a) 

Pesticide chemical CAS Reg. No. Limits 

*******

Sodium dioctyl sulfosuccinate ............................................................................................................................... 577–11–7 None. 

* * * * * * * 

* * * * * 

[FR Doc. 2022–14067 Filed 6–30–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2021–0103; 

FXES111302WOLF0–FF02ENEH00] 

RIN 1018–BE52 

Endangered and Threatened Wildlife 

and Plants; Revision to the 

Nonessential Experimental Population 

of the Mexican Wolf 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service or USFWS), 

revise the regulations for the 

nonessential experimental population of 

the Mexican wolf (Canis lupus baileyi) 

in the Mexican Wolf Experimental 

Population Area under section 10(j) of 

the Endangered Species Act of 1973, as 

amended (ESA). The regulatory 

revisions in this rule include a revised 

population objective, a new genetic 

objective, and the temporary restriction 

of three take provisions. This rule also 

includes an essentiality determination 

under section 10(j) of the ESA. The 

experimental population, inclusive of 

these revisions, will contribute to the 

long-term conservation and recovery of 

the Mexican wolf by alleviating 

demographic and genetic threats in this 

population consistent with our 

rangewide recovery strategy and goals 

for the Mexican wolf. 

DATES: This rule is effective August 1, 

2022. 

ADDRESSES: This final rule, along with 

the October 29, 2021, proposed rule, 

public comments on the proposed rule, 

a final supplemental environmental 

impact statement, and record of 

decision, are available on the internet at 

https://www.regulations.gov in Docket 

No. FWS–R2–ES–2021–0103 or from the 

office listed in FOR FURTHER INFORMATION

CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Brady McGee, Mexican Wolf Recovery 

Coordinator, U.S. Fish and Wildlife 

Service, New Mexico Ecological 

Services Field Office, 2105 Osuna Rd. 

NE, Albuquerque, NM 87113; telephone 

505–761–4748. Individuals in the 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39349 

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-ofcontact in the United States. You may 

also visit the Mexican Wolf Recovery 

Program’s website at https://

www.fws.gov/program/mexican-wolf for 

information about the experimental 

population designation for the Mexican 

wolf. 

SUPPLEMENTARY INFORMATION: 

Background 

The Mexican wolf (Canis lupus 

baileyi) is a subspecies of gray wolf that 

historically occurred in portions of the 

southwestern United States and central 

and northern Mexico. Today, Mexican 

wolves occupy the Mexican Wolf 

Experimental Population Area in central 

and southern Arizona and New Mexico 

in the United States, and portions of the 

states of Sonora and Chihuahua in 

Mexico. Mexican wolves predominantly 

prey on elk in the United States, but 

other sources of prey throughout their 

current range include deer, small 

mammals, and birds. Mexican wolves 

are also known to scavenge on livestock 

(USFWS 2017b, pp. 12–19). Similar to 

other gray wolves, Mexican wolves are 

social predators that live and hunt in 

packs with an established territory. 

Mexican wolf territories are dozens to 

several hundred square miles in size, 

and Mexican wolves may disperse long 

distances to establish a new territory (86 

FR 59953, October 29, 2021, p. 86 FR 

59959). Mexican wolves face threats 

across their range from demographic 

stochasticity (fluctuations in survival 

and reproduction associated with small 

population size); genetic issues 

including inbreeding, loss of 

heterozygosity, and loss of adaptive 

potential; and excessive human-caused 

mortality, including illegal killing (80 

FR 2488, January 16, 2015; see also 

USFWS 2017a, pp. 23–34, and USFWS 

2017b, p. 9, for additional discussion of 

these threats). 

The Mexican wolf is listed under the 

Endangered Species Act of 1973, as 

amended (ESA; 16 U.S.C. 1531 et seq.), 

as endangered wherever it is found (80 

FR 2488; January 16, 2015) except in the 

Mexican Wolf Experimental Population 

Area, where is it listed as a nonessential 

experimental population. The current 

List of Endangered and Threatened 

Wildlife under the ESA is found in part 

17 of title 50 of the Code of Federal 

Regulations (CFR) at 50 CFR 17.11(h). 

The 1982 amendments to the ESA 

included the addition of section 10(j), 

which allows for the designation of 

populations of listed species planned 

for reintroduction as ‘‘experimental 

populations.’’ Our implementing 

regulations at 50 CFR 17.81 state that 

the Service may designate a population 

of endangered or threatened species that 

we have released or will release into 

suitable natural habitat outside the 

species’ current natural range, but 

within its probable historical range, as 

an experimental population. Hereafter 

in this document, we refer to a speciesspecific rule issued under section 10(j) 

of the ESA as a ‘‘10(j) rule.’’ 

This Rulemaking Action 

This final rule designates Mexican 

wolves in the Mexican Wolf 

Experimental Population Area 

(MWEPA) as a nonessential 

experimental population on the List of 

Endangered and Threatened Wildlife at 

50 CFR 17.11(h) with a revised rule 

issued under section 10(j) of the ESA at 

50 CFR 17.84(k). We developed the rule 

to comply with the District Court of 

Arizona remand (‘‘March 31, 2018, 

order’’) of our 2015 10(j) rule for the 

Mexican wolf (80 FR 2512; January 16, 

2015). 

On October 29, 2021, we published in 

the Federal Register (86 FR 59953) a 

proposed rule to revise the regulations 

for the nonessential experimental 

population designation of the Mexican 

wolf in the MWEPA in Arizona and 

New Mexico (‘‘proposed rule’’). The 

proposed rule included a revised 

population objective, a new genetic 

objective, and the temporary restriction 

of three take provisions for the Mexican 

wolf in the MWEPA, as well as a fresh 

essentiality determination under section 

10(j) of the ESA. We proposed revisions 

that would individually and collectively 

contribute to the long-term conservation 

and recovery of the Mexican wolf by 

alleviating significant threats and 

achieving recovery goals consistent with 

our recovery strategy for the Mexican 

wolf (USFWS 2017b, pp. 10–17). We 

sought comments on the proposed rule 

and on a draft supplemental 

environmental impact statement 

(DSEIS) during a 90-day public 

comment period, ending January 27, 

2022. We held three public information 

sessions and two public hearings during 

the public comment period. In total, we 

received more than 82,000 written and 

oral comments on the proposed rule and 

DSEIS. 

In accordance with our policy, 

‘‘Notice of Interagency Cooperative 

Policy for Peer Review in Endangered 

Species Act Activities’’ (59 FR 34270, 

July 1, 1994), and a recent memo 

updating the peer review policy for 

listing and recovery actions (August 22, 

2016), we also sought the expert opinion 

of five appropriate independent 

specialists regarding the scientific data 

and interpretations contained in the 

proposed rule. The purpose of such peer 

review is to ensure that we base our 

decision on scientifically sound data, 

assumptions, and analysis. This final 

rule incorporates and addresses 

comments received during the public 

comment and peer review processes. 

For further information on the biology 

of the Mexican wolf, including its 

habitat use and lifecycle, the history of 

conservation and recovery efforts for 

this species under the ESA, and our 

legal and statutory framework 

(including the basis for our action), 

please see the proposed rule (86 FR 

59953; October 29, 2021), which is 

available at https://www.regulations.gov 

in Docket No. FWS–R2–ES–2021–0103. 

Rationale for Revisions to the 

Experimental Population Designation in 

Relation to Recovery 

Our revisions to the experimental 

population designation for the MWEPA 

contribute to the long-term conservation 

and recovery of the Mexican wolf by 

alleviating threats and achieving 

demographic and genetic management 

objectives that align with several of our 

recovery criteria for the Mexican wolf 

from the Mexican Wolf Recovery Plan, 

First Revision (USFWS 2017b, pp. 18– 

20) (‘‘revised recovery plan’’). The

revised recovery plan was not available

to serve as a foundation for the revisions

to the MWEPA that we finalized in the

2015 10(j) rule (80 FR 2512, January 16,

2015, pp. 2514–2515). First, this rule

revises the population objective

established in the 2015 10(j) rule of 300

to 325 wolves. In this rule, we state that,

based on end-of-year counts, we will

manage to achieve and sustain a

population average greater than or equal

to 320 wolves in Arizona and New

Mexico. This average must be achieved

over an 8-year period, the population

must exceed 320 Mexican wolves each

of the last 3 years of the 8-year period,

and the annual population growth rate

averaged over the 8-year period must

demonstrate a stable or increasing

population, as calculated by a geometric

mean.

We estimate that when the MWEPA 

population reaches and maintains the 

revised population objective in this rule, 

the population will have a 90 percent 

likelihood of persistence over 100 years. 

We consider this level of persistence to 


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demonstrate that demographic threats 

have been alleviated to an extent that is 

consistent with our recovery strategy 

and criteria for the Mexican wolf 

(USFWS 2017a, pp. 32–33, 35–36; 

USFWS 2017b, pp. 9, 11, 13, 18–22; 

Miller 2017, entire). Therefore, the 

revised population objective will 

contribute to the long-term conservation 

and recovery of the Mexican wolf 

because it will result in a population in 

which the threat of demographic 

stochasticity has been sufficiently 

ameliorated. 

Second, this rule establishes a new 

genetic objective for the MWEPA. In this 

rule, we state that the USFWS and 

designated agencies will conduct a 

sufficient number of releases into the 

MWEPA from captivity to result in at 

least 22 released Mexican wolves 

surviving to breeding age. 

We estimate that when the MWEPA 

population reaches the genetic 

objective, 90 percent of the gene 

diversity available in captivity will have 

been transferred to the MWEPA. We 

expect this infusion of available gene 

diversity to the MWEPA to alleviate the 

risk of genetic threats in the MWEPA 

such as inbreeding, lack of 

heterozygosity, and lack of adaptive 

potential, consistent with our recovery 

strategy and criteria for the Mexican 

wolf (USFWS 2017b, pp. 9, 11, 13–15, 

18–20, 22–24). Therefore, the new 

genetic objective will contribute to the 

long-term conservation and recovery of 

the Mexican wolf by lessening or 

alleviating genetic threats. 

Third, this rule temporarily restricts 

the use of three take provisions from the 

2015 10(j) rule: take on Federal land, 

take on non-Federal land in conjunction 

with a removal action, and take in 

response to an unacceptable impact to a 

wild ungulate herd. For take on Federal 

and non-Federal land, this rule states 

that until the USFWS has achieved the 

genetic objective by documenting that at 

least 22 released wolves have survived 

to breeding age in the MWEPA, the 

USFWS or a designated agency may 

issue permits only on a conditional, 

annual basis according to the following 

provisions: Either 

1. Annual release benchmarks (for the 

purposes of this paragraph, the term 

‘‘benchmark’’ means the minimum 

cumulative number of released wolves 

surviving to breeding age since January 

1, 2016, as documented annually in 

March) have been achieved based on the 

following schedule: 

Year Benchmark 

2021 ...................................... 7 

2022 ...................................... 9 

Year Benchmark 

2023 ...................................... 11 

2024 ...................................... 13 

2025 ...................................... 14 

2026 ...................................... 15 

2027 ...................................... 16 

2028 ...................................... 18 

2029 ...................................... 20 

2030 ...................................... 22 

; or 

2. Permitted take on non-Federal land, 

or on Federal land during the previous 

year (April 1 to March 31) did not 

include the lethal take of any released 

wolf or wolves that were or would have 

counted toward the genetic objective. 

After the USFWS has achieved the 

new genetic objective described above, 

the conditional annual basis for issuing 

permits will no longer be in effect. 

For the provision for take in response 

to an unacceptable impact to a wild 

ungulate herd, this rule states that no 

requests for take in response to 

unacceptable impacts to a wild ungulate 

herd may be made by the State game 

and fish agency or accepted by the 

USFWS until the genetic objective has 

been met. 

We expect the temporary restriction of 

three take provisions to reduce the take 

of released wolves during the near-term 

period in which we are trying to 

improve the gene diversity of the 

MWEPA because the Service will not 

issue take permits for take on Federal 

and non-Federal land unless conditional 

benchmarks toward recovery are met, or 

accept requests to take wolves in 

response to an unacceptable impact to a 

wild ungulate herd, until the genetic 

objective is met (USFWS 2022a, pp. 26– 

32, including table 2.1 on pp. 28–29). 

Reducing the take of released wolves 

will decrease the amount of time it takes 

to reach the genetic objective compared 

to not restricting these forms of take 

(USFWS 2022a, pp. 116–118). The 

growth of the MWEPA population in 

recent years necessitates a strong 

temporal focus on improving gene 

diversity in the near term because it will 

be more difficult to improve gene 

diversity and alleviate genetic threats at 

larger population sizes (USFWS 2017b, 

pp. 33–34). 

The time period for the restriction of 

these three take provisions is based on 

our expectation that once the genetic 

objective is reached, the gene diversity 

of released wolves will have integrated 

into the population through breeding 

events between released and wild 

wolves such that released wolves will 

no longer represent a pool of unique 

gene diversity. In other words, as more 

released wolves survive and breed in 

the wild, the unique contribution of 

each released wolf to the gene diversity 

of the MWEPA diminishes. Because of 

this scenario, restricting these take 

provisions beyond the time at which we 

achieve the genetic objective would not 

result in the protection of unique gene 

diversity contributed by wolves released 

from captivity. Therefore, the short-term 

restriction of these three take provisions 

contributes to the long-term 

conservation and recovery of the 

Mexican wolf because the restriction 

will support achieving the genetic 

objective, which will lessen genetic 

threats in the MWEPA consistent with 

our recovery strategy and criteria for the 

Mexican wolf as just described. 

We note that the 2021 minimum 

population count of 196 wolves in the 

MWEPA demonstrates the sixth 

consecutive year of steady growth in 

recent years and that the population has 

doubled in size since 2015 (2015 

minimum population count of 98 

wolves) (USFWS files). With each 

continued year of positive population 

growth trajectory, the threat of 

demographic stochasticity in the 

MWEPA lessens. Inherent in our efforts 

to achieve the population objective is 

our recognition that Mexican wolf 

mortality from all sources, including 

human-caused mortality, must be 

sufficiently low to support population 

growth and persistence (USFWS 2017a, 

pp. 31–32; USFWS 2017b, pp. 20–22, 

31–34). Therefore, the Service and our 

partners continue to monitor key 

demographic rates, balance our 

utilization of nonlethal and lethal 

management techniques to address 

conflict situations, and strengthen 

efforts to reduce the illegal killing of 

Mexican wolves (USFWS 2017b, pp. 

31–34; USFWS 2019, entire; USFWS 

2022b, pp. 30–42). 

We note that as of April 1, 2022, we 

have documented 13 released wolves 

surviving to breeding age in the 

MWEPA that contribute to meeting the 

genetic objective. Also, over the last 4 

years (2018–2021), we have seen a 

steady increase in gene diversity (from 

74.54 to 76.23) and a decrease in mean 

kinship (a measure of the relatedness of 

individuals in a population to each 

other) (from 0.2546 to 0.2377), 

suggesting that our efforts to improve 

the genetic status of the population are 

beginning to exert a positive effect. As 

of August 17, 2021, both of these 

metrics are at their best values since 

2010, when gene diversity measured 

76.47 and mean kinship measured 0.235 

(Scott et al. 2022, 2020, 2019; Siminski 

and Spevak 2011–2017; USFWS files). 

We expect to continue documenting the 

number of released wolves that survive 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39351 

to breeding age, including their 

reproductive activity, and to track 

population-level genetic metrics to 

validate improvements in the genetic 

status of the population. 

Additional discussion of our rationale 

for these revisions is provided in the 

proposed rule (86 FR 59953, October 29, 

2021, pp. 59959–59963). 

Experimental Population 

Location and Boundaries of the 

Experimental Population 

The Mexican wolf experimental 

population is located in the MWEPA, as 

designated in the 2015 10(j) rule (80 FR 

2512, January 16, 2015, p. 2558). The 

boundaries of the MWEPA are the 

portions of Arizona and New Mexico 

that are south of Interstate Highway 40 

(I–40) to the international border with 

Mexico (see map at 50 CFR 17.84(k)(4)). 

The boundaries of the MWEPA are 

consistent with the recovery strategy 

established in the revised recovery plan, 

and the MWEPA is wholly 

geographically separate from any 

nonexperimental populations of the 

same (sub)species, as described in the 

proposed rule (86 FR 59953, October 29, 

2021, pp. 59963–59964). 

Overview of the Experimental 

Population 

The MWEPA is a large area in Arizona 

and New Mexico that includes Federal, 

State, Tribal, and private land. It 

contains three managements zones, 

Zone 1, Zone 2, and Zone 3, that 

provide areas for initial release, 

translocation, and occupancy of 

Mexican wolves (see definitions at 50 

CFR 17.84(k)(3) and the map of the 

MWEPA designated area at 50 CFR 

17.84(k)(4)). 

Release Procedures 

The USFWS and our partners release 

Mexican wolves into the MWEPA using 

several different management strategies, 

including the cross-fostering of captive 

pups into wild dens as a form of initial 

release; the initial release of adults or 

sub-adults individually, as pairs with 

and without pups, or as 

multigenerational packs; and 

translocations of wild wolves from one 

location to another. We intend to 

continue releasing Mexican wolves from 

captivity into the MWEPA primarily to 

increase the gene diversity of the 

experimental population as necessary to 

achieve our genetic objective and 

alleviate genetic threats to the 

population. In addition, we may release 

or translocate wolves for other 

management purposes such as replacing 

a mate for a breeding pair due to a wolf 

mortality or transferring wolves to 

Mexico. We provide additional detail 

about our release procedures in the 

proposed rule (86 FR 59953, October 29, 

2021, p. 59964), including our 

procedures to utilize permanent 

identification marks and radio-collars to 

identify Mexican wolves in the MWEPA 

and differentiate them from wolves that 

may disperse from other gray wolf 

populations. 

How does the experimental population 

contribute to the conservation of the 

species? 

We intend to manage the MWEPA 

population to achieve the recovery 

criteria in the revised recovery plan for 

a population of Mexican wolves in the 

United States (USFWS 2017b, pp. 18– 

25; 86 FR 59953, October 29, 2021, p. 

59965). The following information is 

summarized from our proposed rule, 

which can be referenced for additional 

supporting information (86 FR 59953, 

October 29, 2021, pp. 59965–59967). 

Possible Adverse Effects on Wild and 

Captive Breeding Populations 

Adverse effects on the captive 

population of Mexican wolves will not 

occur from the release of captive wolves 

to the MWEPA because the captive 

population is managed specifically to 

support the reintroduction of wolves to 

the wild and remains capable of 

supporting both the U.S. and Mexico 

reintroduction efforts through the 

release of surplus wolves (Scott et al. 

2022, entire). Adverse effects to the wild 

population in Mexico will not occur 

because we do not rely on, nor have we 

conducted any, translocation of wolves 

from Mexico into the MWEPA. 

Likelihood of Population Establishment 

and Survival 

The MWEPA has demonstrated that it 

is an established population with a high 

likelihood of survival. In particular, in 

the last 6 years under the management 

provisions of the 2015 10(j) rule, the 

population has grown steadily in size to 

its current minimum population size of 

196 wolves. The Service’s Mexican Wolf 

Recovery Program has transitioned from 

its previous focus on preventing the 

extinction of the Mexican wolf (USFWS 

2010, p. 79) to pursuing a binational 

recovery strategy that we intend to 

achieve within two to three decades 

(USFWS 2017b, pp. 28–29). 

Effects of the MWEPA Population on 

Recovery Efforts 

The MWEPA population contributes 

to the binational recovery of the 

Mexican wolf because it serves as the 

population that counts toward the 

recovery criteria in the revised recovery 

plan for a population in the United 

States. The revisions in this rule bring 

the management of the MWEPA into 

alignment with our recovery strategy 

and criteria for the Mexican wolf in the 

revised recovery plan to ensure that the 

experimental population contributes to 

the long-term conservation and recovery 

of the Mexican wolf. 

Actions and Activities That May Affect 

the Introduced Population 

Consistent with our findings in the 

past (63 FR 1752, January 12, 1998, p. 

1755; 80 FR 2512, January 16, 2015, p. 

2551), we do not foresee that the 

introduced population will be adversely 

affected by existing or anticipated 

Federal or State actions or private 

activities because although some actions 

or activities may affect individual 

wolves, these effects will not hinder the 

growth or distribution of the population 

or its ability to achieve the demographic 

and genetic objectives established in 

this rule, as described in our proposed 

rule (86 FR 59953, October 29, 2021, p. 

59966). 

Experimental Population Regulation 

Requirements 

The following requirements are 

summarized or expanded upon from our 

discussion in the proposed rule (86 FR 

59953, October 29, 2021, pp. 59967– 

59970): 

Appropriate Means To Identify the 

Experimental Population 

The location of the experimental 

population is the MWEPA, as defined at 

50 CFR 17.84(k). We can identify 

Mexican wolves based on the 

permanent identification marks we give 

them prior to release, by radio collar, 

DNA analysis, or visual observation. 

Is the experimental population essential 

to the continued existence of the species 

in the wild? 

Essential experimental populations 

are those whose loss would be likely to 

appreciably reduce the likelihood of 

survival of the species in the wild (50 

CFR 17.80(b)). The Service defines 

‘‘survival’’ as the condition in which a 

species continues to exist in the future 

while retaining the potential for 

recovery (USFWS and NMFS 1998, p. 

xix). Inherent in the definition of 

‘‘essential’’ is the effect the potential 

loss of the experimental population 

would have on the species (49 FR 

33885, August 27, 1984, p. 49 FR 

33890). 

The ESA states that, prior to any 

release, the Secretary must find by 

regulation that such release will further 


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39352 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

the conservation of the species (16 

U.S.C. 1539(j)(2)). Reintroductions are, 

by their nature, experiments, the fate of 

which is uncertain. However, it is 

always our goal for reintroductions to be 

successful and contribute to recovery. 

The importance of reintroductions to 

recovery does not necessarily mean 

these populations are ‘‘essential’’ under 

section 10(j) of the ESA. In fact, 

Congress’ expectation was that ‘‘in most 

cases, experimental populations will not 

be essential’’ (H.R. Conference Report 

No. 835, supra at 34). The preamble to 

our August 27, 1984, final rule reflects 

this understanding, stating that an 

essential population will be a special 

case and not the general rule (49 FR 

33885, August 27, 1984, p. 49 FR 

33888). When the Service published the 

final rule for the MWEPA designation in 

1998, we did not anticipate making 

another essentiality determination for 

the MWEPA in the future. However, the 

remand of the 2015 10(j) rule requires 

the Service to make a fresh essentiality 

determination because the geographic 

expansion of the MWEPA results in 

wolves occupying new areas that were 

not contemplated for wolf occupancy 

during the original essentiality 

determination. At the time of the 

original determination, we found the 

experimental population to be 

‘‘nonessential’’ because the captive 

population provided a secure source of 

surplus animals for reintroduction and 

the primary repository of genetic 

material for the species; therefore, if the 

reintroduced wolves did not survive, 

additional reintroduction efforts could 

be taken if the reasons for failure were 

understood (63 FR 1752, January 12, 

1998, p. 1754). 

This rule determines that the 

experimental population in the 

MWEPA, as defined by the geographic 

revision and expansion of the MWEPA 

in the 2015 10(j) rule, is not essential to 

the continued existence of the Mexican 

wolf in the wild under section 10(j) of 

the ESA. We reference our proposed 

determination (86 FR 59953, October 29, 

2021, pp. 59967–59969), and offer the 

following rationale to clarify the 

information we relied on in our 

determination. 

Mexican wolves currently occur in 

two locations in the wild: in the 

MWEPA in the United States, and in the 

Sierra Madre Occidental in northern 

Mexico, where the population numbers 

around 45 wolves in 2022. 

Reintroduction efforts in Mexico have 

been underway for over a decade, 

demonstrating sustained effort to 

establish and manage a wild population 

that contributes to recovery under the 

ESA. Mexico continues to focus on 

releasing wolves to the wild (from 

captivity or translocated from the 

MWEPA) and monitor natural 

population growth and expansion 

toward achieving the recovery criteria in 

the revised recovery plan. If the 

Mexican wolf population in the 

MWEPA were lost, Mexican wolves 

would continue to persist in the wild 

with Federal legal protection from 

Mexico. Thus, the existence of a 

protected wild population outside of the 

MWEPA is one of the factors in our 

determination that the experimental 

population is not essential to the 

continued existence of the Mexican wolf 

in the wild. 

The second, and equally important, 

factor in our determination is our 

expectation that we could restart a 

population in the MWEPA or elsewhere 

in suitable habitat in the United States 

if the unexpected loss of the MWEPA 

were to occur. Our expectation is 

supported by our history—that is, the 

experiment to reintroduce Mexican 

wolves to the wild, which we began in 

1998 as part of the species recovery 

effort under section 10(j) of the ESA, has 

demonstrated success and is repeatable. 

Several pieces of information influence 

our expectation that a future rereintroduction is feasible and, therefore, 

support a nonessential determination, 

including the following: 

If the unexpected loss of the MWEPA 

population were to occur, the Service 

and our partners have the knowledge 

and logistical capability to re-start the 

population and manage it to contribute 

to the long-term conservation and 

recovery of the Mexican wolf. To start, 

the Mexican wolf is a well-known 

subspecies for which we have gained 

first-hand biological and ecological 

knowledge for more than two decades. 

We have observed, monitored, and 

analyzed wolves’ natural behavior in the 

wild such as the establishment of 

territories, dispersal, reproduction, 

survival, and mortality. We have 

reported our findings throughout the 

course of the reintroduction and 

recovery effort, including program 

reviews (Paquet et al. 2001, entire; 

AMOC and IFT 2005, entire), recovery 

plans (USFWS 1982; USFWS 2017a; 

USFWS 2017b), regulatory documents 

(e.g., 80 FR 2488, January 16, 2015; 80 

FR 2512, January 16, 2015), 

environmental impact statements 

(USFWS 1996, entire; USFWS 2014, 

entire; USFWS 2022a, entire), and 

annual progress reports covering every 

year of the reintroduction (USFWS 

files). In addition, significant scientific 

research has been conducted regarding 

many facets of Mexican wolf biology 

and ecology (e.g., Parsons and 

Nicholopoulos 1995, entire; Hedrick et 

al. 1997, entire; Reed et al. 2006, entire; 

Asa et al. 2007, entire). Because of our 

experience establishing and maintaining 

a population and the extent of 

supporting biological information 

available, we understand the needs of 

this subspecies sufficiently to undertake 

another reintroduction. 

In addition, since 1998, we have 

learned about the communities in which 

the reintroduction and recovery effort 

takes place. Within this context, we 

have demonstrated our ability to explore 

solutions to a variety of challenges and 

to adaptively manage the reintroduction 

effort. We have: 

• Tested and utilized different wolf 

release techniques, including hard and 

soft releases; release of adults, pairs, or 

packs; and cross-fostering puppies; 

• Adapted our response to conflicts 

based on the demographic status of the 

experimental population and the needs 

of local communities, including our use 

of management tools such as 

translocations, removals, and novel 

nonlethal techniques; 

• Provided animal husbandry in 

captive, semi-captive, and wild settings, 

including vaccination protocols to 

reduce the risk of diseases in Mexican 

wolves or the transfer of diseases to 

humans; 

• Developed and expanded 

collaborative recovery efforts with 

partners in both the United States and 

Mexico; 

• Sustained budgetary and staffing 

capacity for the reintroduction effort for 

several decades, including public 

outreach programs and stakeholder 

engagement; 

• Championed and participated in 

financial programs to reduce economic 

impacts on livestock operators; and 

• Adjusted the regulatory, policy, and 

guidance frameworks that provide the 

structure for the reintroduction and 

recovery effort. 

Therefore, we have the capability to 

construct a management approach for a 

new reintroduction (again, assuming 

understanding of the reasons for the loss 

of the current population) and adjust it 

as necessary to support the release, 

establishment, growth, vigor, and 

maintenance of an experimental 

population within a human-dominated 

landscape. Specifically, we expect to 

release packs, pairs, and individual 

animals over several years to reestablish the population as appropriate 

to the circumstances. While the release 

of adult wolves is not currently our 

preferred release strategy, we recognize 

that the release of adult wolves would 

be necessary and appropriate if we were 

restarting a reintroduction, and we 


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would work with our partners to select 

preferred release sites. We do not expect 

to achieve a population of the current 

size (close to 200 wolves) within the 

first few years, but rather seek to 

establish a base of released wolves 

representative of the gene diversity 

available in captivity. We will continue 

releases as necessary and, with our 

partners, support the natural growth and 

expansion of the population through the 

use of a variety of adaptive management 

strategies and tools such as those we 

have utilized since the reintroduction 

began. 

If we were to conduct a new 

reintroduction due to the loss of the 

current population, we would rely on 

the availability of captive Mexican 

wolves for release to the wild. 

Therefore, the capability of the captive 

breeding program to provide wolves to 

re-start the population and provide 

long-term support of the reintroduction 

over at least several decades is an 

important factor in our essentiality 

determination. Our assessment of the 

capability of the captive breeding 

program rests first on the mission of the 

Mexican Wolf Species Survival Program 

(‘‘SSP’’), which is to support the 

reestablishment of the Mexican wolf in 

the wild through captive breeding, 

public education, and research. The 

dedication of this program to 

reestablishment supports our 

expectation that participating facilities 

will support and engage in the new 

reintroduction effort (Scott 2022, pers. 

comm.). Second, the logistical capacity 

of the captive breeding program has 

increased significantly since 1998, such 

that it is more capable of producing 

surplus wolves for release to the wild 

today than it was when we first 

designated the MWEPA over two 

decades ago. In 2021, the captive 

program housed 387 wolves in 62 

facilities (Scott et al. 2022, p. 7), 

compared to fewer than 200 wolves in 

less than 50 facilities in 1998. The 

physical capacity of the captive 

breeding program could continue to 

expand with the addition of new 

facilities, which would further increase 

the number of surplus wolves produced 

as well as benefitting ongoing genetic 

management needs (Scott et al. 2022, p. 

10). In addition to its expanded physical 

capacity, the SSP has benefitted from 

over four decades of husbandry 

experience and research across many 

participating institutions, again 

supporting our contention that the 

captive breeding program has the 

capacity and capability to re-start and 

sustain support for a wild population. 

Importantly, one question that is 

central to the potential to restart a 

reintroduction of the Mexican wolf in 

the future is whether surplus wolves 

produced by the SSP would have 

sufficient gene diversity to establish a 

genetically robust population. This 

concern stems from the slow loss of 

gene diversity that has occurred, and 

will continue to occur, in the captive 

population because no new founders are 

available to add diversity (Scott et al. 

2022, pp. 9–10). This is a difficult 

question to answer because a finite 

threshold of gene diversity below which 

reintroduction would not be possible for 

Mexican wolves has not been defined or 

observed by the Service, the SSP, or 

other researchers. In other words, we 

recognize that re-starting a 

reintroduction at some point in the 

future when the captive population has 

lower gene diversity than its current 

level (Scott et al. 2022, p. 9) means that 

genetic concerns will be amplified more 

than they are today, but that does not 

equate to infeasibility. Rather, surplus 

wolves would be available to release to 

the wild that would still represent the 

available gene diversity remaining from 

the founding wolves and the three 

integrated captive lineages. In fact, a 

population could be restarted today that 

would potentially be equally or more 

genetically diverse with lower overall 

mean kinship and better representation 

of the three Mexican wolf lineages than 

the first reintroduction effort simply by 

the selection of different wolves and 

different management strategies in the 

wild when the population was small. In 

addition, genetic management strategies, 

such as an expansion of the number of 

breeding pairs in the captive population 

(Scott et al. 2022, p. 10), the use of 

stored genetic material from captive 

wolves (such as frozen semen and 

oocytes (Scott et al. 2022, appendix 9, 

pp. 82–85)), or the use of other novel 

reproductive or genetic technologies, 

could be used to slow the loss of gene 

diversity in captivity over time and offer 

robust future reintroduction scenarios 

with appropriately diverse surplus 

wolves. 

As we have discussed throughout this 

rule, we expect the MWEPA to further 

the conservation and recovery of the 

Mexican wolf by contributing to the 

persistence of a population that 

achieves specific recovery goals for the 

subspecies. However, we consider the 

MWEPA nonessential because the loss 

of all reintroduced Mexican wolves 

within the MWEPA is not likely to 

appreciably reduce the likelihood of 

survival of the subspecies in the wild. 

Our determination is based on the 

existence of a second wild population of 

Mexican wolves, our increased 

capability to initiate and maintain a 

reintroduced population of Mexican 

wolves, and the ongoing maintenance of 

the captive population. 

Management Restrictions, Protective 

Measures, and Other Special 

Management 

We have developed a section 

10(a)(1)(A) permit under section 10 of 

the ESA to allow for certain activities 

with Mexican wolves that occur both 

inside and outside the MWEPA. If 

Mexican wolves travel outside the 

MWEPA, we intend to capture and 

return them to the MWEPA or place 

them in captivity. This approach is 

consistent with the revised recovery 

plan, which directs Mexican wolf 

recovery south of Interstate Highway 40 

(I–40) in Arizona and New Mexico. 

Mexican wolves are managed south of I– 

40 under this rule, which provides 

management flexibility and contributes 

to the conservation and recovery of the 

Mexican wolf. Mexican wolves that 

move outside of the geographic 

boundaries of the MWEPA are fully 

endangered and the allowable forms of 

take provided for in this rule to address 

conflict situations are not available. 

Livestock operators and the public 

cannot haze or harass wolves outside of 

the MWEPA without violating the ESA. 

Review and Evaluation of the MWEPA 

Population 

As described at more length in our 

October 29, 2021, proposed rule, the 

following evaluations of the MWEPA 

population and the rangewide progress 

of the Mexican wolf toward recovery 

will be forthcoming: 

• Evaluation of this revised rule 5 

years after rule implementation begins 

(i.e., one evaluation based on data 

through the 2027 annual population 

count, synchronized with the 2027 

recovery plan evaluation, below, for 

publication in 2028); 

• MWEPA quarterly reports (i.e., four 

reports per year, annually, ongoing); 

• MWEPA annual reports (i.e., one 

report per year, annually, ongoing); 

• 5-year status evaluations of the 

Mexican wolf subspecies pursuant to 

section 4(c)(2) of the ESA (i.e., one 

report every 5 years, with next 

evaluations occurring in 2023 and 2028, 

ongoing); 

• 5- and 10-year recovery progress 

evaluations, pursuant to the revised 

recovery plan (i.e., one report for each 

evaluation, using data through 2022 and 

2027, with publication in 2023 and 

2028, respectively); and 

• A phasing evaluation for western 

Arizona pursuant to 50 CFR 


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17.84(k)(9)(iv)(D) (i.e., one evaluation in 

2023). 

Consultation With State Game and Fish 

Agencies, Local Governments, Tribes, 

Federal Agencies, and Private 

Landowners in Developing and 

Implementing This Rule 

In accordance with 50 CFR 17.81(d), 

to the maximum extent practicable, this 

rule represents an agreement between 

the USFWS, the affected State and 

Federal agencies, and persons holding 

any interest in land that may be affected 

by the establishment of this 

experimental population. In addition to 

the information provided in the 

proposed rule (86 FR 59953, October 29, 

2021, p. 59970), we also describe our 

coordination and consultation efforts in 

the final supplemental environmental 

impact statement (FSEIS) (USFWS 

2022a, pp. 164–166). 

Summary of Comments and 

Recommendations 

From April 15 to June 15, 2020, we 

conducted a public scoping process 

under the National Environmental 

Policy Act (NEPA; 42 U.S.C. 4321 et 

seq.) based on our intent to modify the 

2015 final 10(j) rule (see 85 FR 20967, 

April 15, 2020). We received more than 

87,000 public comments during 

scoping. We responded to these 

comments in the draft supplemental 

environmental impact statement 

(DSEIS), appendix G (USFWS 2021, pp. 

182–227). We subsequently opened a 

90-day public comment period on the 

proposed 10(j) rule and DSEIS on 

October 29, 2021 (86 FR 59953). During 

the public comment period, we held 

three public information sessions and 

two public hearings; approximately 400 

members of the public attended and 

participated in these events. We 

received more than 82,000 public 

written and oral comments during the 

comment period. In total, we received 

more than 169,000 comment 

submissions over the course of the two 

comment periods. 

As part of this rulemaking, we have 

carefully reviewed the requirements of 

NEPA and its regulations (Council on 

Environmental Quality regulations at 40 

CFR 1502.9); this final rule, as well as 

the process by which it was developed 

and finalized, complies with all 

provisions of the ESA, NEPA, and 

applicable regulations. We identified 

public comments specific to the NEPA 

process and provided responses to these 

issues in the FSEIS rather than in this 

rule; in addition, we carried the scoping 

comments and responses forward from 

the DSEIS to the FSEIS because the 

scoping comments and responses 

addressed a number of issues that were 

brought up subsequently during the 

public comment period on the DSEIS 

and proposed rule (USFWS 2022a, pp. 

188–240). In a few cases, a comment 

was equally pertinent to the rule as well 

as the FSEIS, in which case we have 

included our response in this rule as 

well. 

Below, we provide synthesized, 

substantive comments pertinent to the 

rulemaking and our responses. 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 non-substantive 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; restated elements of the March 

31, 2018, order; or were beyond the 

scope of our proposed revisions as 

defined during scoping. Comments from 

peer reviewers, Federal agencies, and 

State agencies are grouped separately. 

Comments from local governments are 

included in the general public 

comments. We did not receive any 

comments from Native American Tribes. 

All substantive information provided 

during the comment periods, including 

the public hearings, has either been 

incorporated directly into this final 

determination or is addressed below. 

Peer Reviewer Comments 

In accordance with our peer review 

policy published on July 1, 1994 (59 FR 

34270), we solicited and received expert 

opinions from five knowledgeable 

individuals with expertise that included 

a Doctor of Philosophy degree (Ph.D.) or 

Master of Science degree (M.S.) with 

significant experience in wildlife 

ecology or a related field; expert 

knowledge of wildlife biology and 

management, demographic management 

of mammals (especially carnivores), 

population modeling, small population 

management, genetics of small 

populations, captive breeding and 

reintroduction of a species to the wild, 

scientific literature on wolves or other 

carnivores, and/or human dimensions 

or socioeconomic considerations related 

to large carnivore management; and 

prior experience as a peer reviewer for 

scientific publications. 

We asked peer reviewers to respond 

to seven scientific questions regarding 

the proposed revision to the regulations 

for the experimental population 

designation of the Mexican wolf, as 

appropriate to their expertise, in 

addition to providing their general 

review. We reviewed all peer review 

comments that we received. Below, we 

provide a summary of the peer 

reviewers’ answers to our seven 

questions, as well as our responses to 

singular issues raised by peer reviewers 

that we consider having particular 

bearing on our ability to support the 

final rule with the best available 

information. In addition to the summary 

and responses below, we have 

incorporated their information and 

recommendations into this final rule as 

appropriate. 

1. A 10(j) rule may provide flexibility 

for managing a reintroduced species but 

must foremost further the conservation 

of the species. Does the balance of the 

proposed rule, in total, contribute to the 

conservation and recovery of the 

Mexican wolf? 

Four peer reviewers answered this 

question. One peer reviewer did not 

think the proposed rule, in total, 

contributes to the conservation and 

recovery of the Mexican wolf. This 

reviewer stated that the proposed rule 

relies heavily on Mexico and private 

entities to contribute to recovery, and 

that designating and managing the 

population as nonessential is a high-risk 

approach. One reviewer agreed that the 

proposed rule would contribute to the 

conservation and recovery of the 

Mexican wolf, but identified concerns 

with the methodologies used to depict 

the population’s trajectory and to 

measure gene diversity, and also 

identified the need for additional clarity 

related to allowable forms of take 

outside of the MWEPA, the relationship 

between the proposed restricted forms 

of take and illegal take, and whether the 

program’s human-wolf conflict 

measures are effective in reducing 

illegal take. Another reviewer agreed 

that all of the proposed revisions would 

contribute to the conservation and 

recovery of the Mexican wolf and cited 

recent population growth and the use of 

supplemental feeding and crossfostering techniques as indications of, or 

contributing factors in, the Service’s 

recent progress toward demographic 

and genetic recovery goals. The fourth 

reviewer responded that in total the 

proposed rule would contribute to the 

conservation and recovery of the 

Mexican wolf but caveated that 

‘‘contribute to’’ is not synonymous with 

‘‘ensure.’’ 

2. Are the expected effects of the 

proposed revisions on the overall 

biological status of the experimental 


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population adequately described and 

supported by relevant analysis? If not, 

what information is missing and how is 

it relevant? 

One reviewer stated that the 

population viability analysis in the 

revised recovery plan relied on by the 

Service as the foundation for 

establishing the proposed population 

and genetic objectives is likely very 

robust for predicting population growth 

at low population densities. However, 

this reviewer suggested updating the 

model in 5 to 10 years with updated 

vital rates and incorporating densitydependent effects to address the 

potential for the model to underestimate 

extinction probabilities and 

overestimate genetic diversity in the 

long term, because the data used in the 

population viability model (Miller 2017, 

entire) may overestimate the proportion 

of females breeding and do not include 

a link between density and 

reproduction. This same reviewer also 

cautioned that removal of wild-born 

wolves could impact gene diversity if 

those wolves had advantageous 

mutations. 

Another reviewer stated that the 

proposed population objective is an 

improvement from the population 

objective in the 2015 10(j) rule and 

provided critique that the program’s 

current methodology to document 

minimum population size annually may 

not provide an accurate and precise 

population estimate against which to 

measure progress toward the proposed 

population objective. 

A third reviewer responded to this 

question by reiterating a concern that 

the methodology used to document the 

minimum population size may be 

inadequate to determine whether the 

population’s growth rate is stable or 

increasing, as necessitated by the 

proposed population objective. This 

reviewer provided recommendations on 

several methodologies and statistical 

models to estimate survival or other 

demographic parameters for the Service 

to consider and stated support for 

updating the population viability model 

used in the revised recovery plan during 

the 5-year evaluation of the recovery 

plan. The reviewer also questioned how 

the Service arrived at the genetic 

objective of 22 released wolves 

surviving to breeding age based on the 

population viability model in the 

revised recovery plan and cautioned 

against using model results as actual 

targets rather than as guideposts. This 

reviewer suggested that measuring 

genetic variation would be a more 

appropriate method to assess genetic 

diversity in the MWEPA than counting 

the number of released wolves that 

survive to breeding age. The reviewer 

discussed inbreeding and reduced 

fitness in Mexican wolves and suggested 

that allowing Mexican wolves to 

hybridize with other wolf ecotypes (gray 

wolves from other populations) may 

contribute to the future adaptive 

potential of the Mexican wolf. 

The fourth reviewer stated that each 

of the proposed revisions should have a 

positive impact on population 

performance and that the expected 

effects of the revisions are adequately 

described, noting that the removal of an 

upper target for abundance is 

particularly important for long-term 

sustainability of the Mexican wolf. This 

reviewer noted that the inclusion of 

more than 15 years of Mexican wolf data 

in the population viability model and 

the selection of conservative values for 

model parameters add significant 

confidence to the model’s predictive 

power for demographic and genetic 

uses. The reviewer noted that the 

habitat modeling by Martı ́nez-Meyer et 

al. (2017) also substantively informs 

recovery efforts, while noting that 

updating the habitat model over time 

with information on population 

performance could address general 

concerns related to the reliability of 

habitat quality assessments that rely 

solely on presence data. This reviewer 

questioned why the Service did not use 

a direct measure of genetic diversity as 

a genetic objective and stated that the 

Service overstated the future conditions 

of the population in response to 

released wolves surviving to breeding 

age. 

3. Does the proposed rule, including 

the allowable forms of take, allow for 

the experimental population to achieve 

the demographic recovery criterion for 

the United States in the Mexican Wolf 

Recovery Plan, First Revision (2017)? 

One reviewer stated that the proposed 

rule does not allow for the experimental 

population to achieve the demographic 

recovery criterion because there is no 

numerical trigger to determine when 

different allowable forms of take are 

permitted. Another reviewer stated that 

the proposed reduction in take would 

have a positive effect on Mexican wolf 

recovery but would not address the 

problem of illegal take, which accounts 

for the majority of human-caused 

mortality for the Mexican wolf. This 

reviewer recommended using a 

‘‘similarity of appearance’’ listing for 

coyotes within the MWEPA under 

section 4(e) of the ESA. A third reviewer 

stated that they believe the proposed 

rule would contribute to achieving the 

recovery criterion in the revised 

recovery plan based on the recent 

annual increases in the MWEPA 

population, the Service’s ongoing efforts 

to reduce conflict and increase support 

for the recovery effort, and the removal 

of the upper threshold on wolf 

abundance. 

4. Does the proposed rule, including 

the allowable forms of take, allow for 

the experimental population to achieve 

the genetic recovery criterion for the 

United States in the Mexican Wolf 

Recovery Plan, First Revision (2017)? 

One reviewer stated that the proposed 

revisions to the allowable forms of take 

may not avoid the potential for negative 

impacts to genetic diversity because the 

revisions consider only released wolves, 

they do not consider wild-born wolves 

with new genetic mutations that may be 

important to the population’s genetic 

diversity, especially its heterozygosity. 

Another reviewer restated concern for 

whether the proposed genetic objective 

is valid compared to other ways to 

measure the genetic status of the 

population. A third reviewer did not 

mention the effect of the take provisions 

on the ability of the proposed rule to 

achieve the genetic criterion beyond a 

general statement acknowledging the 

Service’s efforts through memoranda of 

understanding (MOUs), education/ 

outreach, and diversionary feeding to 

reduce conflicts that could lead to wolf 

removals. This reviewer stated that the 

success of cross-fostering also provides 

evidence that the genetic criterion will 

be met. This reviewer reiterated concern 

that the genetic objective is not a direct 

measure of genetic health but stated that 

the genetic objective will likely lead to 

the genetic benefits the Service is 

expecting and is easy to quantify and 

measure. 

5. Is the information, data, and 

analysis we provide to substantiate our 

essentiality determination based on the 

best available science? Is there scientific 

information or data that we did not 

include in our essentiality 

determination that is relevant and 

should be considered? 

One reviewer stated that the logic 

behind designating the MWEPA as 

nonessential is not well supported and 

is a high-risk approach due to the other 

wild population occurring in Mexico 

and the captive population being run by 

private entities that are not legally 

bound to recover the Mexican wolf. 

Another reviewer agreed that the 

MWEPA population could likely be 

restarted from captivity but suggested 

the Service consider an essentiality 

designation because the growth of the 

second wild population of Mexican 

wolves in Mexico has been fairly 

stagnant and the reintroduction effort is 

very expensive. This reviewer also 

questioned whether the nonessential 


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determination limits the ability of the 

Service to reintroduce the Mexican wolf 

outside of its historical range. A third 

reviewer communicated their 

impression that the concept of 

essentiality is convoluted and 

ambiguous, and that the Service was 

unclear in its discussion whether we 

were referring to the subspecies at-large 

or the Mexican wolf in the wild. This 

reviewer stated that given the emphasis 

on the ‘‘three Rs’’ (resilience, 

representation, and redundancy) in the 

recovery of the Mexican wolf, 

considering the MWEPA as nonessential 

to the persistence of wild wolves seems 

tenuous, although according to strict 

legal definitions may be true. 

6. Do the proposed revisions, and the 

rule as a whole, allow for flexible and 

responsive management of conflict 

situations that can address local 

community concerns related to social 

and economic impacts while still 

providing for the conservation and 

recovery of the Mexican wolf? 

One reviewer stated that the rule 

allows for flexible and response 

management of conflict situations but 

may not adequately provide for the 

conservation and recovery of the 

Mexican wolf. Another reviewer stated 

that the management activities provided 

for in the rule are generally consistent 

with recommendations from the 

literature on reducing wildlife conflicts 

to support conservation. This reviewer 

stated that the scientific literature 

contains mixed evidence as to how 

depredation compensation rates should 

be determined, with some literature 

suggesting that full compensation 

reduces incentives for producers to 

undertake proactive measures to reduce 

conflicts and therefore may lead to more 

depredations, while other literature 

suggests that additional indirect costs 

should be incorporated to fully 

compensate losses. A third reviewer 

stated that the conflict management 

efforts appear to be comprehensive, and 

an evaluation may assist in determining 

which components of the program are 

most effective. The fourth reviewer 

stated that the answer to the question is 

values-based and therefore difficult to 

predict. This reviewer gave the example 

that the rule may make demonstrable 

progress toward reestablishing Mexican 

wolves but still may not satisfy certain 

stakeholders. However, this reviewer 

stated that, collectively, the proposed 

revisions and the rule would allow for 

flexible and responsive management to 

address conflicts, further stating that the 

rule clearly attempts to minimize 

significant impacts and to produce 

realistic predictions for various 

expenses, recognizes the need for 

adaptive management and maintaining 

broad support for recovery efforts, and 

demonstrates continued effort to pursue 

funding and partnerships to ensure the 

overall success of the program. 

7. Is the rule based on the best 

available biological and social science? 

Are there demonstrable errors of fact or 

interpretation of data or scientific 

information in the proposed rule? 

One reviewer stated that using a 

geometric mean, rather than the 

arithmetic mean, would better capture 

population performance in the 

demographic recovery criterion and 

population objective. Another reviewer 

provided recommendations on new 

analytical methods to evaluate data that 

could lead to improved inferences and 

management decisions. 

Several reviewers commented on the 

proposed nonessential designation. One 

reviewer stated that reliance on a 

captive population to replenish wild 

populations after an extinction event 

does not represent the survival of the 

species in the wild or recovery across 

ecologically and geographically diverse 

areas in the subspecies’ range, as 

recommended in the recovery strategy 

in the revised recovery plan. This 

reviewer further cautioned that the 

proposed rule considers wolves in 

captive-breeding facilities and in 

Mexico to be ‘‘populations,’’ but this is 

a very high-risk approach because 

private facility participation in captive 

breeding is voluntary (facilities are not 

legally bound to recover Mexican 

wolves), and the Mexican government is 

not bound to U.S. law. Additionally, 

this commenter stated that more than 90 

percent of the remaining wild Mexican 

wolves inhabit the MWEPA, and it is 

likely that new genetic mutations have 

emerged, providing an evolutionary 

avenue for locally adapted Mexican 

wolves. Because these alleles do not 

exist in the captive population or in 

Mexico’s population, the reviewer 

considers the MWEPA essential. 

One reviewer stated that while there 

were no observable errors of fact or 

interpretation with the social science 

data or literature presented by the 

Service, there is additional literature 

related to cattle prices, indirect effects 

from livestock depredations, and 

management costs that may have 

relevance for the determination of 

economic impacts of the proposed 

revisions. This reviewer provided 

specific examples of cattle price 

variability to highlight the variation in 

economic impacts experienced by an 

individual producer from a depredation 

and the management decisions that 

follow. This reviewer also provided 

information about the potential indirect 

economic effects of depredations and 

noted that the Service had accounted for 

some, but not all, possible indirect 

effects in its analysis, while also noting 

that a systematic accounting of all 

possible indirect effects is not available 

in the literature. The reviewer stated 

that there is insufficient evidence to 

establish the extent of indirect effects. 

The reviewer also provided examples of 

management costs associated with 

depredation activity, including fence 

maintenance and repair from livestock 

prone-to-flight behavior, veterinary 

costs of injured animals, and other 

management interventions such as 

herding dogs and additional riders to 

check herds. 

Another reviewer stated that the 

proposed rule is arguably based on the 

best available science, although that 

does not mean there may not be debate 

in the scientific community over the 

choice of models, data to populate them, 

statistical evaluations, and 

interpretation of results. This reviewer 

clarified that no single issue or issues 

collectively mentioned by the reviewer 

would result in the inability to achieve 

recovery. This reviewer suggested the 

Service add a description of our annual 

count methods because that is how the 

Service will assess progress toward the 

population objective, recommended that 

the Service conduct a cost-benefit 

analysis of diversionary feeding related 

to effective law enforcement levels or 

other actions, and questioned whether 

the potential impacts of the border wall 

on Mexican wolf recovery, other than on 

the probability of wolf dispersal across 

the border, were considered. 

Specific Peer Review Comments 

Comment: The MWEPA population 

estimates are based on an ad hoc 

estimation approach (USFWS 2019, pp. 

21–22) and these point estimates are 

used to depict population trajectory and 

estimate population growth rate. There 

is no measure of the precision of the 

estimates; this could influence estimates 

of extinction risk. 

Our response: We conduct an annual 

population minimum count in the 

MWEPA. Our methods for conducting 

these counts have been consistent since 

2008, and thus should be comparable 

over time and reflect the population 

trend. The minimum counts represent 

wolves and/or wolf sign observed 

between November and early February 

each year. Because we utilize a 

minimum count, we consider our 

results to serve as a conservative 

population estimate (i.e., the true 

population is above the reported count). 

Thus, extinction risk is appropriately 

conservative and may be slightly 


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overestimated based on utilizing 

minimum counts. For small populations 

of mammals, population counts are 

likely the best method; however, we 

also recognize that research is 

appropriate at this stage of the MWEPA 

reintroduction (196+ wolves) to 

determine appropriate population 

estimate methods in the future for a 

larger population of wolves (i.e., more 

than 300). 

Comment: MWEPA population 

estimates are essentially point estimates 

of the ‘‘minimum number known alive,’’ 

and their validity, as actual population 

estimates, is dependent on whether the 

probability of detection each year 

remains constant. These counts are an 

index of population size, yet they are 

used to estimate population growth rate, 

but there are two issues here. As 

mentioned, it is not known if the 

probability of detection between years is 

constant (in this case it is assumed), and 

there is no measure of precision around 

the count, so whether the count of 

population size between years actually 

differs is obscured. 

Our response: See our response above. 

In addition, for small populations of 

mammals that are hard to detect through 

sightability models or double counts 

from the air (e.g., wolves avoid 

detection from helicopters by simply 

not moving, and it is only through radio 

telemetry that we are able to find 

collared wolves or the uncollared 

wolves associated with them), minimum 

population counts are likely the best 

method to determine or estimate 

population size. We have had very 

limited success attempting to grid areas 

with helicopters to detect wolves 

without radio telemetry, even with food 

caches placed in areas of known wolf 

occupancy. Thus, we rely on tracks, 

scats, and remote cameras to document 

uncollared packs. 

Comment: Population estimates are 

made at the end of the year and include 

all age classes; the number of adult and 

subadult wolves should be presented 

separate from the number of pups 

surviving until the end of the year. 

Our response: We document the 

number of pups surviving until the end 

of the year during our annual 

population count. We are currently 

updating the content and format of our 

annual reports (for 2021 and subsequent 

years) and will consider providing this 

information in future annual reports. 

Comment: The genetic objective of 

releasing 22 wolves does not ensure that 

these wolves actually breed and 

contribute their allelic diversity to the 

wild. Despite the realistic probabilities 

used to predict the success of released 

wolves contributing their genes to the 

population, they are still just 

predictions and should be stated as 

such. 

Our response: We have clarified our 

language to describe the future 

conditions of the population where they 

are speculative. 

Comment: The continued monitoring 

of the genetic variation present in the 

wild Mexican wolf populations would 

be a more appropriate method to assess 

genetic diversity and its erosion over 

time, compared to assuming that when 

a certain number of wolves reaches 

breeding age they will mate, their 

offspring will survive and reproduce, 

and genetic diversity will be 

maintained. 

Our response: The genetic objective 

we are establishing serves as an 

indicator that we have transferred a 

large degree of the gene diversity 

available in captivity to the wild 

population. Our genetic monitoring will 

continue to include multiple 

components, including the number of 

released wolves surviving to breeding 

age and their reproductive success when 

known, as well as genetic metrics for the 

population such as gene diversity and 

mean kinship. As stated in our 

responses above, we recognize that we 

need to adapt our current genetic and 

population monitoring strategies in the 

near future to address logistical issues 

associated with monitoring a growing 

population and ensuring our methods 

continue to produce reliable estimates 

to track progress toward recovery. We 

are beginning to explore different 

monitoring schemes and will discuss 

relevant findings or decisions in 

upcoming program reviews. 

Comment: Permitting or facilitating 

adaptive introgression may be necessary 

to ensure the adaptive potential of the 

MWEPA population. Is the Service 

planning an introgression zone between 

gray wolves in Colorado and Mexican 

wolves? 

Our response: Genetic monitoring of 

the MWEPA population will continue to 

be necessary to ensure that genetic 

threats to the Mexican wolf are lessened 

and alleviated. We currently collect and 

report genetic data on individual wolves 

and the population based on the known 

pedigrees of collared wolves and blood 

and scat samples taken in the field; as 

explained in our responses above, we 

expect to modify our genetic monitoring 

scheme over time. We recognize 

adaptive introgression can be a useful 

genetic tool in certain situations. At the 

current time, the Service does not have 

any intention to initiate or allow 

adaptive introgression between gray 

wolves and Mexican wolves as part of 

our genetic management of Mexican 

wolves. As of April 2022, Colorado 

Parks and Wildlife has not solidified its 

gray wolf reintroduction strategy; 

therefore, it is difficult to determine the 

timing and extent of future dispersal 

contact that may occur between gray 

wolves and Mexican wolves or the 

potential genetic effect of this contact on 

Mexican wolves. As more information 

becomes available, we will consider the 

implications in our management and 

monitoring strategies. 

Comment: Where did the policy of 

releasing 22 wolves that attain breeding 

age, which are then assumed to 

contribute allelic diversity to the wild 

population, originate from? 

Our response: Miller (2017) explored 

various population viability scenarios 

that demonstrated that 22 released 

wolves surviving to breeding age, with 

some portion of surviving animals 

breeding, would achieve representation 

in the wild of 90 percent of the gene 

diversity available in captivity (see table 

16 in Miller 2017). Specifically, the 

‘‘[EISx2]’’ scenarios resulted in gene 

diversity retention relative to the SSP 

for the MWEPA of 0.897–0.901, which 

is effective in achieving the Service’s 

objective to ensure the wild population 

represents 90 percent of the gene 

diversity in captivity. 

Comment: It appears that inbreeding 

depression or reduced fitness is likely 

occurring in the MWEPA. A reanalysis 

of data that explores the effect of the 

inbreeding coefficient of wild pairs on 

whether they successfully produce a 

litter, on litter size, and pup survival is 

warranted with a more up-to-date 

dataset (1998 to 2021). 

Our response: The Service agrees that 

reanalysis of inbreeding depression will 

be a necessary task during the recovery 

of the Mexican wolf. We will consider 

a reanalysis of inbreeding depression 

during the 5- or 10-year recovery plan 

evaluations in order to guide the 

ongoing recovery effort; however, we 

have not solidified our plans for the 

evaluations at this time. The inbreeding 

analysis conducted in association with 

the revised recovery plan and 

supporting biological report (USFWS 

2017b, p. 33 and appendix C) is based 

on the largest, most comprehensive, and 

up-to-date data set available (89 litters 

over 16 years). It suggests that 

inbreeding may affect the probability of 

producing a litter but is not significantly 

affecting litter size, as previously 

thought (Fredrickson et al. 2007). 

Comment: Illegal take of Mexican 

wolves has been high, particularly in 

the last decade. Although there is a 

comprehensive human-wolf conflict 

management program in place, its 

effectiveness or relation to allowable 


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forms of take is not clear; will restricting 

forms of legal take reduce illegal take? 

Our response: We have not conducted 

a formal assessment of our human-wolf 

conflict management strategies at this 

time to determine their individual 

efficacy in reducing human-caused 

mortality of Mexican wolves. The 

purpose of the take restrictions in this 

rule is to ensure that the management 

flexibility authorized in the MWEPA 

supports the long-term conservation and 

recovery of the Mexican wolf, and that 

the likelihood of take is reduced during 

conflict situations in which other 

management options are available. We 

note that we are currently revising the 

revised recovery plan to diversify and 

strengthen the recommended actions the 

Service and our partners may 

implement to reduce human-caused 

mortality. We will assess the efficacy of 

our efforts to reduce human-caused 

mortality in the 5-year review of the 

revised recovery plan in 2023. 

Comment: Under section 4(e) of the 

ESA (‘‘Similarity of Appearance 

Cases’’), the Secretary of the Interior can 

deem another species as endangered or 

threatened if that species is so similar in 

appearance that curtailing take of that 

species would help conserve the 

endangered species. In this case, 

preventing take of coyotes (Canis 

latrans), which can be confused with 

the Mexican wolf, may help curtail 

illegal take of wolves. 

Our response: A section 4(e) 

‘‘similarity of appearance’’ listing would 

be a separate regulatory action under the 

ESA and is therefore beyond the 

purview of this rule. 

Comment: Cross-fostering and 

supplemental feeding appear critical to 

achieving genetic goals. Carroll et al. 

(2019) argued that supplemental feeding 

could mask the effects of inbreeding; 

however, relevant field data indicate 

survival of wolf pups that are 

supplementally fed is likely enhanced 

and this methodology will likely 

increase the rate at which 22 

individuals are integrated into the 

population. 

Our response: We agree. We 

supplementally feed most packs (a few 

packs are logistically too difficult to 

feed) that have cross-fostered pups to 

increase the likelihood that crossfostered pups survive. 

Comment: Carroll et al. (2019) 

criticized the population viability model 

for maintaining a long-term reliance on 

supplemental feeding because it 

provided a demographic boost that was 

important in achieving demographic 

goals, but Miller (2017) also 

demonstrated that if ultimately it is 

determined that supplemental feeding is 

inappropriate, there are other ways to 

maintain growth in the wolf population 

(e.g., boosting adult survival). 

Our response: We agree. We are 

committed to maintaining the growth of 

the Mexican wolf population until we 

reach our recovery goals through a 

variety of management actions; we 

expect to reduce supplemental or 

diversionary feeding in the future as we 

scale back management support of the 

population in association with meeting 

recovery goals and documenting that 

threats have been alleviated. 

Comment: The population viability 

model (Miller 2017) did not include 

density dependence or a link between 

density and reproduction. The model 

results may be reliable for near-term 

population projections (5 to 10 years) 

but likely underestimate extinction 

probabilities and overestimate genetic 

diversity in the long term, because they 

overestimate effective population size 

from too many breeding females. The 

population viability model could be 

revised in the future by updating the 

vital rates populating the model and 

including density-dependent effects and 

group sizes, particularly if density 

increases. 

Our response: Miller (2017) did not 

include density-dependent reproduction 

in the model because there is no 

scientific evidence supporting a link 

between the number of pups born, their 

survival, and population density (p. 6). 

The model did include a densitydependent mortality function but 

acknowledged that Mexican wolf 

density in the MWEPA is low enough 

that density-dependent effects on 

mortality are not likely to occur (ibid, p. 

7). We intend to revisit the population 

viability model in the future and will 

investigate data for any demonstrable 

changes from previous projections. For 

instance, we have observed higher 

annual growth rates than predicted by 

the model. 

Comment: The proposed rule states 

that if no released wolves were removed 

during the prior year, then any removals 

that were conducted would not 

negatively impact gene diversity. This 

may not be true. It depends on which 

wolves are removed; for example, 

removing diverse wild-born individuals 

could have a negative effect on gene 

diversity if those wolves have new, 

advantageous mutations. 

Our response: We understand the 

perspective offered by the reviewer but 

consider it important to recognize that 

we may not always have the ability or 

information to determine whether a 

particular wolf has a new, advantageous 

mutation when we are trying to resolve 

a conflict situation. We have revised our 

language where relevant to ensure we 

do not suggest that wild wolves may not 

have valuable gene diversity. Our 

approach to count the number of 

released wolves surviving to breeding 

age in both the genetic objective and 

associated benchmarks is focused on the 

transfer of captive gene diversity to the 

wild and supporting the success of 

those wolves to reach breeding age. 

Comment: Although Miller (2017) 

used population and vital rate estimates 

from Mexican wolves, estimates of 

survival of Mexican wolves were made 

using the Heisey and Fuller (1985) 

method, and this method has 

assumptions and sampling requirements 

that can be difficult to verify. Given the 

large number of wolves that have been 

radio-collared over the course of the 

recovery program, estimates of survival 

could be explored using more robust 

statistical models, such as Coxproportional hazard models or knownfate models, or integrated population 

models. Such modeling approaches 

should be considered in subsequent 

analyses. 

Our response: We will consider 

alternative analytical approaches in the 

future for estimating survival; however, 

the methods utilized are within 

scientific standards, particularly for a 

population with limited emigration or 

immigration (Miller 2017, appendix D, 

pp. 67–72). 

Comment: Beyond decreasing the 

probability of wolf dispersal, were other 

potential implications of a border wall 

and the associated increase in human 

disturbance (e.g., related to law 

enforcement) considered? 

Our response: We did not consider 

the implications of the border wall 

during the development of the 

regulatory revisions in this rule because 

we do not think the border wall or 

associated human disturbance will 

affect the ability of the MWEPA to 

support a robust population of Mexican 

wolves. We agree that the border wall 

could affect wolf territory configuration 

and dispersal in localized areas near the 

border occasionally, but not to an extent 

that threatens the persistence of the 

population or its ability to achieve the 

population objective. Habitat along the 

border is typically unsuitable, or has 

low suitability, and we do not expect 

wolves to occupy this area consistently. 

Comment: There does not appear to 

be a numerical trigger to distinguish 

when different allowable forms of take 

are permitted. The proposed rule would 

allow the population to be reduced to a 

low number as long as no released 

wolves are part of the allowable take. 

Recovery goals are both genetic and 

numerical; with no numerical threshold 


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for when proposed allowable take is 

permitted or not, progress toward 

recovery could be hindered. 

Our response: This rule does not 

include a numerical trigger that dictates 

the utilization of allowable forms of take 

in relation to population size, as our 

focus in this rule is to comply with the 

March 31, 2018, order to ensure that the 

expanded take flexibility authorized by 

the 2015 10(j) rule is protective of 

genetic diversity. We expect to adjust 

the amount of take allowed by the 

Service and conducted by the Service 

and our partners, through our 

management actions as needed, to 

ensure that adult wolf mortality remains 

below 25 percent (USFWS 2017a, pp. 

20–22). We currently do not consider 

the level of take expected to occur 

through the three forms of take that are 

restricted in this rule to affect 

population demography (USFWS 2022a, 

p. 117). 

Comment: Much of the rationale in 

the proposed rule’s Regulatory 

Flexibility Act discussion is based on 

Ramler et al. (2014). This study was a 

non-random survey of 18 ranches and a 

correlation to calf weights. The 

subsequent assumptions in the 

proposed rule about the number of 

ranches affected are simple, as noted. 

The rule also states that effects on 

livestock production are not significant, 

and do not need to be addressed when 

not significant. 

Our response: Ramler et. al (2014) 

found no evidence that wolf packs with 

home ranges that overlap ranches have 

any detrimental effects on calf weights. 

Primary factors that contributed to 

weight loss were determined to be 

associated with climate and individual 

ranch husbandry practices. However, 

the study did find that for ranches that 

experienced a confirmed cattle 

depredation by wolves, calves on 

average experienced a weight loss of 

approximately 22 pounds, or 3.5 percent 

of body weight. Ramler et. al (2014) was 

one of several studies used to estimate 

the indirect effects of wolf presence on 

weight loss due to associated stresses. 

Comment: There is mixed evidence in 

the literature as to how compensation 

rates should be determined to be most 

effective at mitigating wildlife-livestock 

conflicts. Some argue that direct 

compensation programs may create a 

moral hazard problem (see e.g., Nyhus 

et al. 2005), which would imply that 

100 percent (or higher) compensation 

reduces incentives for producers to 

undertake other risk-reducing 

management activities; thus, full 

compensation may lead to more 

depredations. In contrast, other 

literature suggests that compensations 

ratios need to be greater than 1 (i.e., 

more than 100 percent compensation for 

confirmed depredations) to fully 

compensate producers for the economic 

impacts of wolves, including 

unconfirmed depredations and the 

indirect effect of depredations (e.g., 

Ramler et al. 2014; Steele et al. 2013; 

Laporte et al. 2010; Sommers et al. 2010; 

Oakleaf et al. 2003). 

Our response: We have followed, and 

will continue to follow, the available 

literature on this topic, which we agree 

suggests that different approaches may 

be relevant in determining adequate and 

appropriate depredation compensation 

and does not reach consensus. Livestock 

producers in the MWEPA currently 

have compensation programs available 

in Arizona and New Mexico, including 

compensation for confirmed 

depredations and access to collaborative 

nonlethal conflict avoidance tools and 

techniques. 

Comment: To estimate the potential 

value of depredated livestock, the 

USFWS uses a 10-year weighted average 

of market values, where weights are 

determined by the proportion of 

depredated animals that are calves 

versus cows and prices per 

hundredweight (cwt) were based on 

500-pound (lb) calves and 1,000-lb cows 

(USFWS 2021, p. 124). These 

assumptions result in an expected 

average value of $1,094.72 per 

depredated cow/calf based on 2020 

dollars. This approach is not inherently 

flawed—it can provide a reasonable 

average estimate over long-time 

horizons—but it oversimplifies the 

cattle market and the potential 

economic impacts of a depredation of a 

specific animal at a specific time and 

place. 

Our response: Our economic analysis 

presented data on cattle prices since 

1996. Over that period, the price for 

cattle in 2020 dollars (per hundred 

pounds, or cwt) ranged from a low of 

$94.92 in 1998, to a high of $169.83 in 

2014. The average price during this 

period was $117.50/cwt compared to 

the average price over the last 10 years 

(2010–2019), which we used in our 

analysis, of $134.45/cwt. 

There are many independent factors 

affecting cattle prices on a yearly basis 

that lie beyond the control of ranchers. 

These include supply-side factors such 

as the quality and quantity of cattle from 

other areas and demand-side factors 

related to consumer choices. 

Independently, ranchers try to raise 

their optimal herd size based on local 

factors such as the cost of forage, labor, 

medical expenses, loan rates, and 

expected sales price. It is beyond the 

scope of our study to try and develop a 

detailed, predictive macroeconomic 

model of the Arizona/New Mexico cattle 

industry. Recognizing the numerous 

factors that can influence prices and 

quantities, we decided to limit our 

selection of market prices to only the 

last 10 years of data because including 

older data would pick up historical 

influences on market prices and 

quantities that more likely than not are 

not as influential or relevant in today’s 

market. We agree that relying on the last 

10 years of data to predict future cattle 

prices represents a simplified approach, 

but as noted by our peer reviewer, the 

approach is not flawed and is 

reasonable given the limitations. 

Comment: The USFWS references the 

documented indirect effects of predator 

pressure on livestock weight gain, and 

explicitly attempts to account for it in 

their calculation of potential economic 

impacts. Other indirect effects, however, 

do not appear to be considered or 

accounted for. It would, admittedly, be 

difficult to accurately account for the 

full range of indirect effects. 

Our response: Our economic analysis 

recognizes that in addition to the direct 

effects that the presence of wolves can 

have on cattle stocks (i.e., depredations), 

there are a number of potential indirect 

effects on the herds as well. One of 

these indirect effects, which we 

specifically attempt to account for in 

our economic analysis, is the effect of 

stress on cattle herds foraging within the 

vicinity of wolves. As our reviewer 

points out, indirect effects may include 

weight loss; reduction in conception 

rates; reduced utilization of available 

forage; increased risks of injury, 

illnesses, and diseases; and general 

effects on manageability. We have 

attempted to review the existing 

literature on these factors, and where 

reasonable data exists, we have 

attempted to use this information to 

quantitatively estimate the indirect 

effects on cattle herds due to the 

presence of wolves. Specifically, we 

considered the impact of weight losses 

on affected herds and how that may 

impact the profitability of ranching 

operations. As our peer reviewer notes, 

it is difficult to model the other specific 

effects, many of which would also 

manifest themselves in the form of 

weight loss, due to a scarcity of 

applicable studies that attempt to better 

understand all of these interactive 

effects that may be caused by the 

presence of wolves. We believe that by 

accounting for the indirect effects of 

potential weight losses, we have 

realistically captured the most 

significant financial impact of indirect 

effects on affected ranches. 


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Comment: The proposed rule 

explicitly acknowledges potential 

management responses, noting that 

estimated costs are likely an 

overestimate since proactive and 

reactive management tools are available 

to reduce the indirect effects associated 

with weight loss; however, the costs of 

said management tools do not appear to 

be explicitly accounted for within 

estimates of the economic impact on 

small enterprises (although some may 

be offset by federally funded or 

subsidized programs). Additionally, 

some existing literature (see e.g., 

Rashford et al. 2010; Lehmkuhler et al. 

2007) has identified a range of potential 

costs associated with managing 

livestock in the presence of wolves, 

including fence maintenance and repair, 

veterinary costs, reporting/verification 

costs, and other management 

adjustments. 

Our response: Our economic analysis 

recognizes the fact that ranch operations 

within the vicinity of wolves may 

experience indirect economic effects 

associated with depredations. We 

recognize there are several potential 

categories of indirect economic effects, 

including stress-related effects of wolf 

presence on the herd, additional labor 

time for ranch owners to pursue 

depredation claims, and the investment 

in additional range labor time and 

materials in order to prevent 

depredations (USFWS 2014, chapter 4, 

pp. 29–48). The FSEIS attempted to 

reasonably estimate the financial cost of 

several of these indirect effects on 

affected ranches based on the studies 

available that provided credible 

research and results that could be 

incorporated into the analysis. We 

specifically were able to factor in an 

estimate for owner-operator labor time 

associated with processing depredation 

claims, as well as estimating the 

financial impact of expected weight 

losses on a stressed herd. 

We were unable to find research that 

would enable us to also attempt to 

credibly measure the financial impact 

associated with undertaking additional 

measures to prevent depredations. 

While there are some studies that do 

recognize these impacts (e.g., Rashford 

et al. 2010; Lehmkuhler et al. 2007) in 

association with other indirect impacts 

(e.g., weight loss) in association with the 

presence of gray wolves, we were 

unable to extrapolate any findings that 

could be credibly applied to our 

analysis. We note that by explicitly 

accounting for the financial impact of 

weight loss of stressed herds that we 

are, in fact, accounting for some of the 

interactive costs associated with 

preventative measures, as such 

measures would not only serve as a 

detriment to depredations but also serve 

to reduce stresses on the herd and any 

associated weight losses. Relatedly, our 

Mexican wolf recovery program 

provides both management and 

financial assistance to ranchers to 

minimize potential wolf-cattle conflicts. 

Our latest Mexican wolf recovery 

program progress report (number 22, 

January–December 2019) discusses how 

the Service engaged in such practices 

during this period and intends to 

develop a future database to aid in 

monitoring and evaluating the 

effectiveness of such activities (USFWS 

2019, pp. 37–39). 

Comment: Given there is only one 

population of Mexican wolves under the 

Service’s control, coupled with the 

uncertainties associated with alternative 

population sources, it is unclear how 

the MWEPA cannot be considered 

essential. 

Our response: Neither section 10(j) of 

the ESA nor our implementing 

regulations specify that management 

control of nonexperimental populations 

is a factor in determining whether an 

experimental population is essential. 

Comment: The MWEPA holds most of 

the remaining wild Mexican wolves 

(more than 90 percent), including 

several wild-born generations. It is 

highly likely that new genetic mutations 

have emerged in the wild, providing an 

evolutionary avenue for locally adapted 

Mexican wolves. Those alleles will not 

be in the captive population or Mexico’s 

population, thus making the MWEPA 

essential. 

Our response: We agree that there is 

potential for new genetic mutations to 

have emerged, or to emerge in the 

future, in the wild that may benefit the 

adaptive potential of Mexican wolves in 

the MWEPA. However, this fact alone 

does not equate to essentiality as 

defined by statutory language or our 

regulations. 

Comments From Federal Agencies 

Comment: The Service should clarify 

its process to consider whether future 

range expansion beyond the MWEPA 

via natural dispersal is appropriate for 

the Mexican wolf due to the potential 

effects of climate change, and whether 

the increase in genetic diversity from 

the genetic objective is sufficient to 

provide adaptive capacity against 

climate change. The Service should 

consider the updated National Fish, 

Wildlife and Plants Climate Adaptation 

Strategy and consider implementing an 

adaptive approach where clear trends in 

wolf movements north of I–40 result in 

consideration of expanded experimental 

population boundaries. 

Our response: The Service’s recovery 

strategy for the Mexican wolf in the 

revised recovery plan includes 

discussion of the geographic and genetic 

representation needed for long-term 

conservation and recovery of the 

Mexican wolf. The revised recovery 

plan builds two evaluation periods into 

the recovery process to ensure that the 

plan’s strategy continues to be 

appropriate and effective (USFWS 

2017a, p. 26); therefore, although we do 

not currently consider climate change a 

threat to the Mexican wolf, we will 

continue to revisit this issue as we 

evaluate our recovery strategy in the 

future. We also refer the commenter to 

our discussion of climate change related 

to our strategy for Mexican wolf 

recovery in our response to public 

comments on the revised recovery plan 

(see USFWS 2017c, pp. 12–13). 

Comments From States 

Comments we received from the 

States regarding our October 29, 2021, 

proposal to revise the regulations for the 

nonessential experimental population of 

the Mexican wolf in the MWEPA are 

addressed below. We note that some 

comments from the States expressed 

support for various features of the rule, 

such as the Service’s intention to align 

the 10(j) designation with the revised 

recovery plan, the Service’s current 

focus on pursuing recovery within the 

historical range of the Mexican wolf, 

and the Service’s intention to capture 

and return to the MWEPA or captivity 

any Mexican wolf that disperses outside 

of the MWEPA. We do not provide 

responses to statements that are 

consistent with our approach. In other 

instances, we have incorporated 

information supplied in these comments 

directly into the rule and similarly do 

not restate those issues here. 

Comment: One State agency requested 

that we add language to the regulatory 

text in the rule stating that we have 

developed a 10(a)(1)(A) permit to allow 

for specific management activities 

within and outside of the MWEPA and 

clarifying that we will capture and 

return to the MWEPA or place in 

captivity Mexican wolves that travel 

outside of the MWEPA. 

Our response: We state our intention 

to manage wolves that disperse beyond 

the MWEPA through the 10(a)(1)(A) 

permit in the preamble of the rule (see 

Management Restrictions, Protective 

Measures, and Other Special 

Management, above). However, only 

management activities that take place 

within the experimental population 

boundaries are included in the 

regulatory text of the rule. 


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Comment: Maintenance of the 

nonessential experimental population 

designation is critical to the Service’s 

ability to implement responsive 

management actions such as cross 

fostering, translocations, and removals. 

Maintaining the existing designation is 

also important for maintaining the trust 

of the public and other agencies as a 

precedent for other reintroduction 

efforts under the ESA’s section 10(j). 

Our response: The Service 

acknowledges the importance of 

maintaining the trust of our partners. An 

essentiality determination under section 

10(j) of the ESA is based on whether the 

best available information supports that 

the population is essential to the 

continued existence of the species. 

Based on the best available information, 

we have determined the MWEP to be 

nonessential. We note that the primary 

difference between an essential and 

nonessential experimental population is 

the requirement to conduct interagency 

consultation under section 7(a)(2) of the 

ESA for populations determined to be 

essential and the potential to designate 

critical habitat under section 4(b)(2) of 

the ESA. Regardless of the designation 

as an essential or nonessential 

experimental population, members of 

the experimental population will be 

treated as a threatened species which 

allows for developing regulations to 

allow for responsive and flexible 

management. 

Comment: The final rule should stress 

that the new population objective is not 

intended to portray an unlimited 

number of wolves growing indefinitely, 

but rather recognizes natural variation 

around a target population size. 

Our response: We discuss our 

expectations for the future growth of the 

population in the FSEIS (USFWS 2022a, 

pp. 24, 28, table 2.1). We have ensured 

that the preamble of this rule does not 

suggest that we expect an unlimited 

number of wolves growing indefinitely 

in the MWEPA under the revised 

population objective; we point to our 

statement in the proposed rule that, 

under the proposed population 

objective, we would continue to manage 

Mexican wolves in the MWEPA to 

maintain a population average greater 

than or equal to 320 wolves until 

delisting occurs (86 FR 59953, October 

29, 2021, p. 59959), which remains 

consistent with the final rule. 

Comment: The final rule should 

include timeframes or guidelines for 

when the States can request 

management of Mexican wolves if 

adverse impacts to ungulates are 

occurring. 

Our response: The final rule provides 

this information at § 17.84(k)(7)(vi)(E). 

Comment: Recent efforts to crossfoster genetically valuable Mexican wolf 

pups from captivity to the wild are 

demonstrating that this approach can be 

successfully used to achieve the 

proposed genetic objective. It is 

resulting in improvements in the 

population’s gene diversity, mean 

kinship, and founder genome 

equivalents. The Service is on track to 

achieve the benchmark in the recovery 

plan for 9 released wolves to survive to 

breeding age at the 5-year review. 

Our response: The Service and our 

partners have committed significant 

resources since 2014 to test crossfostering as a release strategy to improve 

the genetic health of the MWEPA. We 

agree that this technique appears to be 

proving successful and has become a 

valuable tool to address genetic threats 

in the MWEPA. As of April 1, 2022, 13 

released wolves surviving to breeding 

age have been counted toward the 

genetic objective and genetic recovery 

criterion (USFWS files). 

Comment: While the proposed genetic 

and population objectives are 

appropriate and necessary for the 

recovery of the Mexican wolf, they may 

result in additional hardships for 

livestock producers. Therefore, a 

companion provision should be 

included in the rule to implement an 

aggressive program to improve the 

coexistence component of the recovery 

program. 

Our response: The Service 

acknowledges that the increased 

number of wolves in the MWEPA could 

result in impacts to livestock producers 

and that permit restrictions will 

decrease the ability of some livestock 

operators to assist in conflict resolution 

in certain situations. We will continue 

to work with our partners and livestock 

operators to expand and improve our 

coexistence efforts as an integral part of 

the recovery program, but we have not 

added any mandatory coexistence 

measures to the regulatory text of this 

rule. 

Comments From the Public 

Comment: Many commenters stated 

that a single population of an average of 

320 wolves in the MWEPA is 

insufficient for recovery. Many of these 

commenters stated that a 

metapopulation of three populations 

with 750 to 1,000 wolves is necessary 

for recovery because multiple 

interbreeding populations are necessary 

for resiliency and increasing genetic 

diversity. Other commenters discussed 

the concept of ecological effectiveness, 

recommending a population objective of 

500 breeding animals. 

Our response: These commenters did 

not provide new information that the 

Service has not already considered and 

responded to in its development of the 

recovery criteria in the revised recovery 

plan for the Mexican wolf (USFWS 

2017c, pp. 19–20) or the population 

objective for the MWEPA (85 FR 20967, 

April 15, 2020; USFWS 2021, pp. 202– 

206). Therefore, we did not make any 

changes to this rule in response to these 

comments. 

Comment: Commenters questioned or 

expressed concern with the recovery 

strategy to have one population in the 

MWEPA and one in Mexico, stating that 

dispersal between the two areas would 

be infrequent, associated with a high 

risk of mortality, and dependent on 

successful navigation of low habitat 

quality and an impermeable border 

wall. 

Our response: We provide our 

rationale for the recovery strategy for the 

Mexican wolf in the revised recovery 

plan and address issues such as 

dispersal between Mexican wolf 

populations in the United States and 

Mexico. The 2015 10(j) rule revisions 

included the extension of the 

experimental population boundaries to 

the international border with Mexico in 

recognition that management of 

dispersing wolves between the two 

populations would be necessary. We 

addressed comments about this topic in 

the DSEIS (USFWS 2021, pp. 199–202) 

and previously in our response to public 

comments on the revised recovery plan 

(USFWS 2017c, p. 18). 

Comment: One commenter expressed 

concern that under the proposed 

population objective, the requirement of 

an 8-year average of 320 with the last 3 

years stable or increasing could allow 

for the Service to translocate or remove/ 

take around 150 wolves at some point 

after the population objective has been 

reached and exceeded. 

Our response: The Service is 

establishing a population objective in 

this rule that will result in a robust 

population that contributes to recovery; 

we intend to manage the population in 

accordance with meeting and 

maintaining this objective. 

Comment: A commenter mentioned 

the proposed rule does not include a 

human-caused mortality criterion or 

management actions that will 

substantively address this issue. 

Our response: Human-caused 

mortality is a broad term that 

encompasses several forms of mortality 

for Mexican wolves, including vehicular 

collision, shooting, trapping, and 

management removal. This rule 

maintains multiple provisions from the 

existing regulations in the 2015 10(j) 


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rule that address the threat of humancaused mortality, including prohibitions 

to restrict the take of Mexican wolves 

(§ 17.84(k)(5)) and limitations on 

activities that may disturb Mexican 

wolves and affect their persistence 

(§ 17.84(k)(8)). In addition, this rule 

provides new restrictions on three forms 

of take that could result in humancaused mortality, as well as providing a 

revised population objective to ensure 

the population continues to grow as 

necessary to alleviate demographic 

threats. In addition, the Service is 

expanding our efforts to address humancaused mortality in our revisions to the 

revised recovery plan (USFWS 2022b, 

pp. 30–33). 

Comment: Several commenters noted 

the delay in receiving compensation for 

depredations and stated that an increase 

in the wolf population will make the 

situation more severe for livestock 

operators. 

Our response: The Service is aware of 

the delays in receiving compensation in 

previous years. The Service’s Wolf 

Livestock Loss Demonstration Project 

Grant Program for eligible States and 

Tribes has served as the primary 

funding source for compensation and 

requires a 50:50 non-Federal match; 

most delays in receiving compensation 

have occurred as a result of grant 

funding and match funding not being 

available at the same time. The Service 

has made improvements to the Wolf 

Livestock Loss Demonstration Project 

Grant Program and worked with its 

partners to secure match funding, 

helping to alleviate this issue. 

Comment: One commenter noted that 

the Service is inconsistent because it 

says that no unique genes would be lost 

if released wolves did not survive in the 

MWEPA, but then it uses genetic 

importance as a reason not to remove 

wolves during conflict situations. 

Our response: Wolves released to the 

wild from captivity are considered 

surplus wolves whose genes are 

represented by related wolves still held 

in captivity. Therefore, a released wolf 

could be replaced with a related surplus 

wolf from captivity if necessary. 

However, because we are trying to 

improve gene diversity in the MWEPA, 

it is important for released wolves to 

survive and breed so that genes from 

captivity that are currently 

underrepresented in the wild become 

integrated into a more genetically 

diverse MWEPA population. 

Comment: Multiple commenters 

questioned whether the Service has 

objectives related to ensuring specific 

representation of the three founding 

lineages of the captive population, such 

as to achieve 50 percent, 25 percent, and 

25 percent, respectively, of the Certified 

(McBride), Ghost Ranch, and Aragon 

lineages. 

Our response: We currently focus on 

increasing founder representation rather 

than lineage representation in the wild; 

however, we do not have specific 

objectives related to this metric at the 

current time. 

Comment: Many commenters 

discussed the basis of the proposed 

genetic objective to ensure that 90 

percent of the genes in the captive 

population are expressed in the 

MWEPA population. Several 

commenters noted that wildlife 

managers typically set genetic retention 

goals relative to the current source 

population. These commenters 

questioned or critiqued the Service’s 

approach to aim to retain 90 percent of 

gene diversity at 100 years in the future 

because the projected diversity in the 

captive population 100 years in the 

future is a much lower value. These 

commenters expressed concern over the 

already-depleted genetic status of the 

captive population and the concept of 

tying the genetic future of the wild 

populations to the ongoing deterioration 

of gene diversity in captivity. Another 

commenter stated that the SSP uses 90 

percent gene retention as a standard in 

conserving some captive populations, 

but this does not make it a ‘‘community 

of practice standard’’ as claimed in the 

revised recovery plan nor is it 

appropriate for the Service to use it as 

a foundation for recovery criteria. 

Our response: We expect to achieve 

the genetic objective in this rule within 

8 years. 

We used a metric (i.e., the number of 

animals that survive to breeding age) as 

the basis of the revised recovery plan 

genetic criterion that coupled model 

performance with performance of the 

wild populations (Miller 2017, entire) to 

ensure that a large degree of the gene 

diversity available in captivity is 

transferred to the wild population to 

reduce the likelihood of genetic threats 

such as inbreeding. We provide our 

rationale for our objectives and strategy 

in the revised recovery plan (USFWS 

2017a, pp. 13–15, 22–24; USFWS 2017c, 

pp. 28–29), which formed the basis for 

the genetic objective in this rule. 

Comment: Some of the commenters 

recommended releasing adult pairs with 

pups instead of, or in addition to, crossfostering captive puppies into wild dens 

because adult wolves could more 

quickly affect the genetics of the 

MWEPA and because adult releases 

have had a higher success rate. Several 

of these commenters stated that the 

concept of ‘‘effective migrants’’ is a 

better scientific principle than released 

wolves surviving to breeding age 

because it ensures that reproduction of 

released wolves takes place and that 

genes from captive wolves are integrated 

into the population. These commenters 

stated that the Service’s proposal is 

insufficient scientifically for genetic 

recovery and should be replaced by 

actual evidence of increased 

heterozygosity and increased allelic 

diversity in the population, validated by 

monitoring to ensure retention. 

Commenters stated that the rule should 

commit to all release strategies to 

achieve genetic objectives. 

Our response: This rule maintains the 

zone definitions of the 2015 10(j) rule, 

which allow for the release and 

translocation of adult and sub-adult 

wolves or puppies in specific 

geographic locations within the 

MWEPA. While we have stated our 

current preference for cross-fostering 

puppies compared to releasing adult 

wolves, this rule does not alter the 

availability of the release strategies 

supported by the commenters. We 

provide our rationale for using ‘‘released 

wolves surviving to breeding age’’ as the 

metric for the establishment of a genetic 

objective from the MWEPA in our FSEIS 

(USFWS 2022a, pp. 11, 24–26) and have 

previously addressed this in our 

response to comments on the revised 

recovery plan (USFWS 2017c, p. 79). 

Comment: Commenters recommended 

that released wolves should be tracked, 

and that genomic survey and analysis 

should be used to determine how many 

released captive wolves have 

contributed genetically to the wild 

population and what their actual 

contribution has been. Commenters also 

restated the recommendation for a 

replacement release objective, in which 

the Service would release captive 

wolves to make up for wolves lost due 

to removal or illegal killing. 

Our response: We track released 

wolves using global positioning system 

(GPS) or radio-collars and provide data 

on survival and reproduction of released 

wolves in quarterly and/or annual 

reports. We establish our expectations 

for releases and translocations in our 

annual Initial Release and Translocation 

Plan and during annual management 

meetings with the SSP. Both of these 

processes are reflective of the needs of 

the population, including awareness of 

demographic rates, progress toward 

management objectives, or other special 

management considerations. 

Comment: One commenter 

recommended that at a minimum, 

captive releases should result in 

increasing the level of gene diversity, 

founder genome equivalents, and mean 

kinship to a level at least 50 percent 


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between that expected in the captive 

population and that expected in the 

wild population, given no releases, 

because if achieved, this could relieve 

some of the deleterious impacts of 

inbreeding depression in the wild 

population. 

Our response: We will continue to 

monitor the gene diversity, founder 

genome equivalents, and mean kinship 

of the MWEPA, as stated in this rule in 

response to other comments, to validate 

that genetic threats are being alleviated 

over time. There is no definitive 

standard in the literature upon which to 

assess the extent to which deleterious 

impacts of inbreeding depression would 

be reduced according to the 

commenter’s recommendation, although 

we recognize it as a protective 

recommendation that strives to ensure 

adequate gene diversity in the MWEPA 

for the long-term health of the 

population, as consistent with the 

purpose of our genetic objective. 

Comment: One commenter stated that 

it is unlikely that the pedigree of crossfoster pups released to the wild would 

closely match the pedigree of the 

releases simulated by the population 

viability model used in the revised 

recovery plan (Miller 2017); therefore, 

the model results suggesting that 22 

released wolves surviving to breeding 

age is sufficient may not be robust. 

Other commenters questioned whether 

cross-foster releases have less genetic 

impact than adult releases because 

cross-fostered pups come from the same 

litter. 

Our response: The Miller 2017 

population viability model ran 1,000 

iterations to explore the range of 

outcomes possible for each scenario. We 

agree that any single model run may not 

accurately represent the same specific 

wolves that we have released in the 

MWEPA, but the model results are 

robust in estimating that 22 released 

wolves will ensure that approximately 

90 percent of the gene diversity 

available in captivity is represented in 

the wild because the results stem from 

averaging the results of many iterations 

(see Miller 2017, p. 16). We recognize 

that cross-foster pups come from the 

same litter and are therefore related, but 

we do not expect all pups placed in a 

wild den to survive; that is, we expect 

pup survival of approximately 50 

percent during their first year of life. 

Therefore, the 22 released wolves 

surviving to breeding age will come 

from different litters placed during 

different cross-fostering events. 

Regardless, the wolves prioritized for 

release to the wild are those that have 

gene diversity that is not represented, or 

that is underrepresented, in the MWEPA 

and that will, therefore, be beneficial to 

release. 

Comment: Some commenters 

questioned whether the SSP can 

continue to support the number of 

cross-foster events the Service has 

conducted in recent years or raised 

concern that cross-fostering could lead 

to higher relatedness in the MWEPA if 

cross-foster puppies continue to come 

from the same captive pairings each 

year. 

Our response: The Service works with 

SSP facilities on an annual basis to plan 

breeding events to support crossfostering in the MWEPA. The number of 

breeding events that can be supported 

across SSP facilities and the relative 

genetic importance of specific pairings 

(breeding events) to produce puppies 

that would provide unique gene 

diversity to the MWEPA are integral 

components of our planning. The SSP 

can continue to provide puppies for 

cross-fostering based on the number of 

breeding age animals in the population 

and the number of facilities available to 

support breeding events. 

Comment: One commenter questioned 

how it is possible that captive wolves 

being released could have gene diversity 

that is not represented in the MWEPA 

population, given that the Service has 

been releasing wolves since 1998. 

Our response: No new genes have 

been added to the captive population 

since the merging of the three founding 

lineages occurred in the mid-1990s; 

however, the captive population still 

contains genes not represented in the 

MWEPA because wolves with those 

genes have either not yet been released, 

have not been integrated into the 

population due to mortality, or are 

significantly underrepresented in the 

MWEPA. 

Comment: One commenter stated that 

the frozen semen bank developed by the 

SSP contains genetic variation not 

currently expressed in the wild 

population. The commenter recognized 

that it may take several more years to 

develop artificial insemination 

procedures from frozen semen but 

stated that the Service should pursue 

this strategy in addition to ensuring 22 

released wolves survive to breeding age. 

Our response: We agree that the 

frozen semen bank may offer an 

opportunity to infuse additional gene 

diversity to the MWEPA. We will 

continue to explore and support 

opportunities to test and utilize 

technological procedures to slow the 

loss of gene diversity in the captive 

population and ensure the 

representation of available diversity in 

the wild as these procedures become 

available. 

Comment: Genomic survey and 

analysis in wolves is readily available 

and inexpensive compared to the 

overall cost estimated for Mexican wolf 

recovery. In 2022, the best state-of-theart scientific information, such as actual 

genetic variation using genomic survey 

and analysis, should be used for this 

important aspect of the recovery plan. 

Our response: We agree that genomic 

survey and analysis techniques are 

available, may be affordable, and can be 

further integrated into our ongoing 

monitoring of the genetic status of the 

MWEPA population. 

Comment: One or more commenters 

stated that the inbreeding depression 

documented by Fredrickson et al. (2007) 

likely still exists in the population, 

because it would be unlikely for it to 

disappear without an extreme breeding 

scheme. A commenter noted that 

natural selection would be more likely 

to result in the purging of inbreeding if 

supplemental feeding were stopped, as 

supplemental feeding may be improving 

the survival of inbred litters. This 

commenter recommended that any 

future evaluation of the genetic fitness 

of Mexican wolves contributing to a 

determination on their recovery must be 

made in the absence of supplemental 

feeding for at least five generations (20 

years). Another commenter stated that 

viability estimates for the population 

from the population viability model 

(Miller 2017) would likely be different 

if the effect of inbreeding had been 

calculated differently for packs that are 

supplementally fed versus those that are 

not. This commenter suggested looking 

at larger, longer-term datasets from other 

gray wolf populations to inform input 

parameters related to inbreeding. A 

commenter stated that supplemental 

feeding is likely accelerating inbreeding 

accumulation and the loss of genetic 

variation in the population. 

Our response: As stated in our 

responses to other comments, we expect 

to conduct additional analyses related to 

inbreeding during the recovery process 

for the Mexican wolf. When we collect 

that future data set, we can determine 

the appropriate methods for 

incorporating data from packs/litters 

that have been supplementally fed. We 

expect to decrease the use of 

supplemental feeding as the population 

reaches recovery and some management 

activities are curtailed; this may include 

assessing genetic health within the 

context of a different (lesser) 

supplemental feeding regime such as 

suggested by the commenter. 

Comment: One commenter questioned 

what will happen if 22 released wolves 

have not survived to breeding age by 


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2030, which is the end of the 

benchmarks proposed by the Service. 

Our response: If 22 released wolves 

have not survived to breeding age by 

2030, we will extend the temporary 

restriction until the genetic objective is 

reached, using the same annual process 

that accompanies the benchmarks to 

evaluate whether permits for take on 

Federal and non-Federal land will be 

issued in the year ahead. 

Comment: Several commenters noted 

that very few take permits have been 

issued to the public. Some commenters 

made this statement as support that take 

restrictions are not needed, while others 

stated that the Service and its partner 

agencies have been the ones taking 

Mexican wolves and the proposed 

revisions to the regulations do not limit 

this form of killing and removal. One 

commenter stated that the Service 

acknowledges in the 2017 biological 

report (USFWS 2017a) that management 

removals function as a type of mortality 

to the population, and therefore the 

Service needs to address its own level 

of removal in the 10(j) rule. 

Our response: The Service considers 

it important to retain the ability to 

remove wolves in specific situations in 

which nonlethal management actions 

are ineffective at resolving conflicts. The 

agency’s level of removal is consistent 

with the recovery needs of the Mexican 

wolf, as evidenced by the growth of the 

population for the last 6 years during 

the implementation of the 2015 10(j) 

rule. 

Comment: One commenter stated that 

the proposed revised take provisions do 

not result in significant differences in 

take compared to the 2015 10(j) rule. 

One commenter stated that basing the 

projection on the number of permits that 

have been issued does not limit what 

could be issued in the future. 

Our response: The Service did not 

intend for the take provisions in the 

2015 10(j) rule to lead to an excessive 

level of take that would hinder the 

recovery of the Mexican wolf, nor have 

we used any take provision excessively 

since implementation of the 2015 10(j) 

rule began. However, we recognize that 

as written in the 2015 10(j) rule, several 

of the take restrictions provide 

expanded take flexibility without 

ensuring commensurate progress toward 

recovery. To analyze the possible effects 

of the take provisions on Federal and 

non-Federal land, we extrapolated the 

number of permits that may be issued in 

the future based on our current level of 

permit issuance (USFWS 2022, pp. 28– 

29, table 2.1). We agree that based on 

this approach, there are not large 

differences in take compared to the 2015 

10(j) rule, and that it would be possible 

to issue many more permits than our 

projections estimate. The potential for 

issuance of a large number of permits 

emphasizes that without limiting or 

restricting the take provisions, this rule 

may not support the long-term 

conservation and recovery of the 

Mexican wolf. By temporarily restricting 

three take provisions during a critical 

period of recovery, as we do in this rule, 

we ensure that genetic threats to the 

Mexican wolf are rapidly lessened and 

alleviated. 

Comment: One commenter questioned 

what the incentive is for Service staff to 

achieve the benchmarks, since not 

meeting the benchmarks will continue 

to result in restricted take. 

Our response: The Service considers 

the permits to be a form of management 

flexibility to address conflict situations 

across the MWEPA, in particular as the 

wolf population grows and the number 

of conflicts increases. Therefore, the 

Service would utilize the permits when 

doing so will be appropriate in the 

context of the long-term conservation 

and recovery of the Mexican wolf; in 

other words, the incentive for Service 

staff to achieve the benchmarks is to 

reach recovery targets and to increase 

our management flexibility to address 

conflicts. 

Comment: A number of commenters 

stated that the Service and State 

agencies should ban coyote hunting in 

the MWEPA due to the loophole 

provided by the McKittrick policy for 

people who shoot wolves claiming they 

thought they were coyotes. 

Our response: Regulating coyote 

hunting is beyond the scope of these 

revisions that the Service is taking to 

comply with the March 31, 2018, order. 

Comment: Several commenters 

recommended that the Service should 

not remove wolves for natural predation 

on wild ungulates. These commenters 

recommended the Service remove the 

take provision for unacceptable impact 

to a wild ungulate herd. In contrast, 

other commenters questioned whether 

the Service has any mechanisms to 

address drastic declines in elk herds 

during the (estimated) 6 years in which 

State game and fish agencies would not 

be able to request take in response to an 

unacceptable impact to a wild ungulate 

herd. One of these commenters stated 

that the level of wolf removal that may 

be needed after the period of restriction 

is likely to be much more severe than 

without the restriction. Several other 

commenters questioned why we would 

need to limit the State game and fish 

agencies from requesting to utilize the 

unacceptable impact take provision if 

translocation of wolves is an option, or 

why the restriction is necessary at all 

given the strict process by which the 

Service would approve any requests 

made by the States. This commenter 

clarified that the Service’s statement 

that we would not know how much take 

would occur is false, because the 

Service would have to approve the take. 

Our response: Mexican wolf predation 

on wild ungulates occurs as a normal 

part of Mexican wolf ecology. We 

recognize that in infrequent situations, 

predation could result in a drastic 

decline in a localized wild ungulate 

herd, and that this may be a 

management concern for the State game 

and fish agencies and hunting and 

guiding businesses in the MWEPA. The 

take provision for take in response to an 

unacceptable impact to a wild ungulate 

herd addresses these infrequent 

situations, rather than the ongoing, 

natural background level of predation 

that occurs from the presence of 

Mexican wolves across the landscape. 

Therefore, we consider this take 

provision to be a reasonable component 

of our management in the MWEPA, and 

consistent with the recovery of the 

Mexican wolf. Our temporary restriction 

of this take provision ensures that the 

gene diversity of the MWEPA 

population improves sufficiently to 

decrease gene threats prior to allowing 

for the removal of wolves in response to 

an unacceptable impact to a wild 

ungulate herd. As we explain in the 

FSEIS (USFWS 2022, pp. 111–116), we 

do not expect wolf density to reach a 

level where unacceptable impacts occur 

during the period of restriction. 

However, the restriction of take 

provisions motivates the Service and 

our partners to accomplish the genetic 

objective as quickly as possible, which 

will benefit the recovery of the Mexican 

wolf. Therefore, if drastic declines were 

to begin to be observed, efforts to release 

more wolves could shorten the period of 

restriction. While we understand the 

commenters’ statement that the Service 

would approve future take requests 

under this take provision and would 

therefore know how many wolves 

would be taken, we meant that because 

we have not used this provision and do 

not know the circumstances of future 

requests, it is difficult at this time to 

estimate the level of take of released 

wolves that could occur through this 

provision. After the genetic objective is 

achieved and the period of restriction 

ends, the take of released wolves will 

not hinder the genetic health of the 

MWEPA because released wolves will 

no longer represent unique gene 

diversity, as described elsewhere in this 

rule. 

Comment: Commenters expressed 

concern about the Service’s proposal to 


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restrict take provisions because take 

provisions promote management 

flexibility and coexistence between 

wolves and local residents. These 

commenters pointed out that the 

MWEPA is a working landscape where 

wolves should be managed in a manner 

that is compatible with other uses, such 

as livestock operations. These 

commenters stated that without take 

authority, livestock operators will not be 

able to protect themselves from direct 

economic impacts. Several commenters 

suggested that at specific population 

sizes (e.g., more than 320 wolves) any 

ongoing restriction of take provisions 

should be removed to ensure that 

wolves do not cause additional impact 

and harm. 

Our response: The Service strives to 

balance the recovery needs of the 

Mexican wolf with the needs and 

concerns of local communities, 

including livestock operators. The take 

restrictions in this rule were developed 

to ensure that progress toward recovery 

dictates the availability of management 

flexibility such as the issuance of 

permits to livestock operators, while 

also ensuring that the Service and our 

partners maintain the ability to address 

conflict situations. During the period of 

restriction, the Service and our partners 

will work with livestock operators to 

utilize nonlethal management response 

to conflict situations, or, in the event 

that nonlethal measures are ineffective, 

may remove a wolf or wolves to resolve 

the situation. These management 

approaches will continue, regardless of 

population size, until the genetic 

objective is reached. In addition, during 

the period of restriction, domestic 

animal owners on non-Federal land will 

maintain the ability to take a wolf that 

is in the act of biting, killing, or 

wounding a domestic animal at the time 

of take. 

Comment: Some commenters stated 

that ranchers in the MWEPA no longer 

attempt to obtain a permit for take of 

Mexican wolves on Federal or nonFederal land because the Service 

requirements for issuance are so 

stringent and delayed that, even if 

granted, wolves have already inflicted 

damage. The commenter stated that 

livestock operators and local citizens 

believe no permits will be issued, 

making the take permit on non-Federal 

land as currently managed a 

meaningless management tool for 

depredating wolves. This commenter 

requested that the Service assign 

additional staff to facilitate and deliver 

permits. 

Our response: The Service will work 

towards improving the timing of the 

issuance of permits. However, permits 

can only be issued in conjunction with 

removal actions and are by definition a 

response to inflicted damage by wolves 

that has already occurred. 

Comment: Commenters stated that the 

rule must address all forms of take to 

ensure the rule will protect the genetic 

diversity of the Mexican wolf; one 

commenter recommended the Service 

initiate a process to account for the 

genetic value of every wolf being 

considered for removal. Another 

commenter stated that the Service’s 

approach assumes that only wolves 

released after 2016 are genetically 

valuable, which the commenter states is 

not true. 

Our response: The establishment of 

the genetic objective provides an 

overarching strategy to improve the gene 

diversity of the MWEPA and engages all 

management actions in the pursuit of 

achieving the objective. Per the March 

31, 2018, order, we specifically focus on 

restricting three forms of take that were 

expanded in the 2015 10(j) rule. We 

incorporate benchmarks for two of these 

take provisions that connect the 

issuance of permits (i.e., management 

flexibility) to the number of released 

wolves surviving to breeding age; these 

benchmarks motivate the Service and 

our partners to release wolves and to 

utilize nonlethal methods to manage 

conflicts so that released wolves that 

could count toward the genetic objective 

may not be taken during the course of 

management activities. The genetic 

objective we are establishing serves as 

an indicator that we have transferred a 

large degree of the gene diversity 

available in captivity to the wild 

population. We do not intend to suggest 

that wild wolves may not have valuable 

gene diversity. However, because we are 

trying to improve gene diversity in the 

MWEPA, it is important for released 

wolves to survive and breed so that 

genes from captivity that are currently 

underrepresented in the wild become 

integrated into a more genetically 

diverse MWEPA population. The 

Service and designated agencies 

currently evaluate the genetic value of 

every wolf being considered for removal 

within the context of other management 

considerations such as the level of 

conflict occurring and the range of 

conflict response measures available. 

Comment: Several commenters 

questioned how the Service will verify 

whether a wolf taken with a permit in 

the previous year was a released wolf. 

Our response: We intend to collar 

released wolves to assist in our ability 

to determine whether a wolf taken with 

a permit was a released wolf. Because 

cross-fostered pups are too small to be 

fitted with collars, we microchip pups 

and obtain genetic markers through 

blood samples to identify individuals. 

At 1 year of age, pups are nearly the size 

of adults and can be fitted with collars. 

In any case, because we take blood 

samples from released wolves prior to 

release, we will be able to determine the 

identify of a wolf taken with a permit 

through its microchip or subsequent 

blood or scat samples. 

Comment: Several commenters 

recommended that the proposed 

restriction of take provisions be made 

permanent rather than temporary in 

order to ensure that take does not 

negatively affect Mexican wolf recovery. 

One commenter stated that by making 

the restrictions temporary, the rule will 

only serve short-term conservation 

needs of the Mexican wolf and, 

therefore, falls into the same error as the 

2015 10(j) rule. This commenter 

recommended implementing a 

monitoring protocol that would require 

the restrictive provisions be put into 

place again if the genetic health of the 

population declines in the future. 

Our response: As described 

throughout this rule, this rule aligns the 

nonessential experimental population 

designation with the recovery strategy 

and criteria outlined in the revised 

recovery plan for the Mexican wolf, and 

therefore contributes to the long-term 

conservation and recovery of the 

Mexican wolf. We consider temporary 

restriction of the take provisions 

appropriate during the period in which 

we are focused on achieving the genetic 

objective because this is when the 

release of captive wolves will have the 

most positive contribution to the 

MWEPA in lessening the risk of genetic 

threats. After we have integrated a large 

degree of the gene diversity available 

from captivity into the wild, the gene 

diversity of captive wolves will not be 

as significant; in other words, it will 

already be represented in the wild. 

Therefore, restricting the take provisions 

after the genetic objective is met will not 

have the protective effect that it will 

have prior to achieving the genetic 

objective. 

Comment: Numerous commenters 

referenced scientific literature related to 

the relationship between poaching 

(illegal killing) and the level of legal 

protection afforded to wolves (e.g., 

Louchouarn et al. 2021). These 

commenters stated that the scientific 

literature makes clear that illegal killing 

of wolves increases when protections 

for wolves are lessened and that 

nonlethal methods to address conflict 

are effective when properly 

implemented. These commenters stated 

that Service policies to liberalize take 

permits will incentivize and encourage 


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poaching, and therefore recommended 

that the Service permanently suspend 

the use of any type of take permit or 

restrict all forms of take significantly. 

Many of these commenters recognized 

that the Service currently uses nonlethal 

methods to address conflict in some 

situations and recommended that the 

Service increase its focus on nonlethal 

methods to reduce and address conflicts 

by adding language to the rule in 

support of, or to mandate, nonlethal 

methods of management. Several 

commenters specified that instead of the 

Service expecting livestock owners to 

assist with management actions in the 

future, the Service should use its 

resources to expand the use and training 

of nonlethal methods with livestock 

operators. In contrast, several 

commenters noted that some nonlethal 

measures cause unexpected 

consequences or are impractical, citing 

examples that range riders push wolves 

onto a ranchers’ neighbors and that it is 

impractical to expect ranchers to install 

fladry (a rope mounted along the top of 

a fence, from which are suspended 

strips of fabric or colored flags, that will 

flap in a breeze) across tens of miles of 

fencing. 

Our response: The effectiveness of 

nonlethal deterrents is dependent on 

various characteristics of the area and 

individual livestock operations. For 

instance, many tools (fladry, radioactivated guard boxes, and electric 

fencing) are only effective in small 

areas. The southwestern U.S. differs 

from other geographic areas where 

much of the scientific literature has 

been developed in several aspects that 

are relevant to the efficacy and logistical 

feasibility of nonlethal tools, such as: (1) 

Calving pastures that are hundreds of 

square miles versus less than 2 square 

miles, (2) reduced stocking rates that are 

reflective of reduced feed and water in 

localized areas, and (3) year-round 

calving rather than seasonal calving. 

Many nonlethal tools that may be 

effective in other areas may not be as 

effective or logistically feasible in the 

MWEPA. Nevertheless, some innovative 

tools (diversionary feeding, range riding, 

hazing) have reduced depredations in 

the MWEPA in certain situations. The 

Service will continue to focus on, and 

expand, the use of nonlethal tools where 

appropriate and utilize removal as a last 

resort to prevent depredations. Further, 

this rule is more restrictive relative to 

take than the 2015 10(j) rule. Based on 

the hypothesis referenced by 

commenters of an inverse relationship 

between illegal killing and the level of 

protection afforded to wolves, the 

prediction would be for this rule to 

result in reduced illegal killing relative 

to the previous time period. We note 

that this conclusion is far from a 

consensus in the literature. 

Comment: Commenters suggested that 

the loss of newly released wolves 

outside of the area previously 

designated as the Blue Range Wolf 

Recovery Area (BRWRA) in the original 

10(j) rule for the MWEPA (63 FR 1752; 

January 12, 1998) would not appreciably 

reduce the likelihood of the species’ 

survival because it would have no effect 

on the survival of the previously 

established wolf population. 

Our response: We consider all 

Mexican wolves in the MWEPA to 

function as a single population 

regardless of their current location 

compared to the previous geographic 

area designated as the BRWRA; 

therefore, our essentiality determination 

is based on the MWEPA as a whole, 

rather than solely the area beyond the 

boundaries of the previously designated 

BRWRA that became allowable for wolf 

occupancy under the 2015 10(j) rule. 

Comment: Several commenters 

expressed support for an essential 

determination because they claimed that 

an essential designation would reduce 

illegal take or better support the SSP in 

providing genetic diversity for Mexican 

wolves in the wild. 

Our response: A determination of 

essential would result in several 

changes to the experimental population, 

including conducting interagency 

consultation under section 7(a)(2) of the 

ESA and the potential to designate 

critical habitat under section 4(b)(2) of 

the ESA. Neither of these provisions 

would directly impact the level of 

illegal take occurring or the function or 

ability of the SSP to support the 

reintroduction of the Mexican wolf to 

the wild. 

Comment: Many commenters stated 

that an essential designation would 

better support recovery due to the 

section 7 consultation requirements and 

the potential to designate critical habitat 

for the Mexican wolf. 

Our response: An essentiality 

determination under section 10(j) of the 

ESA is based on whether the best 

available information supports that the 

population is essential to the continued 

existence of the species, not whether the 

consultation or critical habitat 

requirements of the ESA resulting from 

an essential determination would have 

a conservation benefit to the subspecies’ 

recovery. 

Comment: Several commenters stated 

that if we lose the wild population, we 

lose several decades representing 

multiple generations of adaptive 

evolution, and this supports an essential 

designation. 

Our response: The ESA does not 

specify that maintenance of adaptive 

evolution is a factor in an essentiality 

determination. We agree that if we lost 

the MWEPA population we may lose 

some local adaptations in that process; 

however, we consider the ability to 

restart a population using captive 

wolves as a determining factor in our 

decision because wolves from the 

captive population are still able to 

provide gene diversity sufficient for 

reintroduction. 

Comment: Commenters expressed 

concern that Mexican wolves should be 

designated as essential because the 

population in Mexico is not big enough 

or genetically diverse enough to 

promote the recovery of the species. 

Our response: We recognize that 

further alleviation of demographic and 

genetic threats is necessary for the 

population in Mexico to achieve 

recovery objectives. However, Mexico 

has released and managed Mexican 

wolves in the wild for more than a 

decade, demonstrating a consistent 

effort to establish a population for 

recovery. Because we consider the 

wolves in Mexico to function as a 

population, and due to Mexico’s 

concerted and ongoing efforts to 

increase the abundance and distribution 

of the population, we consider it a valid 

population to consider in the context of 

our essentiality determination. 

Comment: One commenter 

recommended that the Service should 

provide examples of a 10(j) population 

that has been designated as essential for 

comparison’s sake and to show the 

agency’s factual bar for an essential 

determination. 

Our response: The Service has never 

designated a 10(j) population of any 

species as essential; therefore, we are 

unable to provide the example 

requested by the commenter. In fact, 

Congress’ expectation was that ‘‘in most 

cases, experimental populations will not 

be essential’’ (H.R. Conference Report 

No. 835, supra at 34). The preamble to 

our August 27, 1984, final rule reflects 

this understanding, stating that an 

essential population will be a special 

case and not the general rule (49 FR 

33885, August 27, 1984, p. 49 FR 

33888). We consider each essentiality 

determination on a case-by-case basis 

due to the varying circumstances and 

life history of the species. As we explain 

in our determination in this rule, the 

existence of a robust captive population 

and another wild population of Mexican 

wolves are central factors in our 

determination. 


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Comment: Some commenters 

expressed concern that continued 

Mexican wolf generations in captivity 

may result in evolutionary 

maladaptation to the captive 

environment (e.g., see Frankham 2008). 

Our response: We will continue to 

evaluate the suitability of captive 

wolves prior to their release to the wild. 

SSP facilities adhere to strict husbandry 

protocols to minimize the likelihood of 

maladaptive behaviors. 

Comment: One commenter stated that 

based on the size of the MWEPA 

population and the number of breeding 

wolves in the captive population it 

would be untenable to replace the 

MWEPA population because over 90 

percent of the captive breeding-age 

wolves would need to be released. 

Our response: We would not expect to 

restart a wild population in the MWEPA 

that would immediately obtain the 

current size of the MWEPA population 

(close to 200 wolves). We explain our 

approach to restarting a population in 

the MWEPA in this rule (see above 

under Is the experimental population 

essential to the continued existence of 

the species in the wild?) 

Comment: The Service received 

published scientific papers and gray 

literature (reports) during the public 

comment period related to the following 

topics: population viability analysis, 

Mexican wolf genetics, the impact of 

lethal management on illegal killing, 

large carnivore poaching, livestock 

predation, population estimation 

analysis, predator tolerance/control, 

science and policy, large carnivore 

management, research and 

independent/peer review transparency, 

improving the framework of the ESA, 

threats to biodiversity and binational 

conservation, the Mexican wolf’s 

geographic range, metapopulation 

connectivity, the vulnerability of the 

Mexican wolf to climate change, and 

wolf conservation planning. 

Our response: We have reviewed and 

incorporated this information into this 

final rule where applicable. 

Comment: A number of commenters 

raised concern that the Service is 

aligning the 10(j) rule with the recovery 

plan. Commenters stated that the 

Federal court prohibits aligning the 10(j) 

rule with the recovery plan. 

Commenters are also concerned that 

aligning the 10(j) rule with the recovery 

plan does not promote recovery since 

recovery plans are discretionary and not 

mandatory. Some commenters 

expressed concern that tying the new 

rule to the recovery plan is 

unnecessarily making the rule 

vulnerable. Specifically, commenters 

referenced the judge’s statement that the 

rule must be flexible enough to remain 

valid through changing conditions and 

future revisions for recovery plans. 

Commenters also raised concern over 

the court-ordered revision of the 

recovery plan due in October 2022, and 

the 5-year status review scheduled for 

2022–2023, which they stated could 

result in changes to the recovery plan, 

which they claim would render this 

new rule invalid or subject to further 

litigation. Other commenters expressed 

that given the significant scientific flaws 

in the recovery plan, the Service is 

violating the court’s order and the ESA’s 

best available science mandate by 

aligning the revised rule to the recovery 

plan. 

Our response: See our discussion, 

above, in Rationale for Revisions to the 

Experimental Population Designation in 

Relation to Recovery. While 

implementation of recovery plans is 

discretionary and no partner is required 

to implement a recovery plan, the Act 

requires the Service to develop recovery 

plans for the conservation and survival 

of listed species. Such plans must 

include criteria which, when met, 

would result in a determination that the 

species be removed from listed status 

(i.e., that the species is recovered). 

Because we must also determine that 

our experimental population 

designations will further the 

conservation of the species, it is 

appropriate for us to align our 10(j) rule 

with the recovery plan developed for 

the conservation of the species. As 

noted above in Review and Evaluation 

of the MWEPA Population, multiple 

reviews are built into our processes in 

acknowledgement that conditions may 

change and necessitate adjustments. 

Comment: One commenter stated that 

the judge told the Service that it could 

not depend on another population when 

ensuring that the MWEPA population 

furthers the conservation of the Mexican 

wolf, yet the MWEPA population and 

genetic objectives are dependent on 

Mexico achieving its recovery goals. 

Our response: This final rule revises 

several features of the MWEPA 

designation to ensure that the MWEPA 

supports the Service’s recovery strategy 

for the Mexican wolf as laid out in the 

revised recovery plan (USFWS 2017b, 

pp. 10–17). Specifically, the population 

objective and genetic objective in this 

final rule ensure that the MWEPA 

population is robust and free from 

demographic and genetic threats. In 

other words, the MWEPA population 

must function as an independent, 

robust, healthy population in order to 

contribute to recovery, but it is not the 

only population necessary for recovery. 

Comment: Some commenters raised 

issues with the consultation that was 

conducted on the 2015 10(j) rule under 

section 7 of the ESA. One commenter 

stated that there were severe 

deficiencies in the consultation process 

for the 2015 rule and the Service needs 

to conduct a new consultation on the 

new rule and associated section 

10(a)(1)(A) permit; another commenter 

stated that the proposed revision 

provides no indication that the Service 

initiated or completed intra-agency 

consultation on the revised 10(j) rule. 

Our response: As part of the Service’s 

action to revise the experimental 

population designation of the Mexican 

wolf in the MWEPA, we have conducted 

section 7 consultation. 

Comment: Some commenters 

expressed concern over trapping of 

Mexican wolves. One commenter stated 

that the provisions in 50 CFR 17.84(k) 

that relate to trapping must be modified 

in recognition that, except for a few 

specific exceptions, trapping on public 

lands in New Mexico is now illegal. 

Another commenter stated that private 

wolf trapping or snaring should be a 

violation of the 10(j) rule and the FSEIS 

must consider the effects of trapping on 

Mexican wolves. Other commenters 

expressed concern about the impact of 

New Mexico’s trapping regulation on 

the ability of the Service to manage 

wolves. 

Our response: Our regulations at 

§ 17.84(k)(5)(iii) and (k)(7)(iv) provide 

the regulatory prohibitions and 

exceptions to those prohibitions for 

taking a Mexican wolf with a trap, 

snare, or other type of capture device in 

the MWEPA, including our due care 

provisions at § 17.84(k)(5)(iii)(A), which 

state that due care includes following 

the regulations, proclamations, 

recommendations, guidelines, and/or 

laws within the State or Tribal trust 

lands where the trapping takes place. 

Comment: Several commenters 

expressed confusion over whether the 

numbering in the regulatory text of the 

October 29, 2021, proposed rule would 

negate provisions with the same 

numbering from the 2015 10(j) rule. 

Our response: We are not eliminating 

any of the regulations established by the 

2015 10(j) rule other than those that are 

revised by this final rule. We have 

ensured that the revisions and additions 

to the regulatory text of § 17.84(k) in this 

rule do not erroneously negate any of 

the regulations established by the 2015 

10(j) rule. 

Comment: Many commenters 

mentioned geographic issues related to 

the MWEPA, primarily in support of 

geographic expansion of the MWEPA 

beyond the current MWEPA boundaries, 


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especially the I–40 boundary. These 

commenters offered many reasons for 

geographic expansion, such as 

population resiliency and redundancy, 

including a metapopulation 

configuration for recovery; adaption to 

climate change; habitat availability; and 

issues related to depicting historical 

range based on mitochondrial DNA 

rather than previous morphological 

data. 

Our response: We explained during 

scoping that we would not revise the 

geographic boundaries of the MWEPA 

during the revision of the 2015 10(j) 

rule. Our focus in this rule is to comply 

with the March 31, 2018, order. We 

responded to public comments about 

geographic issues in our response to 

scoping comments (USFWS 2022a, pp. 

201–205) and previously in our 

response to comments on the revised 

recovery plan (USFWS 2017c, pp. 8–18). 

Comment: Several commenters stated 

that the revised rule must ensure the 

conservation of the Mexican wolf’s 

ecosystems; this should be done based 

on an analysis of the Mexican wolf’s 

historical range, the subspecies’ genetic 

status, the size of the population, and 

the area that will be required to support 

it in order to ensure future viability and 

recovery. After identifying the Mexican 

wolf’s ecosystems, commenters 

recommended the Service must then 

consider important features to conserve 

in those ecosystems. 

Our response: This rule clearly 

explains the contribution of the 

experimental population to the recovery 

of the Mexican wolf. For a broader 

discussion of Mexican wolf recovery, 

including historical range, genetics, 

population viability, habitat suitability, 

and other aspects of ecosystem 

conservation as mentioned by the 

commenter, we refer the commenter to 

the revised recovery plan and to the 

related biological report and its 

appendices (USFWS 2017a, entire; 

USFWS 2017b, entire). 

Comment: Several commenters 

expressed disagreement with the 

findings of the Service’s takings 

analysis, stating that destruction of 

livestock by Mexican wolves is a taking 

by the Federal Government. 

Our response: Damage to private 

property caused by protected wildlife 

does not constitute a ‘‘taking’’ of that 

property by a Federal agency that 

protects or reintroduces that wildlife. 

Summary of Changes From the October 

29, 2021, Proposed Revision to the 

Regulations for the Nonessential 

Experimental Population of the 

Mexican Wolf 

In this rule, we: 

• Revise the wording of the 

population objective in response to peer 

review of the October 29, 2021, 

proposed rule (86 FR 59953) to clarify 

our methodology to verify a stable or 

increasing population over an 8-year 

period. This clarification is set forth 

under Regulation Promulgation, below. 

• Revise and restructure our 

essentiality determination from the 

October 29, 2021, proposed rule (86 FR 

59953) to clarify the information and 

rationale used in our determination. The 

essentiality determination in this rule is 

provided above under Is the 

experimental population essential to the 

continued existence of the species in the 

wild? 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 and 13563 

Executive Order 12866 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. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the Nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

Executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. 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 rule in a manner consistent with 

these requirements. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996; 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. 

The SBREFA amended the Regulatory 

Flexibility Act to require Federal 

agencies to provide a statement of the 

factual basis for certifying that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. We certify that this rule will 

not have a significant economic effect 

on a substantial number of small 

entities. The following discussion 

explains our rationale. 

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 such businesses as 

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 

forestry and logging operations with 

fewer than 500 employees and annual 

business less than $7 million. To 

determine whether small entities may 

be affected, 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. 

Importantly, the impacts of a rule 

must be both significant and substantial 

to prevent certification of the rule under 

the Regulatory Flexibility Act and to 

require the preparation of a regulatory 

flexibility analysis. If a substantial 

number of small entities are affected by 

the rule, but the per-entity economic 

impact is not significant, the USFWS 

may certify. Likewise, if the per-entity 

economic impact is likely to be 

significant, but the number of affected 

entities is not substantial, the USFWS 

may also certify. 

In our 2015 10(j) rule, we found that 

the experimental population would not 

have significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act. 

The 2015 10(j) rule expanded the 

geographic boundaries of the MWEPA, 

established new management zones 

with provisions for initial release and 


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translocation of Mexican wolves, 

revised and added allowable forms of 

take, and clarified definitions. We 

concluded that the rule would not 

significantly change costs to industry or 

governments. Furthermore, the rule 

produced no adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S. enterprises to compete with 

foreign-based enterprises in domestic or 

export markets. We further concluded 

that no significant direct costs, 

information collection, or recordkeeping 

requirements were imposed on small 

entities by the action and that the rule 

was not a major rule as defined by 5 

U.S.C. 804(2) (80 FR 2512, January 16, 

2015, pp. 2553–2556). 

Under this rule, we modify the 

population objective, establish a genetic 

objective, and temporarily restrict three 

of the forms of take of Mexican wolves 

in the MWEPA that we adopted in the 

January 16, 2015, final 10(j) rule (80 FR 

2512). We are making these revisions to 

ensure the experimental population 

contributes to the long-term 

conservation and recovery of the 

Mexican wolf. In addition, we are 

maintaining the nonessential 

designation for the experimental 

population. 

Because of the regulatory flexibility 

for Federal agency actions provided by 

the MWEPA’s 10(j) designation, we 

continue to expect this rule not to have 

significant effects on any activities 

within Federal, State, or private lands 

within the experimental population. In 

regard to section 7(a)(2) of the ESA, 

except on National Park Service and 

National Wildlife Refuge System lands, 

the population is treated as proposed for 

listing, and Federal action agencies are 

not required to consult on their 

activities. Section 7(a)(4) of the ESA 

requires Federal agencies to confer 

(rather than consult) with the USFWS 

on actions that are likely to jeopardize 

the continued existence of a species. 

However, because a nonessential 

experimental population is, by 

definition, not essential to the survival 

of the species, conferencing is unlikely 

to be required within the MWEPA. 

Furthermore, the results of a conference 

are strictly advisory in nature and do 

not restrict agencies from carrying out, 

funding, or authorizing activities. In 

addition, section 7(a)(1) of the ESA 

requires Federal agencies to use their 

authorities to carry out programs to 

further the conservation of listed species 

within the experimental population 

area. As a result, and in accordance with 

these regulations, some modifications to 

the Federal actions within the 

experimental population area may occur 

to benefit the Mexican wolf, but we do 

not expect projects on Federal lands to 

be halted or substantially modified as a 

result of these regulations. 

This rule will result in a larger 

population of Mexican wolves 

occupying the MWEPA over the 

timeframe of recovery than the 2015 

10(j) rule, which has the potential to 

affect a greater number of small entities 

involved in ranching and livestock 

production, particularly beef cattle 

ranching (business activity code North 

American Industry Classification 

System (NAICS) 112111), sheep farming 

(business activity code NAICS 112410), 

and outfitters and guides (business 

activity code NAICS 114210). Small 

entities in these sectors may be affected 

by Mexican wolves depredating on, or 

causing weight loss of, domestic 

animals (particularly beef cattle), or 

preying on wild native ungulates, 

respectively. We have assessed impacts 

to small entities in the FSEIS. 

Small businesses involved in 

ranching and livestock production may 

be affected by Mexican wolves 

depredating on domestic animals, 

particularly beef cattle. Direct effects to 

small businesses could include foregone 

calf or cow sales at auctions due to 

depredations. Indirect effects could 

include impacts such as increased ranch 

operation costs for surveillance and 

oversight of the herd, and weight loss of 

livestock when wolves are present. 

Ranchers have also expressed concern 

that a persistent presence of wolves may 

negatively impact their property and 

business values. We do not foresee a 

significant economic impact to a 

substantial number of small entities in 

the ranching and livestock production 

sector based on the information 

provided below. 

The small size standard for beef cattle 

ranching entities and sheep farms as 

defined by the Small Business 

Administration are those entities with 

less than $1.0 million in average annual 

receipts (http://www.sba.gov/content/ 

summary-size-standards-industrysector). We consider close to 100 

percent of the cattle ranches and sheep 

farms in Arizona and New Mexico to be 

small entities. The 2017 Census of 

Agriculture reports that there were 

7,057 cattle and calf operations and 

7,509 sheep farms in Arizona, and 

10,880 cattle and calf operations and 

4,047 sheep farms in New Mexico. 

Of the approximately 18,000 cattle 

ranches in Arizona and New Mexico, 

12,334 occur in counties in the MWEPA 

(USDA 2017). These operations account 

for approximately 69 percent of the total 

for both States. The actual number of 

ranches within the project area is far 

less than this estimate because several 

counties extend beyond the borders of 

the project area, or the ranches occur in 

areas where we do not expect wolf 

occupancy due to low habitat 

suitability. The Agricultural Census 

does not report sub-county farms or 

inventory, so we rely on the county 

numbers as the best available data for 

estimating the number of potentially 

affected small ranching operations. 

Cattle ranches vary significantly in 

herd size, with classifications ranging 

from a herd of 1 to 9 animals, to those 

with more than 2,500 animals (2017 

Census of Agriculture). Over 80 percent 

of these ranches have fewer than 50 

head of cattle. 

We assessed whether a substantial 

number of entities will be impacted by 

the regulatory revisions for the MWEPA 

by estimating the annual number of 

depredations we expect to occur within 

the project area when the Mexican wolf 

population reaches its population 

objective of an average of 320 wolves. 

We reported in the October 29, 2021, 

proposed rule (86 FR 59953) that 

between 1998 and 2019, on average, 

there were 151 total depredations 

(confirmed and unconfirmed) by 

Mexican wolves in any given year, 

which equates to 1.7 cow/calves killed 

for every Mexican wolf. Based on this, 

we estimated the average number of 

cattle killed (both confirmed and 

unconfirmed) in any given year for 320 

wolves would be 544 individuals (86 FR 

59953, October 29, 2021, p. 59972). We 

expect the experimental population to 

grow from its current minimum 

population estimate of 186 wolves to an 

8-year average population of 320 

wolves. Assuming that one cow is 

depredated per ranch, we stated in the 

October 29, 2021, proposed rule that we 

expected the number of affected ranches 

to increase from 151 ranches to 544 

ranches when the wolf population 

reaches 320 individuals. At this point, 

if each expected depredation affects a 

unique ranch, then a total of 

approximately 4 percent of ranches in 

the area would be impacted. With the 

addition of more recently available data 

(wolf population and confirmed 

depredations in 2020 and 2021), for this 

final rule, we expect the average number 

of cattle killed (both confirmed and 

unconfirmed) in any given year for 320 

wolves will be 607 individuals (USFWS 

files), affecting up to 607 individual 

ranches. 

To the extent that some cattle ranches 

will most likely not be impacted by wolf 

recovery because they are not located in 

suitable habitat but are included in the 

total estimate of potentially affected 

ranches because the Agricultural Census 


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does not provide data at a sub-county 

level, this estimate could understate the 

percentage of ranches potentially 

affected. However, for other reasons, 

this estimate could very well overstate 

the percentage of cattle ranches affected 

as we recognize that annual depredation 

events have not been, and may not be, 

uniformly distributed across the ranches 

operating in occupied wolf range. 

Rather, wolves seem to concentrate in 

particular areas, and to the extent that 

livestock are targeted by the pack for 

depredations, some ranch operations 

will be disproportionately affected. 

Therefore, it is more likely that fewer 

than 607 ranches may experience more 

than one depredation, rather than each 

of 607 ranches experiencing one 

depredation. 

Compared to the 2017 total inventory 

of estimated ranch cattle (259,192) for 

the project area of the Blue Range Wolf 

Recovery Area (BRWRA), both 

confirmed and unconfirmed 

depredations per 100 Mexican wolves 

account for 0.2 percent of the herd size. 

The economic cost of Mexican wolf 

depredations in this time period has 

been a small percentage of the total 

value of the livestock operations. With 

a population objective of an average of 

320 Mexican wolves in the MWEPA, the 

expected value of 607 cattle (189 cattle 

killed per 100 Mexican wolves on 

average for any year) at auction based on 

a weighted average market value for a 

depredated cow/calf of $1,094.72 

($2020), the total annual impact would 

be $664,495. If depredations uniquely 

affect a separate operation, then a total 

of 607 operations would incur an 

expected corresponding loss of $1,095. 

Small businesses involved in 

ranching and livestock production 

could also be indirectly affected by 

weight loss of livestock due to the 

presence of Mexican wolves. For 

example, livestock may lose weight 

because wolves force them off suitable 

grazing habitat or away from water 

sources. Livestock may try to protect 

themselves by staying close together in 

protected areas where they are more 

easily able to see approaching wolves 

and defend themselves and their calves. 

A consequence of such a behavioral 

change would likely be weight loss, 

especially if the wolves are allowed to 

persist in the area for a significant 

amount of time because the cattle would 

be afraid to spread out to find more 

lucrative forage areas. Weight loss could 

also occur if the presence of wolves 

causes the herd to move around more 

rapidly as they try to keep away from 

wolves. Based on Ramler et al. 2014, 

weight loss of cattle is associated with 

the ranches that have suffered 

depredations. Therefore, we would 

expect the same ranches—that is, 607 

ranches or fewer—that are impacted by 

depredations to potentially be impacted 

by weight loss of their cattle. Because 

wolves’ tendency to prey on cattle is 

localized, we do not expect all 607 

ranches and their associated herds to be 

impacted. 

Using a mid-point estimate of 6 

percent weight loss for calves at the 

time of auction, we calculated the 

impact on 2019 model ranches 

assuming that wolf presence pressures 

persisted throughout the foraging year. 

Based on mean market prices, a 6 

percent weight loss for the herd at the 

time of sale could result in a profit loss 

of $3,079 to $16,613, depending on the 

size of the ranch. Under such a scenario, 

an affected ranch could incur a 20 

percent loss in profit using the model 

ranch assumptions discussed in the 

report. This, however, is likely an 

overestimate of impacts that would 

occur, as once wolves are detected in an 

area, a variety of proactive and reactive 

management tools are available to the 

landowner or the USFWS and our 

designated agencies such that wolf 

presence would not persist throughout a 

foraging year. 

This final rule is based on alternative 

one in our FSEIS. Under this alternative, 

the experimental population regulations 

continue to offer several provisions for 

harassment and take of Mexican wolves 

on Federal and non-Federal land to 

address conflict situations between 

wolves and livestock, although we are 

temporarily restricting two of these until 

we reach the genetic objective of 22 

released wolves surviving to breeding 

age. The MWEPA regulations continue 

to provide for the initial release of 

captive wolves into suitable habitat in 

Zones 1 and 2, and we have 

demonstrated our intention to reduce 

nuisance behavior associated with adult 

releases by using the cross-fostering 

technique. Further, depredation 

compensation programs are available to 

offset some of the economic impacts of 

livestock depredations; these payments 

fully offset the impacts of confirmed 

depredations for some operators but do 

not fully offset impacts for all operators, 

such as those who experience 

unconfirmed losses for which payment 

is not provided. 

Based on the preceding information, 

we find that the impact of direct and 

indirect effects of Mexican wolf 

depredations on livestock is not 

significant and substantial. That is, if 

impacts are evenly spread, less than 5 

percent of small ranches in the MWEPA 

will be impacted, which we do not 

consider to be a substantial number. If 

impacts are disproportionately felt 

(several ranchers bear the burden of the 

depredations), the number of affected 

ranches will be even less (not 

substantial), but the impact to those 

affected may be significant depending 

on the number of cattle on the ranch 

and other characteristics. 

Our revision of the experimental 

designation may also impact small 

business entities associated with big 

game hunting, due to wolves’ predation 

on wild ungulates, specifically elk, in 

the MWEPA. Effects to small businesses 

in this sector could occur from impacts 

to big game populations, loss of hunter 

visitation, or a decline in hunter 

success, leading to lost income or 

increased costs to guides and outfitters. 

We would expect impacts to big game 

hunting to potentially occur from the 

increased number of wolves in the 

MWEPA or from the temporary 

restriction of the provision for take in 

response to an unacceptable impact to a 

wild ungulate herd. Negative impacts to 

the big game hunting economic sector 

would be most likely to occur during 

the period that this take provision is 

restricted because State agencies will 

not be able to request the removal of 

wolves if they are causing ungulate 

herds to fall below management goals 

(i.e., an unacceptable impact). 

As we describe in the FSEIS, we do 

not have a high degree of certainty as to 

when impacts to ungulates may occur, 

but we speculate based on information 

from gray wolves in other geographic 

areas that impacts will not occur prior 

to the wolf-to-1,000-elk ratio reaching 

above 4 wolves to 1,000 elk (potentially 

around 2024 or after). We expect to meet 

our genetic objective by 2030, resulting 

in the temporary restriction of this take 

provision for not more than 6 years. 

After the genetic objective is reached 

and the restriction on this take 

provision is lifted, the States could 

request the removal of wolves causing 

unacceptable impacts, which would 

result in mitigation of any reduction in 

hunting revenue occurring in that area. 

Currently, we (the Service and the State 

game and fish agencies) do not have 

information suggesting that impacts 

have occurred. No observable impact on 

wild ungulates due to wolves has been 

documented, nor reductions in big game 

hunting. In Arizona, total harvest of elk 

and percent success of hunters 

increased from 2012 to 2017 (the most 

recent year for which we have data) 

(AZGFD 2011, 2017) and stayed stable 

or increased slightly in New Mexico 

from 2012 to 2019 (NMDGF files). 

For the above reasons and based on 

currently available information, we 

certify that the revision to the existing 


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nonessential experimental population 

designation of the Mexican wolf will not 

have a significant economic impact on 

a substantial number of small business 

entities. Therefore, a regulatory 

flexibility analysis is not required. 

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.): 

(1) This rule will not ‘‘significantly or 

uniquely’’ affect small governments 

because it will not place additional 

requirements on any city, county, or 

other local municipalities. We have 

determined that this rule will not 

impose a cost of $100 million or more 

in any given year on local or State 

governments or private entities. 

Therefore, a small government agency 

plan is not required. 

(2) This rule is not a ‘‘significant 

regulation action’’ under this act; it will 

not produce a Federal mandate of $100 

million or greater in any year. The 

regulatory revisions to the MWEPA will 

not impose any additional management 

or protection requirements on the States 

or other entities. 

Takings—Executive Order 12630 (E.O. 

12630) 

In accordance with E.O. 12630, this 

rule does not have significant takings 

implications. When reestablished 

populations of federally listed species 

are designated as nonessential 

experimental populations, the ESA’s 

regulatory requirements regarding the 

reestablished listed species within the 

experimental population are 

significantly reduced. In the 1998 final 

rule (63 FR 1752; January 12, 1998), we 

stated that one issue of concern is the 

depredation of livestock by 

reintroduced Mexican wolves, but such 

depredation by a wild animal would not 

be a taking under the 5th Amendment. 

One of the reasons for the experimental 

population is to allow the agency and 

private entities flexibility in managing 

Mexican wolves, including the 

elimination of a wolf when there is a 

confirmed kill of livestock. 

A takings implication assessment is 

not required because this rule will not 

effectively compel a property owner to 

suffer a physical invasion of property 

and will not deny all economically 

beneficial or productive use of the land 

or aquatic resources. Damage to private 

property caused by protected wildlife 

does not constitute a taking of that 

property by a government agency that 

protects or reintroduces that wildlife. 

This rule will substantially advance a 

legitimate government interest 

(conservation and recovery of a listed 

species) and will not present a barrier to 

all reasonable and expected beneficial 

use of private property. 

Federalism—Executive Order 13132 

(E.O. 13132) 

In accordance with E.O. 13132, we 

have considered whether this rule has 

significant federalism effects and have 

determined that a federalism summary 

impact statement is not required. This 

rule will not have substantial direct 

effects on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. In keeping 

with Department of the Interior policy, 

we requested information from and 

coordinated development of this rule 

with the affected resource agencies in 

New Mexico and Arizona. Achieving 

the population objective for the 

MWEPA, which serves as one of the 

recovery criteria for the Mexican wolf, 

will contribute to the rangewide 

recovery of the species, which will 

contribute to its eventual delisting and 

its return to State management. 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 or 

directly affected. This rule will operate 

to maintain the existing relationship 

between the State and the Federal 

Government. Therefore, this rule does 

not have significant federalism effects or 

implications to warrant a federalism 

assessment under the provisions of E.O. 

13132. 

Civil Justice Reform—Executive Order 

12988 (E.O. 12988) 

In accordance with E.O. 12988 

(February 7, 1996; 61 FR 4729), the 

Office of the Solicitor has determined 

that this rule will not unduly burden the 

judicial system and will meet the 

requirements of sections (3)(a) and 

(3)(b)(2) of the E.O. 

Paperwork Reduction Act 

This rule does not contain any new 

collection of information that requires 

approval by the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). OMB has previously approved 

the information collection requirements 

associated with permitting and 

reporting requirements associated with 

native endangered and threatened 

species, and experimental populations, 

and assigned the following OMB control 

numbers: 

• 1018–0094, ‘‘Federal Fish and 

Wildlife Permit Applications and 

Reports—Native Endangered and 

Threatened Species; 50 CFR 10, 13, and 

17’’ (expires 01/31/2024), and 

• 1018–0095, ‘‘Endangered and 

Threatened Wildlife, Experimental 

Populations, 50 CFR 17.84’’ (expires 9/ 

30/2023). 

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. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relatives 

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 

have considered possible effects of the 

revisions in this rule on federally 

recognized Indian Tribes. Our revisions 

do not include a revision to the 

geographic boundaries of the MWEPA, 

and we continue to recognize that the 

MWEPA overlaps with or is adjacent to 

Tribal lands. We notified the Native 

American Tribes within and adjacent to 

the MWEPA about this rule and invited 

eight Indian Tribes to serve as 

cooperating agencies in the 

development of the DSEIS. We 

communicated with all Indian Tribes in 

Arizona and New Mexico, as well as 

Tribes outside of Arizona and New 

Mexico that may have interest in land 

within the MWEPA, through written 

contact, including informational 

mailings from the USFWS and email 

notifications to attend video and 

teleconference informational sessions 

and public hearings, and to provide an 

opportunity to comment on the DSEIS 

and proposed rule. We invited all Tribes 

in Arizona and New Mexico to request 

government-to-government consultation 

under Secretarial Order 3206, and we 

held Tribal Working Group meetings, 

open to all Tribes, to discuss our 

proposed revisions within the context of 

Tribal land. If future activities resulting 

from this rule may affect Tribal 

resources, the USFWS will 

communicate and consult on a 

government-to-government basis with 

any affected Native American Tribes in 

order to find a mutually agreeable 

solution. 

National Environmental Policy Act 

We have prepared a final 

supplemental environmental impact 


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statement (FSEIS) pursuant to the 

National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.) in 

connection with this rule to revise the 

Mexican wolf experimental population 

designation. The purpose of the FSEIS 

is to identify and disclose the 

environmental consequences resulting 

from the revision of the existing 

experimental population designation of 

the Mexican wolf. The FSEIS is an 

outgrowth of the public scoping process 

we conducted from April 15, 2020, to 

June 15, 2020 (85 FR 20967; April 15, 

2020), and the public and peer review 

comments we received on the draft 

supplemental environmental impact 

statement (DSEIS) (see 86 FR 60029; 

October 29, 2021) and our October 29, 

2021, proposed rule (86 FR 59953). We 

used the FSEIS, which we published in 

the Federal Register on May 13, 2022 

(87 FR 29272), to inform our final 

decision on the revision to the 

regulations for the experimental 

population of Mexican wolves in the 

MWEPA. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 (E.O. 13211) 

E.O. 13211 requires agencies to 

prepare statements of energy effects 

when undertaking certain actions. This 

rule is not expected to significantly 

affect energy supplies, distribution, or 

use because this rule allows the 

reintroduction and management of 

Mexican wolves. Mexican wolves 

reintroduced and managed in the 

MWEPA do not change where, when, or 

how energy resources are produced or 

distributed. Because this action is not a 

significant energy action, no statement 

of energy effects is required. 

References Cited 

A complete list of all references cited 

in this rule is available at https://

www.regulations.gov at Docket No. 

FWS–R2–ES–2021–0103, or upon 

request from the Mexican Wolf 

Recovery Program, U.S. Fish and 

Wildlife Service, New Mexico 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this document 

are the staff members of the Mexican 

Wolf Recovery Program (see FOR

FURTHER INFORMATION CONTACT). 

Authority 

The authorities for this action are the 

Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.), as amended, and 

the National Environmental Policy Act 

of 1969 (42 U.S.C. 4321 et seq.). 

Regulation Promulgation 

Accordingly, we 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 

■ 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. 

■ 2. Amend § 17.84 by: 

■ a. Revising paragraph (k)(1); 

■ b. Adding paragraphs (k)(7)(iv)(C)(1) 

and (2); 

■ c. Redesignating paragraphs 

(k)(7)(v)(A)(1) and (2) as (k)(7)(v)(A)(3) 

and (4); 

■ d. Adding new paragraphs 

(k)(7)(v)(A)(1) and (2); 

■ e. Adding paragraph (k)(7)(vi)(E); 

■ e. Revising paragraph (k)(9)(iii); 

■ f. Adding paragraph (k)(9)(v); and 

■ g. Revising paragraph (k)(10). 

The revisions and additions read as 

follows: 

§ 17.84 Special rules—vertebrates. 

* * * * * 

(k) * * * 

(1) Purpose of the rule. The U.S. Fish 

and Wildlife Service (USFWS) finds that 

reestablishment of an experimental 

population of Mexican wolves into the 

subspecies’ probable historical range 

will further the conservation and 

recovery of the Mexican wolf 

subspecies. The USFWS also finds that 

the experimental population is not 

essential under § 17.81(c)(2). 

* * * * * 

(7) * * * 

(iv) * * * 

(C) * * * 

(1) Until the USFWS has achieved the 

genetic objective for the MWEPA set 

forth at paragraph (k)(9)(v) of this 

section by documenting that at least 22 

released wolves have survived to 

breeding age in the MWEPA, the 

USFWS or a designated agency may 

issue permits only on a conditional, 

annual basis according to the following 

provisions: Either 

(i) Annual release benchmarks (for the 

purposes of this paragraph, the term 

‘‘benchmark’’ means the minimum 

cumulative number of released wolves 

surviving to breeding age since January 

1, 2016, as documented annually in 

March) have been achieved based on the 

following schedule: 

TABLE 1 TO PARAGRAPH

(k)(7)(iv)(C)(1)(i) 

Year Benchmark 

2021 ...................................... 7 

2022 ...................................... 9 

2023 ...................................... 11 

2024 ...................................... 13 

2025 ...................................... 14 

2026 ...................................... 15 

2027 ...................................... 16 

2028 ...................................... 18 

2029 ...................................... 20 

2030 ...................................... 22 

; or 

(ii) Permitted take on non-Federal 

land, or on Federal land under 

paragraph (k)(7)(v) of this section, 

during the previous year (April 1 to 

March 31) did not include the lethal 

take of any released wolf or wolves that 

were or would have counted toward the 

genetic objective set forth at paragraph 

(k)(9)(v) of this section. 

(2) After the USFWS has achieved the 

genetic objective set forth at paragraph 

(k)(9)(v) of this section, the conditional 

annual basis for issuing permits will no 

longer be in effect. 

(v) * * * 

(A) * * * 

(1) Until the USFWS has achieved the 

genetic objective for the MWEPA set 

forth at paragraph (k)(9)(v) of this 

section by documenting that at least 22 

released wolves have survived to 

breeding age, the USFWS or a 

designated agency may issue permits 

only on a conditional, annual basis 

according to the following provisions: 

Either 

(i) Annual release benchmarks (for the 

purposes of this paragraph, the term 

‘‘benchmark’’ means the minimum 

cumulative number of released wolves 

surviving to breeding age since January 

1, 2016, as documented annually in 

March) have been achieved based on the 

following schedule: 

TABLE 2 TO PARAGRAPH

(k)(7)(v)(A)(1)(i) 

Year Benchmark 

2021 ...................................... 7 

2022 ...................................... 9 

2023 ...................................... 11 

2024 ...................................... 13 

2025 ...................................... 14 

2026 ...................................... 15 

2027 ...................................... 16 

2028 ...................................... 18 

2029 ...................................... 20 

2030 ...................................... 22 

; or 

(ii) Permitted take on Federal land, or 

on non-Federal land under paragraph 


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(k)(7)(iv) of this section, during the 

previous year (April 1 to March 31) did 

not include the lethal take of any 

released wolf or wolves that were or 

would have counted toward the genetic 

objective set forth at paragraph (k)(9)(v) 

of this section. 

(2) After the USFWS has achieved the 

genetic objective set forth at paragraph 

(k)(9)(v) of this section, the conditional 

annual basis for issuing permits will no 

longer be in effect. 

* * * * * 

(vi) * * * 

(E) No requests for take in response to 

unacceptable impacts to a wild ungulate 

herd may be made by the State game 

and fish agency or accepted by the 

USFWS until the genetic objective at 

paragraph (k)(9)(v) of this section has 

been met. 

* * * * * 

(9) * * * 

(iii) Based on end-of-year counts, we 

will manage to achieve and sustain a 

population average greater than or equal 

to 320 wolves in Arizona and New 

Mexico. This average must be achieved 

over an 8-year period, the population 

must exceed 320 Mexican wolves each 

of the last 3 years of the 8-year period, 

and the annual population growth rate 

averaged over the 8-year period must 

demonstrate a stable or increasing 

population, as calculated by a geometric 

mean. 

* * * * * 

(v) The USFWS and designated 

agencies will conduct a sufficient 

number of releases into the MWEPA 

from captivity to result in at least 22 

released Mexican wolves surviving to 

breeding age. 

(10) Evaluation. The USFWS will 

continue to evaluate Mexican wolf 

reestablishment progress and prepare 

periodic progress reports and detailed 

annual reports. In addition, 

approximately 5 years after August 1, 

2022, the USFWS will prepare a onetime overall evaluation of the 

experimental population program that 

focuses on modifications needed to 

improve the efficacy of this rule and the 

progress the experimental population is 

making to the recovery of the Mexican 

wolf. 

* * * * * 

Martha Williams, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2022–14025 Filed 6–30–22; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 220627–0143] 

RIN 0648–BL17 

Atlantic Highly Migratory Species; 

Shortfin Mako Shark Retention Limit 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: In this final rule, NMFS is 

implementing a flexible shortfin mako 

shark retention limit with a default limit 

of zero in commercial and recreational 

Atlantic highly migratory species (HMS) 

fisheries. The default limit of zero will 

remain in place unless and until 

changed. Under this final rule, future 

changes to the retention limit can only 

be made based on consideration of 

regulatory criteria and only if consistent 

with an allowable retention 

determination made by the International 

Commission for the Conservation of 

Atlantic Tunas (ICCAT) pursuant to 

Recommendation 21–09. This action is 

necessary to implement the binding 

recommendations of ICCAT adopted in 

2021, as authorized under the Atlantic 

Tunas Convention Act (ATCA), and to 

achieve domestic management 

objectives under the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act). 

DATES: This final rule is effective July 5, 

2022. 

ADDRESSES: Electronic copies of this 

final rule and supporting documents are 

available from the Atlantic HMS 

Management Division website at https:// 

www.fisheries.noaa.gov/topic/atlantichighly-migratory-species or by 

contacting Carrie Soltanoff at 

carrie.soltanoff@noaa.gov or 301–427– 

8503. 

FOR FURTHER INFORMATION CONTACT: 

Carrie Soltanoff (carrie.soltanoff@

noaa.gov), Guy DuBeck (guy.dubeck@

noaa.gov), Erianna Hammond 

(erianna.hammond@noaa.gov), or Ann 

Williamson (ann.williamson@noaa.gov) 

at 301–427–8503. 

SUPPLEMENTARY INFORMATION: Atlantic 

shark fisheries are managed primarily 

under the authority of the MagnusonStevens Act (16 U.S.C. 1801 et seq.) and 

ATCA (16 U.S.C. 971 et seq.). The 2006 

Consolidated Atlantic HMS Fishery 

Management Plan (2006 Consolidated 

HMS FMP) and its amendments are 

implemented by regulations at 50 CFR 

part 635. ATCA authorizes the Secretary 

of Commerce to promulgate such 

regulations as necessary and appropriate 

to carry out ICCAT recommendations. 

The authority to issue regulations under 

the Magnuson-Stevens Act and ATCA 

has been delegated from the Secretary of 

Commerce to the NMFS Assistant 

Administrator. 

Background information about the 

need to implement a retention limit for 

shortfin mako sharks was provided in 

the preamble to the proposed rule (87 

FR 21077, April 11, 2022) and is not 

repeated here. The comment period for 

the proposed rule closed on May 11, 

2022. NMFS received 22 written 

comments as well as oral comments 

during the public hearing held by 

webinar on April 27, 2022. The 

comments received, and the responses 

to those comments, are summarized in 

the Response to Comments section. 

After considering public comments on 

the proposed rule, NMFS is finalizing 

the rule as proposed. As described, no 

changes are made from the proposed 

rule. 

NMFS has prepared an Environmental 

Assessment (EA), Regulatory Impact 

Review (RIR), and Final Regulatory 

Flexibility Analysis (FRFA), which 

analyze the anticipated environmental, 

social, and economic impacts of several 

alternatives for each of the major issues 

contained in this final rule. The full list 

of alternatives and their analyses are 

provided in the final EA/RIR/FRFA and 

are not repeated here. A summary of the 

FRFA is provided below. A copy of the 

final EA/RIR/FRFA prepared for this 

final rule is available from NMFS (see 

ADDRESSES). 

As described in the proposed rule, 

Recommendation 21–09, adopted at the 

November 2021 ICCAT annual meeting, 

prohibits retention of North Atlantic 

shortfin mako sharks caught in 

association with ICCAT fisheries in 

2022 and 2023. Limited retention of 

shortfin mako sharks may be allowed in 

2023 and future years if ICCAT 

determines that fishing mortality is at a 

low enough level North Atlantic-wide to 

allow retention consistent with the 

conservation objectives of the 

recommendation. 

In order to meet domestic 

management objectives, implement 

Recommendation 21–09, and 

acknowledge the possibility of future 

retention, this final rule implements a 

flexible shortfin mako shark retention 

limit with a default limit of zero in 

commercial and recreational HMS 

fisheries. The retention limit applies to 

commercial vessels issued a Shark 


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