[Federal Register Volume 87, Number 126 (Friday, July 1, 2022)]
[Rules and Regulations]
[Pages 39348-39373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14025]


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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.

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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

[[Page 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-of-contact 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 species-specific 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

[[Page 39350]]

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
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

[[Page 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

[[Page 39352]]

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 re-reintroduction 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:
    <bullet> Tested and utilized different wolf release techniques, 
including hard and soft releases; release of adults, pairs, or packs; 
and cross-fostering puppies;
    <bullet> 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;
    <bullet> 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;
    <bullet> Developed and expanded collaborative recovery efforts with 
partners in both the United States and Mexico;
    <bullet> Sustained budgetary and staffing capacity for the 
reintroduction effort for several decades, including public outreach 
programs and stakeholder engagement;
    <bullet> Championed and participated in financial programs to 
reduce economic impacts on livestock operators; and
    <bullet> 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 re-establish 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

[[Page 39353]]

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:
    <bullet> 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);
    <bullet> MWEPA quarterly reports (i.e., four reports per year, 
annually, ongoing);
    <bullet> MWEPA annual reports (i.e., one report per year, annually, 
ongoing);
    <bullet> 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);
    <bullet> 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
    <bullet> A phasing evaluation for western Arizona pursuant to 50 
CFR

[[Page 39354]]

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 cross-fostering 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

[[Page 39355]]

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 density-dependent 
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 Mart[iacute]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

[[Page 39356]]

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

[[Page 39357]]

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

[[Page 39358]]

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 cross-fostered 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 density-dependent 
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 Cox-proportional 
hazard models or known-fate 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

[[Page 39359]]

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.

[[Page 39360]]

    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.

[[Page 39361]]

    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 Sec.  
17.84(k)(7)(vi)(E).
    Comment: Recent efforts to cross-foster 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 cross-fostering 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)

[[Page 39362]]

rule that address the threat of human-caused mortality, including 
prohibitions to restrict the take of Mexican wolves (Sec.  17.84(k)(5)) 
and limitations on activities that may disturb Mexican wolves and 
affect their persistence (Sec.  17.84(k)(8)). In addition, this rule 
provides new restrictions on three forms of take that could result in 
human-caused 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 human-caused 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, cross-fostering 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

[[Page 39363]]

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 cross-foster 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 cross-fostering 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-the-art 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

[[Page 39364]]

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

[[Page 39365]]

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 non-Federal 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

[[Page 39366]]

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, radio-activated 
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.

[[Page 39367]]

    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 Sec.  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 Sec.  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 Sec.  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,

[[Page 39368]]

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:
    <bullet> 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.
    <bullet> 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

[[Page 39369]]

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-industry-sector). 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

[[Page 39370]]

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

[[Page 39371]]

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:
    <bullet> 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
    <bullet> 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

[[Page 39372]]

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

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

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


0
2. Amend Sec.  17.84 by:
0
a. Revising paragraph (k)(1);
0
b. Adding paragraphs (k)(7)(iv)(C)(1) and (2);
0
c. Redesignating paragraphs (k)(7)(v)(A)(1) and (2) as (k)(7)(v)(A)(3) 
and (4);
0
d. Adding new paragraphs (k)(7)(v)(A)(1) and (2);
0
e. Adding paragraph (k)(7)(vi)(E);
0
e. Revising paragraph (k)(9)(iii);
0
f. Adding paragraph (k)(9)(v); and
0
g. Revising paragraph (k)(10).
    The revisions and additions read as follows:


Sec.  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 
Sec.  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

[[Page 39373]]

(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 one-time 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