Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules 19237

By the Board, Linda J. Morgan, Chairman.

Vernon A. Williams,

Secretary.

[FR Doc. 96–10763 Filed 4–30–96; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AD07

Endangered and Threatened Wildlife

and Plants; Proposed Establishment of

a Nonessential Experimental

Population of the Mexican Gray Wolf in

Arizona and New Mexico

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) proposes to

reintroduce the endangered Mexican

gray wolf (Canis lupus baileyi) into two

designated recovery areas within the

subspecies’ probable historic range. The

Blue Range Wolf Recovery Area consists

of the entire Apache and Gila National

Forests in east-central Arizona and

west-central New Mexico. The White

Sands Wolf Recovery Area consists of

all land within the boundary of the

White Sands Missile Range in southcentral New Mexico together with

designated land immediately to the

west. The wolves reintroduced into

these areas are classified as one

nonessential experimental population

under section 10(j) of the Endangered

Species Act (Act) of 1973, as amended.

The proposed rule sets forth

management directions and provides for

limited allowable legal take of wolves

within a defined Mexican Wolf

Experimental Population Area.

DATES: Comments from all interested

parties must be received by July 1, 1996.

ADDRESSES: Send comments and

materials concerning this proposal to

the Mexican Wolf Recovery Program,

U.S. Fish and Wildlife Service, P.O. Box

1306, Albuquerque, New Mexico

87103–1306. Comments and materials

received will be available for public

inspection, by appointment, during

normal business hours at the above

address. Copies of the draft

Environmental Impact Statement or its

summary can be obtained at this

address.

FOR FURTHER INFORMATION CONTACT: Mr.

David R. Parsons (see ADDRESSES

section) at telephone 505/248–6920; or

facsimile 505/248–6922.

SUPPLEMENTARY INFORMATION:

Background

Legislative: The Endangered Species

Act Amendments of 1982, Pub. L. 97–

304, made significant changes to the

Act, including the creation of section

10(j), which provides for the designation

of specific populations of listed species

as ‘‘experimental populations.’’ Under

previous authorities of the Act, the

Service was permitted to reestablish

(reintroduce) populations of a listed

species into unoccupied portions of its

historic range for conservation and

recovery purposes. However, local

opposition to reintroduction efforts,

stemming from concerns by some about

potential restrictions, and prohibitions

on Federal and private activities

contained in sections 7 and 9 of the Act,

reduced the effectiveness of

reintroduction as a management tool.

Under section 10(j), a population of a

listed species reestablished outside its

current range but within its probable

historic range may be designated as

‘‘experimental,’’ at the discretion of the

Secretary of Interior (Secretary), if

reintroduction of the experimental

population furthers the conservation of

the listed species. An experimental

population must be separate

geographically from nonexperimental

populations of the same species.

Designation of a population as

experimental increases the Service’s

management flexibility.

Additional management flexibility

exists if the Secretary finds the

experimental population to be

‘‘nonessential’’ to the continued

existence of the species. For purposes of

section 7 (except section 7(a)(1), which

requires Federal agencies to use their

authorities to conserve listed species),

nonessential experimental populations

located outside national wildlife refuge

or national park lands are treated as if

they are proposed for listing. This

means that Federal agencies are under

an obligation to confer (as if the species

were only proposed for listing) as

opposed to consult (required for a listed

species) on any actions authorized,

funded, or carried out by them that are

likely to jeopardize the continued

existence of the species. Nonessential

experimental populations located on

national wildlife refuge or national park

lands are treated as threatened, and

formal consultation may be required.

Activities undertaken on private lands

are not affected by section 7 of the Act

unless they are authorized, funded, or

carried out by a Federal agency.

Individual animals used in

establishing an experimental population

can be removed from a source

population if their removal is not likely

to jeopardize the continued existence of

the species (see Findings Regarding

Reintroduction, below), and a permit

has been issued in accordance with 50

CFR Part 17.22.

The Mexican wolf was listed as an

endangered subspecies on April 28,

1976 (41 FR 17742). The gray wolf

species in North America south of

Canada was listed as endangered

(except in Minnesota where it was listed

as threatened) without reference to

subspecies on March 9, 1978 (43 FR

9607). The Mexican Wolf Recovery Plan

was adopted by the Directors of the

Service and the Mexican Direccion

General de la Fauna Silvestre in 1982.

The plan guides recovery efforts for the

subspecies, laying out a series of

recommended actions. The recovery

plan is currently being revised, and the

revised document will more precisely

define the points at which downlisting

and delisting will occur.

Biological: This proposed

experimental population rule addresses

the Mexican wolf (Canis lupus baileyi),

an endangered subspecies of gray wolf

that was extirpated from the

southwestern United States by 1970.

The gray wolf (C. lupus) is native to

most of North America north of Mexico

City. An exception is in the

southeastern United States, which was

occupied by the red wolf (C. rufus). The

gray wolf occupied areas that supported

populations of hooved mammals

(ungulates), its major food source.

The Mexican wolf historically

occurred over much of New Mexico,

Arizona, Texas, and northern Mexico,

mostly in or near forested, mountainous

terrain. Numbering in the thousands

before European settlement, the

Mexican wolf declined rapidly when its

reputation as a livestock killer led to

concerted eradication efforts. Other

factors contributing to its decline were

commercial and recreational hunting

and trapping of wolves; killing of

wolves by game managers on the theory

that more game animals would be

available for hunters; habitat alteration;

and human safety concerns (although no

documentation exists of Mexican wolf

attacks on humans).

The subspecies is now considered

extirpated from its historic range in the

southwestern United States because no

wild wolf has been confirmed since

1970. Occasional sightings of ‘‘wolves’’

continue to be reported from United

States locations, but none have been

confirmed through clear evidence.

Recent field research has revealed no

confirmed reports of wolves remaining

in Mexico. Investigations are

continuing.
19238 Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules

When Mexican wolves were

eradicated, their natural history was

poorly understood. Appendix A to the

draft Environmental Impact Statement

provides life history and biological

descriptions of Mexican wolves to the

extent they are known or can be inferred

from historical evidence, observations of

captive Mexican wolves, and studies of

gray wolves in other geographic regions.

(The draft Environmental Impact

Statement should be referred to for

background and supporting information

and literature references on all aspects

of this proposed rule; see ADDRESSES

section.)

Recovery efforts: The Mexican Wolf

Recovery Plan’s objective is to conserve

and ensure survival of the subspecies by

maintaining a captive breeding program

and reestablishing a viable, selfsustaining population of at least 100

Mexican wolves in a 5,000 square mile

area within the subspecies’ historic

range. (The recovery plan is currently

under revision.)

A captive breeding program was

established in the 1970’s with two wild

male Mexican wolves caught from 1977

to 1980 (from Durango and Chihuahua,

Mexico) and one wild pregnant female

wolf caught in 1978 (from Durango,

Mexico). Two additional captive

populations were determined in July

1995 to be pure Mexican wolves; each

has two founders. The captive

population has increased to 139 as of

March 1996; 114 are held at 23 facilities

in the United States and 25 at five

facilities in Mexico. This population has

been managed since 1990 for maximum

reproduction to support the proposed

reintroduction effort. The goal is to have

at least 100 animals in the United States

facilities prior to any releases into the

wild.

On April 20, 1992, the Service issued

a ‘‘Notice of Intent to Prepare an

Environmental Impact Statement on the

Experimental Reintroduction of

Mexican Wolves (Canis lupus baileyi)

into Suitable Habitat within the Historic

Range of the Subspecies’’ (57 FR 14427).

This notice also announced the time

and place of public scoping meetings.

The draft Environmental Impact

Statement was released for public

review and comment on June 27, 1995

(60 FR 33224). The location and times

of 14 public meetings were also

announced in this notice. In September

of 1995, the Service announced that

three public hearings would be held in

October 1995 (60 FR 49628). All

announced meetings and hearings were

held. The public comment period closed

on October 31, 1995. Approximately

18,000 people have commented or

expressed an opinion on the draft

Environmental Impact Statement.

Following an analysis of the public

comments, a final Environmental

Impact Statement will be issued around

July 1996.

The proposed Mexican wolf recovery

actions and this proposed rule were

developed by the Service after

consultation with representatives of

Federal, State, and other agencies, with

potentially affected private parties, and

with wolf experts nationally. Public

comments received at and after scoping

meetings for the draft Environmental

Impact Statement were considered. (See

draft Environmental Impact Statement,

Chapter 1 section on Scoping and

Chapter 5-Consultation and

Coordination.)

Mexican wolf recovery areas: The

Service has determined that the

proposed reintroductions in the White

Sands Wolf Recovery Area and the Blue

Range Wolf Recovery Area have the

greatest potential for successfully

achieving the current recovery objective

for Mexican wolves. (See paragraph

(j)(6) of the proposed rule and Figures

1 and 2 for precise boundaries of these

areas. Chapters 2 and 3 of the draft

Environmental Impact Statement

describe the selection of these two areas

and provide detailed descriptions of

them.)

The two wolf recovery areas are

within the Mexican wolf’s probable

historic range. Both contain vast,

relatively remote, and isolated expanses

of federally-managed land. Suitable wolf

habitat containing relatively abundant

prey such as deer and elk is available.

As the Mexican wolf is considered

extinct in the wild in the United States,

both areas are wholly separate

geographically from any known,

naturally-occurring nonexperimental

populations of wild wolves. A larger

Mexican Wolf Experimental Population

Area, which also is wholly separate

geographically from any known,

naturally-occurring nonexperimental

populations of wild wolves, is defined

in the rule, paragraph (j)(6), (see Figure

3). Mexican wolf recovery is not

proposed throughout this larger area. Its

purpose is to establish that any wild

wolf found in this larger area is a

member of the nonessential

experimental population, and therefore

subject to the provisions of this rule,

and not an ‘‘endangered’’ status wolf

with full protection of the Act.

Reintroduction procedures: Male and

female pairs from the captive

population will be selected for release

based on genetics, reproductive

performance, behavioral compatibility,

response to the adaptation process, and

other factors. Selected pairs will be

moved to the Service’s captive wolf

management facility on the Sevilleta

National Wildlife Refuge in central New

Mexico where measures will be taken to

improve their adaptation to life in the

wild.

Wolves will be reintroduced by a

‘‘soft release’’ approach designed to

reduce the likelihood of quick dispersal

away from the release areas. This

involves holding the animals in pens on

site for up to several months in order to

acclimate them and to increase their

affinity for the area. (The soft release

approach is described in more detail in

Chapter 2 of the draft Environmental

Impact Statement.) The releases will

begin in 1996 or as soon thereafter as

feasible.

Approximately five family groups of

captive raised Mexican wolves will be

released over a period of 3 years into the

White Sands Wolf Recovery Area, with

the goal of reaching a long-term

sustainable subpopulation of 20 wolves

by 1998. In the Blue Range Wolf

Recovery Area, approximately 14 family

groups will be released over a period of

5 years, with the goal of reaching a longterm sustainable subpopulation of 100

wild wolves by 2004. The proposed

action is flexible, using either the White

Sands Wolf Recovery Area or the Blue

Range Wolf Recovery Area, or both, and

in the order of their use.

Management of the reintroduced

population: The proposed nonessential

experimental designation enables the

Service to develop measures for

management of the population that are

less restrictive than the mandatory

prohibitions that protect species with

‘‘endangered’’ status. This includes

limited allowance of both governmental

and private take of individual wolves

under narrowly defined circumstances.

Management flexibility is needed to

make reintroduction compatible with

current and planned human activities,

such as livestock grazing and hunting,

in the reintroduction area. It is also

critical to obtaining needed State, tribal,

local, and private cooperation. Thus,

this flexibility will improve the

likelihood of success.

Reintroduction will occur under

management plans that allow dispersal

by the new wolf subpopulations beyond

the primary recovery zones where they

will be released, into the secondary

recovery zones of the two designated

wolf recovery areas (see Figures 1 and

2). The Service and cooperating

agencies will not allow the wolves to

establish territories outside these wolf

recovery area boundaries without

landowner consent on private or tribal

lands within the Mexican Wolf

Experimental Population Area.
Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules 19239

No measures are expected to be

needed to isolate the experimental

population from naturally occurring

populations because no Mexican wolves

are now known to occur in the wild.

However, the Service will attempt to

take every reasonable step to ensure that

no naturally occurring wild population

(see definition in Rule Glossary) that

might exist within the recovery areas

(which is considered highly unlikely)

are affected by the reintroduction of

captive-raised, nonessential

experimental wolves. Surveys for wolf

sign in these areas will be conducted

prior to any reintroduction. If a

naturally occurring wild population is

found within one or both of the

designated wolf recovery areas, the

proposed reintroduction there would

not go forward with such wild wolves

present. Further, if a naturally occurring

wild population is found within one or

both of the designated wolf recovery

areas within 90 days after members of

the experimental population are

initially released (which also is

considered highly unlikely), all wolves

in the reintroduced sub-population in

such recovery area(s) would be removed

and the reintroduction would not

continue there. Such a wild population

would have full endangered status

under the Act.

Identification and monitoring: Prior to

placement in release pens, the adult

wolves will receive permanent

identification marks and radio collars.

Pups will receive surgically implanted

transmitters prior to release and the

pups will be recaptured and fitted with

radio collars when they are large

enough. Wild-born pups of the

reintroduced population that are

captured will be given a permanent

identification mark and radio collar.

The Service and cooperating agencies

will measure the success or failure of

the reintroductions, and the effects of

such success or failure on the

conservation and recovery of Mexican

wolves, by continuously monitoring,

researching, and evaluating the status of

released wolves in the wild. The

agencies will prepare periodic progress

reports, annual reports, and full

evaluations after 3 and 5 years that will

recommend continuation or termination

of the reintroduction effort. The reports

will also evaluate whether, and how, to

use the second wolf recovery area, that

is, the one not used initially.

Findings regarding reintroduction:

The Service finds that the reintroduced

experimental population is reasonably

likely to become established and survive

in the wild within the Mexican wolf’s

probable historic range. Under the

proposed rule and based on available

data, the Service projects that the Blue

Range Wolf Recovery Area

subpopulation will achieve the 1982

Mexican Wolf Recovery Plan goal of 100

wolves occupying 5,000 square miles by

2004.

The White Sands Wolf Recovery Area

will support an estimated 20 wolves

occupying 1,000 square miles by 1998.

This likely would not be an

independently viable subpopulation.

Nevertheless, a subpopulation in this

size range could be maintained through

supplemental releases (or, speculatively,

by natural immigration of wolves from

another nearby population if one

existed, e.g., from a reintroduced

subpopulation in the Blue Range Wolf

Recovery Area). Even if the White Sands

Wolf Recovery Area subpopulation is

not viable, per se, the Service finds that,

through monitoring and research, such

a reintroduction would provide vital

information about the ecology and

behavior of wild Mexican wolves and

about the ability of captive-raised gray

wolves to survive in the wild. A

reintroduction there would provide a

valuable assessment of the soft release

approach to reintroducing captiveraised wolves. Further, wolves

successfully reintroduced into the

White Sands Wolf Recovery Area could

be used as release stock for future

reintroductions elsewhere, which would

increase the likelihood of success

compared to using captive-raised

wolves as release stock.

Some members of the experimental

population are expected to die during

the reintroduction efforts after removal

from the captive population. The

Service finds that even if the entire

experimental population died, this

would not appreciably reduce the

prospects for future survival of the

subspecies in the wild. That is, future

reintroductions still would be feasible

even if the reintroductions proposed

here failed. The individual Mexican

wolves selected for release will be as

genetically redundant with other

members of the captive population as

possible, thus minimizing any adverse

effects on the genetic integrity of the

remaining captive population. The

Service has detailed lineage information

on each captive Mexican wolf. The

captive population is managed for the

Service under the American Zoo and

Aquarium Association’s Species

Survival Plan program. The Association

maintains a Studbook and provides an

expert advisor for small population

management.

Management of the demographic and

genetic makeup of the population is

guided by the SPARKS computer

program. Kinship values, which range

from zero to one, are a measure of the

relatedness of an individual to the rest

of the population. Wolves with higher

kinship values are genetically wellrepresented in the population. Only

those individuals whose kinship values

are above the mean for the captive

population as a whole will be used for

release. In addition, the PEDPAC

computer program will be used to

identify suitable release candidates by

examining the influence of removing an

individual animal on the survival of the

founders’ genes. This management

approach will adequately protect the

genetic integrity of the captive

population and thus the continued

existence of the subspecies. The United

States captive population of Mexican

wolves has approximately doubled in

the last 3 years demonstrating the

captive population’s reproductive

potential to replace reintroduced wolves

that die. In view of all these safeguards

the Service finds that the reintroduced

population would not be ‘‘essential’’

under 50 CFR 17.81(c)(2).

The Service finds that release of the

experimental population will further the

conservation of the subspecies and of

the gray wolf species as a whole.

Currently, no viable populations of the

Mexican wolf subspecies are known to

exist in the wild. No wild populations

of the gray wolf species are known to

exist in the United States south of

Montana, Minnesota, Wisconsin, and

Michigan. (The Service is in the process

of reintroducing wild gray wolves from

Canada into central Idaho and

Yellowstone National Park in

Wyoming.) The Mexican wolf is the

most southerly and the most genetically

distinct of all North American gray wolf

subspecies. The Mexican wolf is also

considered the rarest of the surviving

(nonextinct) subspecies and has been

accorded the highest recovery priority

by international wolf experts.

Releasing captive-raised Mexican

wolves furthers the objective of the

Mexican Wolf Recovery Plan. The Plan,

if fully implemented, will result in the

reestablishment of a wild population of

at least 100 Mexican wolves. Also,

release of wolves into the wild will

reduce the potential negative effects of

keeping them in captivity in perpetuity.

If a reintroduction into the wild from

the captive population does not occur

within a reasonable period of time,

genetic, physical, or behavioral changes

resulting from prolonged captivity could

render the captive animals unsuited for

reintroduction and devastate their

prospects for recovery.

Designation of the released wolves as

nonessential experimental is considered

necessary to obtain needed State, tribal,
19240 Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules

local, and private cooperation. This

designation also allows for management

flexibility to mitigate negative impacts

of Mexican wolf recovery, such as

livestock depredation. Without such

flexibility intentional illegal killing of

wolves would likely harm the prospects

for successful recovery.

Potential for conflict with Federal and

other activities: As indicated,

considerable management flexibility has

been incorporated into the proposed

experimental population rule to reduce

potential conflicts between wolves and

the activities of governmental agencies,

livestock operators, hunters, and others.

No major conflicts with current

management of Federal, State, private,

or tribal lands are anticipated. Mexican

wolves are expected to be able to

tolerate most of the current land uses in

the designated wolf recovery areas.

However, temporary restrictions on

human activities may be imposed

around release sites, active dens, and

rendezvous sites. Limited backcountry

National Forest road closures may be

necessary if illegal killings of wolves

occur; this would not affect the White

Sands Wolf Recovery Area. Also, the

USDA’s Animal Damage Control

Division will discontinue use of M–44’s

and choking-type snares in ‘‘occupied

Mexican wolf range’’ (see definition in

proposed Section 17.84(j)(10)). Other

predator control activities may be

restricted or modified pursuant to a

cooperative management agreement or a

conference between the United States

Department of Agriculture’s Animal

Damage Control Division and the

Service.

The Service and other authorized

agencies may harass, take, remove, or

translocate Mexican wolves under

certain circumstances described in

detail in the proposed rule. Private

citizens also are given broad authority to

harass Mexican wolves (for purposes of

scaring them away from livestock) and

they may take (including to kill or

injure) them under narrow

circumstances, that is, in cases of

defense of human life or when wolves

are in the act of attacking their livestock

(if certain conditions are met). In

addition, ranchers can seek

compensation from a privately-funded

depredation compensation fund if

depredation on their livestock occurs.

The Service does not intend to change

the proposed ‘‘nonessential

experimental’’ designation to ‘‘essential

experimental,’’ ‘‘threatened’’, or

‘‘endangered’’ and the Service does not

intend to designate critical habitat for

the Mexican wolf. Critical habitat can

not be designated under the

nonessential experimental

classification, 16 U.S.C. 1539(j)(2)(C)(ii).

The Service foresees no likely situation

which would result in such changes in

the future. Nevertheless, to ensure that

such changes do not occur, the

following condition exists in the

proposed rule, paragraph (j)(9)—if legal

actions or lawsuits compel a change in

the population’s legal status to essential

experimental, threatened, or

endangered, or compel the designation

of critical habitat for wolves within the

experimental population area, then all

reintroduced Mexican wolves will be

removed from the wild and the

experimental population rule will be

revoked.

Public Comments Solicited

The Service solicits comments or

suggestions on the proposed

experimental population rule from the

public, States, tribes, other concerned

governmental agencies, the scientific

community, industry, potentially

affected landowners, or any other

interested party. Comments must be

received within 60 days of publication

of this proposed rule in the Federal

Register.

The Service will hold public hearings

to obtain additional verbal and written

information. The location, dates, and

times of these hearings will be

announced in a forthcoming issue of the

Federal Register, in newspapers, and in

a mailing to those persons on the

Mexican Wolf Recovery Program

mailing list.

Any final decision on this proposal

will take into consideration the

comments and any additional

information received by the Service.

These may lead to a final rule that

differs from this proposal.

National Environmental Policy Act

A draft Environmental Impact

Statement on the Service’s proposal to

reintroduce the Mexican wolf in the

southwestern United States has been

prepared and is available to the public

(see ADDRESSES section). The draft

Environmental Impact Statement should

be referred to for analysis of the

Proposed Action and alternatives to it;

also, the draft Environmental Impact

Statement contains detailed references

for the background information

provided here.

Required Determinations

This proposed rule has been reviewed

by the Office of Management and

Budget under Executive Order 12866.

The rule will not have significant

economic impact on a substantial

number of small entities under the

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

et seq.). The final rule will not

significantly change costs to industry or

governments. Furthermore, the rule

produces no adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of United States enterprises to compete

with foreign-based enterprises in

domestic or export markets.

This proposed rule has been reviewed

under Executive Order 12630, the

Attorney General Guidelines,

Department Guidelines, and the

Attorney General Supplemental

Guidelines to determine the takings

implications of the proposed rule, if it

were promulgated as currently drafted.

One issue of concern is the depredation

of livestock by reintroduced wolves.

However, such depredation by a wild

animal would not be a ‘‘taking’’ under

the 5th Amendment. One of the reasons

for the experimental nonessential

designation is to allow the agency and

private entities flexibility in managing

the wolves, including the elimination of

a wolf when there is a confirmed kill of

livestock.

This proposed rule has been reviewed

under Executive Order 12612 to

determine Federalism considerations in

policy formulation and implementation.

Evidently, one or more counties in the

vicinity of the wolf reintroduction area

have enacted ordinances specifically

prohibiting the introduction of the wolf

(among other species) within county

boundaries. However, the United States

Congress has given the Secretary of the

Interior explicit statutory authority, in

section 10(j) of the Act, to promulgate

this rule, and under the Supremacy

Clause of the United States Constitution,

this has the effect of preempting State

regulation of wildlife to the extent in

conflict with this proposed rule.

Nevertheless, the Service has

endeavored to cooperate with State

wildlife agencies and county and tribal

governments in the preparation of this

proposed rule.

Author

The primary author of this document

is Mr. David R. Parsons (see ADDRESSES

section) at telephone 505/248–6920; or

facsimile 505/248–6922.

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements, and

Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby

proposes to amend part 17, subchapter

B of chapter I, title 50 of the Code of

Federal Regulations, as set forth below:
Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules 19241

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500, unless otherwise noted.

2. In § 17.11(h), the table entry for

‘‘Wolf, gray’’ under MAMMALS is

revised to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

* * * * * * *

Mammals

* * * * * * *

Wolf, gray ................. Canis lupus ............. Holarctic .................. U.S.A. (48

conterminous

States. except MN

and where listed

as an experimental population)..

E 1. 6. 13. 35,

561,

562,lll.

17.95(a) NA

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

Do ............................. ......do ...................... ......do ...................... U.S.A. (WY and portions of ID and

MT—see 17.84(i))..

XN 561, 562 ...... NA

17.84(i)

Do ............................. ......do ...................... ......do ...................... U.S.A. (specific portions of AZ NM.

and TX—see

17.84(j))..

XN NA ................ 17.84(j).

* * * * * * *

3. Section 17.84 is amended by

adding paragraph (j) to read as follows:

§ 17.84 Special rules—vertebrates.

* * * * *

(j) Mexican gray wolf (Canis lupus

baileyi).

(1) The Mexican gray wolf (Mexican

wolf) subpopulations reestablished in

the Blue Range Wolf Recovery Area and

in the White Sands Wolf Recovery Area

within the Mexican Wolf Experimental

Population Area, identified in paragraph

(j)(6) of this section, are one

nonessential experimental population.

This nonessential experimental

population will be managed in

accordance with these provisions.

(2) The Fish and Wildlife Service

(Service) finds that reintroduction of an

experimental population of Mexican

wolves into the subspecies’ probable

historic range will further the

conservation of the Mexican wolf

subspecies and of the gray wolf species.

The Service also finds that the

experimental population is not

‘‘essential,’’ under 50 CFR 17.81(c)(2).

(3) You must not take any wolf in the

wild within the Mexican Wolf

Experimental Population Area except as

provided in this rule. The Service may

refer take of a wolf contrary to this rule

to the appropriate authorities for

prosecution.

(i) Throughout the entire Mexican

Wolf Experimental Population Area,

you will not be in violation of the

Endangered Species Act (Act) for

unavoidable and unintentional take

(including killing or injuring) of a wolf,

when such take is non-negligent and

incidental to a legal activity, such as

hunting, trapping, driving, or

recreational activities, and you report

the take promptly (within 24 hours) to

the Service’s Mexican Wolf Recovery

Coordinator or to a Service appointed

agency representative.

(ii) Also throughout the entire

Mexican Wolf Experimental Population

Area, excluding areas within the

national park system and national

wildlife refuge system, no Federal

agency or their contractors will be in

violation of the Act for take of a wolf

resulting from any authorized agency

action. This provision does not exempt

agencies and their contractors from

complying with section 7(a)(4) of the

Act which requires a conference with

the Service if they propose an action

that is likely to jeopardize the continued

existence of the Mexican wolf.

(iii) No land use restrictions will be

imposed on private or tribal reservation

lands for Mexican wolf recovery

without the concurrence of the private

owner or tribal government. On public

lands, public and tribal agencies may

temporarily restrict human access and

disturbance-causing land use activities,

such as timber harvesting and mining,

within a 1-mile radius around release

pens when wolves are in them, around

active dens between March 1 and June

30, and around active wolf rendezvous

sites between June 1 and September 30,

as necessary. If documented illegal

killing of a wolf occurs the United

States Forest Service may, in

consultation with the Service, close

back-country roads on National Forest

lands (except thoroughfares) for as long

as necessary to protect the wolves.

(iv) In areas within the national park

system and national wildlife refuge

system, Federal agencies must treat

Mexican wolves as a threatened species

for purposes of complying with section

7 of the Act.

(v) On public lands leased for grazing

anywhere within the Mexican Wolf

Experimental Population Area,

including within the designated wolf

recovery areas, when and where

livestock are legally present, livestock

owners or their agents:

(A) May harass wolves, for purposes

of scaring them away, in the general

vicinity (within 500 yards) of livestock

(i.e., cattle, sheep, horses, mules, and

burros or as defined in State and tribal

wolf management plans as approved by

us) in an opportunistic, noninjurious

manner (no temporary or permanent

physical damage may result) at any
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time; provided that wolves cannot be

purposely attracted, tracked, waited for,

or searched out and then harassed; and

provided that such harassment is

reported to the Service’s Mexican Wolf

Recovery Coordinator or to a Service

appointed agency representative within

7 days; and,

(B) May receive a written permit

under the Act from the Service or an

agency designated by the Service, valid

for up to 45 days, to take (including kill

or injure) a specific number of wolves

actually engaged in the act of killing,

wounding, or biting livestock; provided

that, prior to the issuance of such a

permit, six or more breeding Mexican

wolf pairs occur in the Blue Range Wolf

Recovery Area, or three or more

breeding Mexican wolf pairs occur in

the White Sands Wolf Recovery Area;

and provided that an authorized agent

of the Service, the United States

Department of Agriculture’s (USDA)

Animal Damage Control Division, or the

State has documented previous

livestock loss or injury caused by

wolves and agency efforts to resolve the

problem are completed. Livestock

owners or their agents must report take

of wolves under such a permit to the

Service’s Mexican Wolf Recovery

Coordinator or to a Service appointed

agency representative within 24 hours.

There must be evidence of freshly

wounded or killed livestock by wolves.

(vi) On private or tribal land

anywhere within the Mexican Wolf

Experimental Population Area, property

owners, livestock owners, tenants, or

their designated agents:

(A) may harass wolves in the

immediate vicinity (within 500 yards) of

people, buildings, facilities, pets,

livestock, or other domestic animals in

an opportunistic, noninjurious manner

(no temporary or permanent physical

damage may result) at any time;

provided that wolves cannot be

purposely attracted, tracked, or searched

out and then harassed; and provided

that such harassment is reported to the

Service’s Mexican Wolf Recovery

Coordinator or to a Service appointed

agency representative within 7 days;

and,

(B) may take (including kill or injure)

any wolf actually engaged in the act of

killing, wounding, or biting livestock;

provided that livestock freshly (less

than 24 hours) wounded (torn flesh and

bleeding) or killed by wolves is present;

and further provided that the take is

reported to the Service’s Mexican Wolf

Recovery Coordinator or a Service

appointed agency representative within

24 hours.

(vii) Authorized Service, USDA

Animal Damage Control Division, tribe,

and State employees may capture and/

or translocate any Mexican wolf in the

nonessential experimental population

consistent with the Service’s approved

management plan or special

management measure. Such plan or

measure may include capture and/or

translocation of wolves that prey on

livestock, attack pets or domestic

animals other than livestock on private

land, impact game populations in ways

which may inhibit further wolf

recovery, prey on members of the desert

bighorn sheep herd found on the White

Sands Missile Range and San Andres

National Wildlife Refuge, so long as the

State of New Mexico lists it as a species

to be protected, are considered problem

wolves, are a nuisance, or are

conflicting with a major land use, or are

necessary for research. Authorized

Federal, State, or tribal personnel may

also carry out wolf capture and/or

translocation for other purposes the

Service has authorized, such as genetic

management, and may use lethal

methods of take when reasonable

attempts to capture wolves alive fail and

the Service determines that removal of

a particular wolf or wolves from the

wild is necessary. Authorized Federal,

State, or tribal personnel may carry out

any management measure that is a part

of a Service approved management plan.

Also, the USDA Animal Damage Control

Division will discontinue use of M–44’s

and choking-type snares in ‘‘occupied

Mexican wolf range’’ (see definition in

proposed section 17.84(j)(10)). The

Service may restrict or modify other

predator control activities pursuant to a

cooperative management agreement or a

conference between us and the USDA’s

Animal Damage Control Division.

(viii) You may harass or take a

Mexican wolf in self defense or defense

of others, provided that you promptly

report the harassment or take to the

Service’s Mexican Wolf Recovery

Coordinator or to a Service appointed

agency representative. If the Service or

an agency authorized through a

cooperative management plan

determine that a wolf presents a threat

to human life or safety, the Service or

the authorized agency may place it in

captivity or euthanize it.

(ix) Intentional taking of any wolf in

the Mexican Wolf Experimental

Population Area, except as described

above, is prohibited. The Service

encourages individuals authorized to

take wolves to use nonlethal means.

You must immediately (within 24

hours) deliver all wolves (live or dead),

pelts, or parts taken to the Service’s

Mexican Wolf Recovery Coordinator or

to a Service appointed agency

representative.

(4) You may not possess, sell, deliver,

carry, transport, ship, import, or export

by any means whatsoever, any wolf or

wolf part from the experimental

population taken or possessed in

violation of these regulations or in

violation of applicable State or tribal

fish and wildlife laws or regulations or

the Act.

(5) You may not attempt to commit,

solicit another to commit, or cause to be

committed, any offense defined in this

section.

(6) The two designated recovery areas

for Mexican wolves classified as

nonessential experimental that lie

within the subspecies’ probable historic

range are:

(i) The White Sands Wolf Recovery

Area in south-central New Mexico,

including all of the White Sands Missile

Range, the White Sands National

Monument, and the San Andres

National Wildlife Refuge, and the area

adjacent and to the west of the Missile

Range bounded on the south by the

southerly boundary of the USDA

Jornada Experimental Range and the

northern boundary of the New Mexico

State University Animal Science Ranch;

on the west by the New Mexico

Principal Meridian; on the north by the

Pedro Armendaris Grant boundary and

the Sierra-Socorro County line; and on

the east by the western boundary of the

Missile Range (Figure 1). Actual releases

of captive-raised wolves will take place,

generally as described in our draft

Environmental Impact Statement on

Mexican wolf reintroduction, within the

White Sands Wolf Recovery Area

primary recovery zone. This is the area

within the White Sands Missile Range

bounded on the north by the road from

the former Cain Ranch Headquarters to

Range Road 16, Range Road 16 to its

intersection with Range Road 13, Range

Road 13 to its intersection with Range

Road 7; on the east by Range Road 7; on

the south by Highway 70; and on the

west by the Missile Range boundary.

The Service will allow the wolf

subpopulation to expand into the White

Sands Wolf Recovery Area secondary

recovery zone, which is the remainder

of the White Sands Wolf Recovery Area

not in the primary recovery zone.

(ii) The Blue Range Wolf Recovery

Area, including all of the Apache

National Forest and all of the Gila

National Forest in east-central Arizona

and west-central New Mexico (Figure 2).

Actual releases of captive-raised

Mexican wolves will take place,

generally as described in our draft

Environmental Impact Statement on

Mexican wolf reintroduction, within the

Blue Range Wolf Recovery Area primary

recovery zone. This is the area within
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the Apache National Forest bounded on

the north by the Apache-Greenlee

County line; on the east by the ArizonaNew Mexico State line; on the south by

the San Francisco River (eastern half)

and the southern boundary of the

Apache National Forest (western half);

and on the west by the Greenlee-Graham

County line (San Carlos Apache

Reservation boundary). The Service will

allow the wolf subpopulation to expand

into the Blue Range Wolf Recovery Area

secondary recovery zone, which is the

remainder of the Blue Range Wolf

Recovery Area not in the primary

recovery zone.

(iii) The boundaries of the Mexican

Wolf Experimental Population Area are

the portion of Arizona lying north of

Interstate Highway 10 and south of

Interstate Highway 40; the portion of

New Mexico lying north of Interstate

Highway 10 in the west, north of the

New Mexico-Texas boundary in the

east, and south of Interstate Highway 40;

and the portion of Texas lying north of

United States Highway 62/180 and

south of the Texas-New Mexico

boundary (Figure 3). The Service is not

proposing wolf recovery throughout this

area, only within the White Sands and

Blue Range Wolf Recovery Areas

described in paragraph (j)(6)(i) and

(j)(6)(ii) of this subsection. The purpose

of the larger experimental population

area designation is to distinguish the

legal status of any wolf found there.

After the first captive wolf release,

wolves found in the wild in the

Mexican Wolf Experimental Population

Area will be subject to management

under this rule. If a wolf is captured

inside the Mexican Wolf Experimental

Population Area after the first release

but outside the designated wolf recovery

areas, it will be returned and re-released

or put into the captive breeding

program. If a wolf is found in the United

States outside the boundaries of the

Mexican Wolf Experimental Population

Area (and not within any other wolf

experimental population area) the

Service will presume it to be of wild

origin with full endangered status (or

threatened in Minnesota) under the Act,

unless evidence, such as a radio-collar

or identification mark, establishes

otherwise. If such evidence exists, the

Service or an authorized agency will

attempt to promptly capture the wolf

and return and re-release it or put into

the captive breeding program. Such a

wolf is otherwise not subject to this rule

outside the designated Mexican Wolf

Experimental Population Area.

(7) If Mexican wolves of the

experimental population occur on

public lands outside the designated wolf

recovery areas, but within the Mexican

Wolf Experimental Population Area, the

Service or an authorized agency will

attempt to recapture any radio-collared

lone wolf and any lone wolf or member

of an established pack causing livestock

depredations. The agencies will not

routinely recapture and return pack

members that make occasional forays

onto public land outside the designated

wolf recovery areas and uncollared lone

wolves on public land. However, the

Service will capture and return to a

recovery area or to captivity packs from

the nonessential experimental

population that establish territories on

public land outside the designated wolf

recovery areas. If any wolves move onto

private or tribal lands outside the

designated recovery areas, but within

the Mexican Wolf Experimental

Population Area, the Service or an

authorized agency will develop

management actions in cooperation

with the land owner including recapture

if requested by the land owner or tribal

government.

(8) The Service will continuously

evaluate Mexican wolf reintroduction

progress and prepare periodic progress

reports, detailed annual reports, and full

evaluations after 3 and 5 years that

recommend continuation or termination

of the reintroduction effort.

(9) The Service does not intend to

change the ‘‘nonessential experimental’’

designation to ‘‘essential experimental,’’

‘‘threatened,’’ or ‘‘endangered’’ and does

not intend to designate critical habitat

for the Mexican wolf. Critical habitat

cannot be designated under the

nonessential experimental

classification. 16 U.S.C. 1539(j)(2)(C)(ii).

The Service foresees no likely situation

which would result in such changes.

The Service would remove from the

wild all reintroduced Mexican wolves

designated as nonessential experimental

and revoke the experimental status and

regulations if legal actions or lawsuits

compel a change in the population’s

legal status to essential experimental,

threatened, or endangered or compel the

designation of critical habitat within the

Mexican Wolf Experimental Population

Area, or if within 90 days of the initial

release date, the Service discovers a

naturally occurring population of wild

wolves, consisting of at least two

breeding pairs that for 2 consecutive

years have each successfully raised two

offspring, existing within the White

Sands Wolf Recovery Area or Blue

Range Wolf Recovery Area boundaries.

The Service would manage and protect

any such naturally occurring wolves as

endangered species under the Act.

(10) Definitions—Key terms used in

the rule have the following definitions.

Breeding pair. An adult male and an

adult female wolf that have produced at

least two pups that survived until

December 31 of the year of their birth,

during the previous breeding season.

Depredation. The confirmed killing or

maiming of lawfully present domestic

livestock on Federal, State, tribal, or

other public lands, or private lands by

one or more wolves. The Service, USDA

Animal Damage Control, or Serviceauthorized State or tribal agencies will

confirm killing or maiming of domestic

livestock.

Engaged in the act of killing,

wounding, or biting livestock. To be

engaged in the pursuit and grasping,

biting, attacking, wounding, or feeding

upon livestock that are alive. If wolves

are observed feeding on livestock

carcasses, you cannot assume that

wolves killed the livestock until proper

authorities investigate and confirm that

wolves were responsible for that or

other livestock losses in the immediate

area (1-mile radius).

Harass. Harass is defined as

‘‘intentional or negligent act or omission

which creates the likelihood of injury to

the wildlife by annoying it to such an

extent as to significantly disrupt normal

behavioral patterns which include, but

are not limited to breeding, feeding, or

sheltering’’ (50 CFR 17.3). For the

purposes of this proposed experimental

population rule the Service permits only

‘‘opportunistic,’’ noninjurious

harassment (see definition below) and

limits it to approaching wolves on foot,

horseback, or nonmotorized or

motorized vehicle (no closer than 20

feet); discharging firearms or other

projectile launching devices in

proximity to but not in the direction of

wolves; throwing objects in the general

direction of but not at wolves; or making

any loud noise in proximity to wolves.

The basic intent is to scare or chase

wolves from the immediate area without

causing physical injuries.

Impact on game populations in ways

which may inhibit further wolf recovery.

The Service encourages States and tribes

to describe unacceptable impacts on

game populations in their management

plans subject to our approval. Until

such time the term will mean the

following: Two consecutive years with a

cumulative 35 percent decrease in

population or hunter harvest estimates

for a particular species of ungulate in a

game management unit or distinct herd

segment compared to the prewolf 5-year

average (unit or herd must contain

average of greater than 100 animals). If

wolf predation is shown to be a primary

cause of ungulate population declines

(greater than 50 percent of documented

adult or young mortality), then wolves
19244 Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules

may be moved to reduce ungulate

mortality rates and assist in herd

recovery, but only in conjunction with

application of other common,

professionally acceptable, wildlife

management techniques.

Occupied Mexican wolf range. (1)

Area of confirmed presence of resident

breeding packs or pairs of wolves or

area consistently used by at least one

resident wolf over a period of at least

one month. The Service must confirm or

corroborate wolf presence. Exact

delineation of the area will be described

by:

(i) Five-mile radius around all

locations of wolves and wolf sign

confirmed as described above

(nonradio-monitored);

(ii) 5-mile radius around radio

locations of resident wolves when fewer

than 20 radio locations are available (for

radio-monitored wolves only); or

(iii) 3-mile radius around the convex

polygon developed from more than 20

radio locations of a pack, pair, or single

wolf taken over a period of at least 6

months (for radio-monitored wolves).

(2) This definition applies only within

the Mexican Wolf Experimental

Population Area.

Opportunistic, noninjurious

harassment (see ‘‘harass’’). This is the

only type of harassment the Service

permits under the experimental

population rule. Opportunistic means as

the wolf presents itself (i.e., the wolf

travels onto and is observed on private

land or near livestock). You cannot track

a wolf and then harass it or harass it by

aircraft. You cannot chase and harass a

wolf for an extended period of time

(over 15 minutes). Any harassment must

not cause bodily injury, maiming, or

death.

Population of naturally occurring wild

wolves. At least two breeding pairs of

wolves successfully raising at least two

young each year (until December 31 of

the year of their birth), for 2 consecutive

years in the Mexican Wolf Experimental

Population Area.

Primary recovery zone. An area where

the Service proposes to release Mexican

wolves, and where the Service may

return and re-release them if necessary,

and where managers will actively

support recovery of the reintroduced

population.

Problem wolves. Wolves that have

depredated on lawfully present

domestic livestock or wolves from a

group or pack including adults,

yearlings, and young-of-the-year that

were directly involved in the

depredations; or fed upon the livestock

remains that were a result of the

depredation; or were fed by or are

dependent upon adults involved with

the depredations (because before these

young animals mature to where they can

survive on their own, they will travel

with the pack and learn the pack’s

depredation habits). Wolves that have

depredated on domestic animals other

than livestock, two times in an area

within 1 year. Wolves that are

habituated to humans, human

residences, or other facilities.

Secondary recovery zone. An area

adjacent to a primary recovery zone

which the Service does not propose for

Mexican wolf releases, but in which the

Service allows released wolves to

disperse, and where managers will

actively support recovery of the

reintroduced population.

Take. The Act defines ‘‘take’’ as—‘‘to

harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or

to attempt to engage in any such

conduct’’ (16 U.S.C. 1532(19)). See

above definition of Harass which

includes definition of permitted

harassment, and see definition of

Unavoidable and unintentional take

below.

Unavoidable and unintentional take.

Accidental, non-negligent take (see

above definition of ‘‘Take’’) which

occurs despite reasonable care, is

incidental to an otherwise lawful

activity and without the purpose to do

so. Examples would include striking a

wolf with an automobile or capturing a

wolf in a trap set obviously for another

species. Note—Shooting a wolf when

the individual states he or she believed

it to be an animal other than a wolf does

not qualify as unavoidable or

unintentional take. Shooters have the

responsibility to be sure of their targets.

Wolf recovery area. A designated area

where managers will actively support

reestablishment of Mexican wolf

populations.

Figures to § 17.84(j)

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BILLING CODE 4310–55–C

Dated: December 20, 1995.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 96–10665 Filed 4–30–96; 8:45 am]

BILLING CODE 4310–55–P