5732 Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Proposed Rules 

36. In § 40.329, the section heading 

and paragraph (b) are revised, to read as 

follows: 

§ 40.329 What information must 

laboratories, MROs, and other service 

agents release to employees? 

* * * * * 

(b) As a laboratory or IITF, you must 

provide, within 10 business days of 

receiving a written request from an 

employee, and made through the MRO, 

the records relating to the results of the 

employee’s drug test (i.e., laboratory or 

IITF) report and data package). You may 

charge no more than the cost of 

preparation and reproduction for copies 

of these records. 

* * * * * 

37. In § 40.355, the introductory text, 

paragraphs (a) through (c), and 

paragraph (l) are revised, to read as 

follows: 

§ 40.355 What limitations apply to the 

activities of service agents? 

As a service agent, you are subject to 

the following limitations concerning 

your activities in the DOT drug and 

alcohol testing program. 

(a) You must not require an employee 

to sign a consent, release, waiver of 

liability, or indemnification agreement 

with respect to any part of the drug or 

alcohol testing process covered by this 

part (including, but not limited to, 

collections, laboratory or IITF testing, 

MRO, and SAP services). No one may 

do so on behalf of a service agent. 

(b) You must not act as an 

intermediary in the transmission of drug 

test results from the laboratory or IITF 

to the MRO. That is, the laboratory or 

IITF must not send results to you, with 

you in turn sending them to the MRO 

for verification. For example, a practice 

in which the laboratory or IITF 

transmits results to your computer 

system, and you then assign the results 

to a particular MRO is not permitted. 

(c) You must not transmit drug test 

results directly from the laboratory or 

IITF to the employer (by electronic or 

other means) or to a service agent who 

forwards them to the employer. All 

confirmed laboratory or IITF results 

must be processed by the MRO before 

they are released to any other party. 

* * * * * 

(l) In transmitting documents to 

laboratories or IITFs, you must ensure 

that you send to the laboratory or IITF 

that conducts testing only the laboratory 

copy of the CCF. You must not transmit 

other copies of the CCF or any ATFs to 

the laboratory or IITF. 

* * * * * 

38. Appendix B is revised, to read as 

follows: 

Appendix B to Part 40—DOT Drug 

Testing Semi-Annual Laboratory or 

IITF Report to Employers 

Laboratory Report to Employer 

The following items are required on each 

laboratory report: 

Reporting Period: (inclusive dates) 

Laboratory Identification: (name and address) 

Employer Identification: (name; may include 

Billing Code or ID code) 

C/TPA Identification: (where applicable; 

name and address) 

1. Specimen Results Reported (total number) 

By Test Reason: 

(a) Pre-employment (number) 

(b) Post-Accident (number) 

(c) Random (number) 

(d) Reasonable Suspicion/Cause (number) 

(e) Return-to-Duty (number) 

(f) Follow-up (number) 

(g) Type of Test Not Noted on CCF 

(number) 

2. Specimens Reported 

(a) Negative (number) 

(b) Negative and Dilute (number) 

3. Specimens Reported as Rejected for 

Testing (total number) 

By Reason 

(a) Fatal flaw (number) 

(b) Uncorrected Flaw (number) 

4. Specimens Reported as Positive (total 

number) By Drug 

(a) Marijuana Metabolite (number) 

(b) Cocaine Metabolite (number) 

(c) Opiates (number) 

(1) Codeine (number) 

(2) Morphine (number) 

(3) 6–AM (number) 

(d) Phencyclidine (number) 

(e) Amphetamines (number) 

(1) Amphetamine (number) 

(2) Methamphetamine (number) 

(3) MDMA (number) 

(4) MDA (number) 

(5) MDEA (number) 

5. Adulterated (number) 

6. Substituted (number) 

7. Invalid Result (number) 

IITF Report to Employer 

The following items are required on each 

IITF report: 

Reporting Period: (inclusive dates) 

IITF Identification: (name and address) 

Employer Identification: (name; may include 

Billing Code or ID code) 

C/TPA Identification: (where applicable; 

name and address) 

1. Specimen Results Reported (total number) 

By Test Reason: 

(a) Pre-employment (number) 

(b) Post-Accident (number) 

(c) Random (number) 

(d) Reasonable Suspicion/Cause (number) 

(e) Return-to-Duty (number) 

(f) Follow-up (number) 

(g) Type of Test Not Noted on CCF 

(number) 

2. Specimens Reported 

(a) Negative (number) 

(b) Negative and Dilute (number) 

3. Specimens Reported as Rejected for 

Testing (total number) 

By Reason 

(a) Fatal flaw (number) 

(b) Uncorrected Flaw (number) 

4. Number of specimens forwarded to an 

HHS-certified laboratory for additional 

drug testing and/or specimen validity 

testing. 

39. Appendix C is revised, to read as 

follows: 

Appendix C to Part 40—DOT Drug 

Testing Semi-Annual Laboratory or 

IITF Report to DOT 

Mail, fax, or e-mail to: U.S. Department of 

Transportation, Office of Drug and Alcohol 

Policy and Compliance, W62–300, 1200 New 

Jersey Avenue, SE., Washington, DC 20590, 

Fax: (202) 366–3897, E-mail: 

ODAPCWebMail@dot.gov. 

The following items are required on each 

laboratory report: 

Reporting Period: (inclusive dates) 

Laboratory Identification: (name and address) 

1. DOT Specimen Results Reported (number) 

2. Negative Results Reported (number) 

Negative (number) 

Negative-Dilute (number) 

3. Rejected for Testing Reported (number) 

By Reason (number) 

4. Positive Results Reported (number) 

By Drug (number) 

5. Adulterated Results Reported (number) 

By Reason (number) 

6. Substituted Results Reported (number) 

7. Invalid Results Reported (number) 

By Reason (number) 

The following items are required on each 

IITF report: 

Reporting Period: (inclusive dates) 

IITF Identification: (name and address) 

1. DOT Specimen Results Reported (number) 

2. Negative Results Reported (number) 

Negative (number) 

Negative-Dilute (number) 

3. Rejected for Testing Reported (number) 

By Reason (number) 

4. Specimens forwarded to an HHS-certified 

laboratory for additional testing 

(number) 

For Drugs (number) 

For SVT (number) 

[FR Doc. 2010–2315 Filed 2–3–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R2–ES–2009–0077; 92220–1113– 

0000; ABC Code: C3] 

RIN 1018–AW63 

Endangered and Threatened Wildlife 

and Plants; Establishment of a 

Nonessential Experimental Population 

of Sonoran Pronghorn in 

Southwestern Arizona 

AGENCY: Fish and Wildlife Service, 

Interior. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Proposed Rules 5733 

ACTION: Proposed rule; public hearing, 

and availability of draft environmental 

assessment. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

reestablish the Sonoran pronghorn, a 

federally listed endangered mammal, 

into its historical habitat in King Valley, 

Kofa National Wildlife Refuge (Kofa 

NWR), in Yuma County, and to the 

Barry M. Goldwater Range—East 

(BMGR–E), in Maricopa County, in 

southwestern Arizona. We propose to 

reestablish the Sonoran pronghorn 

under section 10(j) of the Endangered 

Species Act of 1973, as amended (Act), 

and to classify that reestablished 

population as a nonessential 

experimental population (NEP). This 

proposed rule provides a plan for 

establishing the NEP and provides for 

allowable legal incidental taking of 

Sonoran pronghorn within the defined 

NEP area. We have prepared a draft 

environmental assessment (EA) on this 

proposed action. 

DATES: We request that you send us 

comments on this proposal by the close 

of business on April 5, 2010, or at the 

public hearing. We will hold a public 

information session from 4:30 p.m. to 

5:30 p.m., followed by a public hearing 

from 7 p.m. to 8:30 p.m., on February 

23, 2010. 

ADDRESSES: Written Comments: You 

may submit information by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for docket 

FWS–R2–ES–2009–0077 and then 

follow the instructions for submitting 

comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R2– 

ES–2009–0077; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all information we 

receive on http://www.regulations.gov. 

This generally means that we will post 

any personal information you provide 

us (see the INFORMATION REQUESTED

section below for more details). 

Copies of Documents: The proposed 

rule and draft EA are on http:// 

www.regulations.gov and available from 

our Web site at http://www.fws.gov/ 

southwest/es/Library/. In addition, the 

supporting file for this proposed rule 

will be available for public inspection, 

by appointment, during normal business 

hours, at the Arizona Ecological 

Services Office, 201 North Bonita 

Avenue, Suite 141, Tucson, AZ 85745, 

telephone 520–670–6144. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Services (FIRS) at 

800–877–8339. 

Public Hearing: We will hold our 

public hearing at Logan Auditorium, 

Gila Bend High School, 308 North 

Martin Avenue, Gila Bend, AZ 85337. 

For information requesting reasonable 

accommodations to attend the 

information session or hearing, see the 

PUBLIC COMMENTS section. 

FOR FURTHER INFORMATION CONTACT: 

Curtis McCasland, Refuge Manager, 

Cabeza Prieta National Wildlife Refuge, 

1611 North Second Avenue, Ajo, AZ 

85321; by telephone (520–387–6483) or 

by facsimile (520–387–5359). 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We want the final rule to be as 

effective as possible and the final EA on 

the proposed action to evaluate all 

potential issues associated with this 

action. Therefore, we invite tribal and 

governmental agencies, the scientific 

community, industry, and other 

interested parties to submit comments 

or recommendations concerning any 

aspect of this proposed rule and the 

draft EA. Comments should be as 

specific as possible. 

To issue a final rule to implement this 

proposed action and to determine 

whether to prepare a finding of no 

significant impact or an environmental 

impact statement, we will take into 

consideration all comments and any 

additional information we receive. Such 

communications may lead to a final rule 

that differs from this proposal. All 

comments, including commenters’ 

names and addresses, if provided to us, 

will become part of the supporting 

record. 

You may submit your comments and 

materials concerning the proposed rule 

and draft EA by one of the methods 

listed in the ADDRESSES section. We will 

not accept comments sent by e-mail or 

fax or to an address not listed in the 

ADDRESSES section. Finally, we will not 

consider hand-delivered comments that 

we do not receive, or mailed comments 

that are not postmarked, by the date 

specified in the DATES section. 

Comments must be submitted to 

http://www.regulations.gov before 

midnight (Eastern Time) on the date 

specified in the DATES section. 

We will post your entire comment— 

including your personal identifying 

information—on http:// 

www.regulations.gov. If your written 

comment includes your street address, 

phone number, or e-mail address, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

Comments and materials we receive, as 

well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the Cabeza Prieta NWR or the 

Arizona Ecological Services Office (see 

ADDRESSES and FOR FURTHER

INFORMATION CONTACT). 

Public Hearing 

Persons needing reasonable 

accommodations in order to attend and 

participate in a public hearing should 

contact the Refuge Manager, Cabeza 

Prieta NWR, at the address or phone 

number listed in the FOR FURTHER

INFORMATION CONTACT section as soon as 

possible. In order to allow sufficient 

time to process requests, please call no 

later than one week before the hearing. 

Information regarding this proposal is 

available in alternative formats upon 

request. 

Background 

Regulatory 

We listed the Sonoran pronghorn 

subspecies (Antilocapra americana 

sonoriensis) as endangered throughout 

its range on March 11, 1967 (32 FR 

4001), under the Endangered Species 

Preservation Act of October 15, 1966, 

without critical habitat. This subspecies 

was included as an endangered species 

when the Act was signed into law in 

1973. The Act provides that species 

listed as endangered are afforded 

protection primarily through the 

prohibitions of section 9 and the 

requirements of section 7. Section 9 of 

the Act, among other things, prohibits 

the take of endangered wildlife. ‘‘Take’’ 

is defined by the Act as harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture, or collect, or attempt to engage 

in any such conduct. Service regulations 

(50 CFR 17.31) generally extend the 

prohibitions of take to threatened 

wildlife. Section 7 of the Act outlines 

the procedures for Federal interagency 

cooperation to conserve federally listed 

species and protect designated critical 

habitat. It mandates that all Federal 

agencies use their existing authorities to 

further the purposes of the Act by 

carrying out programs for the 

conservation of listed species. It also 

states that Federal agencies will, in 

consultation with the Service, ensure 

that any action they authorize, fund, or 

carry out is not likely to jeopardize the 

continued existence of a listed species 

or result in the destruction or adverse 

modification of designated critical 

habitat. Section 7 of the Act does not 


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affect activities undertaken on private 

land unless they are authorized, funded, 

or carried out by a Federal agency. 

Under section 10(j) of the Act, the 

Secretary of the Department of the 

Interior can designate reestablished 

populations outside the species’ current 

range as ‘‘experimental.’’ With the 

experimental population designation, 

the relevant population is treated as 

threatened for purposes of section 9 of 

the Act, regardless of the species’ 

designation elsewhere in its range. 

Threatened designation allows us 

discretion in devising management 

programs and special regulations for 

such a population. Section 4(d) of the 

Act allows us to adopt whatever 

regulations are necessary and advisable 

to provide for the conservation of a 

threatened species. In these situations, 

the general regulations that extend most 

section 9 prohibitions to threatened 

species do not apply to that species, and 

the 10(j) rule contains the prohibitions 

and exemptions necessary and 

appropriate to conserve that species. 

Based on the best scientific and 

commercial data available, we must 

determine whether the experimental 

population is essential or nonessential 

to the continued existence of the 

species. The regulations (50 CFR 

17.80(b)) state that an experimental 

population is considered essential if its 

loss would be likely to appreciably 

reduce the likelihood of survival of that 

species in the wild. All other 

populations are considered 

nonessential. We have determined that 

this experimental population would not 

be essential to the continued existence 

of the species in the wild (see Status of 

Proposed Population section below). 

Therefore, the Service is proposing to 

designate a nonessential experimental 

population (NEP) for the species in this 

area. 

For the purposes of section 7 of the 

Act, we treat an NEP as a threatened 

species when the NEP is located within 

a National Wildlife Refuge or unit of the 

National Park Service, and section 

7(a)(1) and the consultation 

requirements of section 7(a)(2) of the 

Act apply. Section 7(a)(1) requires all 

Federal agencies to use their authorities 

to carry out programs for the 

conservation of listed species. Section 

7(a)(2) requires that Federal agencies, in 

consultation with the Service, ensure 

that any action authorized, funded, or 

carried out is not likely to jeopardize the 

continued existence of a listed species 

or adversely modify its critical habitat. 

When NEPs are located outside a 

National Wildlife Refuge or National 

Park Service unit, then for the purposes 

of section 7, we treat the population as 

proposed for listing and only two 

provisions of section 7 apply—section 

7(a)(1) and section 7(a)(4). In these 

instances, NEPs provide additional 

flexibility because Federal agencies are 

not required to consult with us under 

section 7(a)(2). Section 7(a)(4) requires 

Federal agencies to confer (rather than 

consult) with the Service on actions that 

are likely to jeopardize the continued 

existence of a species proposed to be 

listed. The results of a conference are in 

the form of conservation 

recommendations that are optional as 

the agencies carry out, fund, or 

authorize activities. Because the NEP is, 

by definition, not essential to the 

continued existence of the species, then 

the effects of proposed actions affecting 

the NEP will generally not rise to the 

level of jeopardizing the continued 

existence of the species. Section 

10(j)(2)(c)(ii) precludes the designation 

of critical habitat for non-essential 

populations. As a result, a formal 

conference will likely never be required 

for Sonoran pronghorn established 

within the NEP area. Nonetheless, some 

agencies (e.g., Bureau of Land 

Management (BLM)) voluntarily confer 

with the Service on actions that may 

affect a proposed species. Activities that 

are not carried out, funded, or 

authorized by Federal agencies are not 

subject to provisions or requirements in 

section 7. 

Sonoran pronghorn used to establish 

an experimental population would 

come from a captive-rearing pen on 

Cabeza Prieta NWR, provided 

appropriate permits are issued in 

accordance with our regulations (50 

CFR 17.22) prior to their removal. The 

donor population is a captive-bred 

population derived primarily from wild 

stock at Cabeza Prieta NWR and from a 

wild Sonoran pronghorn population in 

northwestern Sonora, Mexico. The 

purpose of the captive population is to 

provide stock for augmenting existing 

U.S. and Mexican populations of 

Sonoran pronghorn, as well as 

supplying founder animals for 

establishment of an additional U.S. 

herd(s), in accordance with recovery 

actions 2.1–2.4 of the Sonoran 

Pronghorn Recovery Plan (USFWS 

2002). The proposed population 

establishment would involve two 

phases: (1) Construction and operation 

of a captive-breeding pen at Kofa NWR, 

with subsequent releases to establish a 

second herd; and (2) relocation of excess 

Sonoran pronghorn from the existing 

breeding pen at Cabeza Prieta NWR to 

the eastern portion of the BMGR–E, east 

of Highway 85 and south of Interstate 8, 

with the intent of establishing a separate 

herd in that area, as well. 

We have not designated critical 

habitat for the Sonoran pronghorn. 

Section 10(j)(2)(C)(ii) of the Act states 

that critical habitat shall not be 

designated for any experimental 

population that is determined to be 

nonessential. Accordingly, we cannot 

designate critical habitat in areas where 

we establish an NEP. 

Biological 

The Sonoran subspecies of pronghorn 

(Antilocapra americana sonoriensis) 

was first described by Goldman (1945) 

and is small in terms of cranial 

measurements compared to other 

subspecies of pronghorn (Nowak and 

Paradiso 1983, p. 857). Historically, the 

Sonoran pronghorn ranged in the 

United States from approximately the 

Santa Cruz River, Arizona, in the east, 

to the Gila Bend and Kofa Mountains, 

Arizona, to the north, and to Imperial 

Valley, California, to the west. In 

northwestern Sonora, Mexico, the 

subspecies is thought to have occurred 

historically as far south as Bahia Kino 

and east to Santa Ana and Nogales. In 

Baja California, Mexico, the subspecies 

occurred in the northeast from the U.S. 

Border south to the vicinity of Punta 

Estrella (Phelps and Webb 1981, pp. 20– 

21; Service 2002, Fig. 2). Currently, 

three populations of the Sonoran 

pronghorn are extant: (1) A U.S. 

population in southwestern Arizona, 

south of Interstate 8, west of Highway 

85, and east of the Copper and Cabeza 

Prieta mountains (76 wild pronghorn), 

(2) a population in the El Pinacate 

Region of northwestern Sonora (50 

pronghorn), and (3) a population south 

and east of Mexico Highway 8 and west 

and north of Caborca, Sonora (354 

pronghorn). The three populations are 

geographically isolated due to barriers 

such as roads and fences (Service 2002, 

pp. 4–10, Fig. 1). The ‘current range’ as 

used at 10(j)(2)(A)—‘‘The Secretary may 

authorize the release (and the related 

transportation) of any population 

(including eggs, propagules, or 

individuals) of an endangered species or 

a threatened species outside the current 

range of such species * * *’’ is defined 

by the boundaries described in part (1). 

Consistent with years of survey data, we 

are confident that no Sonoran 

pronghorn population occurs outside of 

the current range as defined in part (1) 

(Phelps 1981, pp. 23–24; Service 2002, 

pp. 16 and 47). 

Threats to the Sonoran pronghorn 

include (1) highways, fences, railroads, 

developed areas, and irrigation canals 

that block access to essential forage or 

water resources; (2) a variety of human 


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activities that disturb pronghorn or 

degrade habitat, including livestock 

grazing in the United States and Mexico; 

military activities; recreation; poaching 

and hunting; clearing of desert scrub 

and planting of buffelgrass (Pennisetum 

ciliare) in Sonora; gold mining southeast 

of Sonoyta, Sonora; dewatering and 

development along the Gila River and 

Rı ́o Sonoyta; and high levels of 

undocumented immigration and drug 

trafficking across the international 

border and associated law enforcement 

response; (3) wildfire fueled by 

nonnative perennial and ephemeral 

plants that have increased fine fuels and 

allowed fire to become a much more 

frequent event in the Sonoran Desert; (4) 

drought and associated limited food and 

water; and (5) small population size and 

random changes in demographics. 

Populations at low levels may 

experience random variations in sex 

ratios, age distributions, and birth and 

death rates among individuals, which 

can cause fluctuations in population 

size and possibly extinction (Service 

2002, pp. 14–35; Roughgarden 1998, pp. 

84–86). In very sparse populations, 

males may have trouble finding females, 

reducing productivity (Brewer 1988, p. 

138). In 2002, a severe drought was the 

primary cause in a major die off of 

Sonoran pronghorn. The U.S. 

population declined in 2002 by 83 

percent to 21 animals (Bright and 

Hervert 2005, p. 46). The Mexican 

populations declined at the same time, 

but not to the same degree. The 

population southeast of Highway 8 

declined by 18 percent, while the El 

Pinacate population declined by 26 

percent. The differences between the 

rates of decline north and south of the 

border may be due to high levels of 

human disturbance on the U.S. side due 

primarily to heightened levels of illegal 

immigration, smuggling, and law 

enforcement response (Service 2008, p. 

55). 

Recovery Efforts 

Restoring an endangered or 

threatened species to the point where it 

is recovered is a primary goal of our 

endangered species program. Thus, in 

1982 we published the Sonoran 

Pronghorn Recovery Plan (Plan) (Service 

1982), which was produced by a 

Recovery Team comprised of 

representatives from the Arizona Game 

and Fish Department (AGFD), Cabeza 

Prieta NWR, BLM, Organ Pipe Cactus 

National Monument (OPCNM), 

Commission of Ecology and Sustainable 

Development for the State of Sonora 

(CEDES), and National Commission for 

Protected Natural Areas (CONANP). The 

Plan was subsequently revised in 1994, 

1998, and 2002. Major recovery actions 

include: (1) Enhance present 

populations of Sonoran pronghorn by 

providing supplemental forage and/or 

water, (2) determine habitat needs and 

protect present range; (3) investigate and 

address potential barriers to expansion 

of presently used range, and investigate, 

evaluate, and prioritize present and 

potential future reintroduction sites 

within the historical range; (4) establish 

and monitor a new, separate herd(s) to 

guard against catastrophes decimating 

the core population; (5) continue 

monitoring populations and maintain a 

protocol for a repeatable and 

comparable survey technique; and (6) 

examine additional specimen evidence 

to assist in verification of taxonomic 

status (Service 1998, pp. iii–iv). The 

2002 Supplement did not include 

delisting criteria; however, eight shortterm recovery actions were identified as 

necessary to downlist the species to 

threatened. The supplement goes on to 

say that accomplishing these actions 

would provide the information 

necessary to determine delisting criteria. 

One of the short-term recovery actions 

was ‘‘evaluating potential transplant 

locations, establishing methodology and 

protocols, developing interagency 

agreements (including with Mexico as 

required), acquiring funding, and 

initiating reestablishment projects’’ 

(Service 2002, p. 38). 

After the catastrophic die off of 

Sonoran pronghorn in 2002, the Service 

and its partners embarked on a number 

of aggressive recovery actions to ensure 

the species’ continued existence and to 

begin to rebuild populations. The 

cornerstone of these actions was a semicaptive breeding facility, constructed in 

Childs Valley, Cabeza Prieta NWR, in 

2003, and stocked with wild Sonoran 

pronghorn in 2004. As of March 2009, 

63 Sonoran pronghorn reside in the pen. 

Limited releases from the pen to the 

U.S. herd occurred in 2007 and 2008; 

however, the objective is to produce 10 

to 25 fawns each year for release to the 

current U.S. population, to newly 

established population(s) in the United 

States, and to augment Mexican 

populations. This target number of fawn 

production will likely be met in 2009. 

A number of other projects are 

underway to increase availability of 

green forage and water during dry 

periods and seasons, offsetting to some 

extent the effects of drought and barriers 

that prevent Sonoran pronghorn from 

accessing greenbelts and water, such as 

the Gila River and Rı ́o Sonoyta. Nine 

emergency water sources (six on Cabeza 

Prieta NWR, one on OPCNM, and two 

on BMGR-West) have been constructed 

in recent years throughout the range of 

the U.S. population. Four forage 

enhancement plots, each consisting of a 

well, pump, pipelines, and irrigation 

lines, have been developed to irrigate 

the desert and produce forage for 

pronghorn. Another plot is nearing 

completion, and two additional plots 

will be installed over the next 5 years. 

These crucial projects, intended to pull 

the U.S. population back from the brink 

of extinction, have been cooperative 

efforts among the Service, AGFD, 

Marine Corps Air Station—Yuma, Luke 

Air Force Base, BLM, and OPCNM, with 

volunteer efforts from the Arizona 

Desert Bighorn Sheep Society, Arizona 

Antelope Foundation, and the Yuma 

Rod and Gun Club. 

The U.S. wild population of Sonoran 

pronghorn has rebounded from 21 in 

2002 to 76 in 2008; this increase has 

been facilitated by the collaborative 

recovery efforts for this species. 

However, at 76 animals currently, the 

U.S. population is far from being secure. 

We have begun to work with our 

Mexican partners on recovery of the 

Sonoran pronghorn in Sonora; although 

the number of pronghorn in Sonora (404 

animals) is significantly greater than in 

the United States, the safety net of 

waters and forage plots are not in place 

there, and a severe drought could 

decimate those populations. 

Reestablishment Areas 

O’Brien et al. (2005) used landscapelevel classification and regression tree 

and logistic regression models to assess 

potential Sonoran pronghorn habitat in 

southwestern Arizona, including 

current and historical range, as a means 

of beginning the process of identifying 

potential locations for establishing a 

second U.S. Sonoran pronghorn herd. 

Both models identified greater than 

4,632 square miles (sq mi) (greater than 

12,000 square kilometers (sq km)) of 

potential habitat (O’Brien et al. 2005, 

pp. 28–30). The largest blocks of 

potential habitat outside of the current 

range, which were identified by both 

models, were the Ranegras and 

Harquahala plains, King Valley at Kofa 

NWR north of Interstate 8; Sentinel 

Plain and other areas to the west 

between Interstate 8 and the Gila River; 

and areas not currently occupied south 

of Interstate 8 and immediately west of 

Highway 85. The models also identified 

a large habitat block east of Highway 85 

and south of Interstate 8 as potential 

habitat. The authors did not evaluate 

potential habitats in the far eastern 

portions of the historical range of the 

pronghorn in Arizona (O’Brien et al. 

2005, Figs. 3 and 4). O’Brien et al. (2005, 

p. 32) further explained that their 


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models were an initial step towards 

identifying and evaluating potential 

translocation sites. They recommended 

soliciting public input, reviewing 

predator presence and density, fencing, 

and the presence of preferred forage and 

water as additional steps in the 

evaluation process (O’Brien et al. 2005, 

p. 32). 

An Interdisciplinary Team (IDT), 

comprised of members of the Sonoran 

Pronghorn Recovery Team, as well as 

representatives from land management 

agencies located in southwestern 

Arizona, was convened in 2008 to 

address these and other issues and 

considerations, and to recommend 

specific areas for establishing an 

additional U.S. herd or herds. 

Development of alternatives for 

population establishment entailed 

consideration of three key variables: (1) 

Geographical areas for establishing 

populations outside of the current 

range; (2) potential establishment 

techniques; and (3) legal status of 

established populations under the Act. 

Each of these three key variables had a 

range of options. The IDT evaluated the 

three key variables to arrive at the most 

effective combinations of geographical 

areas, establishment techniques, and 

legal status options. The IDT conducted 

a mapping exercise, to identify areas 

within the historical range of Sonoran 

pronghorn in the United States that 

were under Federal or State ownership 

and that contained suitable habitat for 

the species. The result of this exercise 

was identification of seven potential 

reestablishment areas, designated Areas 

A through G. The seven areas were then 

ranked by the IDT, using seven selection 

criteria, to determine the best areas for 

translocation. Area A (King Valley at 

Kofa NWR, and adjacent portions of 

primarily Yuma Proving Grounds and 

BLM lands) and Area D (primarily 

portions of the BMGR–E, BLM lands, 

and a portion of the Tohono O’odham 

Nation, all east of Highway 85) were 

ranked 1 and 2, respectively. Public 

scoping for the Sonoran pronghorn 

population establishment project 

included three open houses held on 

successive evenings at Yuma, Tucson, 

and Phoenix, AZ, and was conducted in 

November 2008. After consideration of 

public input, two alternatives were 

carried forward in the National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321 et seq.) process, including 

establishment of Sonoran pronghorn in 

Areas A and D, which is what we are 

proposing in this document. Specific 

population establishment techniques are 

described for both areas (see Release 

Procedures, below), and we propose to 

establish Sonoran pronghorn as a 

nonessential experimental population in 

these areas under section 10(j) of the 

Act. 

The NEP encompasses Areas A and D, 

as well as all areas into which Sonoran 

pronghorn are likely to disperse. The 

NEP is defined as follows: In Arizona, 

an area north of Interstate 8 and south 

of Interstate 10, bounded by the 

Colorado River on the west and 

Interstate 10 on the east; and an area 

south of Interstate 8, bounded by 

Highway 85 on the west, Interstates 10 

and 19 on the east, and the United 

States-Mexico border on the south. 

Section 10(j) of the Act requires that 

an experimental population be wholly 

separate geographically from other wild 

populations of the same species. The 

Colorado River; Interstates 8, 10, and 19; 

and Highway 85, which form the 

boundaries of the NEP, are barriers to 

movement. Interstate 8 separates Area A 

from the current U.S. population, and 

Highway 85 forms a boundary between 

Area D and the current U.S. population. 

We do not expect Sonoran pronghorn to 

cross these barriers. Brown and 

Ockenfels (2007, pg. 29) found that 

high-speed highways with right-of-way 

fences, such as these, were virtually 

Sonoran pronghorn-proof due to 

stringent fencing and high volume 

traffic and that interstate highways are 

nothing short of impassable for the 

species. Only once has a pronghorn 

been known to cross Interstate 8 (1973, 

Phelps 1981, p. 27) and only once has 

a pronghorn been known to cross 

Highway 85 and its associated right-ofway fences into BMGR–E (2008; Howard 

2008, p. 1). 

Nonetheless, in the unlikely event 

that a pronghorn moves outside the 

NEP, the individual, lone pronghorn 

does not constitute a population. The 

Department defines ‘‘population’’ as a 

potentially self-sustaining group ‘‘in 

common spatial arrangement,’’ (50 CFR 

17.3) and thus determined a ‘‘geographic 

separation’’ is any area outside the area 

in which a particular population 

sustains itself. See Wyoming Farm 

Bureau Fed’n, 987 F. Supp. at 1373; 59 

FR at 60256. These definitions preclude 

the possibility of population overlap as 

a result of the presence of individual 

dispersing pronghorn—by definition 

lone dispersers do not constitute a 

population or even part of a population, 

since they are not in ‘‘common spatial 

arrangement’’ sufficient to interbreed 

with other members of a population. 

The evidence suggests that the 

likelihood of a lone pronghorn crossing 

the NEP boundary is very low, so it 

follows that the probability of that lone 

disperser encountering another 

pronghorn of the opposite sex and 

reproducing is even more remote. 

The status, as endangered or a 

member of the NEP, of any dispersing 

pronghorn that manages to cross 

Highway 85 or other barriers between 

the NEP and the current range would be 

defined geographically. Any Sonoran 

pronghorn within the NEP area would 

be considered a member of the 

nonessential experimental population 

(including any dispersing animals from 

within the current range that cross into 

the NEP area), whereas any Sonoran 

pronghorn outside of the NEP would be 

fully protected under the Act as an 

endangered species. 

The geographical extent that we are 

proposing for NEP designation is larger 

than needed, as only portions of this 

proposed NEP area contain suitable 

habitat. Within the NEP, Sonoran 

pronghorn habitat is limited to valleys. 

Mountainous areas, such as the Kofa, 

Castle Dome, Palomas, and Gila Bend 

mountains, do not provide habitat for 

this species; nor do developed areas 

within the valleys, such as agricultural 

areas and towns and cities. However, 

the NEP area represents what we believe 

to be the maximum geographical extent 

to which Sonoran pronghorn could 

move if released in Areas A and D. Once 

released into these areas, we expect the 

Sonoran pronghorn population(s) to 

grow and expand into adjacent suitable 

habitats, potentially moving to the 

boundaries of the NEP. However, 

mountainous areas and developed 

agriculture and urban areas in the NEP 

would not be occupied because these 

areas are not considered habitat for 

Sonoran pronghorn. In the unlikely 

event that any of the released Sonoran 

pronghorn, or their offspring, move 

across interstate highways or other 

barriers (e.g., river or mountainous 

areas, developed agriculture areas, or 

urban areas) to outside the designated 

NEP area (but not into the area occupied 

by the wild population), then the 

Service would evaluate the need, in the 

context of the 10(j) requirements, to 

amend the 10(j) rule to enlarge the 

boundaries of the NEP area to include 

the area of the expanded population. As 

discussed above, the likelihood of 

pronghorn moving from the NEP area 

into the current range is very low. 

Release Procedures 

The IDT developed the methods of 

release of Sonoran pronghorn into Areas 

A and D with the objective of 

maximizing the likelihood of success in 

establishing herds, while minimizing 

the impact to the source population (the 

animals in the captive breeding pen at 

Cabeza Prieta NWR) and limiting 


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mortality or injury to translocated 

Sonoran pronghorn to the maximum 

extent possible. In King Valley, Kofa 

NWR (Area A), a rectangular-shaped, 0.5 

sq mi (1.29 sq km) captive-breeding pen 

would be constructed, beginning in 

spring 2010. The pen would include 

water sources and irrigated areas to 

enhance forage production, as well as 

two observation towers from which the 

animals would be monitored. In 

December 2010 and January 2011, 11 

pronghorn (10 females and 1 male) 

would be moved to the pen from the 

captive-rearing pen at Cabeza Prieta 

NWR. These animals would be 

individually tranquilized using a dart 

gun and moved one or two at a time by 

helicopter. Biennial rotation of the 

breeding male and death of any Sonoran 

pronghorn in the breeding pen at Kofa 

NWR would require additional flights to 

bring new animals from Cabeza Prieta 

NWR. Methods perfected at Cabeza 

Prieta NWR will be employed in these 

activities, which have been used 

successfully with minimal mortality of 

pronghorn. Assuming successful 

captive-breeding at the Kofa NWR pen, 

up to 20 Sonoran pronghorn would be 

released annually into suitable habitats 

outside of but adjacent to the pen site 

at Kofa NWR, beginning as early as the 

winter of 2012 or 2013 and recurring 

each winter until 2020. Sonoran 

pronghorn in the pen, as well as animals 

released, would be closely monitored to 

determine success or need for adaptive 

management. Success criteria will be 

developed by the recovery team prior to 

the release of any animals. 

Concurrently, if excess animals are 

available from the captive breeding pen 

at Cabeza Prieta NWR (not needed to 

augment existing herds or for the pen at 

Kofa NWR), these animals would be 

captured from the pen, transported to a 

holding pen in Area D, held 

temporarily, and then released as a 

group. The holding pen in Area D is 

located in the Hat Mountain area 

(locally known as BMGR-East ‘‘Area B’’) 

in Maricopa County, Arizona. Ideally, 

the Sonoran pronghorn would be 

captured together and moved quickly to 

a holding pen, allowed to recover for a 

brief period, and released together. 

Released animals in Area D would be 

monitored via aircraft and on-theground personnel to determine survival, 

reproduction, and other measures of 

success. Release techniques will be 

revised as needed to ensure success. 

You can find additional description of 

the release procedures and monitoring 

protocols in the draft EA (find under 

docket FWS–R2–2009–0077 at http:// 

www.regulations.gov or contact 

CPNWR—see contact information 

above—for copies of this document). 

Status of Proposed Population 

We have determined that these 

proposed populations are nonessential. 

This determination has been made for 

the following reasons: 

(a) Wild populations of the Sonoran 

pronghorn, totaling about 470 animals, 

currently exist at: (1) Cabeza Prieta 

NWR, OPCNM, BMGR, and adjacent 

BLM lands, (2) in the El Pinacate region 

of Sonora, and (3) south and east of 

Highway 8 in Sonora. 

(b) A captive-breeding pen at Cabeza 

Prieta NWR maintains a captive 

population and provides stock to 

augment the wild populations in 

Arizona and Sonora. The pen has been 

highly successful. First stocked with 

pronghorn in 2004, the original group of 

11 animals has grown to 71 as of this 

writing (October 2009), and another 21 

pronghorn have been released from the 

pen into the wild. 

(c) The first priority for use of animals 

in the captive-breeding pen at Cabeza 

Prieta NWR is to augment herds within 

the boundaries of the current range of 

the species; hence, relocation of 

Sonoran pronghorn from the captive 

breeding pen to Kofa NWR would not 

inhibit the augmentation efforts for the 

herds within the boundaries of the 

current range of the species. Sonoran 

pronghorn produced at the Cabeza 

Prieta pen that are not needed to 

augment herds within the current range 

or to populate the Kofa NWR pen would 

be used to establish a population in 

Area D. 

(d) The possible failure of this 

proposed action would not appreciably 

reduce the likelihood of survival of the 

species in the wild because (1) the first 

priority for use of pronghorn from the 

captive-breeding pen at Cabeza Prieta 

NWR is to augment the wild herd, and 

(2) recovery actions have been 

implemented in the United States to 

ameliorate the effects of drought on the 

species (U.S. Fish and Wildlife Service 

2009, p. 9, 18–19). 

(e) Through programs of work 

endorsed by the Canada/Mexico/U.S. 

Trilateral Committee for Wildlife and 

Ecosystem Conservation and 

Management, the U.S. Fish and Wildlife 

Service and AGFD coordinate with 

Mexican partners on recovery of the 

Sonoran pronghorn in Mexico. 

If this proposal is adopted, we would 

ensure, through our section 10 

permitting authority and the section 7 

consultation process, that the use of 

Sonoran pronghorn from the donor 

population at Cabeza Prieta NWR for 

releases in Areas A or D is not likely to 

jeopardize the continued existence of 

the species in the wild. Establishment of 

additional Sonoran pronghorn 

populations within the species’ 

historical range is a necessary step in 

recovery (Service 2002, p. 38). 

The special rule that accompanies this 

10(j) rule is designed to broadly exempt 

from the section 9 take prohibitions any 

take of Sonoran pronghorn that is 

incidental to otherwise lawful activities. 

We provide this exemption because we 

believe that such incidental take of 

members of the NEP associated with 

otherwise lawful activities is necessary 

and advisable for the conservation of the 

species, as activities that currently occur 

or are anticipated in the NEP area are 

generally compatible with Sonoran 

pronghorn recovery. For example, in 

Area A, there are vast expanses of open 

valleys without major barriers to 

pronghorn movement that provide 

suitable habitat. These valleys include 

King Valley at Kofa NWR, Palomas 

Plain, the southern end of the Ranegras 

Plain, and portions of the Yuma Proving 

Grounds. The La Posa Plain and Castle 

Dome Plain also provide habitat. 

Highway 95 runs north-south through 

those plains, and although it may 

somewhat inhibit movement to the west 

side of those plains, it is not a 

substantial barrier because it lacks rightof-way fences. In Area D, there is 

considerable habitat in the valleys 

among the Sauceda, Sand Tank, 

Batamote, and other mountains in that 

region. There are existing military 

activities at Yuma Proving Grounds in 

Area A and BMGR–E in Area D, but 

pronghorn have coexisted with military 

activities for many years at the BMGR 

(deVos 1989, pp. 15–16; Krausman et al. 

2001, pp. 2, 80–90; Krausman et al. 

2005, pp. 20–22); as a result, we believe 

they would persist with the similar 

activities conducted at Yuma Proving 

Grounds and in Area D. Although some 

forms of military activities could 

potentially result in incidental death or 

injury of individual pronghorn, no 

incidental take has ever been 

documented due to military activities. 

There would be some likelihood of 

Sonoran pronghorn drownings in canals 

in Area A. Canals are present in 

agricultural areas on the southern, 

eastern, and northeastern portions of 

Area A; Sonoran pronghorn are known 

to drown in such canals (Rautenstrauch 

and Krauseman 1986, p. 9). However, 

the major canal on the southern border 

of Area A, the Wellton-Mohawk Canal, 

is equipped with ramps and steps 

designed to prevent ungulate 

drownings, and a series of wildlife 

waters exist to the north of the canal as 


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alternative water sources. Most of the 

canals elsewhere in Area A are too small 

to result in Sonoran pronghorn 

entrapment. Other activities, such as 

recreational hunting and camping, 

vehicle use, livestock grazing, and 

small-scale rural or agricultural 

development, are anticipated to either 

have minimal effects on Sonoran 

pronghorn or would be limited in extent 

(e.g., rural and agricultural 

development). 

Under section 7(a)(1) of the Act, all 

Federal agencies are mandated to use 

their authorities to conserve listed 

species. In addition, the BLM has a 

written policy of conferring with the 

Service, under section 7(a)(4), on their 

actions that may affect proposed 

species. Some activities would have 

greater potential to compromise the 

success of the Sonoran pronghorn 

reestablishment than those described 

above. For instance, construction of new 

highways or new canals in the NEP 

could create barriers to movement and 

bisect important pronghorn habitats. 

There is also the potential for BLM to 

permit large-scale solar power plants, 

which would be constructed in the 

valleys and could eliminate up to tens 

of thousands of acres of habitat. Other 

BLM-authorized projects, such as 

agricultural leases, could also 

potentially remove large blocks of 

habitat and perhaps compromise the 

success of this project. The potential for 

these projects to impact the 

reestablishment is probably greatest on 

BLM lands in the valleys to the east of 

Kofa NWR. The Service may have the 

opportunity through the section 7(a)(4) 

conferring process to work with the 

BLM to minimize the potential adverse 

effects of solar plants, agricultural 

leases, highways, or other projects that 

may compromise Sonoran pronghorn 

recovery. 

Management 

The lands within the NEP area are 

managed and listed in descending order 

of acreage within areas A and D as 

follows: Area A—the Service (Kofa 

NWR), Department of the Army (Yuma 

Proving Grounds), BLM, Arizona State 

Lands Department, private landowners, 

and Colorado River Indian Tribes; Area 

D: Tohono O’odham Nation, BLM, 

Department of the Air Force (BMGR–E), 

private owners, and Arizona State Land 

Department. Outside of Areas A and D, 

but within the NEP, land ownership is 

similar, but also includes lands within 

the Gila River Indian Reservation, AkChin Indian Reservation, Pascua Yaqui 

Indian Reservation, San Xavier 

Reservation, Buenos Aires NWR, 

Saguaro National Park, OPCNM, Tucson 

Mountain Park, and Coronado National 

Forest. Due to the management 

flexibility provided by the NEP 

designation and the special rule, we do 

not anticipate that establishment of 

Sonoran pronghorn in Areas A or D and 

subsequent dispersal of Sonoran 

pronghorn from the release sites will 

affect management on Tribal, BLM, 

National Forest, Department of Defense, 

State, or private lands. Through section 

7 consultations on NWR lands and 

National Park Service lands, some 

changes in management may occur to 

reduce adverse effects to pronghorn, 

including minimizing the likelihood of 

incidental take. However, we believe 

few changes would be needed, because 

management of these lands already is 

broadly compatible with Sonoran 

pronghorn recovery. Other Federal 

agencies that propose actions on Kofa 

NWR or National Park Service lands 

would also be required to consult with 

us under section 7, if such activities 

may affect Sonoran pronghorn. For 

instance, some activities conducted by 

Yuma Proving Grounds (e.g., overflights 

of Kofa NWR) would be subject to the 

consultation requirements. Some 

Federal agencies, such as BLM, that 

propose actions outside of Kofa NWR or 

National Park Service lands may elect to 

work with the Service voluntarily 

through the section 7(a)(4) conferring 

process to ensure that adverse effects of 

their actions on Sonoran pronghorn in 

the NEP area are minimized. 

The Service (Cabeza Prieta NWR, Kofa 

NWR, and Ecological Services), AGFD, 

OPCNM, Luke Air Force Base, BLM, and 

other partners, in close coordination 

with the Sonoran Pronghorn Recovery 

Team, would plan and manage the 

establishment of new populations of 

Sonoran pronghorn. This group would 

closely coordinate on releases, 

monitoring, and coordination with 

landowners and land managers, among 

other tasks necessary to ensure 

successful population establishment. 

Management issues related to the 

Sonoran pronghorn NEP that have been 

considered include: 

(a) Mortality: The regulations 

implementing the Act define ‘‘incidental 

take’’ as take that is incidental to, and 

not the purpose of, the carrying out of 

an otherwise lawful activity (50 CFR 

17.3), such as agricultural activities and 

other rural development, ranching, 

military training and testing, camping, 

hiking, hunting, vehicle use of roads 

and highways, and other activities that 

are in accordance with Federal, Tribal, 

State, and local laws and regulations. If 

this 10(j) rule is finalized, incidental 

take of Sonoran pronghorn within the 

NEP area would not be prohibited, 

provided that the take is unintentional, 

not due to negligent conduct, and is in 

accordance with the special rule that is 

a part of this 10(j) rule. However, if 

there is evidence of intentional take of 

a Sonoran pronghorn within the NEP 

that is not authorized by the special 

rule, we would refer the matter to the 

appropriate law enforcement entities for 

investigation. We expect levels of 

incidental take to be low because, as 

discussed in part (d) of Status of Newly 

Established Population above, the 

establishment of new populations is 

compatible with most existing human 

use activities and practices for the area. 

In the current range of the pronghorn in 

the U.S., no incidental take has been 

documented from military activities, 

recreation, use of highways, and most 

other activities that occur both in the 

current range and in the NEP; the 

exception being canals, in which 

Sonoran pronghorn have drowned on 

several occasions. More specific 

information regarding take can be found 

in the Proposed Regulation 

Promulgation section of this proposed 

rule. 

(b) Special handling: In accordance 

with 50 CFR 17.21(c)(3), any employee 

or agent of the Service, any other 

Federal land management agency, or 

State personnel, designated for such 

purposes, may in the course of their 

official duties, handle Sonoran 

pronghorn to aid sick or injured 

Sonoran pronghorn, or to salvage dead 

Sonoran pronghorn. However, nonService personnel and their agents 

would need to acquire permits from the 

Service for these activities. 

(c) Coordination with landowners and 

land managers: The Service and 

cooperators have identified issues and 

concerns associated with the proposed 

Sonoran pronghorn population 

establishment through the NEPA 

scoping comment period. The proposed 

population establishment also has been 

discussed with potentially affected State 

agencies, Tribes, and private 

landowners. Affected State agencies, 

Tribes, landowners, and land managers 

have either indicated support for, or no 

opposition to, the proposed population 

establishment, provided a NEP is 

designated and a special rule is 

promulgated to exempt incidental take 

and some forms of intentional take for 

management purposes from the section 

9 take prohibitions. More specific 

information regarding take can be found 

in the Proposed Regulation 

Promulgation section of this proposed 

rule. 

(d) Monitoring: A monitoring and 

adaptive management plan for the 

population establishment program 


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would be implemented by the Service, 

AGFD, and other partners to determine 

if the program is successful. The 

monitoring will assess all aspects of the 

population establishment program, from 

capture and movement of the animals to 

the captive breeding pen (Area A) or 

holding area (Area D), monitoring of the 

animals in these captive facilities, and 

monitoring and tracking released 

Sonoran pronghorn in the release areas, 

including Sonoran pronghorn waters 

and any forage enhancement vegetation 

plots developed to support the 

established herds. Monitoring of 

released Sonoran pronghorn will be 

conducted to determine the following: 

(1) Mortality and recruitment rates, (2) 

causes of mortality among adult and 

juvenile pronghorn, (3) reliance on freestanding water sources, (4) movement 

corridors and barriers to movements, 

and (5) habitat preferences. Each 

released animal will be fitted with an 

ear tag and radio collar. A limited 

number of Sonoran pronghorn will be 

fitted with Geographic Positioning 

System (GPS) platform telemetry collars. 

It is expected the transmitters will 

function for 3 to 5 years. Telemetry 

flights with a fixed-wing aircraft will be 

conducted twice a month. Each Sonoran 

pronghorn will be observed from an 

altitude of 1,000 feet (ft) above ground 

level with the aid of binoculars. Group 

size and composition (sex and age), 

habitat type, and terrain will be 

recorded. Additional monitoring of 

individual pronghorn and herd 

movements will be done from the 

ground, particularly from high points 

where valley habitats of the pronghorn 

can be viewed. All monitoring flights 

and on-the-ground surveillance will be 

closely coordinated with and approved 

by the Tribal, military, and other land 

managers and owners where such 

monitoring will occur. As Sonoran 

pronghorn become established and 

breed in the establishment areas, the 

percentage of animals tagged or radiocollared will decline over time, and 

additional animals may need to be 

captured and radio collared to 

adequately monitor the herds. Ideally, at 

least 10 percent of a population will be 

equipped with radio collars. Monitoring 

data will be assessed regularly by the 

Recovery Team, and methods will be 

revised as needed to increase the 

likelihood of successful population 

establishment and to increase efficiency. 

A comprehensive review, assessment, 

and report of the reestablishment 

program by the Recovery Team will 

occur at a frequency of no less than once 

every 5 years. 

(e) Public awareness and cooperation: 

Public scoping for the Sonoran 

pronghorn population establishment 

project was conducted in the fall of 

2008. Actions included an October 30, 

2008, scoping letter sent to 

approximately 6,000 names, a news 

release to local media sources, and a 

series of three open houses held in the 

Arizona cities of Yuma, Tucson, and 

Phoenix, during November 18–20, 2008. 

We accepted written public scoping 

comments until December 12, 2008. We 

received 44 written responses about the 

project. We discuss issues identified in 

the responses in the EA. The IDT used 

these issues to refine the proposed 

action and alternatives in the EA, and to 

identify mitigation measures to avoid or 

reduce potential project effects. The IDT 

also used the public concerns to 

determine which resources would be 

the greatest focus of the EA analysis. 

Peer Review 

In accordance with our policy on peer 

review, published on July 1, 1994 (59 

FR 34270), we will provide copies of 

this proposed rule to three or more 

appropriate and independent specialists 

in order to solicit comments on the 

scientific data and assumptions relating 

to the supportive biological and 

ecological information for this proposed 

NEP designation. The purpose of such 

review is to ensure that the proposed 

NEP designation is based on the best 

scientific information available. We will 

invite these peer reviewers to comment 

during the public comment period and 

will consider their comments and 

information on this proposed rule 

during preparation of a final 

determination. 

Required Determinations 

Regulatory Planning and Review (E.O. 

12866) 

The Office of Management and Budget 

(OMB) has determined that this 

proposed rule is not significant and has 

not reviewed this proposed rule under 

Executive Order 12866 (E.O. 12866). 

OMB bases its determination upon the 

following four criteria: 

(a) Whether the proposed rule will 

have an annual effect of $100 million or 

more on the economy or adversely affect 

an economic sector, productivity, jobs, 

the environment, or other units of the 

government. 

(b) Whether the proposed rule will 

create inconsistencies with other 

Federal agencies’ actions. 

(c) Whether the proposed rule will 

materially affect entitlements, grants, 

user fees, loan programs, or the rights 

and obligations of their recipients. 

(d) Whether the proposed rule raises 

novel legal or policy issues. 

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. 601 et seq., 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

SBREFA amended the Regulatory 

Flexibility Act to require Federal 

agencies to provide a statement of the 

factual basis for certifying that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities. We are certifying that this rule 

will not have a significant economic 

effect on a substantial number of small 

entities. The following discussion 

explains our rationale. 

The area that would be affected if this 

proposed rule is adopted includes the 

release areas at Kofa NWR and BMGR– 

E and adjacent areas into which 

pronghorn may disperse, which over 

time could include significant portions 

of the NEP, where valley habitats for the 

pronghorn occur. Mountainous areas 

and developed agriculture and urban 

areas in the NEP would not be occupied 

because these areas are not considered 

habitat for Sonoran pronghorn. Because 

of the regulatory flexibility for Federal 

agency actions provided by the NEP 

designation and the exemption for 

incidental take in the special rule, we 

do not expect this rule to have 

significant effects on any activities 

within Tribal, Department of Defense, 

BLM, National Wildlife Refuge, National 

Park Service, State, or private lands 

within the NEP. On National Wildlife 

Refuges and units of the National Park 

System within the NEP, Federal action 

agencies would be required to consult 

with us, under section 7(a)(2) of the Act, 

on any of their activities that may affect 

the Sonoran pronghorn. However, 

because current management of these 

areas is consistent with the needs of the 

pronghorn (see part (d) of Status of 

Proposed Population above), we do not 

anticipate that consultation would 

significantly change proposed Federal 

actions on those lands. In portions of 


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the NEP outside of National Wildlife 

Refuge and National Park Service lands, 

in regard to section 7(a)(2), the 

population is treated as proposed for 

listing and Federal action agencies are 

not required to consult on their 

activities. Section 7(a)(4) requires 

Federal agencies to confer (rather than 

consult) with the Service on actions that 

are likely to jeopardize the continued 

existence of a proposed species. But 

because the NEP is, by definition, not 

essential to the survival of the species, 

conferring will likely never be required 

for the Sonoran pronghorn populations 

within the NEP area. Furthermore, the 

results of a conference are advisory in 

nature and do not restrict agencies from 

carrying out, funding, or authorizing 

activities. Nonetheless, some agencies, 

such as BLM, voluntarily confer with us 

on actions that may affect proposed 

species. In addition, section 7(a)(1) 

requires Federal agencies to use their 

authorities to carry out programs to 

further the conservation of listed 

species, which would apply on any 

lands within the NEP area. As a result, 

and in accordance with these 

regulations, some modifications to 

proposed Federal actions within the 

NEP area may occur to benefit the 

Sonoran pronghorn, but we do not 

expect projects to be halted or 

substantially modified as a result of 

these regulations. 

If adopted, this proposal would 

broadly authorize incidental take of 

Sonoran pronghorn within the NEP 

area. The regulations implementing the 

Act define ‘‘incidental take’’ as take that 

is incidental to, and not the purpose of, 

the carrying out of an otherwise lawful 

activity such as, agricultural activities 

and other rural development, ranching, 

military training and testing, camping, 

hiking, hunting, vehicle use of roads 

and highways, and other activities in 

the NEP area that are in accordance with 

Federal, Tribal, State, and local laws 

and regulations. Intentional take for 

purposes other than authorized data 

collection or recovery purposes would 

not be permitted. Intentional take for 

research or recovery purposes would 

require a section 10(a)(1)(A) recovery 

permit under the Act. 

The principal activities on private 

property near the NEP area are 

agriculture, ranching, rural 

development, and recreation. We 

believe the presence of the Sonoran 

pronghorn would not affect the use of 

lands for these purposes because there 

would be no new or additional 

economic or regulatory restrictions 

imposed upon States, non-federal 

entities, or members of the public due 

to the presence of the Sonoran 

pronghorn, and Federal agencies would 

only have to comply with sections 

7(a)(2) and 7(a)(4) of the Act in these 

areas. Therefore, this rulemaking is not 

expected to have any significant adverse 

impacts to activities on private lands 

within the NEP area. 

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.): 

(a) If adopted, this proposal will not 

‘‘significantly or uniquely’’ affect small 

governments. We have determined and 

certify under the Unfunded Mandates 

Reform Act, 2 U.S.C. 1502 et seq., that 

this proposed rulemaking will not 

impose a cost of $100 million or more 

in any given year on local or State 

governments or private entities. A Small 

Government Agency Plan is not 

required. As explained above, small 

governments would not be affected 

because the proposed NEP designation 

will not place additional requirements 

on any city, county, or other local 

municipalities. 

(b) This rule will not produce a 

Federal mandate of $100 million or 

greater in any year (i.e., it is not a 

‘‘significant regulatory action’’ under the 

Unfunded Mandates Reform Act). This 

proposed NEP designation for the 

Sonoran pronghorn would not impose 

any additional management or 

protection requirements on the States or 

other entities. 

Takings (E.O. 12630) 

In accordance with Executive Order 

12630, the proposed rule does not have 

significant takings implications. When 

populations of federally listed species 

are designated as NEPs, the Act’s 

regulatory requirements regarding those 

populations are significantly reduced. 

Section 10(j) of the Act can provide 

regulatory relief with regard to the 

taking of reestablished species within an 

NEP area. For example, this proposed 

rule would not prohibit the taking of 

Sonoran pronghorn in the NEP area 

outside of National Wildlife Refuge and 

National Park Service lands when such 

take is incidental to an otherwise legal 

activity, such as agricultural activities 

and other rural development, ranching, 

military training and testing, camping, 

hiking, hunting, vehicle use of roads 

and highways, and other activities that 

are in accordance with Federal, State, 

Tribal and local laws and regulations. 

A takings implication assessment is 

not required because this rule (1) will 

not effectively compel a property owner 

to suffer a physical invasion of property 

and (2) will not deny all economically 

beneficial or productive use of the land 

or aquatic resources. This rule would 

substantially advance a legitimate 

government interest (conservation and 

recovery of a listed species) and would 

not present a barrier to all reasonable 

and expected beneficial use of private 

property. 

Federalism (E.O. 13132) 

In accordance with Executive Order 

13132, we have considered whether this 

proposed rule has significant 

Federalism effects and have determined 

that a Federalism assessment is not 

required. This rule would 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 

proposed rule with the affected resource 

agencies in Arizona. Achieving the 

recovery goals for this species would 

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 would not change; and 

fiscal capacity would not be 

substantially directly affected. The 

special rule operates to maintain the 

existing relationship between the State 

and the Federal government and is 

being undertaken in coordination with 

the State of Arizona. Therefore, this rule 

does not have significant Federalism 

effects or implications to warrant the 

preparation of a Federalism Assessment 

under the provisions of Executive Order 

13132. 

Civil Justice Reform (E.O. 12988) 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule would not 

unduly burden the judicial system and 

would meet the requirements of sections 

(3)(a) and (3)(b)(2) of the Order. 

Paperwork Reduction Act 

Office of Management and Budget 

(OMB) regulations at 5 CFR 1320, which 

implement provisions of the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.), 

require that Federal agencies obtain 

approval from OMB before collecting 

information from the public. This 

proposed rule does not contain any new 

information collections that require 

approval. OMB has approved our 

collection of information associated 

with reporting the taking of 

experimental populations (50 CFR 


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17.84(p)(6)) and assigned control 

number 1018–0095. We may not collect 

or sponsor, and you are not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. 

National Environmental Policy Act 

We have prepared a draft EA as 

defined under the authority of the 

National Environmental Policy Act of 

1969. It is available from the Cabeza 

Prieta NWR (see FOR FURTHER

INFORMATION CONTACT section), http:// 

www.regulations.gov, and from our Web 

site at http://www.fws.gov/southwest/es/ 

Library/. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior Manual Chapter 512 DM 2, we 

have consulted with 21 Tribal Nations 

whose lands or interests might be 

affected by this rule. The Tohono 

O’odham Nation participated in scoping 

meetings and provided comments on 

draft documents and proposals. The AkChin Indian Community also provided 

written comments. The only substantial 

comments from Tribes were related to 

cultural resource surveys at the specific 

sites where pens will be constructed, 

which we will do. 

Energy Supply, Distribution or Use (E.O. 

13211) 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This rule is 

not expected to significantly affect 

energy supplies, distribution, and use. 

Because this action is not a significant 

energy action, no Statement of Energy 

Effects is required. 

Clarity of This Regulation (E.O. 12866) 

We are required by E.O. 12866, E.O. 

12988, and by the Presidential 

Memorandum of June 1, 1998, to write 

all rules in plain language. This means 

that each rule we publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comment should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections are paragraphs that are 

unclearly written, which sections for 

sentences are too long, the sections 

where you feel lists and tables would be 

useful, etc. 

References Cited 

A complete list of all references cited 

in this proposed rule is available upon 

request from the Cabeza Prieta NWR 

(see FOR FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are staff members of Cabeza Prieta 

NWR and the Service’s Arizona 

Ecological Services Office (see 

ADDRESSES and FOR FURTHER

INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

2. Amend § 17.11(h) by revising the 

entry for ‘‘Pronghorn, Sonoran’’ under 

‘‘MAMMALS’’ in the List of Endangered 

and Threatened Wildlife 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

* * * * * * * 

Pronghorn, Sonoran Antilocapra americana sonoriensis.U.S.A. (AZ), Mexico. Entire, except where 

listed as an experimental population.

E 543 N/A NA 


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Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

Pronghorn, Sonoran Antilocapra americana sonoriensis.U.S.A. (AZ), Mexico. In Arizona, an area 

north of Interstate 

8 and south of 

Interstate 10, 

bounded by the 

Colorado River on 

the west and 

Interstate 10 on 

the east; and an 

area south of 

Interstate 8, 

bounded by Highway 85 on the 

west, Interstates 

10 and 19 on the 

east, and the 

U.S.-Mexico border on the south.

XN .................... NA 17.84(v) 

* * * * * * * 

3. Amend § 17.84 by adding 

paragraph (v) to read as follows: 

§ 17.84 Special rules—vertebrates. 

* * * * * 

(v) Sonoran pronghorn (Antilocapra 

americana sonoriensis). 

(1) The Sonoran pronghorn 

(Antilocapra americana sonoriensis) 

(pronghorn) population identified in 

paragraph (v)(12) of this section is a 

nonessential experimental population 

(NEP). 

(2) No person may take this species, 

except as provided in paragraphs (v)(3) 

through (6) of this section. 

(3) Any person with a valid permit 

issued by the U.S. Fish and Wildlife 

Service (Service) under § 17.32 may take 

pronghorn within the NEP area for 

scientific purposes, the enhancement of 

propagation or survival of the species, 

and other conservation purposes 

consistent with the Endangered Species 

Act (Act). 

(4) A pronghorn may be taken within 

the boundaries of Yuma Proving 

Grounds; Barry M. Goldwater Range; 

lands of the Arizona State Land 

Department; Bureau of Land 

Management lands; privately owned 

lands; and lands of the Tohono 

O’odham Nation, Colorado River Indian 

Tribes, Gila River Indian Reservation, 

Ak-Chin Indian Reservation, Pascua 

Yaqui Indian Reservation, and San 

Xavier Reservation within the NEP area, 

provided that such take is incidental to, 

and not the purpose of, the carrying out 

of any otherwise lawful activity; and 

provided that such taking is reported as 

soon as possible in accordance with 

paragraph (v)(6) of this section. 

Otherwise lawful activities are any 

activities in compliance with land 

management regulations, hunting 

regulations, Tribal law, and all other 

applicable law and regulations, and 

include, but are not limited to, military 

training and testing, agriculture, rural 

and urban development, livestock 

grazing, camping, hiking, hunting, 

recreational vehicle use, sightseeing, 

nature or scientific study, 

rockhounding, and geocaching, where 

such activities are permitted. 

(5) Pursuant to a Memorandum of 

Understanding (MOU) among the 

Service, Arizona Game and Fish 

Department, and the Tribes listed in 

paragraph (v)(4) of this section, any 

employee or agent of the parties to the 

MOU who is designated for such 

purpose may, when acting in the course 

of official duties, take a Sonoran 

pronghorn if such action is necessary to: 

(i) Aid a sick, injured, or orphaned 

Sonoran pronghorn, including rescuing 

such animals from canals; 

(ii) Dispose of a dead Sonoran 

pronghorn specimen, or salvage a dead 

specimen that may be useful for 

scientific study; 

(iii) Move a Sonoran pronghorn for 

genetic purposes or to improve the 

health of the population; or 

(iv) Capture and release a Sonoran 

pronghorn for relocation, to collect 

biological data, or to attach, service, or 

detach radio-telemetry equipment. 

(6) Any taking pursuant to paragraphs 

(v)(3) through (5) of this section must be 

reported as soon as possible by calling 

the U.S. Fish and Wildlife Service, 

Arizona Ecological Services Office, 201 

N Bonita Avenue, Suite 141, Tucson, 

AZ 85745 (520/670–6150), or the Cabeza 

Prieta National Wildlife Refuge, 1611 

North Second Avenue, Ajo, AZ 85321 

(520/387–6483). Upon contact, a 

determination will be made as to the 

disposition of any live or dead 

specimens. 

(7) No person may possess, sell, 

deliver, carry, transport, ship, import, or 

export by any means whatsoever, any 

Sonoran pronghorn or Sonoran 

pronghorn parts taken in violation of 

these regulations. 

(8) It is unlawful for any person to 

attempt to commit, solicit another to 

commit, or cause to be committed, any 

offense defined in paragraphs (v)(2) and 

(7) of this section. 

(9)(i) The boundaries of the 

designated NEP area are based on the 

maximum estimated range of pronghorn 

that are released in and become 

established within the NEP area. These 

boundaries are physical barriers to 

movements, including major freeways 

and highways, and the Colorado River. 

All release sites will be within the NEP 

area. 

(ii) All pronghorn found in the wild 

within the boundaries of the NEP area 

after the first releases will be considered 

members of the NEP. Any pronghorn 

occurring outside of the NEP area are 

considered endangered under the Act. 

(iii) The Service has designated the 

NEP area to accommodate the potential 

future movements of a wild pronghorn. 

All released pronghorn and their 

progeny are expected to remain in the 

NEP area due to the geographical extent 

of the designation and substantial 

barriers to movement that form the 

boundaries of the NEP. 

(10) The NEP will be monitored 

closely for the duration of the program. 

Any pronghorn that is determined to be 

sick, injured, or otherwise in need of 

special care will be recaptured to the 

extent possible by Service and/or State 


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or Tribal wildlife personnel or their 

designated agent and given appropriate 

care. Such pronghorn will be released 

back to the wild as soon as possible, 

unless physical or behavioral problems 

make it necessary to return them to a 

captive-breeding facility. 

(11) The Service plans to evaluate the 

status of the NEP every 5 years to 

determine future management status 

and needs, with the first evaluation 

occurring not more than 5 years after the 

first release of pronghorn into the NEP 

area. All reviews will take into account 

the reproductive success and movement 

patterns of individuals released, food 

habits, and overall health of the 

population. This evaluation will include 

a progress report. 

(12) The areas covered by this 

proposed nonessential experimental 

population designation are in Arizona. 

They include the area north of Interstate 

8 and south of Interstate 10, bounded by 

the Colorado River on the west and 

Interstate 10 on the east, and an area 

south of Interstate 8, bounded by 

Highway 85 on the west, Interstates 10 

and 19 on the east, and the U.S.-Mexico 

border on the south. 

(13) Note: Map of the proposed NEP 

area for the Sonoran pronghorn in 

southwestern Arizona follows. 

BILLING CODE 4310–55–P 


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jlentini on DSKJ8SOYB1PROD with PROPOSALSEP04FE10.000</GPH>
Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Proposed Rules 5745 

* * * * * 

Dated: January 20, 2010. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–2230 Filed 2–3–10; 8:45 am] 

BILLING CODE 4310–55–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 100119028–0029–01] 

RIN 0648–AY31 

Pacific Halibut Fisheries; Catch 

Sharing Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: NMFS proposes to approve 

and implement changes to the Pacific 

Halibut Catch Sharing Plan (Plan) for 

the International Pacific Halibut 

Commission’s (IPHC or Commission) 

regulatory Area 2A off Washington, 

Oregon, and California (Area 2A). NMFS 

proposes to implement the portions of 

the Plan and management measures that 

are not implemented through the IPHC. 

This includes tribal regulations and the 

sport fishery allocations and 

management measures for Area 2A. 

These actions are intended to enhance 

the conservation of Pacific halibut, to 

provide greater angler opportunity 

where available, and to protect 

overfished groundfish species from 

being incidentally caught in the halibut 

fisheries. 

DATES: Comments on the proposed 

changes to the Plan and on the proposed 

domestic Area 2A halibut management 

measures must be received no later than 

5 p.m., local time on February 19, 2010. 

ADDRESSES: Copies of the Plan and 

Regulatory Impact Review (RIR)/Initial 

Regulatory Flexibility Analysis (IRFA) 

are available from Barry Thom, Acting 

Regional Administrator, Northwest 

Region, NMFS, 7600 Sand Point Way 

NE, Seattle, WA 98115–0070. Electronic 

copies of the Plan, including proposed 

changes for 2010, and of the draft RIR/ 

IRFA are also available at the NMFS 

Northwest Region website: http:// 

www.nwr.noaa.gov, click on 

‘‘Groundfish & Halibut’’ and then click 

on ‘‘Pacific Halibut’’. 

You may submit comments, identified 

by RIN 0648–AY31, by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov 

• Fax: 206–526–6736, Attn: Sarah 

Williams. 

• Mail: Barry Thom, Acting 

Administrator, Northwest Region, 

NMFS, Attn: Sarah Williams, 7600 Sand 

Point Way NE, Seattle, WA 98115–0070. 

Instructions: No comments will be 

posted for public viewing until after the 

comment period has closed. All 

comments received are a part of the 

public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (for example, name, 

address, etc.) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit Confidential 

Business Information or otherwise 

sensitive or protected information. 

NMFS will accept anonymous 

comments (enter N/a in the required 

fields if you wish to remain anonymous. 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Williams, 7600 Sand Point Way 

NE, Seattle, WA, 98115. By phone at 

206–526–4646 or fax at 206–526–6736. 

SUPPLEMENTARY INFORMATION: The 

Northern Pacific Halibut Act (Halibut 

Act) of 1982, at 16 U.S.C. 773c, gives the 

Secretary of Commerce (Secretary) 

general responsibility for implementing 

the provisions of the Halibut 

Convention between the United States 

and Canada (Halibut Convention). It 

requires the Secretary to adopt 

regulations as may be necessary to carry 

out the purposes and objectives of the 

Halibut Convention and the Halibut Act. 

Section 773c of the Halibut Act 

authorizes the regional fishery 

management councils to develop 

regulations governing the Pacific halibut 

catch in their corresponding U.S. 

Convention waters that are in addition 

to, but not in conflict with, regulations 

of the IPHC. Each year between 1988 

and 1995, the Pacific Fishery 

Management Council (Pacific Council) 

developed a catch sharing plan in 

accordance with the Halibut Act to 

allocate the total allowable catch (TAC) 

of Pacific halibut between treaty Indian 

and non-treaty harvesters and among 

non-treaty commercial and sport 

fisheries in Area 2A. 

In 1995, NMFS implemented the 

Pacific Council-recommended long-term 

Plan (60 FR 14651, March 20, 1995). In 

each of the intervening years between 

1995 and the present, minor revisions to 

the Plan have been made to adjust for 

the changing needs of the fisheries. The 

Plan allocates 35 percent of the Area 2A 

TAC to Washington treaty Indian tribes 

in Subarea 2A–1 and 65 percent to nontribal fisheries in Area 2A. 

The allocation to non-tribal fisheries 

is divided into three shares, with the 

Washington sport fishery (north of the 

Columbia River) receiving 36.6 percent, 

the Oregon/California sport fishery 

receiving 31.7 percent, and the 

commercial fishery receiving 31.7 

percent. The commercial fishery is 

further divided into a directed 

commercial fishery that is allocated 85 

percent of the commercial allocation 

and an incidental catch in the salmon 

troll fishery that is allocated 15 percent 

of the commercial allocation. The 

directed commercial fishery in Area 2A 

is confined to southern Washington 

(south of 46° 53.30’ N. lat.), Oregon, and 

California. North of 46° 53.30’ N. lat. (Pt. 

Chehalis), the Plan allows for incidental 

halibut retention in the primary limited 

entry longline sablefish fishery when 

the overall Area 2A TAC is above 

900,000 lb (408.2 mt). The Plan also 

divides the sport fisheries into six 

geographic subareas, each with separate 

allocations, seasons, and bag limits. 

The Area 2A TAC will be set by the 

IPHC at its annual meeting on January 

26–29, 2010, in Seattle, WA. Following 

the annual meeting the IPHC publishes 

the final TAC on their website and 

produces a news release. Through this 

proposed rule NMFS requests public 

comments on the Pacific Council’s 

recommended modifications to the Plan 

and the proposed domestic fishing 

regulations by [insert date of end of 

comment period]. This allows the 

public the opportunity to consider the 

final Area 2A TAC before submitting 

comments on the proposed rule. The 

States of Washington and Oregon will 

conduct public workshops shortly after 

the IPHC meeting to obtain input on the 

sport season dates. After the final Area 

2A TAC is known and after NMFS 

reviews public comments and 

comments from the states, NMFS will 

issue a final rule for Areas 2A, 2C, 3A, 

3B, 4A, 4B, 4C, 4D, and 4E, Pacific 

halibut fisheries concurrent with its 

publication of the IPHC regulations for 

the 2010 Pacific halibut fisheries. A 15 

day public comment period is necessary 

with this proposed rule to balance two 

purposes, first to provide the public 

with enough time to comment on the 

proposed rule after the final TAC is 

decided by the IPHC, and second to 

incorporate the final U.S. domestic 


jlentini on DSKJ8SOYB1PROD with PROPOSALS