98-681. Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Mexican Gray Wolf in Arizona and New Mexico

[Federal Register Volume 63, Number 7 (Monday, January 12, 1998)]
[Rules and Regulations]
[Pages 1752-1772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-681]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD07


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of the Mexican Gray Wolf in 
Arizona and New Mexico

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) has decided to 
reintroduce the endangered Mexican gray wolf (Canis lupus baileyi) into 
the Blue Range Wolf Recovery Area, a designated area within the 
subspecies' probable historic range. This reintroduction will be the 
first step toward recovery of the Mexican wolf in the wild. The Blue 
Range Wolf Recovery Area consists of the entire Apache and Gila 
National Forests in east-central Arizona and west-central New Mexico. 
If the Service later finds it to be both necessary for recovery and 
feasible, we would reintroduce wolves into the White Sands Wolf 
Recovery Area, which also lies within the subspecies' probable historic 
range. This area consists of all land within the boundary of the White 
Sands Missile Range in south-central New Mexico together with 
designated land immediately to the west of the missile range. By this 
rule, the Service classifies wolves to be re-established in these areas 
as one nonessential experimental population under section 10(j) of the 
Endangered Species Act (Act) of 1973, as amended. This final rule sets 
forth management directions and provides for limited allowable legal 
take of wolves within a defined Mexican Wolf Experimental Population 
Area.

EFFECTIVE DATE: January 24, 1998.

ADDRESSES: Send correspondence concerning this rule to the Mexican Gray 
Wolf Recovery Program, U.S. Fish and Wildlife Service, P.O. Box 1306, 
Albuquerque, New Mexico 87103-1306. The complete file for this final 
rule is available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. David R. Parsons (see ADDRESSES 
section) at telephone [phone]; facsimile [phone]; or 
electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Background

Legislative

    The Endangered Species Act Amendments of 1982, Pub. L. 97-304, 
created section 10(j), providing for the designation of specific 
populations of listed species as ``experimental populations.'' Under 
previous authorities of the Act, the Service was permitted to re-
establish (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 conservation and 
recovery tool.
    Under section 10(j), a population of a listed species re-
established outside its current range but within its probable historic 
range may be designated as ``experimental'' at the discretion of the 
Secretary of the Interior (Secretary). Reintroduction of the 
experimental population must further 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 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 
or tribal 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 (12.9 km2) 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 gray 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 on March 9, 1978, except in 
Minnesota where it was listed as threatened (43 FR 9607). This listing 
of the species as a whole continued to recognize valid biological 
subspecies for purposes of research and conservation (43 FR 9610).

Biological

    This final experimental population rule addresses the Mexican gray 
wolf (Canis lupus baileyi), an endangered subspecies of gray wolf that 
was extirpated from the southwestern United States by 1970. The gray 
wolf species (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 species (C. rufus). The gray wolf occupied 
areas that supported populations of hoofed mammals (ungulates), its 
major food source.
    The Mexican gray 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 ``lobo'' 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, killing of wolves by game managers on the theory 
that more game animals would be available for hunters,

[[Page 1753]]

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 south western United States because no wild wolf has been 
confirmed since 1970. Occasional sightings of ``wolves'' continue to be 
reported from U.S. locations, but none have been confirmed. Ongoing 
field research has not confirmed that wolves remain in Mexico.
    Mexican wolves were eradicated before their natural history had 
been systematically studied. Chapter 1 of the Final Environmental 
Impact Statement (FEIS) discusses the taxonomy and probable historic 
range of C. l. baileyi, as well as the genetics and other important 
background on the captive population. Appendix A of the FEIS provides 
life history and ecological 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.

Recovery Efforts

    The Mexican Wolf Recovery Plan was adopted by the Directors of the 
Service and the Mexican Direccion General de la Fauna Silvestre in 
1982. Its objective is to conserve and ensure survival of the 
subspecies by maintaining a captive breeding program and re-
establishing a viable, self-sustaining population of at least 100 
Mexican wolves in a 5,000 square mile area within the subspecies' 
historic range. The plan guides recovery efforts for the subspecies, 
laying out a series of recommended actions. The recovery plan is 
currently being revised; the Service expects to release a draft for 
public review in 1998. The revised plan will more precisely define 
population levels at which the Mexican wolf can be downlisted to 
``threatened'' status and removed from protection under the Act (i.e., 
delisted).
    A captive breeding program was initiated with the capture of five 
wild Mexican wolves between 1977 and 1980, from Durango and Chihuahua, 
Mexico. Three of these animals (two males and a female that was 
pregnant when captured) produced offspring, founding the ``certified'' 
captive lineage. Two additional captive populations were determined in 
July 1995 to be pure Mexican wolves--each has two founders. The captive 
population included 148 animals as of January 1997--119 are held at 25 
facilities in the United States and 29 at five facilities in Mexico.
    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 Service released the draft Environmental Impact Statement 
(DEIS), entitled ``Reintroduction of the Mexican Wolf within its 
Historic Range in the Southwestern United States,'' for public review 
and comment on June 27, 1995 (60 FR 33224). The location and times of 
14 public meetings were also announced in that notice. On September 26, 
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 on the DEIS closed on October 31, 1995; 
and approximately 18,000 people submitted comments. Provisions of the 
Service's draft proposed Mexican wolf experimental population rule were 
summarized in Chapter 2 of the DEIS and provided in full in Appendix C 
of the DEIS.
    The proposed Mexican wolf experimental population rule was 
published in the Federal Register on May 1, 1996 (61 FR 19237-19248) 
and public comments were accepted through July 1, 1996. A May 22, 1996, 
Federal Register notice (61 FR 25618-25619) announced four public 
meetings/hearings specific to the proposed rule, which were held in 
potentially affected areas.
    The Service released the FEIS on Mexican wolf reintroduction on 
December 20, 1996. Chapter 5 of the FEIS contains a detailed review of 
public comments on the DEIS, including comments on the draft proposed 
rule, and the Service's responses. Pursuant to 50 CFR 17.81(d), this 
experimental population rule and the FEIS were developed in 
consultation with appropriate State fish and wildlife agencies, local 
governmental entities, affected Federal agencies, affected private 
landowners, native American tribes, technical experts, and others. The 
Service has cooperated with local governments through meetings with 
county officials and their representatives, making background 
information available, soliciting information, reviewing and responding 
to comments and studies prepared by county consultants, inviting 
consultants with expertise in local issues to an EIS team meeting, and 
other measures. In addition, the EIS process included holding public 
comment meetings throughout potentially affected areas, including 
holding a joint meeting with the Commission of Sierra County, the only 
county that so requested.
    The Service is exploring additional avenues of communication and 
cooperation with local governments and other stakeholders in the 
implementation of Mexican wolf reintroduction.
    On April 3, 1997, the Department of the Interior issued its Record 
of Decision on the FEIS, and selected the Preferred Alternative 
(Alternative A in the FEIS) for implementation (62 FR 15915-15916). The 
Service will reintroduce captive-raised Mexican wolves in eastern 
Arizona within the designated Blue Range Wolf Recovery Area. Released 
wolves and their offspring will be designated a nonessential 
experimental population. This population will be allowed to colonize 
the entire Blue Range Wolf Recovery Area. If the Service later 
determines it to be both necessary for recovery and feasible, we would 
reintroduce wolves into the White Sands Wolf Recovery Area, the 
designated back-up area.

Mexican Wolf Recovery Areas

    The Service has determined that reintroduction in the Blue Range 
Wolf Recovery Area (Figure 1) is biologically and environmentally 
preferable and has the greatest potential for successfully achieving 
the current recovery objective for Mexican wolves. The White Sands Wolf 
Recovery Area (Figure 2) may serve as a back-up reintroduction area 
only if its use is later determined to be both necessary and feasible, 
according to criteria in the Preferred Alternative.
    The two wolf recovery areas are within the Mexican wolf's probable 
historic range. The Mexican wolf is considered extinct in the wild in 
the United States. Thus, both areas are geographically separate from 
any known, naturally-occurring, nonexperimental populations of wild 
wolves.
    Section 17.84(k)(9) of this rule establishes a larger Mexican Wolf 
Experimental Population Area (Figure 3), which also is geographically 
separate from any known, naturally-occurring nonexperimental 
populations of wild wolves. The Service is not proposing to re-
establish Mexican wolves throughout this larger area. The purpose of 
designating an experimental population area is to establish that any 
member of the re-established Mexican wolf population found in this 
larger area is a member of the nonessential experimental population, 
and subject to the provisions of this rule including, but

[[Page 1754]]

not limited to, its capture and return to the designated recovery 
area(s).

Reintroduction Procedures

    Captive Mexican wolves are selected for release based on genetics, 
reproductive performance, behavioral compatibility, response to the 
adaptation process, and other factors. Selected wolves have been moved 
to the Service's captive wolf management facility on the Sevilleta 
National Wildlife Refuge in central New Mexico where they have been 
paired based on genetic and behavioral compatibility and measures are 
being taken to adapt them to life in the wild. As wolves are moved to 
release pens, more will be moved to the Sevilleta facility. Additional 
wolves for reintroduction may be obtained from selected cooperating 
facilities that provide an appropriate captive environment.
    Initially, 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 at the 
release site for several weeks 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 FEIS.) The releases will 
begin in 1998. Procedures for releases could be modified if new 
information warrants such changes.
    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 population of 100 wild wolves. 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, if this back-up 
area is used, with the goal of reaching a population of 20 wolves.

Management of the Reintroduced Population

    The 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 allowing limited ``take''' (see 
definition of take in section 17.84(k)(15) of the rule) 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. It is also critical 
to obtaining needed State, Tribal, local, and private cooperation. The 
Service believes this flexibility will improve the likelihood of 
success.
    Reintroduction will occur under management plans that allow 
dispersal by the new wolf populations beyond the primary recovery zones 
where they will be released into the secondary recovery zones of the 
designated wolf recovery area(s) (Figures 1 and 2). The Service and 
cooperating agencies will not allow the wolves to establish territories 
on public lands wholly outside these wolf recovery area boundaries. 
With landowner consent, the Service also would prevent wolf 
colonization of private or tribal lands outside the designated recovery 
area(s).
    No measures are expected to be needed to isolate the experimental 
population from naturally occurring populations because no Mexican 
wolves are known to occur anywhere in the wild. The Service has ensured 
that no population of naturally-occurring wild wolves exists within the 
recovery areas. Surveys for wolf sign in these areas have been 
conducted, and no naturally occurring population has been documented. 
No naturally occurring population of Mexican wolves has been documented 
in Mexico following four years of survey efforts there. Therefore, 
based on the best available information, the Service concludes that 
future natural migration of wild wolves into the experimental 
population area is not possible.

Identification and Monitoring

    Prior to placement in release pens, the adult-sized wolves will 
receive permanent identification marks and radio collars. If pups are 
born in the release pens, they will be marked and may receive 
surgically implanted transmitters prior to release. Some or all of 
these pups may be captured and fitted with radio collars when they 
reach adult size. Captured wild-born wolves will be given a permanent 
identification mark and radio collar, unless enough animals from their 
family group (to ensure adequate monitoring of the group) are already 
radio collared.
    The Service and cooperating agencies will measure the success or 
failure of the releases by monitoring, researching, and evaluating the 
status of released wolves and their offspring. Using adaptive 
management principles, the Service and cooperating agencies will modify 
subsequent releases depending on what is learned from the initial 
releases. The agencies will prepare periodic progress reports, annual 
reports, and full evaluations after three and five years that will 
recommend continuation, modification, or termination of the 
reintroduction effort. The reports will also evaluate whether, and how, 
to use the back-up White Sands Wolf Recovery Area.

Findings Regarding Reintroduction

    The Service finds that, under the Preferred Alternative, the 
reintroduced experimental population is likely to become established 
and survive in the wild within the Mexican gray wolf's probable 
historic range. The Service projects that this reintroduction will 
achieve the recovery goal of at least 100 wolves occupying 5,000 square 
miles. The Blue Range Wolf Recovery Area comprises 6,854 square miles 
of which about 95% is National Forest.
    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, the captive 
population could produce more surplus wolves and future reintroductions 
still would be feasible if the reasons for the initial failure are 
understood. 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. Mean 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 well-represented in the population. Individuals 
whose mean kinship values are above the mean for the captive population 
as a whole will be used for release. In addition, the GENES computer 
program is used to examine 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

[[Page 1755]]

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 populations or individuals of the Mexican 
gray wolf subspecies are known to exist anywhere in the wild. No wild 
populations of the gray wolf species are known to exist in the United 
States south of Washington, Idaho, Wyoming, North Dakota, Minnesota, 
Wisconsin, and Michigan. Therefore, based on the best available 
information, the Service finds that the re-established population would 
be completely geographically separate from any extant wild populations 
or individual gray wolves and that future migration of wild Mexican 
wolves into the experimental population area is not possible. The 
Mexican wolf is the most southerly and the most genetically distinct of 
the North American gray wolf subspecies. It is the rarest gray wolf 
subspecies and has been given the highest recovery priority for gray 
wolves worldwide by the Wolf Specialist Group of the World Conservation 
Union (IUCN).
    Releasing captive-raised Mexican wolves furthers the objective of 
the Mexican Wolf Recovery Plan. This reintroduction will establish a 
wild population of at least 100 Mexican wolves and reduce the potential 
negative effects of keeping them in captivity in perpetuity. If captive 
Mexican wolves are not reintroduced to the wild within a reasonable 
period of time, genetic, physical, or behavioral changes resulting from 
prolonged captivity could diminish their prospects for recovery.
    Designation of the released wolves as nonessential experimental is 
considered necessary to obtain needed State, Tribal, local, and private 
cooperation. This designation also allows for management flexibility to 
mitigate negative impacts, such as livestock depredation. Without such 
flexibility, intentional illegal killing of wolves likely would harm 
the prospects for success.

Potential for Conflict With Federal and Other Activities.

    As indicated, considerable management flexibility has been 
incorporated into the final 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 not expected to be adversely affected 
by 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.
    Also, the U.S. Department of Agriculture, Animal and Plant Health 
Inspection Service, Wildlife Services (WS) division will discontinue 
use of M-44's and choking-type snares in ``occupied Mexican wolf 
range'' (see definition in section 17.84(k)(15)). Other predator 
control activities may be restricted or modified pursuant to a 
cooperative management agreement or a conference between the WS and the 
Service.
    The Service and other authorized agencies may harass, take, remove, 
or translocate Mexican wolves under certain circumstances described in 
detail in this rule. Private citizens also are given broad authority to 
harass Mexican wolves for purposes of scaring them away from people, 
buildings, facilities, pets, and livestock. They may kill or injure 
them in defense of human life or when wolves are in the act of 
attacking their live stock (if certain conditions are met). In 
addition, ranchers can seek compensation from a private fund if 
depredation on their livestock occurs.
    No formal consultation under section 7 of the Act would be required 
regarding potential impacts of land uses on nonessential experimental 
Mexican wolves. Any harm to wolves resulting solely from habitat 
modification caused by authorized uses of public lands that are not in 
violation of the temporary restriction provisions or other provisions 
regarding take or harassment would be a legal take under this rule. Any 
habitat modification occurring on private or tribal lands would not 
constitute illegal take. Based on evidence from other areas, the 
Service does not believe that wolf recovery requires major changes to 
currently authorized land uses. The main management goals are to 
protect wolves from disturbance during vulnerable periods, minimize 
illegal take, and remove individuals from the wild population that 
depredate livestock or otherwise cause significant problems.
    The Service does not intend to change the ``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 
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 in the future.

Conflicts With State and Local Policies.

    In 1994, Arizona adopted an anti-trapping initiative (amending ARS 
section 17-301), which makes the use of several wildlife capture 
devices illegal, including leg-hold traps. However, the law does not 
prohibit ``the use of snares, traps not designed to kill, or nets to 
take wildlife for scientific research projects, falconry, or for 
relocation of the wildlife as may be defined or regulated by the 
Arizona Game and Fish Commission and or the Government of the United 
States.'' The Service believes leg-hold traps are an essential tool for 
wolf management. Their use will be primarily for research and 
relocation purposes. Although the Service believes that its primary 
purpose for leg-hold trapping (wolf research and relocation) is 
included in the exception to the Arizona law under ``traps not designed 
to kill,'' provisions and purposes for the use of wolf capture devices 
specified in this final experimental population rule [see section 17.84 
(k)(3)(ix)] would preempt State law to the extent it may conflict with 
Federal law.
    Catron and Sierra counties in New Mexico have land use planning 
ordinances that call for equal authority with Federal agencies over 
decisions affecting Federal lands within these counties. Similar 
assertions are made by both Apache and Greenlee counties in Arizona in 
their Land and Resource Policies. The Service has not submitted this 
Federal proposal to county approval processes under their various 
planning ordinances, due to legal, budget, staff, and time 
considerations. Wolf reintroduction under the Preferred Alternative 
does not directly conflict with Catron and Sierra counties' ordinances 
that prohibit the release of wolves into those counties, because no 
wolves will be released in those counties. Nevertheless, releasing 
wolves in nearby counties with foreseeable dispersal into Catron and 
Sierra counties, as proposed here, does appear to conflict with the 
goals of these ordinances; and wolves may be translocated into these 
counties in the future. The Act, Mexican wolf experimental population 
rule, and other Federal authority would preempt any conflicting local 
ordinances.

Key Changes in Final Rule as a Result of Public Comment

    The following key changes or clarifications were incorporated into 
the final rule based on comments received

[[Page 1756]]

on or related to the proposed rule, internal Service reviews, changes 
in Service policy, and the Service's experience with section (10)(j) 
rules for other nonessential experimental populations. These individual 
or cumulative changes do not more than marginally alter the projected 
overall impact of Mexican wolf reintroduction under the Preferred 
Alternative as set forth in the FEIS. Other minor additions and wording 
changes also have been made.
    (1) The Blue Range Wolf Recovery Area is identified as the 
biologically and environmentally preferable area, to be used first, 
with the White Sands Wolf Recovery Area to be used only as the back-up 
area, if later determined to be both necessary and feasible.
    (2) All conditional road closure and land use restriction language, 
except limited temporary closures around release pens, dens, and 
rendezvous sites has been removed.
    (3) Detailed definitions of ``disturbance-causing land use 
activities,'' ``livestock,'' ``public land,'' and ``rendezvous site'' 
have been added. The definition for disturbance-causing land use 
activities specifically exempts certain activities from the temporary 
closure provision.
    (4) The definition of ``secondary recovery zone'' was modified to 
clarify that, following the initial release of wolves in the primary 
recovery zone, wolves may be translocated and released in the secondary 
recovery zone for authorized management purposes.
    (5) The harassment provision has been expanded to allow anyone to 
harass Mexican wolves to scare them away from people, buildings, 
facilities, livestock, other domestic animals, and pets anywhere in the 
Experimental Population Area. Also, the proposed rule provision that 
restricted public land grazing allottees from waiting for wolves in 
order to harass them has been deleted.
    (6) Rule provisions have been reordered so that provisions 
authorizing or prohibiting take of Mexican wolves appear as subsections 
under section 17.84(k)(3).
    (7) Hunting was deleted from the list of examples of human 
activities during which non-negligent and incidental killing or 
injuring of a Mexican wolf might be considered unavoidable and 
unintentional take. Military training and testing was added to that 
list.
    (8) The provision that wolves may be captured and/or translocated 
when conflicting with a major land use was deleted. A provision that 
they may be captured and/or translocated when they endanger themselves 
by their presence in a military impact area was added.
    (9) A provision was added to authorize the take of Mexican wolves 
by livestock guarding dogs when used in the traditional manner.
    (10) Language was added to clarify the authority of the Service and 
designated agencies to use leg-hold traps and other effective devices 
to capture and control wolves according to approved management plans.
    (11) A provision was added to allow for the capture, killing, and/
or translocation of feral wolf-like animals, feral wolf hybrids, and 
feral dogs that exhibit evidence of hybridization, domestication, or 
socialization to humans.
    (12) A provision was added that prohibits the disturbance of dead 
or injured wolves or wolf parts or the area around them unless 
instructed to do so by an authorized agent of the Service.
    (13) We deleted the provision regarding revocation of the 
experimental status, and removal of the re-established wolves, 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.
    (14) The provision for removing the nonessential experimental 
population from the wild if a naturally-occurring population of wild 
wolves is discovered within 90 days of the initial release was deleted.
    (15) Language was added to clarify that packs whose established 
territories consist of portions of designated wolf recovery areas and 
portions of adjacent public lands will not be routinely captured and 
translocated.
    (16) The definition of public lands was revised to exclude State-
owned lands lying outside designated wolf recovery areas.

Summary of Public Participation

    In June 1996, public open house meetings and formal public hearings 
were held in El Paso, Texas; Alamogordo and Silver City, New Mexico; 
and Springerville, Arizona. About 166 people attended these meetings 
and had an opportunity to speak with agency representatives and submit 
oral and written comments. Oral testimony was presented by 49 people at 
the hearings, and 150 people submitted written comments on the proposed 
rule. We received a petition supporting full endangered status for 
reintroduced Mexican wolves signed by 32 people; and a petition 
opposing the reintroduction of Mexican wolves signed by 91 people. In 
addition, many comments on the DEIS were specific to the draft proposed 
rule or related management considerations. These comments also were 
considered in this revision of the proposed rule.
    Chapter 5 of the FEIS provides a summary of the many comments 
received on the DEIS and the Service's responses to those comments. 
Comments on the DEIS that specifically related to the draft proposed 
rule are reproduced and responded to below, along with the many 
additional comments received during the public comment period specific 
to the proposed rule. Many comments caused a language change from the 
proposed rule to the final rule.

Issues Raised in Public Comments, and Service Responses

    Key issues raised in public comments on the proposed rule, and the 
Service's responses to them, follow. They are grouped by the following 
topic areas--(1) Legal status designation; (2) Recovery areas; (3) 
Mexican Wolf Experimental Population Area; (4) Prevention of wolf 
dispersal; (5) Allowable take and harassment of wolves; (6) Livestock 
depredation; (7) Depredation control; (8) Definitions; (9) Land use 
restrictions; and (10) Other issues.

1. Legal Status Designation

    Comment: The Mexican wolf is not a valid subspecies and thus should 
not be the subject of an experimental population rule. In fact, the 
Service in the northern Rockies litigation has taken the position that 
there are no gray wolf subspecies.
    Response: Experts on wolf taxonomy recognize the Mexican wolf 
(Canis lupus baileyi) as a distinct gray wolf subspecies. The Service 
agrees with these experts. Please refer to the discussion on Taxonomy 
in Chapter 1 of the FEIS.
    Comment: Wolves should be released as experimental essential.
    Response: The Service determined that the nonessential experimental 
classification fits the Mexican wolf's status. Only wolves surplus to 
the captive breeding program will be released. (See section herein on 
Findings Regarding Reintroduction, and FEIS Appendix D--section 7 
Consultation on Proposed Action, section on Effects on Mexican Gray 
Wolf, regarding definition of ``surplus'' wolves and significance of 
their removal from the captive population.) Their loss would not 
jeopardize the continued survival of the subspecies. Further, the 
nonessential experimental classification

[[Page 1757]]

allows for management flexibility deemed vital to successful wolf 
recovery. Experimental essential status is neither required by section 
10(j) of the Act nor the implementing regulations, and it has not been 
used in past reintroductions of captive-raised animals, such as the red 
wolf, black-footed ferret, and California condor.
    Comment: No theory of population biology would allow the FWS to 
reach the conclusion that a population of only 136 wolves, including 
immature pups, has any biologically ``surplus'' adults.
    Response: The Service disagrees. The number of wolves in captivity 
is adequate to support the proposed reintroduction, through the 
reintroduction of genetically surplus wolves, without significantly 
affecting the likelihood of survival of the population remaining in 
captivity. This is not the same as saying that the total captive or 
wild populations (or both combined) would constitute a minimum viable 
population under conservation biology principles. The goal of this 
reintroduction effort is to initiate the recovery of the subspecies. 
There is strong information from reintroduction efforts for other gray 
wolf populations, the red wolf, and other species that the nonessential 
designation is biologically appropriate to successfully initiate the 
recovery process.
    Comment: Designation of the Mexican wolf as nonessential means that 
it is not endangered, therefore there is no reason to reintroduce it.
    Response: The ``experimental nonessential'' terminology in section 
10(j) of the Act is confusing. It does not mean that the animal is not 
near extinction and it does not mean the reintroduction is just an 
experiment. It is a classification designed to make the reintroduction 
and management of endangered species more flexible and responsive to 
public concerns to improve the likelihood of successfully recovering 
the species.
    Comment: The experimental nonessential designation cannot legally 
be used because the reintroduced population would not be wholly 
separate geographically from nonexperimental populations of the same 
species.
    Response: The Service disagrees; To date, despite numerous surveys, 
no evidence has been found that a naturally-occurring wild Mexican wolf 
population exists or will exist in the future in the United States.
    Comment: The wolf should stay on the ``endangered'' list; there is 
potential confusion if experimental nonessential is used and wild 
wolves recolonize the same areas; further, the plan to relocate any 
wild wolves from Mexico that disperse into the experimental population 
area (outside the recovery areas) defeats the Act's goal of protecting 
such wild endangered animals.
    Response: The best available information supports the Service's 
conclusion that no populations of or individual Mexican wolves exist 
anywhere in the wild. This justifies the reintroduction of nonessential 
experimental animals.
    Comment: If wild Mexican wolves did naturally recolonize in areas 
where the Service proposes to reintroduce captive-raised animals, this 
should not be grounds for canceling the reintroduction; instead it 
should be considered a plus that would increase the chances of success 
of the reintroduction.
    Response: See response to previous comment.
    Comment: If wild wolves did naturally recolonize in the areas where 
reintroduced wolves were established, then a ``sunset clause'' should 
take effect that results in the termination of the status of the 
reintroduced population as ``nonessential experimental'' and results in 
all the wolves in the area having full-endangered status.
    Response: The Service disagrees. Based on the best available 
information, we have determined that no wild population of or 
individual Mexican wolves exist in the recovery areas or anywhere else 
prior to reintroduction. The Service believes that it would be unwise 
to allow for an automatic status change of all wolves in the area from 
experimental to endangered if non-reintroduced wolves suddenly 
appeared, which the Service considers to be an impossibility.
    Comment: The provision to look for a naturally-occurring wild wolf 
population for up to 90 days after initiation of the reintroduction 
does not seem to reconcile with the fact that they need to have been 
there at least for 2 years to qualify under the Service's definition of 
a ``population''.
    Response: We agree and have deleted this provision.
    Comment: The nonessential experimental status is not as flexible as 
the Service claims; the reintroduced wolves would still have to be 
considered in environmental analyses and planning for other projects in 
the designated recovery areas, at least as a ``sensitive'' species 
under ``cumulative impacts.'' Therefore, the presence of the wolves 
would affect future site specific, forest-wide, and region-wide 
decision making.
    Response: The Service agrees that the presence of the wolves may 
have minor effects on future projects and plans in the wolf recovery 
areas; however, those effects would be reduced under nonessential 
experimental status as compared to under endangered status. The 
agencies involved would have more flexibility as far as addressing 
potential impacts on the wolves; and they would not have to conduct 
formal consultations under section 7 of the Act.

2. Recovery Areas

    Comment: The Proposed Action in the DEIS emphasized using the Blue 
Range Wolf Recovery Area and/or the White Sands Wolf Recovery Area 
while the Proposed Experimental Population Rule emphasized both areas 
being used; why the difference?
    Response: The draft ``Proposed Mexican Wolf Experimental Population 
Rule'' was written to cover the Proposed Action (in the DEIS) in its 
fullest application, that is, as if both areas were ultimately used. It 
should not be interpreted as a statement that both areas actually will 
be used. The Preferred Alternative (in the FEIS) chosen in the Record 
of Decision emphasizes initial use of the Blue Range Wolf Recovery 
Area, with possible later use of the White Sands Wolf Recovery Area 
only if determined to be both necessary and feasible. The final rule 
reflects this preference.
    Comment: The areas are too large and will tie up too much land.
    Response: The largest area, the Blue Range Wolf Recovery Area, is 
estimated to be an appropriate size to support a sustainable wolf 
population of 100 animals. The White Sands Wolf Recovery Area is too 
small to support a sustainable wolf population without active human 
management of the population. The designation of these areas carries no 
use restrictions with it that will ``tie up'' the land.
    Comment: There is no evidence that these areas were part of the 
historic range of the C.l. baileyi subspecies.
    Response: The Service disagrees. Chapter 1 of the FEIS includes a 
detailed discussion of Mexican wolf taxonomy and probable historic 
range. The latter takes in the two designated wolf recovery areas. 
Further, Chapter 3 in the FEIS discussion under ``Animals--History of 
Wolves'' for the two areas includes historical documentation of wolves.
    Comment: The wolf recovery area boundaries are objectionable and 
the areas are too small; the plan to return dispersing wolves means 
that they will only be allowed to reinhabit a small fraction of 
historic wolf habitat in the

[[Page 1758]]

Southwest within the experimental population area. Several separated 
populations are needed to create a stable metapopulation. They should 
at least be allowed to disperse south to the Coronado National Forest 
area. Dispersal corridors between the Blue Range Wolf Recovery Area and 
the White Sands Wolf recovery Area should be provided for in the rule.
    Response: The boundaries represent the areas most likely to 
successfully support wolf recovery, consisting predominately of public 
land that has rated high for wolf recovery attributes. This will be the 
first phase of Mexican wolf recovery; additional recovery areas will be 
needed in the future to achieve the goal of removing the Mexican wolf 
from the endangered species list. Such additional areas could be within 
the designated experimental population area or outside this area, 
including in Mexico if inter-governmental cooperation is achieved. No 
decisions have been made yet regarding future areas. The establishment 
of a dispersal corridor between the Blue Range Area and the White Sands 
Area does not appear feasible. One general criterion for dispersal 
corridors is that they be comprised of habitat that is suitable for the 
target species. No contiguous strip of suitable wolf habitat exists 
between these areas, which are separated by about 50 miles. It is 
conceivable that wolves could travel between these areas, but they 
would encounter considerable human activity and private property. In 
addition, they would have to cross Interstate Highway 25 and the Rio 
Grande in the vicinity of Elephant Butte and Caballo Reservoirs.

3. Mexican Wolf Experimental Population Area (MWEPA)

    Comment: The Mexican Wolf Experimental Population Area (MWEPA) is 
about twice as large as needed to administer the rule. The western 
boundary should be moved further to the east and the eastern boundary 
further to the west.
    Response: The Service disagrees. No naturally occurring populations 
of wolves exist in or anywhere near the MWEPA. The most likely natural 
recolonization areas have been excluded from the MWEPA (FEIS 
Alternative D). A smaller MWEPA might have the confusing potential of 
artificially creating ``endangered'' Mexican wolves (if their 
experimental status is unclear) by allowing re-established wolves to 
quickly disperse outside the MWEPA. The Service believes the proposed 
MWEPA provides necessary management flexibility.
    Comment: Wolves found outside the MWEPA should not have full 
endangered status under the Act; there are no wild wolves left, 
therefore any wolves found in the Southwest, even if unmarked, most 
likely will have originated from the reintroduced population.
    Response: Wolves found outside the MWEPA that can be identified as 
a member of the experimental population will retain their nonessential, 
experimental status for management purposes.

4. Prevention of Dispersal

    Comment: It is not feasible to recapture and return wolves. Wolves 
will disperse to where they are categorized as endangered under the 
Act.
    Response: The Service disagrees. In Minnesota and other areas, the 
Service and other agencies have many years of experience in capturing 
and translocating wolves. Wolves that leave the large Mexican wolf 
experimental population area could still be managed under this rule.
    Comment: For wolves that establish territories on public lands 
outside the designated recovery areas, the management approach should 
not be automatic removal; instead, consultation should be entered into 
with the land managers, similar to that provided for private and tribal 
lands outside the designated recovery areas. If removal is necessary, 
the preference should be returning them to the recovery areas rather 
than to captivity. The plan should also allow for changes to the 
recovery areas boundaries.
    Response: A limited and defined area is considered necessary to 
allow the wolf the highest degree of acceptance and recovery and to 
allow the Service and cooperating agencies to plan for wolf management. 
Allowing the recovery areas to expand out continually would defeat this 
purpose. However, if the Service determined it was necessary to 
survival and recovery of the reintroduced population, it is possible 
that after thorough evaluation the Service could recommend changes to 
the recovery area boundaries. These would have to be proposed as a 
revision to the final Mexican Wolf Experimental Population Rule and be 
subject to formal agency and public review under rulemaking procedures 
and the National Environmental Policy Act. Language has been added to 
the rule to clarify that members of wolf packs whose territories 
consist of public lands lying both within and outside designated 
recovery areas would not routinely be captured and translocated. On the 
issue of a preference to return captured wolves to the recovery areas, 
rather than captivity, the Service prefers this option for non-problem 
wolves. The Service does not think it is appropriate to write such a 
preference into the rule because many factors might enter into future 
case-by-case decision making on this issue.

5. Allowable Take and Harassment of Wolves

    Comment: The level of legal protection is too low.
    Response: The legal protections afforded Mexican wolves under this 
rule are considered adequate. Except for narrowly defined exceptions, 
killing of the wolves would be a violation of the Act, and of this 
rule, and would subject the offenders to severe penalties.
    Comment: Wolves that eat livestock should not be killed, but 
removed from the area.
    Response: Nonlethal control methods will be preferred and 
encouraged. Depredating wolves taken alive would generally be 
translocated to an area where they are less likely to depredate or put 
back into the captive population. Euthanasia is a last resort.
    Comment: The Service is too willing to kill or move wolves that 
threaten livestock or leave the recovery areas.
    Response: The Service disagrees. The management strategy of 
removing livestock-depredating wolves has proved successful for wolf 
recovery elsewhere, and the Service believes it is appropriate.
    Comment: The provisions to kill and harass wolves for protection of 
humans and livestock will be abused; the numbers of breeding pairs 
required before this could be allowed is too low.
    Response: The Service anticipates some level of abuse of provisions 
for taking wolves, but believes that extensive public education and 
information efforts, as well as strong law enforcement, will keep abuse 
levels low. The provisions on allowable take and harassment of wolves 
are narrowly drawn so that they are only to be used in ways that 
enhance wolf recovery, i.e., by removing depredating wolves and by 
conditioning wolves to generally avoid humans and livestock. On the 
question of the numbers of breeding pairs needed before allowing 
harassment or killing, there is no minimum number before nonlethal 
harassment is allowed. Nonlethal harassment can benefit wolf recovery 
by negatively conditioning wolves to humans and livestock. As far as 
the numbers before allowing private killing of livestock on public 
lands, under narrow conditions, the Service believes that six breeding 
pairs on the BRWRA represent substantial progress

[[Page 1759]]

toward recovery objectives. Information on progress toward these goals 
will be made available to the public. The number of wolves killed under 
this provision is expected to be very few, if any, and of minor 
consequence to the progress of wolf recovery once the prescribed number 
of pairs has been reached.
    Comment: Harassing or killing wolves on public lands should not be 
allowed.
    Response: Public lands are multiple use lands and the limited 
harassment and killing of wolves allowed is considered appropriate to 
protect other land uses and promote successful wolf recovery.
    Comment: The allowance of unavoidable or unintentional take is too 
vague and unenforceable.
    Response: The Service disagrees. Notice of general wolf locations 
will be publicized. Hunters (and others) who might shoot a wolf are 
responsible to identify their targets before shooting. Information and 
education efforts should minimize illegal take by shooting. Information 
on how to avoid unintentional trapping will be made available. The few 
trappers in these areas will be on notice that if they do trap a wolf 
it likely would not be considered ``unavoidable or unintentional.'' The 
other area of expected unintended killing of wolves is by collisions 
with vehicles and the Service sees little point in making the 
unintended hitting of a wolf by a vehicle illegal.
    Comment: Prosecution for illegal killings of Mexican wolves should 
be mandatory, instead of the ``may'' be prosecuted language used in the 
proposed rule.
    Response: Prosecutorial discretion is important for successful 
prosecutions. The Service is committed to vigorous enforcement in 
appropriate cases where evidence exists that illegal killing occurred.
    Comment: The provision allowing take of wolves to defend human life 
is offensive because there has never been a documented case of wolves 
killing humans.
    Response: The Service agrees there are no documented cases of 
wolves attacking and killing or severely injuring people in North 
America, but there have been a few instances of wolves attacking 
people, although not seriously injuring them. The point of the 
provision, which is consistent with the Act, is to make it quite clear 
that wolves may be killed if they attack humans, even though this is 
extremely unlikely to occur.

6. Livestock Depredation

    Comment: Regarding the provisions allowing take of wolves that 
attack livestock: they are too broad, the time limit for the private 
permit should be drastically reduced from up to 45 days, and take 
should not be allowed unless depredation exceeds a certain percentage 
of the herd present, e.g., 1 or 2 percent. Also, the allowance for 
taking nuisance wolves and for using lethal methods are too vague.
    Response: The Service believes the provisions are reasonable, can 
be administered with appropriate discretion, and will not impede wolf 
recovery. It would be very difficult to accurately monitor livestock 
depredation rates attributable exclusively to wolves. Protocols for 
various management measures, such as grounds and procedures for permit 
issuance for the taking of wolves and the use of lethal methods, will 
be spelled out in greater detail in the Service-approved management 
plan referenced in this rule.
    Comment: Public lands ranchers will be put out of business by the 
unacceptably high level of livestock depredation, unless they are given 
more freedom to kill wolves. They should not be required to get a 
permit to control depredating wolves.
    Response: The Service believes that some ranchers could be 
adversely affected in a given year but evidence from other areas where 
wolves and ranching co-exist does not support the idea that ranchers on 
these multiple-use public lands will be driven out of business without 
greater ability to kill wolves. The permit requirement will serve to 
reduce unauthorized killing of wolves and to reduce potential conflicts 
with other public land users, such as hikers and campers.
    Comment: The private depredation compensation fund should be 
incorporated into the rule, with a backup provision that if private 
funding fails, then the Service will commit to continuing the fund.
    Response: Absent additional legislation, the Service does not 
believe it would be appropriate to commit governmental funds to back up 
the private Defenders of Wildlife fund. The reintroduction is not 
contingent on the existence of the private fund, but experience with 
the fund in the Northern Rockies indicates it is reliable.
    Comment: The proposed rule indicates it would be illegal for a 
livestock producer to ``wait for'' wolves for the purpose of scaring 
them away. This is counterproductive to the purpose of allowing 
harassment. If a livestock producer has reason to believe his stock 
have been attacked or harassed by wolves, it is only reasonable that he 
or she be vigilant for recurrence.
    Response: The Service agrees, and the restriction on waiting for 
wolves in the case of harassment has been deleted.
    Comment: The provision in the proposed rule allowing livestock 
owners and their agents to harass wolves in the immediate vicinity of 
``people, buildings, facilities, [and] pets'' should also apply on 
public lands because several ranchers on public lands have line shacks 
and other facilities on public lands, where they may stay with their 
children, pets, and so on.
    Response: The Service agrees and has expanded the harassment 
provision to apply everywhere within the Experimental Population Area.
    Comment: Hunting dogs are as valuable as livestock and should be 
included as such in the rule for purposes of deciding whether wolves 
have depredated and whether compensation is due.
    Response: The use of hunting dogs carries with it an accepted risk 
of attack by wild animals. We believe this is consistent with the 
philosophy of ``fair chase'' in the sport of hunting. We disagree that 
the killing or injuring of a hunting dog by a wolf in the wild should 
be cause for controlling wolves. The Defenders of Wildlife has sole 
discretion to determine which acts of depredation are compensable.

7. Depredation Control

    Comment: The Arizona anti-trapping law means that traps could not 
be used to control wolves.
    Response: The Service believes leg-hold traps are an essential tool 
for wolf management. We have included specific provisions for their use 
in this rule which we believe comply with the exception language in the 
Arizona law which allows non-lethal trapping for scientific and 
research purposes. To the extent wolf trapping provisions in this rule 
conflict with the State law (if they conflict at all), this rule would 
preempt the State trapping ban.
    Comment: M-44's and choking snares should be restricted over a much 
larger area than called for in the rule; the proposed section 
(j)(3)(vii), basically limits the restriction to a 5 miles radius 
buffer around known locations of the wolves, which is inadequate to 
protect them in view of their ability to travel rapidly.
    Response: The Service is preparing a Biological Opinion (under 
provisions of section 7 of the Act) on the potential effects of the WS 
program on Mexican wolves. We believe this biological

[[Page 1760]]

opinion combined with special provisions in this rule will adequately 
protect the Mexican wolf. If unacceptable levels of take occur, the 
Biological Opinion or the rule, or both, would be revised.
    Comment: Coyote control will be adversely impacted in areas where 
the restriction on M-44's and choking-type neck snares is imposed. At 
the most, this should be limited to the primary recovery zone.
    Response: Selective lethal control of coyotes by traps, calling and 
shooting, and aerial shooting, as well as a variety of nonlethal 
techniques are allowed under this rule. Field research and observations 
suggest that coyote populations may be reduced by inter-specific 
aggression in areas occupied by wolves.
    Comment: The inability to use helicopters in designated federal 
wilderness areas means that a key tool for depredation control will not 
be available.
    Response: Existing restrictions on the use of helicopters in 
wilderness areas are not affected or changed by this rule. The Service 
believes that adequate depredation control can be accomplished in 
wilderness areas. However, we recognize that depredation control in 
wilderness areas may be less efficient and effective than in non-
wilderness areas.
    Comment: It will be very difficult in the huge southwestern ranges 
to find depredated livestock and to determine whether a decomposed 
carcass represents a wolf depredation; therefore, the depredation 
control efforts and compensation fund won't work.
    Response: The Service acknowledges that some livestock killed by 
wolves may not be discovered in time to determine the cause of death; 
and that ranchers may not be compensated for these losses.

8. Definitions

    Comment: The lack of a definition of ``problem wolves'' gives too 
much management flexibility. ``Harass'' must be more clearly defined. 
``Rendezvous sites'' needs definition.
    Response: With the addition of a definition of ``rendezvous site'', 
all these terms are defined in the final rule. The Service believes 
management flexibility is positive. Additional refinement of the 
definition of ``problem wolves'' could occur under the Service-approved 
interagency management plan that would be developed under the final 
rule.
    Comment: Better definitions are needed of how wolves impact game 
populations and how wolves would conflict with a major land use. The 
former definition amounts to a subtle attempt by the Service to take 
over the State management of game populations.
    Response: The definition in the rule of ``impact on game 
populations in ways which may further inhibit wolf recovery'' is 
considered adequate and was developed in cooperation with State game 
management agencies. It is not a mechanism to dictate State game 
management, rather, it defines when wolves may be moved to lessen wolf 
impacts on State-managed game herds. There was no definition of when a 
wolf is ``conflicting with a major land use'' and the Service has 
decided to drop that provision from the Preferred Alternative and this 
rule. It is vague and adequate management flexibility exists under 
other rule provisions.
    Comment: The definition of ``disturbance-causing land use 
activity'' should specifically exclude the use of lands within the 
national park or national wildlife refuge systems as safety buffer 
zones for weapons or missile tests or training.
    Response: The Service agrees and the definition of this term has 
been revised to reflect this.
    Comment: The definition of ``engaged in the act of killing, 
wounding, or biting livestock'' should be changed so that observing a 
wolf feeding on a livestock carcass would justify the assumption that 
the wolf had actually attacked and killed the animal, unless the 
carcass was obviously decomposed, so that the livestock owner could 
shoot the wolf.
    Response: The Service disagrees. Many livestock animals, especially 
calves, die from other causes. Observing a wolf feeding on a carcass is 
not an adequate reason to kill the wolf, but it would be a basis to 
harass the wolf. If subsequent investigation of the carcass showed that 
the wolf did in fact kill the carcass, then a depredation control 
effort would be initiated and the rancher likely would be entitled to 
compensation.

9. Land Use Restrictions

    Comment: The land use restrictions are inadequate to protect the 
wolves.
    Response: Land use restrictions have proven almost entirely 
unnecessary in other areas where wolf recovery is occurring. Such 
restrictions are counterproductive unless they are clearly needed.
    Comment: To avoid conflicts, back roads should be closed in the 
areas regardless of illegal wolf killing.
    Response: This would create unnecessary bad will toward the wolf 
without adding a conservation benefit. The Service has deleted the 
back-country road closure provision.
    Comment: A radius of more than 1 mile should be used for public 
access restrictions around release pens, dens, and rendezvous sites--2 
to 4 miles; the radius should be on a case-by-case basis and not 
specified in the rule.
    Response: No basis for a larger restricted area is evident now. If 
such a change proved necessary, the Service could propose to amend the 
experimental population rule to increase the radius.
    Comment: The so-called limited closures are in fact not minor and 
will virtually shut down the denning and vaguely defined rendezvous 
areas to human use, such as logging for many months, at least for April 
through October. This, together with possible back country road 
closures, could devastate the already threatened Southwest timber 
industry. Also, the closures around dens, etc., could result in road 
closures.
    Response: The Service believes that proposed closures or use 
restrictions would be minor. They would be implemented only if deemed 
to be necessary to protect Mexican wolves from harm; no closure would 
exceed an area of about 3 square miles (4.8 km2) or a circle 
with a 1 mile (1.6 km2) radius which is about 2,000 acres 
(810 ha); no closure would be in effect for more than 4 months, except 
possibly those around release pens; and release pen closures would only 
be necessary in the primary recovery zones when releases are actually 
being made. Only one active den site or one active rendezvous site 
would exist at any given time (except for a possible overlap of 1-2 
weeks) in each active pack territory. Pack territories are expected to 
include about 250 square miles (96.5 km2). Therefore, on 
average, no more than 3-6 square miles (7.8-15.5 km2) of 
every 250 square miles (96.6 km2) or 1.2-2.4 percent of the 
total public land area could be closed or restricted at any time. 
Furthermore, no closures or use restrictions would be imposed on 
private or tribal lands without the consent of the owner or tribal 
government. Nevertheless, the level of concern expressed regarding this 
provision has caused the Service to define ``disturbance-causing land 
use activities'' in the final rule. The new definition specifically 
exempts certain land use activities from the closure provision. In 
addition, the Service has eliminated the ``back-country road'' closure 
provision because it is not clear that it would be effective in 
addressing the problem of illegal killing. Instead,

[[Page 1761]]

more emphasis will be placed on public education and law enforcement.
    Comment: The access restrictions around pens, dens, and rendezvous 
sites should be implemented in a way that does not attract undue, 
potentially destructive, and counterproductive attention to them.
    Response: We agree and will consider this view when determining the 
need for restrictions.
    Comment: The road, den, and rendezvous site access closures would 
prevent Phelps Dodge Company from accessing wells and equipment on the 
Upper Eagle Creek and prevent other legitimate access to, and uses of, 
private property in the Blue Range Wolf Recovery Area.
    Response: The road closure provision has been deleted. Closures 
around den and rendezvous sites would be flexible and on an as-needed 
basis. These would not occur in such a way as to prevent access to 
private property or to authorized use locations on public property. See 
response to the two previous comments.
    Comment: The provision in the rule that no land use restrictions 
would be imposed to protect the wolves is negated by the citizen suit 
provision of the Act, which will be used by pro-wolf groups to impose 
such restrictions.
    Response: The Service disagrees that the citizen suit provision of 
the Act could successfully impose land use restrictions, as long as the 
nonessential experimental designation is not declared invalid. This has 
not occurred in litigation against other section 10(j) rules.

10. Other Issues

    Comment: Drivers on public highways should be excused from 
accidental hitting of wolves, but off-road drivers in wolf habitat 
should not be excused.
    Response: It is hard to conceive that an off-road vehicle could be 
moving fast enough to hit a wolf by accident or on purpose before the 
wolf could move out of the way. If this proves to be a problem, which 
the Service does not expect, the rule could be revised.
    Comment: Military training and testing should be added to paragraph 
(j)(3)(i) as examples of legal activities. Also, in paragraph (3)(ii), 
military testing and training should be added as examples of authorized 
agency actions.
    Response: The suggested additions have been made.
    Comment: The statement in section (j)(9) of the proposed rule that 
the Service would terminate the reintroductions if a court ordered the 
Service to change the designation from nonessential experimental to a 
higher degree of protection is illegal and has another major flaw. If 
the court required the Service to proceed with the changed status then 
the Service would have to proceed regardless of that statement.
    Response: This provision has been deleted.
    Comment: Management of the reintroduced wolves would be better left 
to local authorities, who would provide more realistic and workable 
solutions. The rule should provide for implementation of the 
reintroductions by local governments and much more autonomy at the 
local level for deciding how to do the reintroductions, the criteria 
for continuing with them, and law enforcement. The Service should 
cooperate on implementation of the rule with State fish and wildlife 
agencies, which should have substantial responsibility for the effort.
    Response: The Service is legally responsible under the Act for 
recovering endangered species. We encourage non-Federal agencies with 
established wildlife management authority (such as State or Tribal 
wildlife management departments) to develop and implement Mexican wolf 
management plans in cooperation with the Service. These plans must 
promote wolf recovery and must be approved by the Service. We will 
develop a process for interacting with local governments and other 
stakeholders before wolves are released.
    Comment: No agreements should be made with any State or local 
agencies which would bind the FWS regarding the terms of the 
reintroduction.
    Response: Because of our legal responsibilities under the Act, the 
Service must insure that agreements with other agencies will promote 
recovery of the Mexican wolf.
    Comment: A more open process is needed to involve the public in how 
the actual reintroduction effort will proceed. The rule should have 
more clear provisions for public involvement and information 
availability.
    Response: The Service is exploring additional avenues of 
communication and interaction with the public in the implementation of 
Mexican wolf reintroduction. A process for public interaction will be 
in place before wolves are released. We believe that this rule is not 
the appropriate place to provide details of a public interaction 
process.
    Comment: The provisions requiring 24-hour notice to the Service if 
a wolf is taken need to be clearer about when the period begins and who 
and how to contact to meet the requirement. Also, the Service must 
commit to being available to be contacted.
    Response: We will provide information in a variety of ways to 
residents and users of wolf recovery areas on how to comply with 
reporting requirements in the rule. A way to notify a Service 
representative will be provided.
    Comment: The Service has failed to consult with affected landowners 
and agencies and to seek agreement on the Mexican Wolf Experimental 
Population Rule.
    Response: The Service has consulted with affected agencies and with 
interested landowners and members of the public (see previous 
discussion regarding participation in the proposed rule public comment 
process). The DEIS review process provided substantial opportunity for 
review of and consultation on the draft proposed rule. More focussed 
meetings, hearings, and consultations occurred upon official 
publication of the proposed rule (61 FR 19237). Several changes have 
been made to the final rule based on our agreement with comments 
received on the proposed rule. Given the hundreds of private landowners 
and other entities involved, no overall agreement on all the terms of 
the rule among all affected interests was feasible.
    Comment: The proposed rule process has been flawed because it was 
issued before the Final EIS was issued and before the Record of 
Decision was issued. Without these steps, the public has had inadequate 
information upon which to make meaningful comments.
    Response: We believe that the sequencing of the DEIS, proposed 
rule, FEIS, ROD, and final rule is legal and proper. Further, we 
believe that the public's opportunity to review and comment on the 
proposed rule has exceeded the legal requirement. The draft proposed 
rule was an important component of the Proposed Action in the DEIS. A 
draft of the proposed rule appeared in Appendix C of the DEIS. Fourteen 
public meetings and three hearings were held on the DEIS. The public 
had 126 days to comment on the DEIS. The proposed rule was then 
published separately in the Federal Register (61 FR 19237) with a 61-
day comment period, and four public hearings were held. All comments 
addressing provisions of the draft proposed rule in the DEIS or the 
proposed rule in the Federal Register (61 FR 19237) were reviewed and 
considered in this final rule. It would be improper to issue the final 
rule before the FEIS because the final rule must be consistent with the 
Record of Decision (ROD), and the ROD must, by law, follow the FEIS by 
at least 30 days.

[[Page 1762]]

Effective Date Justification

    The 30 day delay between publication of this final rule and its 
effective date as provided by the Administrative Procedure Act (5 U.SC. 
533 (d) (3)) has been reduced. This is to allow for the timely transfer 
of suitable release candidates to soft release pens for acclimation 
purposes. The following biological considerations necessitate this 
approach. The approved reintroduction of captive wolves initially 
requires transfer from captive facilities to soft-release pens in the 
recovery area and an acclimation period of several weeks at the release 
site prior to actual release to the wild. Wolf experts have recommended 
that the reintroduction process begin in January due to the 
reproductive cycle of the Mexican wolf, thereby allowing sufficient 
time for wolves to become accustomed to their surroundings prior to 
release and thus easing their transition to the wild environment. 
Wolves typically breed from late January through early March. In order 
not to disrupt breeding, wolves need to be moved to the soft release 
pens as soon as possible. Wolf experts involved in previous wolf 
releases agree that the wolves should spend about 2 months in the 
release pens prior to actual release. Wolves typically give birth from 
early April to early May. The plan is to release the Mexican wolves 
about 30 days before they have pups to allow sufficient time for the 
adult wolves to find a suitable den location and excavate a den. 
Therefore, Mexican wolves must be moved to the soft release pens in 
late January and begin their 2-month acclimation period so that they 
can be released around mid to late March. This soft release protocol 
was developed in previous wolf releases and has been successful.
    A draft proposed rule was made available for public review and 
comment as part of the draft EIS for the Mexican wolf reintroduction 
proposal. A proposed rule was later issued for additional public review 
and comment. Opportunity for public discussion and debate of rule 
provisions was provided at 18 public meetings and hearings throughout 
potentially affected areas. The rule making process has been responsive 
to extensive input received from public agencies and further review is 
unlikely to reveal new substantive issues. Because of the biological 
conditions described above and the extensive public review of the 
proposed rule, EIS, and Record of Decision for this action, Mexican 
wolf reintroduction should begin as soon as possible after the 
publication of this rule. Therefore, due to biological considerations 
and the extensive public review process already conducted, good cause 
exists for this rule to be effective 14 days after publication.

National Environmental Policy Act

    A FEIS on reintroduction of the Mexican wolf in the southwestern 
United States has been prepared and is available to the public (see 
ADDRESSES section). The FEIS should be referred to for analysis of the 
Preferred Alternative chosen in the Record of Decision. Also, the FEIS 
contains a complete list of references for the background information 
provided here.

Required Determinations

    This 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.). This final rule 
classifies Mexican wolves to be re-established as a nonessential 
experimental population under section 10(j) of the Act. This rule sets 
forth management directions and provides for limited allowable legal 
take of wolves within a defined Mexican Wolf Experimental Population 
Area. The 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. No direct costs, information 
collection, or record keeping requirements are imposed on small 
entities by this action. This final rule is not a major rule as defined 
by 5 U.S.C. 804(2).
    This final rule contains collections of information that require 
approval by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. The Service has already requested emergency authorization for this 
from the Office of Management and Budget (OMB). No information will be 
collected for this action until OMB authorization is provided.
    The Service has determined and certifies pursuant to the Unfunded 
Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not 
impose a cost of $100 million or more in any given year on local or 
State governments or private entities.
    Takings implications of this final rule have been reviewed under 
Executive Order 12630, the Attorney General Guidelines, Department 
Guidelines, and the Attorney General Supplemental Guidelines. One issue 
of concern is the depredation of livestock by reintroduced wolves; but, 
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.
    The Service has determined that this final rule meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of Executive 
Order 12988.
    This rule has been reviewed under Executive Order 12612 to 
determine federalism considerations in policy formulation and 
implementation. Some 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 rule. 
Nevertheless, the Service has endeavored to cooperate with State 
wildlife agencies and County and Tribal governments in the preparation 
of this rule.

Author

    The primary author of this document is Mr. David R. Parsons (see 
ADDRESSES section, above).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record-keeping requirements, Transportation.

Regulation Promulgation

    Accordingly, the Service hereby amends 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 section 17.11(h), revise the table entry for ``Wolf, 
gray'' under MAMMALS to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *

[[Page 1763]]

    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                Vertebrate                                                                 
----------------------------------------------------                      population where                                    Critical                  
                                                       Historic range      endangered or       Status       When listed       habitat      Special rules
          Common name              Scientific name                           threatened                                                                 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals                                                                                                                                                 
                                                                                                                                                        
                            *                  *                  *                  *                  *                  *                  *         
Wolf, gray.....................  Canis lupus.......  Holarctic.........  U.S.A., conterm-   E             1, 6, 13, 35,   17.95(a)......  NA            
                                                                          inous (lower 48)                 561, 562.                                    
                                                                          States, except                                                                
                                                                          MN and where                                                                  
                                                                          listed as an                                                                  
                                                                          experimental                                                                  
                                                                          population;                                                                   
                                                                          Mexico.                                                                       
    Do.........................  ......do..........  ......do..........  U.S.A. (MN)......  T             35............  17.95(a)......  17.40(d)      
    Do.........................  ......do..........  ......do..........  U.S.A. (WY and     XN            561, 562......  NA............  17.84(i)      
                                                                          portions of ID                                                                
                                                                          and MT--see                                                                   
                                                                          17.84(i)).                                                                    
    Do.........................  ......do..........  ......do..........  U.S.A. (portions   XN              ............  NA............  17.84(k)      
                                                                          of AZ, NM, and                                                                
                                                                          TX--see                                                                       
                                                                          17.84(k)).                                                                    
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. The Service amends Sec. 17.84 by adding paragraph (k) to read as 
follows:


Sec. 17.84  Special rules--vertebrates.

* * * * *
    (k) Mexican gray wolf (Canis lupus baileyi).
    (1) The Mexican gray wolf (Mexican wolf) populations reestablished 
in the Blue Range Wolf Recovery Area and in the White Sands Wolf 
Recovery Area, if used, within the Mexican Wolf Experimental Population 
Area, identified in paragraph (k)(9) of this section, are one 
nonessential experimental population. This nonessential experimental 
population will be managed according to the following provisions.
    (2) Based on the best available information, the 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; that the 
experimental population is not ``essential,'' under 50 CFR 17.81(c)(2); 
that the experimental population is wholly separate geographically from 
any other wild gray wolf population or individual wild gray wolves; 
that no wild Mexican wolves are known to exist in the experimental 
population area or anywhere else; and that future migration of wild 
Mexican wolves into the experimental population area is not possible.
    (3) No person, agency, or organization may ``take'' [see definition 
in paragraph (k)(15) of this section] any wolf in the wild within the 
Mexican Wolf Experimental Population Area, except as provided in this 
rule. The Service may investigate each take of a Mexican wolf and may 
refer the take of a wolf contrary to this rule to the appropriate 
authorities for prosecution.
    (i) Throughout the Mexican Wolf Experimental Population Area, you 
will not be in violation of the Act or this rule for ``unavoidable and 
unintentional take'' [see definition in paragraph (k)(15) of this 
section] of a wolf. Such take must be non-negligent and incidental to a 
legal activity, such as military training and testing, trapping, 
driving, or recreational activities. You must report the take within 24 
hours to the Service's Mexican Wolf Recovery Coordinator or to a 
designated representative of the Service.
    (ii) Throughout the Mexican Wolf Experimental Population Area, you 
may ``harass'' [see definition in paragraph (k)(15) of this section ] 
wolves that are within 500 yards of people, buildings, facilities, 
pets, ``livestock'' [see definition in paragraph (k)(15) of this 
section], or other domestic animals in an opportunistic, noninjurious 
manner [see definition of ``opportunistic, noninjurious harassment'' in 
paragraph (k)(15) of this section] at any time--provided that wolves 
cannot be purposely attracted, tracked, searched out, or chased and 
then harassed. You must report harassment of wolves within 7 days to 
the Service's Mexican Wolf Recovery Coordinator or to a designated 
representative of the Service.
    (iii) Throughout the 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 or this rule for unavoidable or unintentional take 
of a wolf resulting from any action authorized by that Federal agency 
or by the Service, including, but not limited to, military training and 
testing. This provision does not exempt agencies and their contractors 
from complying with sections 7(a)(1) and 7(a)(4) of the Act, the latter 
of which requires a conference with the Service if they propose an 
action that is likely to jeopardize the continued existence of the 
Mexican wolf.
    (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 private land anywhere within the Mexican Wolf Experimental 
Population Area, livestock owners or their agents may take (including 
kill or injure) any wolf actually ``engaged in the act of killing, 
wounding, or biting livestock'' [see definition in paragraph (k)(15) of 
this section]; provided that evidence of livestock freshly wounded or 
killed by wolves is present; and further provided that the take is 
reported to the Service's Mexican Wolf Recovery Coordinator or a 
designated representative of the Service within 24 hours.
    (vi) On tribal reservation land anywhere within the Mexican Wolf 
Experimental Population Area, livestock owners or their agents may take 
(including kill or injure) any wolf actually engaged in the act of 
killing, wounding, or biting livestock; provided that evidence of 
livestock freshly wounded or killed by wolves is present; and further 
provided that the take is reported to the Service's Mexican Wolf 
Recovery Coordinator or a designated representative of the Service 
within 24 hours.

[[Page 1764]]

    (vii) On ``public lands'' [see definition in paragraph (k)(15) of 
this section] allotted for grazing anywhere within the Mexican Wolf 
Experimental Population Area, including within the designated ``wolf 
recovery areas'' [see definition in paragraph (k)(15) of this section], 
livestock owners or their agents may be issued a permit under the Act 
to take wolves actually engaged in the act of killing, wounding, or 
biting ``livestock'' [see definition in paragraph (k)(15) of this 
section]. Before such a permit is issued, the following conditions must 
be met--livestock must be legally present on the grazing allotment; six 
or more ``breeding pairs'' [see definition in paragraph (k)(15) of this 
section] of Mexican wolves must be present in the Blue Range Wolf 
Recovery Area; previous loss or injury of livestock on the grazing 
allotment, caused by wolves, must be documented by the Service or our 
authorized agent; and agency efforts to resolve the problem must be 
completed. Permits issued under this provision will be valid for 45 
days or less and will specify the maximum number of wolves you are 
allowed to take. If you take a wolf under this provision, evidence of 
livestock freshly wounded or killed by wolves must be present. You must 
report the take to the Service's Mexican Wolf Recovery Coordinator or a 
designated representative of the Service within 24 hours.
    (viii) Throughout the Mexican Wolf Experimental Population Area, 
take of Mexican wolves by livestock guarding dogs, when used in the 
traditional manner to protect livestock on public, tribal, and private 
lands, is permitted. If you become aware that such take by your guard 
dog has occurred, you must report the take to the Service's Mexican 
Wolf Recovery Coordinator or a designated representative of the Service 
within 24 hours.
    (ix) Personnel authorized by the Service may take any Mexican wolf 
in the nonessential experimental population in a manner consistent with 
a Service-approved management plan, special management measure, or a 
valid permit issued by the Service under Sec. 17.32. This may include, 
but is not limited to, capture and translocation of wolves that--prey 
on livestock; attack pets or domestic animals other than livestock on 
private or tribal land; ``impact game populations in ways which may 
inhibit further wolf recovery'' [see definition in paragraph (k)(15) of 
this section]; 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'' [see definition in 
paragraph (k)(15) of this section]; are a nuisance; endanger themselves 
by their presence in a military impact area; need aid or veterinary 
care; or are necessary for authorized scientific, research, or 
management purposes. Lethal methods of take may be used when reasonable 
attempts to capture wolves alive fail and when the Service determines 
that immediate removal of a particular wolf or wolves from the wild is 
necessary. Authorized personnel may use leg-hold traps and any other 
effective device or method for capturing or controlling wolves to carry 
out any measure that is a part of a Service-approved management plan, 
notwithstanding any conflicts in State or local law. The disposition of 
all wolves (live or dead) or their parts taken as part of a Service-
authorized management activity must follow provisions in Service-
approved management plans or interagency agreements or procedures 
approved by the Service on a case-by-case basis.
    (x) As determined by the Service to be appropriate, the Service or 
any agent so authorized by the Service may capture, kill, subject to 
genetic testing, place in captivity, euthanize, or return to the wild 
(if found to be a pure Mexican wolf) any feral wolf-like animal, feral 
wolf hybrid, or feral dog found within the Mexican Wolf Experimental 
Population Area that shows physical or behavioral evidence of 
hybridization with other canids, such as domestic dogs or coyotes; 
being an animal raised in captivity, other than as part of a Service-
approved wolf recovery program; or being socialized or habituated to 
humans.
    (xi) The United States Department of Agriculture, Animal and Plant 
Health Inspection Service, Wildlife Services (WS) division will 
discontinue use of M-44's and choking-type snares in ``occupied Mexican 
wolf range'' [see definition in paragraph (k)(15) of this section]. The 
WS division may restrict or modify other predator control activities 
pursuant to a cooperative management agreement or a conference between 
the Service and the WS division.
    (xii) You may harass or take a Mexican wolf in self defense or 
defense of the lives of others, provided that you report the harassment 
or take within 24 hours to the Service's Mexican Wolf Recovery 
Coordinator or a designated representative of the Service. If the 
Service or an authorized agency determines that a wolf presents a 
threat to human life or safety, the Service or the authorized agency 
may kill it, capture and euthanize it, or place it in captivity.
    (xiii) Intentional taking of any wolf in the Mexican Wolf 
Experimental Population Area, except as described above, is prohibited. 
The Service encourages those authorized to take wolves to use nonlethal 
means when practicable and appropriate.
    (4) You must not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any wolf or wolf part from 
the experimental population except as authorized in this rule or by a 
valid permit issued by the Service under Sec. 17.32. If you kill or 
injure a wolf or find a dead or injured wolf or wolf parts, you must 
not disturb them (unless instructed to do so by an authorized agent of 
the Service), you must minimize your disturbance of the area around 
them, and you must report the incident to the Service's Mexican Wolf 
Recovery Coordinator or a designated representative of the Service 
within 24 hours.
    (5) You must not attempt to commit, solicit another to commit, or 
cause to be committed, any offense defined in this rule.
    (6) No land use restrictions will be imposed on private lands for 
Mexican wolf recovery without the concurrence of the landowner.
    (7) No land use restrictions will be imposed on tribal reservation 
lands for Mexican wolf recovery without the concurrence of the tribal 
government.
    (8) On public lands, the Service and cooperating agencies may 
temporarily restrict human access and ``disturbance-causing land use 
activities'' [see definition in paragraph (k)(15) of this section] 
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'' [see definition in paragraph 17.84(k)(15) of this 
section] between June 1 and September 30, as necessary.
    (9) The two designated wolf recovery areas and the experimental 
population area for Mexican wolves classified as a nonessential 
experimental population by this rule are described in the following 
subsections. Both designated wolf recovery areas are within the 
subspecies' probable historic range and are wholly separate 
geographically from the current range of any known Mexican wolves or 
other gray wolves..
    (i) The Blue Range Wolf Recovery Area includes all of the Apache 
National Forest and all of the Gila National Forest in east-central 
Arizona and west-central New Mexico (Figure 1). Initial releases of 
captive-raised Mexican wolves will take place,

[[Page 1765]]

generally as described in our Preferred Alternative in the FEIS on 
Mexican wolf reintroduction, within the Blue Range Wolf Recovery Area 
``primary recovery zone'' [see definition in paragraph (k)(15) of this 
section]. This is the area within the Apache National Forest bounded on 
the north by the Apache-Greenlee County line; on the east by the 
Arizona-New 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 
population to expand into the Blue Range Wolf Recovery Area ``secondary 
recovery zone'' [see definition in paragraph (k)(15) of this section], 
which is the remainder of the Blue Range Wolf Recovery Area not in the 
primary recovery zone.

BILLING CODE 4310-55-P

[[Page 1766]]

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BILLING CODE 4310-55-C

[[Page 1767]]

    (ii) The White Sands Wolf Recovery Area in south-central New Mexico 
includes all of the White Sands Missile Range; the White Sands National 
Monument; 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 2). This is the back-up reintroduction area, to be used only if 
later determined to be both necessary and feasible in accordance with 
the Preferred Alternative as set forth in the FEIS on Mexican wolf 
reintroduction. If this area is used, initial releases of captive-
raised wolves would take place 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 Head quarters 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 would allow the wolf 
population 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.

BILLING CODE 4310-55-P

[[Page 1768]]

[GRAPHIC] [TIFF OMITTED] TR12JA98.003



BILLING CODE 4310-55-C

[[Page 1769]]

    (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 reestablishment throughout this area, but only within 
the Blue Range Wolf Recovery Area, and possibly later in the White 
Sands Wolf Recovery Area, respectively described in paragraphs (k)(9) 
(i) and (ii) of this section. If a member of the nonessential 
experimental population is captured inside the Mexican Wolf 
Experimental Population Area, but outside the designated wolf recovery 
areas, it will be re-released within the recovery area, put into the 
captive population, or otherwise managed according to provisions of a 
Service-approved management plan or action. 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, identification mark, or physical or 
behavioral traits (see paragraph (k)(3)(x) of this section), 
establishes otherwise. If such evidence exists, the Service or an 
authorized agency will attempt to promptly capture the wolf and re-
release it within the recovery area, put it into the captive 
population, or carry out any other management measure authorized by 
this rule or a Service-approved management plan. Such a wolf is 
otherwise not subject to this rule outside the designated Mexican Wolf 
Experimental Population Area.

BILLING CODE 4310-55-P

[[Page 1770]]

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BILLING CODE 4310-55-C

[[Page 1771]]

    (10) If Mexican wolves of the experimental population occur on 
public lands outside the designated wolf recovery area(s), but within 
the Mexican Wolf Experimental Population Area, the Service or an 
authorized agency will attempt to capture any radio-collared lone wolf 
and any lone wolf or member of an established pack causing livestock 
``depredations'' [see definition in paragraph (k)(15) of this section]. 
The agencies will not routinely capture and return pack members that 
make occasional forays onto public land outside the designated wolf 
recovery area(s) 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 wholly outside the designated wolf recovery 
area(s).
    (11) If any wolves move onto private land outside the designated 
recovery area(s), but within the Mexican Wolf Experimental Population 
Area, the Service or an authorized agency will develop management 
actions in cooperation with the landowner including capture and removal 
of the wolf or wolves if requested by the landowner.
    (12) If any wolves move onto tribal reservation land outside the 
designated recovery area(s), but within the Mexican Wolf Experimental 
Population Area, the Service or an authorized agency will develop 
management actions in cooperation with the tribal government including 
capture and removal of the wolf or wolves if requested by the tribal 
government.
    (13) The Service will evaluate Mexican wolf reintroduction progress 
and prepare periodic progress reports, detailed annual reports, and 
full evaluations after 3 and 5 years that recommend continuation, 
modification, or termination of the reintroduction effort.
    (14) The Service does not intend to change the ``nonessential 
experimental'' designation to ``essential experimental,'' 
``threatened,'' or ``endangered'' and foresees no likely situation 
which would result in such changes. Critical habitat cannot be 
designated under the nonessential experimental classification, 16 
U.S.C. 1539(j)(2)(C)(ii).
    (15) Definitions--Key terms used in this rule have the following 
definitions.
    Breeding pair means an adult male and an adult female wolf that 
have produced at least two pups during the previous breeding season 
that survived until December 31 of the year of their birth.
    Depredation means the confirmed killing or wounding of lawfully 
present domestic livestock by one or more wolves. The Service, WS, or 
other Service-authorized agencies will confirm cases of wolf 
depredation on domestic livestock.
    Disturbance-causing land use activity means any land use activity 
that the Service determines could adversely affect reproductive 
success, natural behavior, or survival of Mexican wolves. These 
activities may be temporarily restricted within a 1-mile radius of 
release pens, active dens, and rendezvous sites. Such activities may 
include, but are not limited to--timber or wood harvesting, management-
ignited fire, mining or mine development, camping outside designated 
campgrounds, livestock drives, off-road vehicle use, hunting, and any 
other use or activity with the potential to disturb wolves. The 
following activities are specifically excluded from this definition--
    (1) Legally permitted livestock grazing and use of water sources by 
livestock;
    (2) Livestock drives if no reasonable alternative route or timing 
exists;
    (3) Vehicle access over established roads to private property and 
to areas on public land where legally permitted activities are ongoing 
if no reasonable alternative route exists;
    (4) Use of lands within the national park or national wildlife 
refuge systems as safety buffer zones for military activities;
    (5) Prescribed natural fire except in the vicinity of release pens; 
and
    (6) Any authorized, specific land use that was active and ongoing 
at the time wolves chose to locate a den or rendezvous site nearby.
    Engaged in the act of killing, wounding, or biting livestock means 
to be engaged in the pursuit and grasping, biting, attacking, wounding, 
or feeding upon livestock that are alive. If wolves are observed 
feeding on a livestock carcass, you cannot assume that wolves killed 
the livestock because livestock can die from many causes and wolves 
will feed on carrion.
    Harass means ``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). This experimental population rule permits only 
``opportunistic, noninjurious harassment'' (see definition below).
    Impact on game populations in ways which may inhibit further wolf 
recovery. The Service encourages states and tribes to define 
unacceptable impacts from wolf predation on game populations in 
Service-approved management plans. Until such time the term will mean 
the following--2 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 pre-wolf 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 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.
    Livestock means cattle, sheep, horses, mules, and burros or other 
domestic animals defined as livestock in State and Tribal wolf 
management plans approved by the Service.
    Occupied Mexican wolf range means an 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:
    (1) 5-mile (8 km) radius around all locations of wolves and wolf 
sign confirmed as described above (nonradio-monitored);
    (2) 5-mile (8 km) radius around radio locations of resident wolves 
when fewer than 20 radio locations are available (for radio-monitored 
wolves only); or
    (3) 3-mile (4.8 km) radius around the convex polygon developed from 
more than 20 radio locations of a pack, pair, or single wolf acquired 
over a period of at least 6 months (for radio-monitored wolves).
    This definition applies only within the Mexican Wolf Experimental 
Population Area.
    Opportunistic, noninjurious harassment (see ``harass'') means as 
the wolf presents itself (for example, the wolf travels onto and is 
observed on private land or near livestock). This is the only type of 
harassment permitted by this rule. You cannot track, attract, search 
out, or chase a wolf and then harass it. Any harassment must not cause 
bodily injury or death to the wolf. The basic intent of harassment 
permitted by this rule is to scare wolves away from the immediate area. 
It is limited to approaching wolves and 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

[[Page 1772]]

not at wolves; or making any loud noise in proximity to wolves.
    Primary recovery zone means an area where the Service--
    (1) Will release captive-raised Mexican wolves,
    (2) May return and re-release previously released Mexican wolves,
    (3) May release translocated wild-born Mexican wolves, and
    (4) Will actively support recovery of the reintroduced population.
    Problem wolves means wolves that--
    (1) Have depredated lawfully present domestic livestock,
    (2) Are members of a group or pack (including adults, yearlings, 
and young-of-the-year) that were directly involved in livestock 
depredations,
    (3) Were fed by or are dependent upon adults involved with 
livestock depredations (because young animals will likely acquire the 
pack's livestock depredation habits),
    (4) Have depredated domestic animals other than livestock on 
private or tribal lands, two times in an area within one year, or
    (5) Are habituated to humans, human residences, or other 
facilities.
    Public land means land under administration of Federal agencies 
including, but not limited to the National Park Service, Bureau of Land 
Management, Fish and Wildlife Service, Forest Service, Department of 
Energy, and Department of Defense; and State-owned lands within the 
boundary of a designated wolf recovery area. All State-owned lands 
within the boundary of the experimental population area, but outside 
designated wolf recovery areas, will be subject to the provisions of 
this rule that apply to private lands.
    Rendezvous site means a gathering and activity area regularly used 
by a litter of young wolf pups after they have emerged from the den. 
Typically, the site is used for a period ranging from about one week to 
one month in the summer. Several sites may be used in succession.
    Secondary recovery zone means an area adjacent to a primary 
recovery zone in which the Service allows released wolves to disperse, 
where wolves captured in the wild for authorized management purposes 
may be translocated and released, and where managers will actively 
support recovery of the reintroduced population.
    Take means``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)). Also, see definitions of ``harass'', 
``opportunistic, noninjurious harassment'', and ``unavoidable and 
unintentional take.''
    Unavoidable and unintentional take means accidental, unintentional 
take (see definition of ``Take'') which occurs despite reasonable care, 
is incidental to an otherwise lawful activity, and is not done on 
purpose. Examples would be striking a wolf with an automobile and 
catching a wolf in a trap outside of known occupied wolf range. Taking 
a wolf with a trap, snare, or other type of capture device within 
occupied wolf range (except as authorized in paragraph (k)(3)(ix) and 
(x) of this section) will not be considered unavoidable, accidental, or 
unintentional take, unless due care was exercised to avoid taking a 
wolf. Taking a wolf by shooting will not be considered unavoidable, 
accidental, or unintentional take. Shooters have the responsibility to 
be sure of their targets.
    Wolf recovery area means a designated area where managers will 
actively support reestablishment of Mexican wolf populations.

    Dated: January 7, 1998.
William Leary,
Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-681 Filed 1-8-98; 9:20 am]
BILLING CODE 4310-55-P