Proposed Rule2021-23627
Endangered and Threatened Wildlife and Plants; Revision to the Nonessential Experimental Population of the Mexican Wolf
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 29, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (USFWS), propose new revisions to the existing experimental population designation of the Mexican wolf (Canis lupus baileyi) in the Mexican Wolf Experimental Population Area (MWEPA) in Arizona and New Mexico under section 10(j) of the Endangered Species Act of 1973, as amended (ESA). We are taking this action in response to a court-ordered remand of our January 16, 2015, final rule revising the regulations for the nonessential experimental population of the Mexican wolf. This document proposes to modify the population objective, establish a genetic objective, and temporarily restrict three of the forms of take of Mexican wolves in the MWEPA that we adopted in the January 16, 2015, final rule. We are proposing these revisions to ensure the long-term conservation and recovery of the Mexican wolf. In addition, this document proposes to maintain the nonessential designation for the experimental population. We are not proposing to revise the geographic boundaries of the MWEPA. We are seeking comment from the public on the proposed regulatory revisions and on a draft supplemental environmental impact statement for the proposed revisions. We also announce public information sessions and public hearings on this proposed rule and the associated draft supplemental environmental impact statement.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 207 (Friday, October 29, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 207 (Friday, October 29, 2021)]
[Proposed Rules]
[Pages 59953-59975]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23627]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2021-0103; FXES111302WOLF0-212-FF02ENEH00]
RIN 1018-BE52
Endangered and Threatened Wildlife and Plants; Revision to the
Nonessential Experimental Population of the Mexican Wolf
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; availability of draft supplemental environmental
impact statement; announcement of public information sessions and
public hearings.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (USFWS), propose new
revisions to the existing experimental population designation of the
Mexican wolf (Canis lupus baileyi) in the Mexican Wolf Experimental
Population Area (MWEPA) in Arizona and New Mexico under section 10(j)
of the Endangered Species Act of 1973, as amended (ESA). We are taking
this action in response to a court-ordered remand of our January 16,
2015, final rule revising the regulations for the nonessential
experimental population of the Mexican wolf. This document proposes to
modify the population objective, establish a genetic objective, and
temporarily restrict three of the forms of take of Mexican wolves in
the MWEPA that we adopted in the January 16, 2015, final rule. We are
proposing these revisions to ensure the long-term conservation and
recovery of the Mexican wolf. In addition, this document proposes to
maintain the nonessential designation for the experimental population.
We are not proposing to revise the geographic boundaries of the MWEPA.
We are seeking comment from the public on the proposed regulatory
revisions and on a draft supplemental environmental impact statement
for the proposed revisions. We also announce public information
sessions and public hearings on this proposed rule and the associated
draft supplemental environmental impact statement.
DATES:
Written comments: We will accept public comments received or
postmarked on or before January 27, 2022. Comments submitted
electronically using the Federal eRulemaking Portal (see ADDRESSES)
must be received by 11:59 p.m. Eastern Time on the closing date. Due to
a court-ordered deadline, we will not extend the date for public review
and comment on these documents.
Public information sessions and public hearings: We are holding
three public information session and two public hearings, as follows:
<bullet> On November 18, 2021, we will hold a public information
session from 5:30 p.m. to 7:30 p.m., Mountain Time.
<bullet> On December 8, 2021, we will hold a public information
session from 5:30 p.m. to 7 p.m., Mountain Time, followed by a public
hearing from 7 p.m. to 9 p.m., Mountain Time.
<bullet> On January 11, 2022, we will hold a public information
session from 5:30 p.m. to 7 p.m., Mountain Time, followed by a public
hearing from 7 p.m. to 9 p.m., Mountain Time.
ADDRESSES:
Written comments: You may submit written comments on this proposed
rule and the associated draft supplemental environmental impact
statement by one of the following methods:
(1) Electronically: Go to the Federal Rulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In the Search box, enter the docket number or RIN
for this rulemaking (presented above in the document headings). For
best results, do not copy and paste either number; instead, type the
docket number or RIN into the Search box using hyphens. Then, click on
the Search button. On the resulting page, in the Search panel on the
left side of the screen, under the Document Type heading, check the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment.''
(2) By hard copy: Submit comments by U.S. mail or hand-delivery to:
Public Comments Processing, Attn: FWS-R2-ES-2021-0103, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA
22041-3803.
We request that you send written comments only by the methods
described above. We will post all comments on <a href="http://www.regulations.gov">http://www.regulations.gov</a>. This generally means that we will post any
personal information you provide us (see Information Requested, below,
for more information).
Public information sessions and public hearings: The public
information sessions and public hearings will be held virtually via the
Zoom online video platform and via teleconference so that participants
can attend remotely. See Public Information Sessions and Public
Hearings, below, for more information.
FOR FURTHER INFORMATION CONTACT: Brady McGee, Mexican Wolf Recovery
Coordinator, U.S. Fish and Wildlife Service, New Mexico Ecological
Services Field Office, 2105 Osuna Road NE, Albuquerque, NM 87113; by
telephone at 505-761-4704; or by facsimile 505-761-2542. If you use a
telecommunications device for the deaf (TDD), call the Federal Relay
Service at 800-877-8339. You may visit the Mexican Wolf Recovery
Program's website at <a href="https://www.fws.gov/southwest/es/mexicanwolf/">https://www.fws.gov/southwest/es/mexicanwolf/</a> for
additional information about the Mexican wolf recovery effort, and
<a href="https://www.fws.gov/southwest/es/mexicanwolf/10j-revision">https://www.fws.gov/southwest/es/mexicanwolf/10j-revision</a> for
information about our proposed revision.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why We Need To Publish a Rule
Under section 10(j) of the ESA, the USFWS may designate a
population of an endangered or threatened species as an experimental
population prior to its reintroduction. Experimental populations can
only be designated by issuing a rule.
On January 12, 1998, we published a final rule (63 FR 1752)
adopting regulations that designate a nonessential experimental
population of the Mexican wolf. On January 16, 2015, we published a
final rule (80 FR 2512; the ``2015 10(j) rule'') revising those
experimental population regulations based on two decades of
implementing Mexican wolf reintroduction in the Mexican Wolf
Experimental Population Area (MWEPA) in portions of Arizona and New
Mexico. The 2015 10(j) rule expanded the geographic boundaries of
[[Page 59954]]
the MWEPA, established new management zones with provisions for initial
release and translocation of Mexican wolves, revised and added
allowable forms of take, and clarified definitions. On March 31, 2018,
the District Court of Arizona remanded the 2015 10(j) rule to the USFWS
to redress specific components of the rule in a new revised
experimental population rule (Center for Biological Diversity v.
Jewell, No. 4:15-cv-00019-JGZ (D. Ariz.) (March 31, 2018) (``March 31,
2018, Order'')). The 2015 10(j) rule has remained, and will remain, in
effect while we address the remand.
What This Document Does
This document proposes revisions to the experimental population
designation of Mexican wolves in the MWEPA in response to the March 31,
2018, Order. We propose to modify the population objective, establish a
genetic objective, and temporarily restrict three of the forms of take
of Mexican wolves in the MWEPA that we adopted in the 2015 10(j) rule.
Proposed revisions also include a new essentiality determination. We
are not proposing or analyzing any changes to the 2015 10(j) rule
beyond the scope of the March 31, 2018, Order. Finally, we have also
updated the 2015 10(j) rule determinations with current data and
information. If adopted as proposed, this rule will designate Mexican
wolves in the MWEPA as a nonessential experimental population on the
List of Endangered and Threatened Wildlife in title 50 of the Code of
Federal Regulations (CFR) at 50 CFR 17.11(h) with a revised rule issued
under section 10(j) of the ESA at 50 CFR 17.84(k).
The Basis for Our Action
Based on the best scientific and commercial data available (in
accordance with 50 CFR 17.81), we find that releasing Mexican wolves
into the MWEPA, with the proposed revised regulatory provisions
described in this document, will further the long-term conservation and
recovery of the species. The proposed nonessential experimental
population status is appropriate for the reintroduced population
because we have determined that it is not essential to the continued
existence of the species in the wild.
In making our finding that this rule would further the conservation
and recovery of the species, we evaluate any possible adverse effects
on extant Mexican wolf populations, the likelihood that the
experimental population would become established and survive in the
foreseeable future, the relative effects that establishment of the
experimental population would have on the recovery of the species, and
the extent to which the reintroduced population could be affected by
existing or anticipated Federal, State, or Tribal actions or private
activities within or adjacent to the experimental population area. We
specifically evaluate how our proposed revisions to the population
objective, establishment of a genetic objective, and revisions to the
take provisions further the conservation of the species by aligning the
designation and management of the experimental population with USFWS's
long-term conservation and recovery goals for the Mexican wolf. In
addition, we identify the geographic boundaries of the MWEPA as defined
in the 2015 10(j) rule and note that we are not proposing geographic
revisions to the boundaries of the MWEPA, the management zones, or the
phasing of the Arizona portion of the MWEPA. We also explain our
rationale for why the population is not essential to the continued
existence of the species in the wild, and we describe management
restrictions, protective measures, or other special management concerns
for Mexican wolves. Last, we explain a proposed process for periodic
review and evaluation of the success or failure of the experimental
population and its effect on the conservation and recovery of the
species.
Supplemental Environmental Impact Statement
To ensure that we consider the environmental impacts associated
with this proposed rule, we have prepared a draft supplemental
environmental impact statement (DSEIS) pursuant to the National
Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321 et
seq.). On April 15, 2020, we published our notice of intent to prepare
the DSEIS (85 FR 20967); that document opened the public scoping
process under NEPA from April 15, 2020, to June 15, 2020, to seek
public input on the issues under remand by the March 31, 2018, Order.
We used the information gathered during scoping to inform our DSEIS and
used the analyses in the DSEIS to inform this proposed rule. The
comments we received are available online at <a href="http://www.regulations.gov">http://www.regulations.gov</a>
in Docket No. FWS-R2-ES-2020-0007.
Information Requested
We are seeking comments from the public on the proposed revisions
to the 2015 10(j) rule described in this document and our associated
DSEIS. We want to ensure that any final rule is as effective as
possible. Therefore, we request comments or information from other
concerned governmental agencies, Native American Tribes, the scientific
community, industry, and any other interested parties concerning this
proposed rule. Your comments should be as specific as possible.
We will post your entire comment--including your personal
identifying information--on <a href="http://www.regulations.gov">http://www.regulations.gov</a>. If you provide
personal identifying information in your comment, you may request at
the top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. The
comments we receive and any supporting documentation we used in
preparing this proposal will be available for public inspection at
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. All comments, including commenters' names
and addresses, if provided to us, will become part of the supporting
record.
We will consider comments and information we receive during the
public comment period on the proposed rule as we prepare our final rule
and final SEIS. Accordingly, the final rule and final SEIS may differ
from this proposal and the DSEIS. Please note that submissions merely
stating support for, or opposition to, the actions under consideration,
without providing supporting information, although noted, do not
provide substantial information necessary to support a determination.
Section 10(j)(2)(B) of the ESA (16 U.S.C. 1531 et seq.) and our
regulations at 50 CFR 17.81 direct that our determinations and findings
regarding designation of experimental populations be made utilizing the
best scientific and commercial data available.
We are specifically seeking comments on the proposed revisions to
the 2015 10(j) rule described in this document and the associated
DSEIS, including:
<bullet> The effect of the proposed revised population objective on
the recovery of the Mexican wolf, including the extent to which the
proposed revision supports the MWEPA population in contributing to
recovery;
<bullet> The effect of the proposed genetic objective on the
recovery of the Mexican wolf, including the extent to which the
proposed revision supports the MWEPA population in contributing to
recovery;
<bullet> The effects of the proposed temporary restriction of three
of the take provisions on the recovery of the Mexican wolf;
<bullet> The effects of the proposed revisions (population
objective, genetic objective, and take provisions) on public, Tribal,
and private lands with management activities such as ranching
[[Page 59955]]
and livestock production, hunting, guiding, and other land uses; and
<bullet> Scientific information pertinent to our proposed
determination to (re)designate the experimental population for the
Mexican wolf in the MWEPA as nonessential.
Public Information Sessions and Public Hearings
We have scheduled three public information sessions and two public
hearings on this proposed rule. We will hold the public information
meetings and public hearings on the dates and at the times listed above
under Public information sessions and public hearings in DATES. We are
holding the public information sessions and the public hearings via the
Zoom online video platform and via teleconference so that participants
can attend remotely. Options for participation include: (1) Listen to
and view one of the information sessions and one of the hearings via
Zoom, or (2) listen to the information sessions and hearings by
telephone. For security purposes and to ensure as many members of the
public can participate as possible within the capacity of our Zoom and
telephone lines, registration for the information sessions and hearings
is required. To listen and view the information sessions or hearings
via Zoom, listen to the information sessions or hearings by telephone,
or provide oral public comments at the public hearing by Zoom or
telephone, you must register. We ask that individuals register for only
one public information session and one public hearing. For information
on how to register, visit <a href="https://www.fws.gov/southwest/es/mexicanwolf/10j-revision">https://www.fws.gov/southwest/es/mexicanwolf/10j-revision</a>. If applicable, interested members of the public not
familiar with the Zoom platform should view the Zoom video tutorials
(<a href="https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials">https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials</a>) prior to the public information sessions and public
hearings.
The public hearings will provide interested parties an opportunity
to present verbal testimony (formal, oral comments) regarding this
proposed rule and the DSEIS. While the public information sessions will
be an opportunity for dialogue with the USFWS, the public hearings are
not: They are a forum for accepting formal verbal testimony. In the
event there is a large attendance, the time allotted for oral
statements may be limited. Therefore, anyone wishing to make an oral
statement during the public hearings for the record is encouraged to
provide a prepared written copy of their statement to us through the
Federal eRulemaking Portal, or U.S. mail (see ADDRESSES, above);
providing an oral comment is not required for submission of a written
comment. There is no limit on the length of written comments submitted
to us. Anyone wishing to make an oral statement at a public hearing
must register before the hearing (<a href="https://www.fws.gov/southwest/es/mexicanwolf/10j-revision">https://www.fws.gov/southwest/es/mexicanwolf/10j-revision</a>). The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
The USFWS is committed to providing access to the public
information sessions and public hearing for all participants. Live
audio via telephone or computer speakers and closed captioning via Zoom
will be available during public information sessions and public
hearings. We will post a full audio and video recording and transcript
of the public hearings online at <a href="https://www.fws.gov/southwest/es/mexicanwolf/10j-revision">https://www.fws.gov/southwest/es/mexicanwolf/10j-revision</a> after the hearings. Persons with disabilities
requiring reasonable accommodations to participate in a public
information session and/or hearing should contact the person listed
under FOR FURTHER INFORMATION CONTACT at least 5 business days prior to
the date of the information session and/or hearing to help ensure
availability. We will post an accessible version of the USFWS public
information session presentation online at <a href="https://www.fws.gov/southwest/es/mexicanwolf/10j-revision">https://www.fws.gov/southwest/es/mexicanwolf/10j-revision</a> prior to the date of the first
public information session (see DATES, above).
Background
Statutory and Regulatory Framework
The 1982 amendments to the ESA (16 U.S.C. 1531 et seq.) included
the addition of section 10(j), which allows for the designation of
populations of listed species planned to be reintroduced as
``experimental populations.'' Under section 10(j) of the ESA and our
regulations at 50 CFR 17.81, the USFWS may designate a population of
endangered or threatened species that will be released into suitable
habitat outside the species' current range (but within its probable
historical range, absent a finding by the Director of the USFWS in the
extreme case that the primary habitat of the species has been
unsuitably and irreversibly altered or destroyed) as an experimental
population.
In accordance with 50 CFR 17.81(b), before authorizing the release
as an experimental population (including eggs, propagules, or
individuals) of an endangered or threatened species, and before
authorizing any necessary transportation to conduct the release, the
USFWS must find by regulation that such release will further the
conservation of the species. In making such a finding, the USFWS uses
the best scientific and commercial data available to consider:
(1) Any possible adverse effects on extant populations of a species
as a result of removal of individuals, eggs, or propagules for
introduction elsewhere (see Possible Adverse Effects on Wild and
Captive Breeding Populations, below);
(2) The likelihood that any such experimental population will
become established and survive in the foreseeable future (see
Likelihood of Population Establishment and Survival, below);
(3) The relative effects that establishment of an experimental
population will have on the recovery of the species (see How Does the
Experimental Population Contribute to the Conservation of the Species?,
below); and
(4) The extent to which the introduced population may be affected
by existing or anticipated Federal, State, or Tribal actions or private
activities within or adjacent to the experimental population area (see
Actions and Activities that May Affect the Introduced Population,
below).
Furthermore, under 50 CFR 17.81(c), all regulations designating
experimental populations under section 10(j) shall provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location, actual
or anticipated migration, number of specimens released or to be
released, and other criteria appropriate to identify the experimental
population(s) (see Location and Boundaries of the Proposed Experimental
Population, below);
(2) A finding, based solely on the best scientific and commercial
data available, and the supporting factual basis, on whether the
experimental population is, or is not, essential to the continued
existence of the species in the wild (see Is the Experimental
Population Essential to the Continued Existence of the Species in the
Wild?, below);
(3) Management restrictions, protective measures, or other special
management concerns of that population, which may include but are not
limited to, measures to isolate and/or contain the experimental
population designated in the regulation from natural populations (see
Management
[[Page 59956]]
Restrictions, Protective Measures, and Other Special Management,
below); and
(4) A process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species (see Review and Evaluation of
the MWEPA Population, below).
Under 50 CFR 17.81(d), the USFWS shall consult with appropriate
State game and fish agencies, local governmental entities, Tribal
governments, affected Federal agencies, and affected private landowners
in developing and implementing experimental population rules. To the
maximum extent practicable, section 10(j) rules represent an agreement
between the USFWS, the affected State and Federal agencies, and persons
holding any interest in land that may be affected by the establishment
of an experimental population.
Under 50 CFR 17.81(f), the Secretary of the Interior (Secretary)
may designate critical habitat as defined in section 3(5)(A) of the ESA
for an essential experimental population. No designation of critical
habitat will be made for nonessential experimental populations. In
those situations where a portion or all of an essential experimental
population overlaps with a natural population of the species during
certain periods of the year, we will not designate critical habitat for
the area of overlap unless implemented as a revision to critical
habitat of the natural population for reasons unrelated to the overlap
itself.
Under 50 CFR 17.82, any population determined by the Secretary to
be an experimental population will be treated as if it were listed as a
threatened species for purposes of establishing protective regulations
with respect to that population. The protective regulations adopted for
an experimental population will contain applicable prohibitions, as
appropriate, and exceptions for that population.
Under 50 CFR 17.83(a), any experimental population designated for a
listed species (1) determined not to be essential to the survival of
that species and (2) not occurring within the National Park System or
the National Wildlife Refuge System will be treated for purposes of
section 7 (other than paragraph (a)(1)) of the ESA as a species
proposed to be listed under the ESA as a threatened species.
Under 50 CFR 17.83(b), any experimental population designated for a
listed species that either (1) has been determined to be essential to
the survival of that species or (2) occurs within the National Park
System or the National Wildlife Refuge System as now or hereafter
constituted will be treated for purposes of section 7 of the ESA as a
threatened species. Any biological opinion prepared pursuant to section
7(b) of the ESA and any agency determination made pursuant to section
7(a) of the ESA will consider any experimental and nonexperimental
populations to constitute a single listed species for the purposes of
conducting the analyses under such sections.
Legal Status
On January 16, 2015, we published a final rule (80 FR 2488) listing
the Mexican wolf as endangered. Previously, on January 12, 1998, we
published a final rule (63 FR 1752) adopting regulations that designate
a nonessential experimental population of the Mexican wolf in Arizona
and New Mexico as the Mexican Wolf Experimental Population Area
(MWEPA). The Mexican wolf is treated as endangered wherever it is found
except where included in the MWEPA.
The Mexican wolf is also protected by State laws in the United
States and by federal law in Mexico. In Arizona, the gray wolf,
including the Mexican wolf subspecies, is identified as a Species of
Greatest Conservation Need (Arizona Game and Fish Department 2012). The
gray wolf, including the Mexican wolf subspecies, is listed as
endangered in New Mexico (Wildlife Conservation Act, 17-2-37 through
17-2-46 New Mexico Statutes (NMSA) 1978; List of Threatened and
Endangered Species, 19.33.6 New Mexico Administrative Code (NMAC) 1978)
and Texas (Texas Parks and Wildlife Code, chapter 68). In Mexico, the
status of the Mexican wolf was updated from ``probably extinct in the
wild'' to ``endangered'' in November 2019, via federal regulations
(Norma Oficial Mexicana NOM-059-SEMARNAT-2010) (Secretar[iacute]a de
Medio Ambiente y Recursos Naturales [SEMARNAT; Federal Ministry of the
Environment and Natural Resources] 2010).
Previous Federal Actions
On April 28, 1976, we published a final rule (41 FR 17736) listing
the Mexican wolf as endangered under the ESA. On March 9, 1978, we
published a final rule (43 FR 9607) reclassifying the entire gray wolf
species in North America south of Canada as endangered, except in
Minnesota where we listed it as threatened. The March 9, 1978, gray
wolf listing rule subsumed the Mexican wolf subspecies listing but
stated that we would continue to recognize the Mexican wolf as a valid
biological subspecies for purposes of research and conservation.
On April 1, 2003, we published a final rule (68 FR 15804) revising
the classification of gray wolves by establishing three gray wolf
distinct population segments (DPSs), including the Mexican wolf in the
Southwestern DPS. Subsequently, in 2008, two federal district courts
overturned this rule, and the USFWS considered the gray wolf to have
reverted to its listing status prior to the April 1, 2003, rule (see 73
FR 75356; December 11, 2008).
On January 16, 2015, we published a final rule (80 FR 2488) listing
the Mexican wolf as endangered. This final rule created a separate
entry for the Mexican wolf on the List of Endangered and Threatened
Wildlife so that the subspecies was no longer subsumed in the gray wolf
listing. In effect, the Mexican wolf has been protected as endangered
since 1976.
On January 12, 1998, we published a final rule (63 FR 1752)
designating a nonessential experimental population of the Mexican wolf
in portions of Arizona and New Mexico. We began releasing captive
wolves into the wild in the MWEPA later that year. On January 16, 2015,
we published a final rule (80 FR 2512; the ``2015 10(j) rule'')
revising the January 12, 1998, experimental population designation to
improve the conservation and management of the Mexican wolf in the
MWEPA.
Our designation of the MWEPA in 1998, and our 2015 revisions to
that MWEPA designation, necessitated analysis of our proposed actions
under NEPA. On December 20, 1996, we released the final environmental
impact statement titled, ``Reintroduction of the Mexican Wolf within
its Historic Range in the Southwestern United States,'' and on November
25, 2014, we released our subsequent ``Environmental Impact Statement
for the Proposed Revision to the Regulations for the Nonessential
Experimental Population of the Mexican Wolf.''
On March 31, 2018, the District Court of Arizona remanded the 2015
10(j) rule to the USFWS (Center for Biological Diversity v. Jewell, No.
4:15-cv-00019-JGZ (D. Ariz.) (March 31, 2018) (``March 31, 2018,
Order'')). In response to the remand, we began the process to revise
the 2015 10(j) rule and develop the DSEIS. On April 15, 2020, we
published our notice of intent to prepare the DSEIS (85 FR 20967); that
document opened the public scoping process under NEPA to seek public
input on the issues under remand.
In addition to our rulemaking actions, the USFWS has developed two
recovery plans for the Mexican wolf: The 1982 Mexican Wolf Recovery
Plan (USFWS 1982), and the 2017 Mexican Wolf
[[Page 59957]]
Recovery Plan, First Revision (USFWS 2017a) (revised recovery plan).
The revised recovery plan supersedes the original plan and provides a
comprehensive strategy and long-term conservation and recovery goals
for the USFWS Mexican wolf recovery program. Following completion of
the revised recovery plan, we conducted a 5-year status review for the
Mexican wolf under section 4(c)(2)(A) of the ESA in 2018 (see 83 FR
25034; May 31, 2018).
For more detailed information on previous Federal actions
concerning the Mexican wolf through 2015, including petition findings
and other 5-year reviews, refer to the final rule to list the Mexican
wolf as endangered (80 FR 2488; January 16, 2015) and the 2015 10(j)
rule (80 FR 2512; January 16, 2015). We note that on November 3, 2020,
the USFWS published a final rule (85 FR 69778) removing the gray wolf
from the List of Endangered and Threatened Wildlife (i.e.,
``delisting'' the gray wolf). That rule provides additional information
on previous Federal actions for the gray wolf. The subspecies listing
for the Mexican wolf and the Mexican wolf experimental population
designation are not affected by the USFWS November 3, 2020, final rule
to delist the gray wolf. All previous actions for the Mexican wolf and
gray wolf are also available on the Environmental Conservation Online
System at <a href="https://ecos.fws.gov/ecp">https://ecos.fws.gov/ecp</a>; type ``gray wolf'' and ``Mexican
wolf'' into the Search Tool.
In addition to the information sources identified above, questions
about previous Federal actions can be directed to the Mexican Wolf
Recovery Program, U.S. Fish and Wildlife Service, New Mexico Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Recovery Efforts
The United States and Mexico have collaborated on Mexican wolf
recovery since the mid-1970s. The early focus of the binational
recovery effort was to save the Mexican wolf from extinction through
the establishment of a captive breeding population (USFWS 1982, p. 28).
The captive population held 369 Mexican wolves in approximately 55
facilities in the United States and Mexico as of June 30, 2020 (Scott
et al. 2020, p. 7). Although housed in numerous facilities, captive
Mexican wolves are managed as a single population through the routine
transfer of wolves among institutions for breeding events or other
management needs. The captive population is maintained in accordance
with stringent genetic and population objectives established by the
Species Survival Program (SSP). Reintroduction of the Mexican wolf to
the wild began in 1998 and 2011 for the United States and Mexico,
respectively (see USFWS 2017a, pp. 5-8 for additional information on
both reintroductions).
The USFWS revised recovery plan (see Previous Federal Actions,
above) provides the binational long-term recovery strategy for the
Mexican wolf, including recovery criteria and recovery actions (USFWS
2017a). The revised recovery plan strategy recommends establishing and
maintaining a minimum of two resilient, genetically diverse Mexican
wolf populations distributed across ecologically and geographically
diverse areas in the subspecies' range in the United States and Mexico
(USFWS 2017a, p. 10). Recovery criteria for downlisting and delisting
the Mexican wolf address threats related to the extinction risk
associated with small population size, loss of gene diversity and
related genetic issues, and human-caused mortality (USFWS 2017a, pp.
18-25). Criteria will need to be met in both countries for threats
across the range of the Mexican wolf to be lessened and alleviated
sufficiently to consider delisting the Mexican wolf. The revised
recovery plan provides for evaluations at 5 and 10 years after plan
implementation to ensure progress toward recovery (USFWS 2017a, pp. 26-
27). Site-specific actions to alleviate threats, as well as other
actions necessary to manage Mexican wolves across their range, are
provided (USFWS 2017a, pp. 28-34). A separate recovery implementation
strategy provides detailed activities for the USFWS and our partners to
contribute to the recovery actions (online at <a href="https://www.fws.gov/southwest/es/mexicanwolf/">https://www.fws.gov/southwest/es/mexicanwolf/</a>). We intend for the MWEPA population to serve
as the population to meet recovery criteria in the United States, and
Mexico is pursuing recovery in the Sierra Madre Occidental in northern
Mexico. (See Current Range in the United States and Mexico, below, for
additional information.)
The revised recovery plan provides an important foundation for our
proposed revisions to the 2015 10(j) rule. While we intended for the
2015 10(j) rule to improve the efficacy of reintroduction and
contribute to the conservation of the Mexican wolf, we were
simultaneously aware that at that time (2015) we did not have a full
vision of recovery with which to align the revised experimental
population designation. The USFWS recognized this shortcoming in the
2015 10(j) rule (80 FR 2512, January 16, 2015, pp. 2514-2515). We are
proposing revisions to the 2015 10(j) rule that address the March 31,
2018, Order by aligning the MWEPA designation with the long-term
conservation and recovery strategy and criteria in the revised recovery
plan.
In addition to publishing the 2015 10(j) rule and finalizing the
revised recovery plan in 2017, we have taken a number of steps to
advance the recovery of the Mexican wolf:
First, we have strengthened our collaborative management framework
with Federal, State, county, and Tribal partners. We initiated a new
Memorandum of Understanding for Mexican Wolf Recovery and Management
(June 24, 2019) (USFWS 2019; 2019 MOU). Signatories to the 2019 MOU as
of August 12, 2021, include: White Mountain Apache Tribe; Arizona Game
and Fish Department; New Mexico Department of Game and Fish; U.S.
Department of Agriculture Wildlife Services and U.S. Department of
Agriculture Forest Service; Bureau of Land Management--Arizona and
Bureau of Land Management--New Mexico; National Park Service; Catron
County, New Mexico; and Graham, Greenlee, Gila, and Navajo Counties in
Arizona, as well as the Eastern Arizona Counties Organization. The 2019
MOU establishes a framework for a long-term, scientific approach to
reintroducing and managing Mexican wolves in Arizona and New Mexico to
contribute to the recovery of the Mexican wolf pursuant to the revised
recovery plan. The 2019 MOU includes signature by agencies and counties
that were not signatories of the previous version at the time of the
2015 10(j) rule, representing a broadened base of expertise and
logistical support to manage Mexican wolves in the MWEPA and engage
with local communities and the public.
The USFWS and our domestic partners have also strengthened our
binational recovery collaboration with Mexico. Since the completion of
the revised recovery plan in 2017, the USFWS and our partners have
increased the extent of our technical support and communication at
staff, management, and leadership levels. We have collectively engaged
in coordination with the captive breeding facilities to ensure wolves
are available for release in both countries in support of achieving
recovery criteria. The USFWS and our partners have also provided wild
wolves from the MWEPA to Mexico for release (see Possible Adverse
Effects on Wild and Captive Breeding Populations, below, for additional
information on releases in Mexico). In April 2019, the USFWS, Arizona
Game and Fish Department, New Mexico Department of Game and Fish, the
[[Page 59958]]
federal government of Mexico (Direcci[oacute]n General de Vida
Silvestre and the Direcci[oacute]n de Especies Prioritarias para la
Conservaci[oacute]n), and other partners requested endorsement by the
Executive Table of the Canada/Mexico/U.S. Trilateral Committee for
Wildlife and Ecosystem Conservation and Management for strengthened
collaboration to implement recovery actions on both sides of the
border. In 2019, the Arizona Game and Fish Department was awarded
$75,000 through the USFWS Recovery Challenge grant program to assist
Mexico's Mexican wolf reintroduction. The Arizona Game and Fish
Department is also awarded funds of approximately $250,000 annually for
Mexican wolf recovery implementation through the USFWS Cooperative
Endangered Species Conservation Fund Traditional Section 6 grant
program.
The USFWS and our partners continue to intensively manage and
monitor the status of Mexican wolves in the MWEPA and now specifically
track progress toward achieving the recovery criteria in the revised
recovery plan for the United States. Numerous field staff from multiple
agencies, including law enforcement, conduct daily management
activities throughout the MWEPA. These activities include: Monitoring
and data collection of wolf locations and activity; conducting or
assisting with proactive or responsive management measures to address
wolf-livestock or wolf-human conflicts; releasing wolves; providing
vaccinations or other medical care; coordinating Mexican wolf transfers
between SSP facilities or with Mexico; investigating wolf mortalities;
and education and outreach in local communities and with the media. We
summarize these activities in quarterly and annual reports and in our
annual initial release and translocation plans available on our website
at <a href="https://www.fws.gov/southwest/es/mexicanwolf/">https://www.fws.gov/southwest/es/mexicanwolf/</a>. We use the data and
information we collect to adapt our management to ensure continued
progress toward recovery.
The USFWS and our partners have also tested the technique of cross-
fostering (placing captive-born pups into wild dens to be raised with
the wild litter) as a release method to increase gene diversity in the
MWEPA since 2014. Between 2014 and 2021, we have cross-fostered 78
pups, including placing 72 pups from captive dens into wild dens, and 6
pups from one wild den to another wild den. We have increased the
number of pups we cross-foster, from 2 pups in 2014 to 22 pups in 2021
based on our success with the management technique, the number of
captive litters that align with the birth of wild litters, and the
staffing capacity of our program and partner agencies (USFWS files).
The USFWS and our partners have also increased efforts to address
wolf-livestock conflict, which is one of the primary sources of concern
in local communities. The USFWS, our partners, and livestock owners and
operators implement a number of proactive management techniques to
reduce wolf-livestock conflict, including increasing the number and
geographic coverage of range riders, using fladry (strips of fabric
mounted along fencelines to deter wolves) in calving areas, harassing
or hazing Mexican wolves using scare devices and noise, manipulating
Mexican wolf pack movements using food caches, moving cattle away from
dens, and other activities (USFWS 2018, pp. 25-27). The USFWS provides
depredation compensation and funding for proactive management to
eligible States and Tribes through its Wolf Livestock Demonstration
Project grants. The Arizona Livestock Loss Board provides depredation
compensation for Arizona operators. Several nongovernmental
organizations also contribute substantial financial and logistical
resources to address and reduce livestock conflict. (See our annual
reports for information on funding related to livestock depredations
and proactive management, as well as additional information about the
Mexican Wolf/Livestock Council, online at: <a href="https://www.fws.gov/southwest/es/mexicanwolf/">https://www.fws.gov/southwest/es/mexicanwolf/</a>.)
Our efforts across the recovery program are showing success in the
MWEPA. The minimum population count in 2020 of 186 wolves, including 20
breeding pairs (defined as a pair that produced pups, at least one of
which survived to the end of the year), continues a trend of steady
population growth, nearly doubling in size over the last 5 years (see
our online population estimate at <a href="https://www.fws.gov/southwest/es/mexicanwolf/">https://www.fws.gov/southwest/es/mexicanwolf/</a>). This growth lessens the severity of demographic threats
to the population, as described in Summary and Rationale for Proposed
Changes to the Experimental Population Designation in Relation to
Recovery, below. Mexican wolves have expanded their range significantly
under the 2015 10(j) rule, from a range of 7,255 square miles (mi\2\)
(18,790 square kilometers (km\2\)) in 2014, the year prior to our
expansion of the MWEPA, to 19,495 mi\2\ (50,492 km\2\) in 2020 (USFWS
files). This demonstrates progress in our recovery strategy to expand
the geographic distribution of the Mexican wolf (USFWS 2017a, pp. 11,
24). We also recorded a minor increase in gene diversity and decrease
in population mean kinship (a measure of the relatedness of an
individual to the population) from 2020 to 2021 (USFWS files). These
measures of the genetic status of the MWEPA population document the
positive impact that recent cross-fostering events are having, and we
expect to document continued progress as we continue our efforts to
decrease genetic threats to the Mexican wolf, as described in Summary
and Rationale for Proposed Changes to the Experimental Population
Designation in Relation to Recovery, below.
Biological Information
Species Description
The Mexican wolf (Canis lupus baileyi) is a subspecies of gray wolf
that historically occurred in portions of the southwestern United
States and central and northern Mexico. Mexican wolves are the smallest
extant gray wolf in North America, weighing between 50 to 90 pounds.
They are typically a patchy black, brown to cinnamon, and cream color,
with primarily light underparts (80 FR 2488, January 16, 2015, p.
2490).
Mexican wolves are social predators that live in packs ranging in
size from two wolves to more than a dozen wolves. Mexican wolf packs
establish a territory, or area, within which pack members hunt and find
shelter. Mexican wolves predominantly prey on elk, but other sources of
prey include deer, small mammals, and birds. Mexican wolves are also
known to prey and scavenge on livestock (USFWS 2017b, pp. 12-19).
Historical Range
The historical range of the Mexican wolf has been the subject of
scientific inquiry and debate for several decades, primarily related to
the northern and possibly western extent of the range. The USFWS
recognizes concordance in the scientific literature depicting the
Sierra Madre of Mexico and southern Arizona and New Mexico as Mexican
wolf core historical range, and continues to recognize the expanded
historical range per Parsons (1996, p. 106) that extends into central
New Mexico and Arizona (see our summary in USFWS 2017b, pp. 10-12, and
in our final rule to list the Mexican wolf as an endangered subspecies
(80 FR 2488, January 16, 2015)). We continue to monitor the scientific
literature for ongoing exploration of this topic.
[[Page 59959]]
Current Range in the United States and Mexico
The current range of the Mexican wolf in the wild includes only
those areas where they have been reintroduced from captivity and the
surrounding areas to which they have naturally expanded: The MWEPA in
the United States and a portion of the Sierra Madre Occidental mountain
range in northern Mexico. Mexican wolves inhabit approximately 19,495
mi\2\ (50,492 km\2\) of the MWEPA as of the end of 2020 (USFWS files).
The MWEPA is 153,871 mi\2\ (398,524 km\2\), with approximately 32,244
mi\2\ (83,512 km\2\) of suitable habitat that occurs on various land
ownership types, but primarily U.S. Forest Service (USFS) land (USFWS
2014, chapter 3, p. 11). The MWEPA is within the probable historical
range of the Mexican wolf (see Historical Range, above).
Mexican wolves in the northern Sierra Madre Occidental in the
states of Sonora and Chihuahua in Mexico are approximately 130 miles
(mi) (209 kilometers (km)) south of the U.S.-Mexico border. The Sierra
Madre Occidental is the longest mountain range in Mexico, extending
from northern Mexico south to the State of Jalisco. In the northern
portion of the mountain range, there are approximately 7,305 mi\2\
(18,922 km\2\) of suitable Mexican wolf habitat, with limited habitat
connectivity to a second area to the south containing approximately
9,728 mi\2\ (25,196 km\2\) of suitable habitat. Suitable Mexican wolf
habitat in the Sierra Madre Oriental, a mountain range to the east, has
also been identified (Mart[iacute]nez-Meyer et al. 2020, entire), but
releases have not taken place in this area as of February 2021. The
MWEPA designation stops at the U.S.-Mexico border; the wolves in Mexico
are not part of the experimental population.
Habitat Use and Movement Ecology in the MWEPA
Wolves are considered habitat generalists that can occupy areas
where prey populations and human tolerance support their existence
(Fritts et al. 2003, pp. 300-301). Accordingly, we consider suitable
habitat for Mexican wolves to be forested areas with adequate wild
ungulate prey and low levels of human development and livestock
density. In the MWEPA, Mexican wolves inhabit evergreen pine-oak
woodlands (i.e., Madrean woodlands), pinyon-juniper woodlands (i.e.,
Great Basin conifer forests), and mixed-conifer montane forests (i.e.,
Rocky Mountain, or petran forests) that are inhabited by elk, mule
deer, and white-tailed deer (USFWS 2017b, p. 14). Mexican wolves in the
MWEPA move within their territories daily to hunt and find shelter.
Pack home range size can vary significantly. For example, in 2018, we
documented a home range of approximately 57 mi\2\ (148 km\2\) for the
Dark Canyon pack and 552 mi\2\ (1,352 km\2\) for the Tsay O Ah pack,
with an average home range size of approximately 210 mi\2\ (544 km\2\)
across 24 packs or pairs (USFWS 2018, p. 22; also see USFWS 2017b, p.
13). Individual juvenile Mexican wolves sometimes disperse beyond their
pack's territory to find a mate and establish a new territory. We track
Mexican wolves' movements via radio telemetry and global positioning
system radio collars to document pack home ranges, occupied range, and
dispersal events.
Lifecycle
Mexican wolf life history is similar to that of other gray wolves
(see USFWS 2010, pp. 32-41). In the wild, Mexican wolves live on
average 4 to 5 years, although we have documented wolves living to 14
years (USFWS files). Mexican wolves reach sexual maturity around 2
years of age and have one reproductive cycle per year. Typically only
one female and one male (the main breeding pair) breed in a pack and
produce pups; however, there have been instances in the wild of a
secondary female being bred and having pups within the same pack.
Mexican wolves in the wild are generally born between early April and
early May, with an average litter size of 4.65 pups (USFWS files).
For a detailed description of the Mexican wolf, see our discussion
under Subspecies Information in our final rule to list the Mexican wolf
as endangered (80 FR 2488, January 16, 2015, pp. 2489-2492) or the
biological report for the Mexican Wolf (USFWS 2017b).
Threats/Causes of Decline
The Mexican wolf is listed as endangered due to the individual and
cumulative effects of excessive human-caused mortality, including
illegal killing; genetic issues including inbreeding, loss of
heterozygosity, and loss of adaptive potential; and demographic
stochasticity (decreases in survival or reproduction) associated with
small population size (80 FR 2488, January 16, 2015; see also USFWS
2017a, p. 9, and USFWS 2017b, pp. 23-34, for additional discussion of
these threats). We have established a comprehensive strategy and suite
of actions in our revised recovery plan to diminish these threats
sufficiently such that the Mexican wolf can be considered for delisting
when rangewide recovery criteria are met. Under the guidance of the
recovery plan, the 2015 10(j) rule, and other program documents, the
USFWS and our partners manage the MWEPA to lessen and alleviate threats
to the experimental population. Our proposed revisions to the 2015
10(j) rule will also lessen and alleviate threats to the Mexican wolf,
as explained in the following discussion.
Summary and Rationale for Proposed Changes to the Experimental
Population Designation in Relation to Recovery
We are proposing revisions to the MWEPA designation to ensure that
it contributes to the long-term conservation and recovery of the
Mexican wolf. We are using the revised recovery plan as the foundation
of our proposed revisions because it provides our strategy and criteria
for Mexican wolf recovery. We are proposing to modify the population
objective, establish a genetic objective, and temporarily restrict
three take provisions from the 2015 10(j) rule as follows, and for the
following reasons:
Modification of the Population Objective
We propose to revise the population objective for the MWEPA at 50
CFR 17.84(k)(9)(iii) by deleting the following three sentences: Based
on end-of-year counts, we will manage for a population objective of 300
to 325 Mexican wolves in the MWEPA in Arizona and New Mexico. So as not
to exceed this population objective, we will exercise all management
options with preference for translocation to other Mexican wolf
populations to further the conservation of the subspecies. The USFWS
may change this provision as necessary to accommodate a new recovery
plan.
We propose to replace the deleted language with the following two
sentences: Based on end-of-year counts, we will manage to achieve and
sustain a population average greater than or equal to 320 wolves in
Arizona and New Mexico. In order to achieve the current demographic
recovery criteria for the United States, this average must be achieved
over an 8-year period, the population must exceed 320 Mexican wolves
each of the last 3 years of the 8-year period, and the annual
population growth rate averaged over the 8-year period must be stable
or increasing.
Under this proposed population objective, we would continue to
manage Mexican wolves in the MWEPA to maintain a population average
greater than or equal to 320 wolves until delisting occurs. After
delisting, the States of Arizona and New Mexico and
[[Page 59960]]
the Tribes in Arizona and New Mexico would obtain management authority
and responsibility to maintain the Mexican wolf at or above recovered
levels.
When we established the population objective in the 2015 10(j)
rule, we explained that the USFWS may change this provision as
necessary to accommodate a new recovery plan (80 FR 2512, January 16,
2015, p. 2563; 50 CFR 17.84(k)(9)(iii)). Now, our proposed revised
population objective for the MWEPA is based on the recovery criteria in
the revised recovery plan, which was developed subsequent to the 2015
10(j) rule. During the development of the revised recovery plan, we
gathered data on the Mexican wolf population in the MWEPA for the
purpose of conducting population viability analysis modeling. Several
previous population and habitat viability analysis models served as
springboards for our effort (Carroll et al. 2006; Carroll et al. 2014).
We updated or replaced data sets used in previous studies to ensure
model parameterization reflected our current knowledge of Mexican
wolves in the MWEPA (as opposed to gray wolf populations in other
geographic areas, as used in previous studies). For example, we updated
datasets on mortality rates, the frequency and effects of disease,
female pairing, and the effect of inbreeding on the likelihood of
producing pups, all of which are important factors in projecting future
population abundance and persistence. We incorporated more than 15
years of wild Mexican wolf data in the modeling effort and made
conservative choices in parameterization to ensure model results would
not overestimate the growth or probability of persistence of simulated
populations (Miller 2017, entire).
During the recovery planning process, we used the population
viability analysis model to explore management scenarios that would
achieve at least a 90 percent likelihood of persistence of the MWEPA
population over a 100-year period to alleviate the threat of
demographic stochasticity (USFWS 2017a, pp. 20-22). The threat of
demographic stochasticity due to small population size means that at
smaller population sizes, a population is more susceptible to uncertain
demographic events such as changes in birth or death rates that could
lead toward extirpation of the population. As a population grows, this
threat diminishes and the likelihood of population persistence
increases (see our discussion at USFWS 2017a, pp. 13, 20-22; USFWS
2017b, pp. 35-36; Miller 2017, entire; USFWS 2019, pp. 63-68). The
combined elements of the demographic recovery criteria for the United
States that our proposed population objective is based upon--that the
population must maintain an average greater than or equal to 320 wolves
over an 8-year period, that the population must exceed 320 wolves in
each of the last 3 years of the 8-year period, and that the annual
growth rate averaged over the 8-year period must be stable or
increasing--provides for a 90 percent likelihood of persistence of the
MWEPA population over a 100-year period (USFWS 2017a, p. 19).
The data and analyses we used as the basis of the demographic
recovery criteria in the revised recovery plan were not available when
we established the population objective in the 2015 10(j) rule (see
discussion of available scientific studies at 80 FR 2512, January 16,
2015, p. 2517). We established the upper limit of the population
objective in the 2015 10(j) rule because we did not have an up-to-date
recovery plan to provide context for the contribution of the MWEPA to
recovery; in other words, we did not know how many wolves may be needed
for recovery or how those wolves should be distributed geographically
between different populations. The revised recovery plan now provides
clear direction for the MWEPA population's contribution to recovery,
and we recognize that an upper limit of 325 in the MWEPA is not
consistent with being able to adequately alleviate the threat of
demographic stochasticity to the Mexican wolf. Although ``300 to 325''
and ``an average of 320'' sound very similar, a range of 300 to 325
with an upper limit of 325 does not ensure at least a 90 percent
likelihood of persistence over 100 years, because the upper limit
combined with the absence of additional specifications of the
population's behavior (exceeding 320 wolves in each of the last 3 years
of the 8-year period, and that the annual growth rate averaged over the
8-year period must be stable or increasing) result in a population with
an extinction risk of more than 10 percent over 100 years.
As we continue to manage for an average population size greater
than or equal to 320 Mexican wolves in the MWEPA after the proposed
population objective is reached, we would expect the population to
fluctuate between the mid-300s to low 400s. Although a larger (more
than low 400s) population size may be possible due to natural
population growth, we would expect that population growth would slow
down or stabilize in the mid-300s to low 400s in response to our future
management actions such as reduced food caching, translocation of
wolves to Mexico in support of their recovery goals, or removals for
various management purposes.
We continue to collect and analyze data on the experimental
population and to survey the scientific literature for additional
information pertinent to managing the MWEPA population in a manner
consistent with recovering the Mexican wolf. Since the completion of
the revised recovery plan, we have not observed life-history events or
population trends in Mexican wolves in the MWEPA (such as changes in
reproductive or mortality rates, for example) that cause us to
reconsider the validity of the data used or the results of the
population viability analysis that provided the foundation for our
development of recovery criteria in the revised recovery plan. One
published study critiqued the recovery criteria in the revised recovery
plan, including the population viability analysis modeling used to
develop the criteria (Carroll et al. 2019). The study explored how the
modeling for the revised recovery plan differed from previous modeling
and criteria-setting efforts for the Mexican wolf. The study identified
six parameterization differences that varied across modeling efforts,
grouping those parameters as biological (for example, the effects of
disease), management-related (for example, the number of releases from
captivity), or both biological and management-related (for example, the
proportion of packs receiving supplemental feeding). The study examined
how normative (values-based) and scientific decisions related to
setting the values for and function of these parameters in a population
viability analysis model affect model results, including the degree to
which uncertainty surrounding specific parameters can influence
scenario projections. The study recommended establishing a recovery
strategy and recovery criteria that buffer against uncertainty and
claimed that our approach did not do so. For example, the paper
recommended inclusion of an independent human-caused mortality
criterion to buffer against uncertainty in the parameterization of wolf
mortality rates, in addition to a demographic recovery criterion based
on extinction risk, as opposed to our approach of tying our human-
caused mortality criterion to our demographic criterion (USFWS 2017a,
p. 20). The study also critiqued the level of risk tolerance considered
acceptable by the USFWS for the recovery of the Mexican wolf as
[[Page 59961]]
too high, and ultimately claimed that political influence led to
increased risk tolerance in establishing recovery criteria.
We acknowledge the authors' characterization that some decisions in
population viability analysis modeling and the establishment of
recovery criteria contain a normative element, such as what level of
extinction risk is acceptable for recovery or the degree to which
supplemental feeding is an appropriate management intervention during
species recovery. We also acknowledge that recovery criteria could be
formulated differently than those contained in the revised recovery
plan to articulate when threats have been alleviated sufficiently to
delist the Mexican wolf. However, these acknowledgements do not alter
our position that the population viability analysis modeling conducted
for the revised recovery plan constitutes the best available
information upon which to base a revised population objective for the
Mexican wolf in the MWEPA, because it is based on up-to-date Mexican
wolf data and reflects realistic management scenarios (such as
incorporating supplemental feeding). Our proposed population objective
would remove the upper limit of 325 wolves; lead to a more robust
population of wolves in the MWEPA; allow for annual population
fluctuations while ensuring stable population performance; and
alleviate the threat of demographic stochasticity consistent with the
recovery needs of the Mexican wolf.
Establishment of a Genetic Objective
We propose to establish a genetic objective for the MWEPA to
address genetic threats to the experimental population. We did not
include a genetic objective in the 2015 10(j) rule; rather, we provided
a recommendation in the preamble of the rule for the release of Mexican
wolves from captivity at a level that would achieve a minimum of 1 to 2
effective migrants per generation entering the population, depending on
its size, over the long term. The rule went on to say that in the more
immediate future, we may conduct additional releases in excess of 1 to
2 effective migrants per generation to address the high degree of
relatedness of wolves in the current Blue Range Wolf Recovery Area (80
FR 2512, January 16, 2015, p. 2517). We are now proposing to modify our
approach in the 2015 10(j) rule in two ways:
First, we propose to revise the language to state that the USFWS
and designated agencies will conduct a sufficient number of releases
into the MWEPA from captivity to result in at least 22 released Mexican
wolves surviving to breeding age. Second, we propose to codify this
release statement at 50 CFR 17.84(k)(9)(v). We expect to achieve this
proposed objective by 2030, as described below in Modification of Three
Allowable Forms of Take of Mexican Wolves.
Similar to the discussion above of the population objective, our
proposed establishment of a genetic objective is based on information
and analyses conducted subsequent to the 2015 10(j) rule that are
included in the revised recovery plan. When we developed our genetic
criterion in the revised recovery plan, we determined that wild
populations contributing to recovery should represent approximately 90
percent of the genetic diversity available in the captive population to
consider genetic threats sufficiently abated (USFWS 2017a, p. 13). The
reason for this is that the gene diversity in the captive population is
higher than either wild population in the United States or Mexico;
therefore, releasing captive wolves will add beneficial gene diversity
to the experimental population as some of the released wolves breed and
produce offspring in the MWEPA. Increasing gene diversity in the MWEPA
to approximately 90 percent of the gene diversity available in the
captive population will reduce the incidence of inbreeding depression,
and over a longer timeframe, it will aid Mexican wolves' ability to
respond and adapt to various and changing environmental conditions
(USFWS 2017a, p. 22). In addition, releasing captive wolves makes room
in captive facilities for additional captive breeding events, which
enables the captive population to maintain, or slow the loss of,
genetic diversity in captivity and continue supporting the wild
populations in the United States and Mexico during the recovery process
(Scott et al. 2020, p. 9).
As we explored model scenarios during the recovery planning process
to alleviate genetic threats to the Mexican wolf by releasing captive
wolves to the wild, we recognized that not all wolves released from
captivity would survive to breeding age, and due to wolves' social
structure, not all wolves that survive to breeding age would breed
(Miller 2017, pp. 9-10). Based on survival and mortality data of
different age classes of Mexican wolves (pups, subadults, adults), we
determined that at least 22 released Mexican wolves surviving to
breeding age by 2035 would result in a sufficient portion of those
wolves breeding to result in approximately 90 percent of the genetic
diversity of the captive population being represented in the wild
(USFWS 2017 a, pp. 22-24). Our proposal to revise the release
recommendation in the 2015 10(j) rule by establishing a genetic
objective would contribute to the recovery of the Mexican wolf because
our proposal aligns with the genetic recovery criterion in the revised
recovery plan and would therefore alleviate genetic threats consistent
with the recovery needs of the Mexican wolf (see Recovery Efforts,
above, and USFWS 2017a, pp. 5, 7, 9, 13-14, 22-23; USFWS 2017b, pp. 26-
29).
Our proposed revision would result in a larger number of released
wolves entering the MWEPA in a shorter time period than the release
recommendation in the 2015 10(j) rule, which reflects our improved
understanding of the number and timing of releases needed to adequately
reduce genetic threats. Under our 2015 10(j) rule, we intended to
release 35 to 50 captive wolves by 2035 (see USFWS 2014, Appendix D,
pp. 3, 12); however, in our revised recovery plan, we estimated we
would need to release at least 70 wolves to achieve our genetic
criterion in the revised recovery plan. Because we are conducting
releases via cross-fostering, a method for which we are uncertain of
the number of releases needed to achieve at least 22 released wolves
surviving to breeding age, we have aggressively pursued releases in the
last few years. We expect that the survival of cross-fostered pups in
their first years is similar to wild-born pups (approximately 50
percent). As of the spring of 2021, we have released 72 Mexican wolves
from captivity to the wild via cross-fostering, and we have documented
a minimum of 7 out of 30 released pups surviving to breeding age. Pups
released in 2020 (20 pups) and 2021 (22 pups) had not yet reached
breeding age in the spring of 2021, and are therefore not eligible to
be included in the total number of released pups that could have
survived to breeding age in 2021 (30 pups). We will continue to
document our progress annually toward at least 22 released wolves
surviving to breeding age and will adjust our ongoing release plans
accordingly.
We note that our proposed genetic objective shifts our previous
language in the 2015 10(j) rule from tracking ``effective migrants,''
which means an animal that comes from outside the population and
successfully reproduces within the population, to instead tracking
captive animals released to the MWEPA that ``survive to breeding age''
and have the opportunity to contribute genetically to the population.
This proposed revision in language tracks our population viability
analysis modeling
[[Page 59962]]
approach in the revised recovery plan directly, and it appropriately
addresses the need to increase gene diversity in the MWEPA population
because it results in the representation of approximately 90 percent of
the gene diversity available in the captive population entering the
MWEPA (USFWS 2017a, pp. 22-24).
As stated earlier, we propose to codify this release statement at
50 CFR 17.84(k)(9)(v) and refer to it as a genetic objective.
Establishment of a genetic objective strengthens this feature of our
management because the genetic objective becomes part of the MWEPA
regulations. In addition, we propose annual benchmarks for achieving
the number of released wolves that survive to breeding age by 2030 in
Modification of Three Allowable Forms of Take of Mexican Wolves, below,
which will drive expedient progress toward recovery and ensure that
progress toward releasing captive wolves keeps pace with expected
population growth.
Modification of Three Allowable Forms of Take of Mexican Wolves
We propose to modify three allowable forms of take of Mexican
wolves at 50 CFR 17.84(k)(7) by temporarily restricting their use while
we make progress toward increasing Mexican wolf gene diversity in the
MWEPA. The three forms of allowable take from the 2015 10(j) rule we
propose to modify are: Take on non-Federal land in conjunction with a
removal action (Sec. 17.84(k)(7)(iv)(C)), take on Federal land (Sec.
17.84(k)(7)(v)(A)), and take in response to an unacceptable impact to a
wild ungulate herd (Sec. 17.84(k)(7)(vi)). We are proposing to
temporarily restrict these forms of take because they can result in the
loss of released Mexican wolves whose gene diversity could have
contributed to alleviating genetic threats had they survived and
reproduced during the timeframe of the genetic recovery criterion in
the United States (see Establishment of a Genetic Objective, above).
Temporarily restricting these potential sources of take will support
the success of these wolves during a critical period in the recovery
effort (that is, as we focus our management on alleviating threats and
achieving recovery criteria). Therefore, we propose to add the
following language to Sec. 17.84(k)(7)(iv)(C) and Sec.
17.84(k)(7)(v)(A):
(1) Until the USFWS has achieved the genetic objective for the
MWEPA set forth at paragraph (k)(9)(v) of this section by documenting
that at least 22 released wolves have survived to breeding age in the
MWEPA, the USFWS or a designated agency may issue permits only on a
conditional, annual basis according to the following provisions: Either
(i) Annual release benchmarks (here, the term ``benchmark'' means
the minimum cumulative number of released wolves surviving to breeding
age since January 1, 2016, as documented annually in March) have been
achieved based on the following schedule:
------------------------------------------------------------------------
Year Benchmark
------------------------------------------------------------------------
2021.................................................... 7
2022.................................................... 9
2023.................................................... 11
2024.................................................... 13
2025.................................................... 14
2026.................................................... 15
2027.................................................... 16
2028.................................................... 18
2029.................................................... 20
2030.................................................... 22
------------------------------------------------------------------------
; or
(ii) Permitted take on non-Federal land [under Sec.
17.84(k)(7)(iv)], or on Federal land [under Sec. 17.84(k)(7)(v)],
during the previous year (April 1 to March 31) did not include the
lethal take of any released wolf or wolves that were or would have
counted toward the genetic objective set forth at paragraph (k)(9)(v)
of this section.
(2) After the USFWS has achieved the genetic objective set forth at
paragraph (k)(9)(v) of this section, the conditional annual basis for
issuing permits will no longer be in effect.
In addition, we propose to add the following language to Sec.
17.84(k)(7)(vi):
(E) No requests for take in response to unacceptable impacts to a
wild ungulate herd may be made by the State game and fish agency or
accepted by the USFWS until the genetic objective at paragraph
(k)(9)(v) of this section has been met.
Once we reach the proposed genetic objective at Sec.
17.84(k)(9)(v), gene diversity of released wolves will have integrated
into the population through breeding events between released and wild
wolves such that released wolves will no longer represent a pool of
unique gene diversity; in other words, as more released wolves survive
and breed in the wild, the contribution of released wolves to the
overall gene diversity of the MWEPA diminishes. Therefore, our approach
to the temporary restriction of these take provisions is to ensure we
are protective of released wolves during the time we are achieving the
proposed genetic objective. Once we have reached the proposed genetic
objective, we would remove these temporary restrictions in recognition
that take (including removal) of released wolves would not have the
potential to hinder the recovery of the Mexican wolf. In the near term,
restricting these take provisions contingent upon achieving the
proposed genetic objective would provide synergistic support toward the
recovery of the Mexican wolf. The benchmarks we are proposing reflect
the targets established in the revised recovery plan for 9 released
wolves to be surviving to breeding age in 2022 and 16 released wolves
to be surviving to breeding age in 2027 (USFWS 2017a, pp. 26-27), and
would result in 22 released wolves surviving to breeding age 5 years
prior to the scenarios we explored in the population viability analysis
modeling for the revised recovery plan. This schedule will ensure that
strong progress to alleviate genetic threats is occurring.
Simultaneous with our intention to increase and protect the gene
diversity of the MWEPA population and alleviate genetic threats to the
Mexican wolf, we continue to recognize that these three allowable forms
of take can provide the USFWS, State fish and game agencies, domestic
animal owners and their agents, and livestock owners and their agents
with a management tool for resolving wolf conflict situations. We
expect that over time, and especially as the experimental population
grows numerically, multiple conflict situations may occur
simultaneously in different locations within the MWEPA. The USFWS
considers the issuance of take permits on Federal and non-Federal land
to serve as a management tool because the permits may provide for
conflicts to be resolved without the participation of the USFWS or a
designated agency's personnel, allowing for limited agency resources to
be used in the most efficient manner. We have, therefore, integrated
flexibility into the temporary restrictions we are proposing for
permitted take on Federal and non-Federal land by recognizing that if
an annual release benchmark toward the genetic objective is not
achieved, and permitted take in the previous year did not result in the
take of any released wolf or wolves, the permits are not the reason for
missing the benchmark, nor are they negatively impacting gene
diversity. (For example, the USFWS could miss the benchmark because we
had not conducted adequate releases during a prior year due to
logistical constraints.) In this context, we do not want to
unnecessarily restrict a management tool that can be used to address
conflicts if its use is not exacerbating a threat or hindering our
progress toward recovery.
[[Page 59963]]
Our proposed revision to the provision for take in response to an
unacceptable impact to a wild ungulate herd (Sec. 17.84(k)(7)(vi))
does not include a conditional approach such as we have incorporated
into our proposed revisions for take on Federal and non-Federal land
due to our uncertainty surrounding the extent of take that could occur
under this provision. We are uncertain as to the number or frequency of
future authorizations the USFWS may issue to a State or designated
agency to remove wolves due to an unacceptable impact to a wild
ungulate herd because we do not know when (e.g., at what number of
wolves or wolf density) wolf predation on a localized herd could result
in an ungulate decline that is deemed unacceptable based on State
management goals. Further, the level of removal (i.e., number of
wolves, timing, and duration) that could be requested by the State
agency would depend on the level of ungulate decline occurring within
the context of the State's management goals for that herd, as well as
other pertinent factors, but would more likely result in authorized
removal of one or more packs of wolves rather than an individual wolf.
Removal of an entire pack or packs could result in removing multiple
released Mexican wolves at once that could count toward our genetic
objective. Therefore, we recognize that the likelihood of take of a
released wolf or wolves may be higher under this take provision than
the other two take provisions we are proposing to revise. On the other
hand, take under this provision could result in the translocation of
Mexican wolves rather than permanent removal or lethal take, and, in
those cases, no loss of gene diversity in the MWEPA would occur. Due to
these uncertainties, our proposed revision to this take provision does
not include any contingencies to use this provision during the
temporary restriction period (that is, from now until the proposed
genetic objective at Sec. 17.84 (k)(9)(v) is met).
Our final consideration as we evaluate our proposed restriction of
these three take provisions is our recognition that this rule needs to
serve the conservation and recovery of the Mexican wolf prior to, but
also potentially after, the recovery criteria for the United States in
the revised recovery plan have been met. Recovery of the Mexican wolf
as envisioned by the revised recovery plan is contingent upon achieving
recovery criteria for the population in the United States and the
population in Mexico in order to adequately alleviate threats
rangewide. Therefore, ongoing management of Mexican wolves in the
United States under the ESA may occur after the MWEPA achieves the
criteria for the United States if Mexico has not yet achieved its set
of recovery criteria. These three take provisions will contribute to
efficient, flexible management of a recovered population in the MWEPA
until delisting occurs. We expect to remove the proposed temporary
restrictions on these three take provisions after the genetic objective
has been met. At that time, gene diversity will have been sufficiently
improved to alleviate genetic threats, and the USFWS and our partners
will be managing to achieve or maintain the demographic criteria. (We
do not expect the MWEPA population to reach the demographic and genetic
criteria simultaneously.) After the genetic objective has been met, we
would expect to use these allowable forms of take in a manner
consistent with achieving all recovery criteria in the United States
and maintaining the experimental population at recovered levels until
rangewide delisting is appropriate.
Proposed Experimental Population
Location and Boundaries of the Proposed Experimental Population
The Mexican wolf experimental population is located in the MWEPA,
as designated in the 2015 10(j) rule (80 FR 2512, January 16, 2015, p.
2558). The boundaries of the MWEPA are the portions of Arizona and New
Mexico that are south of Interstate Highway 40 (I-40) to the
international border with Mexico (see map at 50 CFR 17.84(k)(4)). The
boundaries of the MWEPA are consistent with the recovery strategy
established in the revised recovery plan, which states that we will
continue to focus on one large Mexican wolf population south of I-40 in
Arizona and New Mexico in the United States (USFWS 2017a, p. 11).
We consider the experimental population in the MWEPA to be wholly
separate geographically from any nonexperimental populations of the
same (sub)species. Based on the USFWS definition of a gray wolf
population (see 59 FR 60252, November 22, 1994), which we have used for
the Mexican wolf, there is a population of Mexican wolves in the
northern Sierra Madre Occidental, Mexico, approximately 130 miles (209
km) south of the U.S.-Mexico international border. At the end of 2020,
Mexico reported 30 to 35 Mexican wolves in the wild, including two
breeding pairs that each successfully raised at least two young
annually for 2 consecutive years (Carlos Lopez 2020, pers. comm.).
While we acknowledge that the populations are geographically located
within dispersal range of one another, interconnectivity between the
MWEPA and the Mexico population is currently low, and future
connectivity is expected to be similarly low as explained below. For
the MWEPA to not be considered wholly geographically separate, regular
dispersal from one population to the other population would need to
occur (e.g., semifrequent dispersal events throughout the year),
potentially including interbreeding between populations. Since 2015,
four wolves dispersed from Mexico into the United States. Of those
wolves, one was removed from the MWEPA due to depredation behavior, two
dispersed back across the border into Mexico naturally, and one died of
unknown causes (USFWS files). Based on radio-collar data, none of these
dispersing wolves encountered other wild wolves during the dispersal
event, nor have breeding events between Mexican wolves from the two
populations occurred since the reintroduction in Mexico began. We are
not aware of any Mexican wolves from the MWEPA that have dispersed into
Mexico. One wolf in the MWEPA dispersed very close to the U.S.-Mexico
border before turning around and moving back towards its territory in
the MWEPA (USFWS files).
In the revised recovery plan and accompanying population viability
analysis model, we hypothesized that successful dispersal (a dispersal
event that does not end in mortality during dispersal) between the
MWEPA and the current reintroduction area in northern Mexico would be
infrequent (about one wolf every 12 to 16 years) (USFWS 2017a, p. 14;
Miller 2017, pp. 47-49). The low level of estimated connectivity is
based on potentially high levels of mortality associated with wolf
dispersal events (Miller 2017, p. 9), low habitat quality across the
borderlands (USFWS 2017a, pp. 12, 14; also see Mart[iacute]nez-Meyer
2017, p. 59), and the construction of the border wall, which includes a
variety of deterrents and structures, some of which are impermeable to
Mexican wolves (USCBP 2020). The demographic and genetic recovery
criteria we developed were robust in the face of low expected
connectivity across the border (Miller 2017, pp. 47-49), meaning that
independent populations would be able to achieve the standards for
threat alleviation we consider necessary for recovery either through
dispersal between populations or through releases from captivity or
translocations across the border, as described in Summary and Rationale
for
[[Page 59964]]
Proposed Changes to the Experimental Population Designation in Relation
to Recovery, above. Since the publication of the revised recovery plan,
we have not observed a frequency of dispersal events suggesting that
interconnectivity will be higher than what we previously estimated in
our revised recovery plan and accompanying population viability
analysis models.
In the 2015 10(j) rule, we stated that the experimental population
in the MWEPA was wholly separate geographically from any
nonexperimental population of Mexican wolves because the Mexican wolves
in Mexico did not yet meet the definition of a population (80 FR 2512,
January 16, 2015, p. 2549). We stated that if a population was
successfully established in Mexico, an occasional dispersal event
between the populations could occur. We also stated that
interconnectivity between the two population could benefit recovery by
providing genetic interchange between populations (80 FR 2512, January
16, 2015, p. 2550), which we subsequently restated in the revised
recovery plan (USFWS 2017a, pp. 14-15). Although a second population of
Mexican wolves does now exist in the wild in Mexico, we maintain our
finding that the MWEPA population is wholly separate geographically
from any nonexperimental population of Mexican wolves due to the lack
of functional (regular or semi-frequent, or resulting in interbreeding)
interconnectivity between the populations now or likely in the future.
Overview of the Proposed Experimental Population
The MWEPA is a large area in Arizona and New Mexico that includes
Federal, State, Tribal, and private land. The MWEPA consists of three
management zones that define areas for initial releases (the release of
wolves from captivity to the wild) and translocations, and that allow
wolf dispersal and occupancy (see definitions of Zone 1, Zone 2, and
Zone 3 at 50 CFR 17.84(k)(3) and the map of the MWEPA designated area
at 50 CFR 17.84(k)(4)). The MWEPA also includes a phased approach to
translocations, initial releases, and occupancy of Mexican wolves west
of Highway 87 in Arizona (see 50 CFR 17.84(k)(9)(iv)). We are not
proposing to modify the management zones or phased approach, including
the phasing evaluation periods, in this proposed rule. Regarding the
phasing, we note that the minimum annual population count in 2019 (the
year of the first phasing evaluation) was 163 Mexican wolves, which
exceeded the 5-year phasing benchmark of reaching a population size
greater than 150 Mexican wolves five years after February 17, 2015. We
have not moved into Phase 2 at this time but may do so prior to the 8-
year evaluation if agreed upon between the USFWS and participating
State game and fish agencies.
Release Procedures
The USFWS and our partners release Mexican wolves into the MWEPA
using several different management strategies, including the cross-
fostering of captive pups into wild dens as a form of initial release;
the initial release of adult or sub-adults individually, as pairs with
and without pups, or as multigenerational packs; and translocations of
wild wolves from one location to another. All methods of release can
serve as useful strategies to manage the experimental population, and
each has benefits and challenges within the context of our management
needs at any point in time. In recent years, we have used cross-
fostering as our primary release strategy because our initial attempts
at cross-fostering have proven to be a successful method. Importantly,
it is a more accepted technique among the local public, our
stakeholders, and our State partners than releases of adult wolves or a
family group into an unoccupied area, although some members of the
public continue to strongly support the release of adult pairs or
packs. We may still release adult wolves or family groups under certain
conditions, but we expect to use cross-fostering as the primary release
strategy to address the genetic needs of the experimental population.
Each year, we develop an initial release and translocation plan
(available online at <a href="https://www.fws.gov/southwest/es/mexicanwolf/">https://www.fws.gov/southwest/es/mexicanwolf/</a>)
with our partners that provides our objectives related to initial
releases, translocations, and any targeted or potential removals (e.g.,
to prevent the breeding of highly related wolves) for the upcoming
year. We base our near-term plans on the existing conditions in the
MWEPA, the status of the captive population and availability of
suitable adult wolves and/or pups for release, logistical
considerations such as staffing for the USFWS and our partners, and our
current and anticipated progress toward recovery.
We intend to continue releasing Mexican wolves from captivity into
the MWEPA primarily to increase the gene diversity of the experimental
population (see Summary and Rationale for Proposed Changes to the
Experimental Population Designation in Relation to Recovery, above). In
addition, we may release or translocate wolves for other management
purposes such as replacing a mate for a breeding pair due to a wolf
mortality. As explained above in Overview of the Proposed Experimental
Population, we release Mexican wolves in the MWEPA in accordance with
our management zones and phasing provisions. We intend to release a
sufficient number of captive Mexican wolves to the MWEPA to ensure that
at least 22 released wolves survive to breeding age, although we do not
know the exact number of releases this will require, because it is
dependent on the survival of released wolves. Based on the data we used
in the revised recovery plan on first year mortality of wolves released
from captivity into the MWEPA, we explained in the revised recovery
plan that we will need to release at least 70 wolves, beginning with
wolves released after December 31, 2015, in order for at least 22 to
survive to breeding age and meet the genetic recovery criterion for the
United States (USFWS 2017a, p. 23). We stated that, ``The number of
releases required may increase or decrease if the survival of released
wolves changes'' (USFWS 2017a, p. 23). At the time of the revised
recovery plan, we had little experience with the cross-foster release
technique (2014-2016); therefore, our estimate of first-year release
survival and the number of releases needed to achieve the criterion was
not derived from cross-foster data.
If we continue to primarily use cross-fostering as a release
technique to improve gene diversity in the MWEPA, the number of pups
surviving to breeding age in a given year will reflect the cross-
fostered pups placed in dens 2 years prior, or earlier, that have
reached breeding age. This is because it takes 2 years from placement
of the pup into a den for it to reach breeding age. Comparatively,
adult or sub-adult releases have a lag of 1 year, as they would count
as surviving to breeding age the year after their release. Therefore,
our annual tally of released wolves surviving to breeding age will have
a lag that reflects the age of the animals we have released. Currently,
we estimate that cross-fostered Mexican wolf pups have similar survival
to wild-born Mexican wolf pups (approximately 50 percent); however,
more data are needed to enable us to predict the number of cross-
fostered pups we will need to release in order to reach our genetic
criterion in the revised recovery plan, which is also our proposed
genetic objective in this proposed rule (see discussion under
Establishment of a Genetic Objective, above). We note that
[[Page 59965]]
any pups that have been cross-fostered from one wild den to another
wild den (four pups as of spring of 2021) that reach breeding age will
not count toward our genetic objective because they do not increase
gene diversity in the MWEPA.
Prior to release from captivity into the wild, Mexican wolves
receive permanent identification marks and radio collars (if
appropriate for the age and size of the wolf), and their DNA profile is
recorded to assist with ongoing pedigree analyses of the population.
While not all Mexican wolves are radio-collared, we currently attempt
to maintain at least two radio collars per pack in the wild. Radio
collars allow the USFWS to monitor reproduction, dispersal, survival,
pack formation, depredations, predation, and other important biological
metrics. We will continue monitoring Mexican wolves while they are
listed under the ESA and for at least five years after delisting. A
majority of wild Mexican wolves may not have radio collars as the
population grows.
Any Mexican wolf found outside of the MWEPA would have either
dispersed out of the MWEPA or across the border from Mexico. A
combination of identification mechanisms, such as identification marks,
radio collars, DNA analysis, and ongoing monitoring will make
identification of the population of origin probable. It is possible
that gray wolves could disperse from other regions such as the northern
Rocky Mountains into Arizona and New Mexico. These gray wolves are
typically larger in size and may have distinctive coats, such as all
black or white, that make them distinguishable from Mexican wolves, in
addition to any identification mechanisms from the management areas
from which they dispersed.
How does the experimental population contribute to the conservation of
the species?
The MWEPA has been the cornerstone of Mexican wolf recovery in the
United States since its designation in 1998. Then, as now, the MWEPA is
the only place in the United States where a population of Mexican
wolves exists in the wild. The experimental population remains the
focus of our recovery efforts in the United States and plays a
significant role in the long-term conservation and recovery of the
Mexican wolf. Specifically, the USFWS intends for the MWEPA population
to achieve the recovery criteria for the United States population
provided in the revised recovery plan (USFWS 2017a, pp. 18-25) (see
Recovery Efforts, above). As such, we are proposing population and
genetic objectives for the MWEPA that would reduce threats consistent
with the recovery needs of the Mexican wolf. Also, we are proposing to
temporarily restrict the use of three take provisions in support of
achieving the genetic objective and furthering Mexican wolf
conservation and recovery.
Possible Adverse Effects on Wild and Captive Breeding Populations
Adverse effects on extant populations of the Mexican wolf,
including the captive population and the wild population in Mexico, as
a result of removal of individuals for introduction into the MWEPA will
not occur for the following reasons:
The Mexican wolf reintroduction in the MWEPA was established
beginning in 1998 using Mexican wolves bred and housed in captivity
because no wild Mexican wolves existed for translocation into the
MWEPA. We continue to use captive animals for release into the MWEPA
today. As of June 30, 2020, 369 captive Mexican wolves were managed as
a single captive population across 55 participating facilities (Scott
et al. 2020, p. 7). The primary purpose of the captive-breeding program
is to supply wolves for reestablishing Mexican wolves into the wild.
Mexican wolves selected for release from the captive-breeding program
are genetically well-represented in the captive population, thus
minimizing any adverse effects on the genetic integrity of the
remaining captive population. The Mexican Wolf SSP maintains detailed
lineage information on each captive Mexican wolf and establishes annual
breeding objectives to maintain the genetic diversity of the captive
population (Scott et al. 2020, entire). The Mexican Wolf SSP meets with
the agencies responsible for Mexican wolf reintroduction in the United
States and Mexico annually to discuss release objectives for the year
ahead.
The captive population remains capable of supporting both the U.S.
and Mexico populations of wild Mexican wolves. Over the course of the
reintroduction from 1998 to December 31, 2020, we have released 146
captive wolves to the MWEPA, including the release of 51 wolves (1
adult, 50 pups) between January 1, 2015, and December 31, 2020, to
improve gene diversity (USFWS files). For clarity, only releases
subsequent to December 2015 count toward the genetic criterion in the
revised recovery plan (USFWS 2017a, p. 23). Mexico has released 49
captive wolves between 2011 and February 24, 2021 (USFWS files). This
proposed rule recommends a higher number of releases to the wild than
the 2015 10(j) rule (see Release Procedures, above) but that is well
within the current capacity of the captive program (Miller 2017, p.
42). Releases from the SSP facilities can benefit the captive-breeding
program by freeing up space for additional breeding of Mexican wolves
in captivity, which can slow the loss of genetic diversity (Scott et
al. 2020, p. 9; also see Mechak et al. 2016, pp. 1-15). Based on our
proposed revisions described in this document, we will release a
sufficient number of captive Mexican wolves to the MWEPA such that at
least 22 survive to breeding age and the gene diversity in the MWEPA
represents approximately 90 percent of the gene diversity available in
captivity.
No wolves have been removed from the wild in Mexico for
translocation (i.e., release) into the MWEPA since Mexico began
releasing wolves to the wild in 2011. We do not need to translocate
wolves from the wild Mexico population into the United States to assist
the growth or stability of the MWEPA population due to the growth
already occurring in the MWEPA population. We recognize that Mexico is
still in the early phases of establishing a population, and at its
current small size, it could not support occasional or frequent removal
of wolves for translocation to the United States. In the biological
report that accompanies the revised recovery plan, we investigated
release scenarios with various levels of translocation of Mexican
wolves from the United States to Mexico, but not the reverse, for this
reason (Miller 2017, pp. 16-38). We recognize the importance of
supporting Mexico in achieving the recovery criteria in Mexico, and we
would not request removal of wolves from Mexico for translocation to
the United States unless it were beneficial for both populations. If we
requested translocation of Mexican wolves from Mexico, it would be on a
very limited basis for a specific reason, such as to improve gene
diversity in the recipient population and reduce mean kinship in the
donor population. Therefore, any translocations from Mexico to the
United States would be sufficiently rare and assessed for mutual
benefit so as to have no adverse impacts on the wild population in
Mexico. We will continue to rely on the captive population for our
release needs in the MWEPA.
Likelihood of Population Establishment and Survival
As we stated in the 2015 10(j) rule, the experimental population
has
[[Page 59966]]
consistently demonstrated signs of establishment, such as wolves
establishing home ranges and reproducing (80 FR 2512, January 16, 2015,
p. 2551). Since the publication of the 2015 10(j) rule, the population
has continued to exhibit these signs. 2020 marked the 19th year in
which wild-born Mexican wolves bred and raised pups in the wild (USFWS
files), demonstrating sustained natural reproduction. The population
has exhibited steady growth under the 2015 10(j) rule, from a minimum
of 112 to 186 wolves from the end of 2014 through 2020. During the same
time period, the number of breeding pairs increased from 9 to 20, and
the population expanded geographically from 7,255 mi\2\ (18,790 km\2\)
to 19,495 mi\2\ (50,492 km\2\) (USFWS 2014; USFWS files). Substantial
areas of high-quality habitat remain unoccupied in the MWEPA, allowing
for continued geographic expansion of the population as it increases
numerically.
As discussed in Threats/Causes of Decline, above, we actively
manage to lessen or alleviate threats to the Mexican wolf throughout
the MWEPA. Also, as discussed in Recovery Efforts, above, we continue
to demonstrate our commitment to the recovery of the Mexican wolf
through our use of regulatory tools, evolving field techniques, law
enforcement, and partnerships and outreach. Based on the biological
characteristics of the population, including its demonstrated growth
and expansion, coupled with the ongoing intensive management and
monitoring efforts of the USFWS and our partners, and our demonstrated
adaptive and collaborative management approach, the population in the
MWEPA is established and the likelihood of survival is extremely high.
Effects of the MWEPA Population on Recovery Efforts
Continuing the effort to reestablish the experimental population
will have significant, direct, immediate, and long-term measurable
benefit to the recovery of the Mexican wolf. As discussed above in
Recovery Efforts, the revised recovery plan states that recovery of the
Mexican wolf will be achieved when two self-sustaining populations--one
in the United States and one in Mexico--have been established and
safeguarded from threats as provided for by the recovery criteria and
actions in the plan. The USFWS intends for the experimental population
in the MWEPA to serve as the population that will achieve the recovery
criteria for the United States. Our proposed population objective,
genetic objective, and temporary restriction of three take provisions
are intended to ensure that the experimental population in the MWEPA
supports our efforts to achieve the long-term conservation and recovery
of the Mexican wolf.
Actions and Activities That May Affect the Introduced Population
Consistent with our findings in the past (63 FR 1752, January 12,
1998, p. 1755; 80 FR 2512, January 16, 2015, p. 2551), we do not
foresee that the introduced population will be adversely affected by
existing or anticipated Federal or State actions or private activities.
We expect that anticipated Federal, State, or Tribal actions or private
activities will not negatively affect the experimental population's
ability to increase numerically or continue to expand into suitable
habitat in the MWEPA, but some activities could affect individual
wolves.
We expect Mexican wolves in the MWEPA to primarily occupy forested
areas on Federal lands due to the availability of prey in these areas
and supportive management regimes. We expect the majority of the
Mexican wolf population to occur on Federal lands within Zones 1 and 2
of the MWEPA, but we also recognize that Mexican wolves may seek to
inhabit suitable habitat on Tribal or private lands or may disperse
through or occasionally occupy less-suitable habitat of various land
ownership types in Zones 2 and 3.
Zone 1, the area where Mexican wolves may be initially released
from captivity or translocated, is comprised of the Apache, Gila, and
Sitgreaves National Forests; the Payson, Pleasant Valley, and Tonto
Basin Ranger Districts of the Tonto National Forest; and the Magdalena
Ranger District of the Cibola National Forest. The USFS manages these
areas to sustain the health, diversity, and productivity of the
Nation's forests and grasslands to meet the needs of present and future
generations. The National Forests are responsible for developing and
operating under a land and resource management plan, which outlines how
each of the multiple uses on the forest will be managed. The USFS is a
signatory to the 2019 MOU and actively participates in daily management
of the experimental population (see Is the Experimental Population
Essential to the Continued Existence of the Species in the Wild? below,
for additional discussion of the USFS's role and contributions to the
management and recovery of the Mexican wolf in the MWEPA). We
anticipate that individual Mexican wolves or wolf packs may be affected
by actions and activities associated with ranching activities on public
land, because wolves that depredate livestock or display nuisance
behavior may be hazed or removed.
Zone 2 of the MWEPA contains a matrix of land ownerships, including
Federal (e.g., USFS, Bureau of Land Management, Department of Defense),
State, private, and Tribal lands. A variety of actions and activities
may occur throughout this zone, such as recreation, agriculture and
ranching, urban and suburban development, and military operations.
Similar to Zone 1, we anticipate that individual Mexican wolves or wolf
packs may be affected by actions and activities occurring on private or
Tribal land in Zone 2, such as ranching operations, because wolves that
depredate livestock or display nuisance behavior may be hazed or
removed. We will continue to establish management actions in
cooperation with private landowners and Tribal governments to support
the recovery of the Mexican wolf on private and Tribal lands, and we
will continue our efforts to support programs that fund depredation
compensation and preventative/proactive management activities aimed at
reducing wolf-livestock conflicts.
Road and human densities have been identified as potential limiting
factors for colonizing wolves in the Midwest and Northern Rocky
Mountains due to the mortality associated with these landscape
characteristics (Mladenoff et al. 1995, entire; Oakleaf et al. 2006,
pp. 558-561). Vehicular collision in particular is not identified as
having a significant impact on the Mexican wolf population, although it
may contribute to the overall vulnerability of the population due to
its small population size and cumulative effects of multiple factors,
including inbreeding and illegal shooting of wolves (80 FR 2488,
January 16, 2015, p. 2503). We recognize that human and road densities
in the MWEPA are within the recommended levels for Mexican wolf
colonization, and are expected to remain so in the future; therefore,
we see the impact to the population from actions related to human
development as minimal within the areas we expect Mexican wolves to
primarily inhabit in Zones 1 and 2. More information about vehicular
collisions can be found in the final rule determining endangered status
for the Mexican wolf (80 FR 2488, January 16, 2015).
The border wall along the southern boundary of the MWEPA in Zones 2
and 3 may affect Mexican wolves that try to disperse southward from the
MWEPA or northward from Mexico. We expect these dispersal occurrences
to be fairly
[[Page 59967]]
rare, as discussed in Location and Boundaries of the Proposed
Experimental Population, above. Such occurrences will only be affected
if dispersal activity is blocked or altered by the border wall.
Experimental Population Regulation Requirements
Appropriate Means To Identify the Experimental Population
The location of the experimental population is the MWEPA, as
defined at 50 CFR 17.84(k). Mexican wolves will move throughout the
MWEPA in their daily feeding and sheltering activities. We can identify
Mexican wolves based on the permanent identification marks we give them
prior to release, or by radio collar, DNA analysis, or visual
observation.
Is the experimental population essential to the continued existence of
the species in the wild?
The ESA instructs us to determine whether a population is essential
to the continued existence of an endangered or threatened species. Our
regulations define ``essential experimental population'' as an
experimental population whose loss would be likely to appreciably
reduce the likelihood of survival of the species in the wild (50 CFR
17.80(b)). The USFWS defines ``survival'' as the condition in which a
species continues to exist in the future while retaining the potential
for recovery (USFWS and National Marine Fisheries Service 1998).
Inherent in our regulatory definition of ``essential experimental
population'' is the impact the potential loss of the experimental
population would have on the species as a whole (49 FR 33885; August
27, 1984). All experimental populations not meeting this bar are
considered ``nonessential'' (50 CFR 17.80(b)).
We designated the Mexican wolf experimental population in the MWEPA
as nonessential in 1998 (63 FR 1752; January 12, 1998). The March 31,
2018, Order instructs us to make a new essentiality designation because
our geographic expansion of the MWEPA in the 2015 10(j) rule would
result in Mexican wolf occupancy outside of areas previously considered
when we made our 1998 essentiality determination. We now propose to
maintain the designation of the experimental population in the MWEPA as
nonessential based on the following information and considerations:
Reestablishing a species, is by its very nature, an experiment for
which the outcomes are uncertain. However, it is always our goal to
successfully reestablish a species in the wild so that the species can
be recovered and removed from the Federal List of Endangered and
Threatened Wildlife. This is consistent with the ESA's requirements for
section 10(j) experimental populations. Specifically, the ESA requires
experimental populations to further the conservation of the species. At
16 U.S.C. 1532(3), the ESA defines conservation as the use of all
methods and procedures which are necessary to bring any endangered or
threatened species to the point at which the measures provided pursuant
to the ESA are no longer necessary. In short, experimental populations
serve the species' recovery.
The importance of an experimental population to a species' recovery
does not mean the population is ``essential'' under section 10(j) of
the ESA. All efforts to reestablish a species are undertaken to move
that species toward recovery. If importance to recovery was equated
with essentiality, no reestablished populations of a species would
qualify for nonessential status. This interpretation would conflict
with Congress' expectation that ``in most cases, experimental
populations will not be essential'' (H.R. Conference Report No. 835,
supra at 34; 49 FR 33885, August 27, 1984). Therefore, although we have
indicated that we will manage the MWEPA population to achieve the
recovery criteria for the U.S. population of Mexican wolves, the MWEPA
population's importance to recovery does not equate with the MWEPA
being designated as essential.
In the final rule published on January 12, 1998 (63 FR 1752), we
determined that the experimental population was not essential to the
survival of the species in the wild based on the current and expected
future availability of Mexican wolves in captivity that would be
available for release to the wild. Just prior to the 1998 designation,
the captive program included 148 animals in 44 facilities in the United
States and Mexico. We stated in the 1998 designation that the captive
population had doubled in size over the previous 3 years, demonstrating
its reproductive potential to replace reintroduced wolves that died (63
FR 1752, January 12, 1998, p. 1753). While we expected that some wolves
would die after removal from the captive population, we also expected
that the captive population had the capacity to support another
reintroduction attempt in the extreme event that the entire population
died. We established an expectation from the earliest days of the
reintroduction that wolves released to the wild would be genetically
redundant to wolves in captivity, such that no unique genes would be
lost if released wolves did not survive. This approach ensured the
genetic integrity of the captive population and the survival of the
subspecies. We stated that the genetic management of the captive
population would be conducted by the American Zoo and Aquarium
Association's SSP program, using state-of-the-art technology and being
guided by an expert advisor specializing in small population
management.
Now, taking into consideration our expansion of the MWEPA in the
2015 10(j) rule and the growth of the MWEPA population since the
reintroduction began, we maintain our position that the captive
population serves as a safeguard for the survival of the Mexican wolf
in the wild. Although the revised geography of the MWEPA results in
Mexican wolves occupying new areas south of I-40 in Arizona and New
Mexico south to the international border with Mexico, wolves that may
occupy any area within the revised MWEPA are part of the same
experimental population we initiated in 1998. Our previous rationale
stands for this now enlarged area: Even if the entire population in the
MWEPA died, which is extremely unlikely (see Likelihood of Population
Establishment and Survival, above), animals from captivity would be
available to reintroduce to the wild to reestablish the population. In
fact, the captive population is more capable of producing genetically
redundant wolves for release than it was in 1998, due to its increased
size. As of June 30, 2020, the captive population housed 369 wolves in
55 facilities (Scott et al. 2020, p. 7). Many of the facilities that
house and breed wolves in captivity have been doing so for two to three
decades, demonstrating a firm commitment as a partner in this effort
and gaining considerable experience in husbandry and rearing
techniques. The SSP continues to annually meet or exceed its goal to
maintain a captive population of 300 wolves. The captive population
could be expanded beyond its current size with the addition of more
participating facilities that would enable more wolves to be placed
into breeding situations (Scott et al. 2020, p. 7).
In addition to the capacity of the captive population to produce
the number of wolves that would be necessary to reinitiate a
reintroduction, the SSP continues to demonstrate rigorous management of
the genetic integrity of the captive population. The SSP prioritizes
the breeding of select individuals, and multiple facilities and
institutions within the SSP invest in gamete collection and
preservation for
[[Page 59968]]
use in promising assisted reproductive technologies that allow
individual wolves to contribute genetically to the population after
their death (Scott et al. 2020, pp. 82-83). The rigorous management of
the captive facilities combined with the increasing exploration of and
potential to use reproductive technologies further strengthen our
position that the captive population has the current capacity and
demonstrated record of accomplishment to produce Mexican wolves for
release to ensure the survival and recovery of the Mexican wolf in the
wild.
We propose our designation in recognition that the gene diversity
of the captive population will slowly decline over time. The 2020 SSP
masterplan for the Mexican wolf states, ``Currently this population
could maintain only 75% gene diversity for 59 years and would be
expected to maintain 72.3% after 100 years (Scott et al. 2020, p. 9).''
We acknowledge that the captive population is based on a small number
of founders with no possibility of new Mexican wolf founders that could
add gene diversity, which limits the gene diversity of the captive
Mexican wolf population and any wild population initiated with captive
wolves. We also acknowledge that limited breeding capacity due to the
number of captive facilities available for breeding coupled with the
social structure of the species (not all wolves are breeders) will
affect the rate of loss of gene diversity in the captive population
over time (Scott et al. 2020, p. 9). However, these factors do not make
the captive population unfit to serve as a source for additional
reintroductions because the breeding of underrepresented founders, the
addition of facilities for breeding events, and the use of reproductive
technologies can be increased in order to slow the loss of gene
diversity in the captive population. That is, the rate of gene loss can
be controlled to a large degree by the management of the captive
population. Loss of gene diversity in the captive population would
limit future reintroduction potential if it occurred to such an extent
that inbreeding effects were observed and resulted in wolves unfit for
release. At the current time there is no indication of this, nor is
there a specific degree of gene loss at which we have certainty this
would occur. Therefore, while we recognize that gene diversity
limitations have and will continue to persist, they are not occurring
to a degree that curtails our ability to consider a future
reintroduction of Mexican wolves to the wild or for those wolves to
retain the potential for recovery.
We also note the reintroduction of Mexican wolves in Mexico
beginning in 2011, which has resulted in the establishment of a second
population of wild Mexican wolves. This effort is a central part of the
recovery effort for the Mexican wolf and is not dependent
demographically on dispersal of wolves from the MWEPA for its
establishment, although translocations from the United States may be
undertaken for various management purposes. A loss of wolves in the
MWEPA would not disable Mexico's ability to achieve recovery;
meanwhile, the MWEPA population could be re-established.
We note that when the MWEPA was designated in 1998 (see 63 FR 1752;
January 12, 1998), the Mexican wolf was protected as endangered through
the gray wolf listing (see 43 FR 9607; March 9, 1978). We indicated our
intent in that rule to conserve subspecies such as the Mexican wolf (43
FR 9607, March 9, 1978, pp. 9609-9610). As such, our designation of an
experimental population of the Mexican wolf was in relation to the
Mexican wolf subspecies, not the gray wolf species. Therefore, our
rationale for designating the MWEPA as nonessential was also in
relation to the Mexican wolf subspecies only and did not take into
consideration other gray wolf populations (63 FR 1752; January 12,
1998). In 2015, we published a final rule (80 FR 2488; January 16,
2015) listing the Mexican wolf as an endangered subspecies to make its
listing independent of the gray wolf species listing. This change in
listing, from being part of a species-level listing to a subspecies
listing, does not alter our above rationale related to the role of the
captive population in our essentiality determination because,
consistent with our original designation, we continue to consider the
designation of the MWEPA in relation to the Mexican wolf subspecies.
As described in this proposed rule, the USFWS and our partners have
over two decades of management experience that support our position
that we could successfully reinitiate a reintroduction. In 1998, we
stated that in the event of the loss of the entire population, future
reintroductions would be possible if the reasons for initial failure
were understood (63 FR 1752, January 12, 1998, p. 1754). Not only have
we not experienced any such initial failure, we have demonstrated
success in growing the population to a minimum of 186 wild wolves.
Along the way, we have engaged in adaptive management to hone effective
release techniques and identify successful release locations and
timing; we have developed and implemented depredation avoidance
techniques; we have expanded our partnership network to bring
additional expertise and capacity to bear; we have solidified our
recovery goals and revised our management regulations; and we continue
to integrate new technologies as they become available to track and
monitor wolves and collect data. We are better informed and equipped
now, and will be in the future, to initiate and manage a reintroduction
than we were in 1998.
In addition to considering our logistical potential to conduct a
new reintroduction and the degree to which the recovery potential of
the Mexican wolf would be retained in such circumstances based on the
status of the captive population, our finding of whether a population
is essential is also made with our understanding that Congress enacted
the provisions of the ESA's section 10(j) to mitigate fears that
reestablishing populations of endangered or threatened species into the
wild would negatively impact landowners and other private parties.
Congress recognized that flexible rules could encourage recovery
partners to actively assist in the reestablishment and hosting of such
population on their lands (H.R. Conference Report. No. 97-567, at
8(1982)). Although Congress allowed experimental populations to be
identified as either essential or nonessential, they noted that most
experimental populations would be nonessential (H.R. Conference Report
No. 835, supra at 34; see 49 FR 33885, August 27, 1984). Mexican
wolves, due to their status as a top predator, have created significant
dissension and concern in local communities. In this regard, we note
that we are in a unique position in making this finding as an extension
of an existing experimental population, as opposed to a new population
designation in another geographic area. Because of this, we consider it
even more important to maintain the existing partnerships and
management arrangements that we have built over the last two decades of
the reintroduction because they enhance our ability to address local
concerns and contribute to the recovery progress of the Mexican wolf.
Our intent to establish a collaborative management scheme for the
reintroduction has been evident since 1998, when we discussed the role
of cooperating agencies in the management, identification, and
monitoring of the reintroduced population (63 FR 1752, January 12,
1998, p. 1754). Currently, we manage the reintroduction pursuant to the
2019 MOU with a host of Federal and State agencies, a Tribe, and
several counties
[[Page 59969]]
and local governments, each of which plays a unique and important role.
We recognize that changing course to an essential designation could
result in challenges in maintaining these partnerships.
Section 7 of the ESA, titled Interagency Cooperation, outlines the
procedures for Federal interagency cooperation to conserve Federally
listed species and designated critical habitats. Section 7(a)(1)
directs the Secretaries of the Interior and Commerce to review other
programs administered by them and utilize such programs to further the
purposes of the ESA. It also directs all other Federal agencies to
utilize their authorities in furtherance of the purposes of the ESA by
carrying out programs for the conservation of species listed pursuant
to the ESA. This section of the ESA makes it clear that all Federal
agencies should participate in the conservation and recovery of listed
endangered and threatened species. Under this provision, Federal
agencies often enter into partnerships and memoranda of understanding
with the USFWS to implement and fund conservation agreements,
management plans, and recovery plans for listed species.
The primary land management agency within the MWEPA is the USFS,
which manages land under a multiple use mandate. The USFS is a
signatory to the 2019 MOU for Mexican Wolf Recovery and Management.
According to the 2019 MOU, the USFS will provide a liaison to the
Interagency Field Team (IFT) to: (1) Serve as the primary liaison
between the IFT and USFS on all Mexican wolf issues that pertain to
USFS-managed lands, USFS permittees, and other users; (2) provide
coordination between the various USFS district rangers/wildlife staff/
regional office and the IFT on wolf-related activities and issues; (3)
provide assistance and input on IFT issues and priorities; and (4)
facilitate obtaining necessary USFS authorizations, permits,
environmental analyses, and closure orders.
The USFS has implemented proactive conservation efforts for the
Mexican wolf on a multiple use landscape. The USFS districts work
closely with the IFT and meet at least four times per year to
coordinate the following:
<bullet> Review locations of current wolf territories and den/
rendezvous sites to coordinate with planned land management actions
(including range, fire, timber, recreation) and mitigate potential
impacts;
<bullet> Coordinate with each district in developing a district-
specific livestock carcass removal strategy so that carcasses can be
removed from grazing allotments when appropriate to reduce potential
wolf/livestock conflict;
<bullet> Attend annual operating instructions meetings with range
conservationists and individual livestock permittees to review
allotment-specific wolf information and develop conflict reduction
strategies;
<bullet> Update the district range conservationist when
depredations occur and explore strategies to reduce conflicts;
<bullet> Update livestock permittees approximately every 2 weeks on
new wolf locations on their allotments with the intent of reducing
wolf/livestock conflicts, encouraging proactive measures, and improving
information exchange with the wolf biologist(s) assigned to that area;
<bullet> Coordinate with nongovernmental organizations for funding
of proactive measures in areas with high depredation rates; and
<bullet> Coordinate to help ensure successful implementation of
cross-fostering efforts on USFS lands to reach genetic recovery goals.
For the ESA's section 7 consultation purposes, section 10(j)
requires the following:
<bullet> Any nonessential experimental population located outside a
National Park or National Wildlife Refuge System unit is treated as a
proposed species for the purposes of section 7 (conference may be
conducted);
<bullet> Any essential population is treated as a threatened
species for purposes of section 7 consultation (standard consultations
are conducted);
<bullet> Critical habitat may be designated for essential
experimental populations (standard consultations are conducted), but
not for nonessential experimental populations; and
<bullet> All populations of the species (including populations
designated as experimental) are considered to be a single listed entity
when making jeopardy determinations or other analyses in a section 7
consultation.
By definition, a ``nonessential experimental population'' is not
essential to the continued existence of the species. Therefore, no
proposed action impacting a population so designated could lead to a
jeopardy determination for the entire species. Because the USFS is
implementing their section 7(a)(1) responsibilities, is a signatory to
the 2019 MOU along with 13 other agencies and entities, and is
implementing conservation measures, it is appropriate for the Mexican
wolf to be treated as a proposed species for the purposes of section 7
under the nonessential designation.
Management Restrictions, Protective Measures, and Other Special
Management
For Mexican wolves that occur outside the MWEPA due to dispersal
activity, the ESA prohibits activities that ``take'' endangered and
threatened species unless a Federal permit allows such ``take.'' Along
with our implementing regulations at 50 CFR part 17, the ESA provides
for ``take'' permits and requires that we invite public comment before
issuing these permits. A permit issued by us under section 10(a)(1)(A)
of the ESA authorizes activities otherwise prohibited by section 9 for
scientific purposes or to enhance the propagation or survival of the
affected species, including acts necessary for the establishment and
maintenance of experimental populations. Our regulations regarding
implementation of section 10(a)(1)(A) permits are found at 50 CFR 17.22
for endangered species.
We have developed a section 10(a)(1)(A) permit to allow for certain
activities with Mexican wolves that occur both inside and outside the
MWEPA. If Mexican wolves travel outside the MWEPA, we intend to capture
and return them to the MWEPA or place them in captivity.
Review and Evaluation of the MWEPA Population
The USFWS will measure the success, failure, and effects of
releases, translocations, proactive management, removals, and other
management actions by monitoring, researching, and evaluating the
status of Mexican wolves and their offspring in the MWEPA. Using
adaptive management principles, the USFWS will continue to modify
subsequent management actions and strategies depending on what we learn
and the status of the population. We will prepare periodic progress
reports, annual reports, and publications, as appropriate, to evaluate
our progress. The reviews and progress reports we foresee completing in
the future include: Quarterly updates and annual reports; five-year
status evaluations pursuant to section 4(c)(2) of the ESA, with the
next evaluations occurring in 2023 and 2028; 5- and 10-year recovery
progress evaluations pursuant to the revised recovery plan, during
which we will assess progress toward recovery based on data through
2022 and 2027 for the 5- and 10-year evaluations, respectively, and
which will result in the publication of our evaluations in 2023 and
2028; the phasing evaluations for western Arizona as established in the
2015 10(j) rule, which occurred in
[[Page 59970]]
2020 and will occur in 2023; and an evaluation of this revised rule
approximately 5 years after implementation begins, which would be based
on data through the annual population count in 2027 and which we will
synchronize with our 2027 recovery plan evaluation to ensure we conduct
a wholistic review of the experimental population within the context of
recovery, for publication in 2028.
Consultation With State Game and Fish Agencies, Local Governments,
Tribes, Federal Agencies, and Private Landowners in Developing and
Implementing This Proposed Rule
In accordance with 50 CFR 17.81(d), to the maximum extent
practicable, this proposed rule represents an agreement between the
USFWS, the affected State and Federal agencies, and persons holding any
interest in land that may be affected by the establishment of this
experimental population. We invited 60 Federal and State agencies,
local governments, and Tribes to participate as cooperating agencies in
the development of the DSEIS, 24 of which signed a memorandum of
understanding (MOU). The purpose of this MOU was for the signatory
entities to contribute to the preparation of the DSEIS that analyzes
the proposed revisions to the regulations for the MWEPA. The revisions
proposed in this rule directly reflect the input of State game and fish
agencies, local governmental entities, and affected Federal agencies.
In April 2020, we notified the Tribal governments of all the Native
American Tribes in Arizona and New Mexico of our intent to prepare a
proposed revised 10(j) rule and DSEIS. We held several Tribal working
group meetings to provide opportunity for input, discuss the current
status of the DSEIS development, and address issues raised by the
Tribes. We also provided updates and opportunities for Tribal input to
our process during Tribal coordination meetings convened by the Arizona
Ecological Services Field Office in Phoenix, Arizona, and the New
Mexico Ecological Services Field Office in Albuquerque, New Mexico.
Due to the difficulty of conducting in-person meetings during the
COVID-19 pandemic, we conducted most meetings related to this process
via virtual video or telephone meetings. We met with affected Federal
and State agencies, representatives from local and Tribal governments,
and stakeholder groups representing interested parties to discuss the
proposed rule and DSEIS. We met with the Arizona Game and Fish
Department and New Mexico Department of Game and Fish to collect data
for the biological resources and economics analyses and to discuss
proposed revisions. We coordinated regularly to discuss their issues
and recommendations.
In addition to the coordination provided specific to the
development of the proposed rule and DSEIS, we note that we also
conduct the management and recovery of the Mexican wolf within an
interagency framework that is defined by our 2019 MOU (see Recovery
Efforts, above).
Numerous other entities and individuals provided comments during
scoping or at other times during our process that did not reflect the
best available scientific and commercial information or contribute to
the conservation and recovery of the species. It is not practicable for
this proposed rule to represent an agreement between the USFWS and all
persons holding any interest in land that may be affected by the
revision to the designation of this experimental population. We
reviewed approximately 87,000 public scoping comments to develop this
proposed rule and the DSEIS. We will hold virtual public meetings and
hearings during the public comment period for this proposed rule and
the DSEIS (see DATES and ADDRESSES, above), and we will consider all
comments we receive during the open public comment period in the
development of our final rule and final SEIS.
Peer Review
In accordance with joint policy published in the Federal Register
on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at
least three appropriate and independent specialists regarding this
proposed rule. We have provided copies of this proposed rule to three
or more appropriate and independent specialists in order to solicit
comments on the scientific data and assumptions we used. The purpose of
such review is to ensure that the final determination is based on
scientifically sound data, assumptions, and analyses. As directed by
the USFWS Peer Review Policy dated July 1, 1994 (59 FR 34270), and a
recent memo updating the peer review policy for listing and recovery
actions (August 22, 2016), we will invite peer reviewers to comment on
our methods and conclusions, and provide additional information,
clarifications, and suggestions to improve the final determination. We
will consider their comments and information on proposed modifications
during preparation of a final rule. Accordingly, the final decision may
differ from this proposal.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget will review
all significant rules. The Office of Information and Regulatory Affairs
has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. Executive Order 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this proposed rule in a
manner consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
801 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities. We certify that this proposed rule would not have a
significant economic effect on a substantial number of small entities.
The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations such as
[[Page 59971]]
independent nonprofit organizations; small governmental jurisdictions,
including school boards and city and town governments that serve fewer
than 50,000 residents; and small businesses (13 CFR 121.201). Small
businesses include such businesses as manufacturing and mining concerns
with fewer than 500 employees, wholesale trade entities with fewer than
100 employees, retail and service businesses with less than $5 million
in annual sales, general and heavy construction businesses with less
than $27.5 million in annual business, special trade contractors doing
less than $11.5 million in annual business, and forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
considered the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
Importantly, the impacts of a rule must be both significant and
substantial to prevent certification of the rule under the Regulatory
Flexibility Act and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed rule, but the per-entity economic impact is
not significant, the USFWS may certify. Likewise, if the per-entity
economic impact is likely to be significant, but the number of affected
entities is not substantial, the USFWS may also certify.
In our 2015 10(j) rule, we found that the experimental population
would not have significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act. The 2015 10(j)
rule expanded the geographic boundaries of the MWEPA, established new
management zones with provisions for initial release and translocation
of Mexican wolves, revised and added allowable forms of take, and
clarified definitions. We concluded that the rule would not
significantly change costs to industry or governments. Furthermore, the
rule produced no adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.
enterprises to compete with foreign-based enterprises in domestic or
export markets. We further concluded that no significant direct costs,
information collection, or recordkeeping requirements were imposed on
small entities by the action and that the rule was not a major rule as
defined by 5 U.S.C. 804(2) (80 FR 2512, January 16, 2015, pp. 2553-
2556).
Under this proposal, we would modify the population objective,
establish a genetic objective, and temporarily restrict three of the
forms of take of Mexican wolves in the MWEPA that we adopted in the
January 16, 2015, final rule. We are proposing these revisions to
ensure the long-term conservation and recovery of the Mexican wolf. In
addition, we are proposing to maintain the nonessential designation for
the experimental population. We are not proposing to revise the
geographic boundaries of the MWEPA.
Because of the regulatory flexibility for Federal agency actions
provided by the MWEPA's 10(j) designation, we continue to expect this
rule not to have significant effects on any activities within Federal,
State, or private lands within the experimental population. In regard
to section 7(a)(2) of the ESA, except on National Park Service and
National Wildlife Refuge System lands, the population is treated as
proposed for listing, and Federal action agencies are not required to
consult on their activities. Section 7(a)(4) of the ESA requires
Federal agencies to confer (rather than consult) with the USFWS on
actions that are likely to jeopardize the continued existence of a
species. However, because a nonessential experimental population is, by
definition, not essential to the survival of the species, conferencing
is unlikely to be required within the MWEPA. Furthermore, the results
of a conference are strictly advisory in nature and do not restrict
agencies from carrying out, funding, or authorizing activities. In
addition, section 7(a)(1) of the ESA requires Federal agencies to use
their authorities to carry out programs to further the conservation of
listed species, which would apply on any lands within the experimental
population area. As a result, and in accordance with these regulations,
if we adopt this rule as proposed, some modifications to the Federal
actions within the experimental population area may occur to benefit
the Mexican wolf, but we do not expect projects on Federal lands to be
halted or substantially modified as a result of these regulations.
However, this proposed rule would allow a larger population of
Mexican wolves to occupy the MWEPA, which has the potential to affect a
greater number of small entities involved in ranching and livestock
production, particularly beef cattle ranching (business activity code
North American Industry Classification System (NAICS) 112111), sheep
farming (business activity code NAICS 112410), and outfitters and
guides (business activity code NAICS 114210). Small entities in these
sectors may be affected by Mexican wolves depredating on, or causing
weight loss of, domestic animals (particularly beef cattle), or preying
on wild native ungulates, respectively. We have updated our assessment
to small entities in the DSEIS.
Small businesses involved in ranching and livestock production may
be affected by Mexican wolves depredating on domestic animals,
particularly beef cattle. Direct effects to small businesses could
include foregone calf or cow sales at auctions due to depredations.
Indirect effects could include impacts such as increased ranch
operation costs for surveillance and oversight of the herd, and weight
loss of livestock when wolves are present. Ranchers have also expressed
concern that a persistent presence of wolves may negatively impact
their property and business values. We do not foresee a significant
economic impact to a substantial number of small entities in the
ranching and livestock production sector based on the following
information:
The small size standard for beef cattle ranching entities and sheep
farms as defined by the Small Business Administration are those
entities with less than $1.0 million in average annual receipts (<a href="http://www.sba.gov/content/summary-size-standards-industry-sector">http://www.sba.gov/content/summary-size-standards-industry-sector</a>). We
consider close to 100 percent of the cattle ranches and sheep farms in
Arizona and New Mexico to be small entities. The 2017 Census of
Agriculture reports that there were 7,057 cattle and calf operations
and 7,509 sheep farms in Arizona, and 10,880 cattle and calf operations
and 4,047 sheep farms in New Mexico.
Of the approximately 18,000 cattle ranches in Arizona and New
Mexico, 12,334 occur in counties in the MWEPA (2017 Census of
Agriculture data by county). These operations account for approximately
69 percent of the total for both States. The actual number of ranches
within the project area is far less than this estimate because several
counties extend beyond the borders of the project area or the ranches
occur in areas where we do not expect wolf occupancy due to low habitat
suitability. The Agricultural Census does not report sub-county farms
or inventory, so relying on the county numbers is the best available
data for estimating the number of potentially affected small ranching
operations.
[[Page 59972]]
Cattle ranches vary significantly in herd size, with
classifications ranging from a herd of 1 to 9 animals, to those with
more than 2,500 animals (2017 Census of Agriculture). Over 80 percent
of these ranches have fewer than 50 head of cattle.
We assessed whether a substantial number of entities would be
impacted by this proposed rule by estimating the annual number of
depredations we expect to occur within the project area when the
Mexican wolf population will be at its largest. Between 1998 and 2019,
on average, there were 151 total depredations (confirmed and
unconfirmed) by Mexican wolves in any given year, which equates to 1.7
cow/calves killed for every Mexican wolf. Based on this, we estimate
the average number of cattle killed (both confirmed and unconfirmed) in
any given year for 320 wolves will be 544 individuals. We expect the
experimental population to grow from its current minimum population
estimate of 186 wolves to an 8-year average population of 320. Assuming
that one cow is depredated per ranch, we expect the number of affected
ranches to increase from 151 ranches to 544 ranches when the wolf
population reaches 320 individuals. At this point, if each expected
depredation affects a unique ranch, then a total of approximately four
percent of ranches in the area would be impacted.
To the extent that some cattle ranches will most likely not be
impacted by wolf recovery because they are not located in suitable
habitat but are included in the total estimate of potentially affected
ranches because the Agricultural Census does not provide data at a sub-
county level, this estimate could understate the percentage of ranches
potentially affected. However, for other reasons, this estimate could
very well overstate the percentage of cattle ranches affected as we
recognize that annual depredation events have not been, and may not be,
uniformly distributed across the ranches operating in occupied wolf
range. Rather, wolves seem to concentrate in particular areas, and to
the extent that livestock are targeted by the pack for depredations,
some ranch operations will be disproportionately affected. Therefore,
it is more likely that fewer than 544 ranches may experience more than
one depredation, rather than each of 544 ranches experiencing one
depredation.
Compared to the 2017 total inventory of estimated ranch cattle
(259,192) for the project area of the Blue Range Wolf Recovery Area
(BRWRA), both confirmed and unconfirmed depredations per 100 Mexican
wolves account for 0.2 percent of the herd size. The economic cost of
Mexican wolf depredations in this time period has been a small
percentage of the total value of the livestock operations. With a
population objective of an average of 320 Mexican wolves in the MWEPA,
the expected value of 544 cattle (174.3 cattle killed per 100 Mexican
wolves on average for any year) at auction based on a weighted average
market value for a depredated cow/calf of $1,094.72 ($2020), the total
annual impact would be $595,500. If depredations uniquely affect a
separate operation, then a total of 544 operations would incur an
expected corresponding loss of $1,095.
Small businesses involved in ranching and livestock production
could also be indirectly affected by weight loss of livestock due to
the presence of Mexican wolves. For example, livestock may lose weight
because wolves force them off suitable grazing habitat or away from
water sources. Livestock may try to protect themselves by staying close
together in protected areas where they are more easily able to see
approaching wolves and defend themselves and their calves. A
consequence of such a behavioral change would likely be weight loss,
especially if the wolves are allowed to persist in the area for a
significant amount of time because the cattle would be afraid to spread
out to find more lucrative forage areas. Weight loss could also occur
if the presence of wolves causes the herd to move around more rapidly
as they try to keep away from wolves. Based on Ramler et al. 2014,
weight loss of cattle is associated with the ranches that have suffered
depredations. Therefore, we would expect the same ranches--that is, 544
ranches or fewer--that are impacted by depredations to potentially be
impacted by weight loss of their cattle. Because wolves' tendency to
prey on cattle is localized, we would not expect all 544 ranches and
their associated herds to be impacted.
Using a mid-point estimate of 6 percent weight loss for calves at
the time of auction, we calculated the impact on 2019 model ranches
assuming that wolf presence pressures were allowed to persist
throughout the foraging year. Based on mean market prices, a 6 percent
weight loss for the herd at the time of sale could result in a profit
loss of $3,079 to $16,613 depending on the size of the ranch. Under
such a scenario, an affected ranch could incur a 20 percent loss in
profit using the model ranch assumptions discussed in the report. This,
however, is likely an overestimate of impacts that would occur, as once
wolves are detected in an area, a variety of proactive and reactive
management tools are available to the landowner or the USFWS and our
designated agencies such that wolf presence would not persist
throughout a foraging year.
This proposed rule is based on alternative one in our DSEIS. Under
this alternative, the experimental population regulations would
continue to offer several forms of harassment and take of Mexican
wolves on Federal and non-Federal land to address conflict situations
between wolves and livestock, although we are also proposing to
temporarily restrict two of these until we reach the proposed genetic
objective of 22 released wolves surviving to breeding age. The
regulations would also continue to provide for initial release of
captive wolves into suitable habitat in Zones 1 and 2, and we have
demonstrated our intention to reduce nuisance behavior associated with
adult releases by using the cross-fostering technique. Further,
depredation compensation programs are available to offset some of the
economic impacts of livestock depredations (see Recovery Efforts,
above); these payments fully offset the impacts of confirmed
depredations for some operators but do not fully offset impacts for all
operators, such as those who experience unconfirmed losses for which
payment is not provided.
Based on the preceding information, we find that the impact of
direct and indirect effects of Mexican wolf depredations on livestock
is not significant and substantial. That is, if impacts are evenly
spread, less than 5 percent of small ranches in the MWEPA will be
impacted, which we do not consider to be a substantial number. If
impacts are disproportionately felt (several ranchers bear the burden
of the depredations), the number of affected ranches will be even less
(not substantial), but the impact to those affected may be significant
depending on the number of cattle on the ranch and other
characteristics.
Our proposed revision of the experimental designation may also
impact small business entities associated with big game hunting, due to
wolves' predation on wild ungulates, specifically elk, in the MWEPA.
Effects to small businesses in this sector could occur from impacts to
big game populations, loss of hunter visitation, or a decline in hunter
success, leading to lost income or increased costs to guides and
outfitters. We would expect impacts to big game hunting to potentially
occur from the increased number of wolves in the MWEPA under our
proposed population objective or from the temporary restriction of the
provision
[[Page 59973]]
for take in response to an unacceptable impact to a wild ungulate herd.
Negative impacts to the big game hunting economic sector would be most
likely to occur during the period that this take provision is
restricted because State agencies would not be able to request the
removal of wolves if they are causing ungulate herds to fall below
management goals (i.e., an unacceptable impact).
As we describe in the DSEIS, we do not have a high degree of
certainty as to when impacts to ungulates may occur, but we speculate
based on information from gray wolves in other geographic areas that
impacts will not occur prior to the wolf-to-1,000-elk ratio reaching
above 4 wolves to 1,000 elk (potentially around 2024). We expect to
meet our proposed genetic objective by 2030, resulting in the temporary
restriction of this take provision for not more than 6 years. After the
proposed genetic objective is reached and the restriction on this take
provision would be lifted, the States could request the removal of
wolves causing unacceptable impacts, which would result in mitigation
of any reduction in hunting revenue occurring in that area. Currently,
we do not have information suggesting that impacts have occurred. No
observable impact on wild ungulates due to wolves has been documented,
nor reductions in big game hunting. In Arizona, total harvest of elk
and percent success of hunters increased from 2012 to 2017 (the most
recent year for which we have data) (Hunt Arizona 2011 and 2017,
Survey, Harvest and Hunt Data for Big and Small Game), and stayed
stable or increased slightly in New Mexico from 2012 to 2019 (NMDGF
files).
For the above reasons and based on currently available information,
we certify that, if adopted as proposed, the proposed revision to the
existing nonessential experimental population designation of the
Mexican wolf would not have a significant economic impact on a
substantial number of small business entities. Therefore, an initial
regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(1) This proposed rule would not ``significantly or uniquely''
affect small governments. We have determined and certify pursuant to
the Unfunded Mandates Reform Act that, if adopted, this rulemaking
would not impose a cost of $100 million or more in any given year on
local or State governments or private entities. A Small Government
Agency Plan is not required. Small governments would not be affected
because the experimental designation would not place additional
requirements on any city, county, or other local municipalities.
(2) This proposed rule would not produce a Federal mandate of $100
million or greater in any year (i.e., it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act). The
proposed revisions to the MWEPA would not impose any additional
management or protection requirements on the States or other entities.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
this proposed rule does not have significant takings implications. When
reestablished populations of federally listed species are designated as
nonessential experimental populations, the ESA's regulatory
requirements regarding the reestablished listed species within the
experimental population are significantly reduced. In the 1998 final
rule (63 FR 1752; January 12, 1998), we stated that one issue of
concern is the depredation of livestock by reintroduced Mexican wolves,
but such depredation by a wild animal would not be a taking under the
5th Amendment. One of the reasons for the experimental population is to
allow the agency and private entities flexibility in managing Mexican
wolves, including the elimination of a wolf when there is a confirmed
kill of livestock.
A takings implication assessment is not required because this
proposed rule would not effectively compel a property owner to suffer a
physical invasion of property and would not deny all economically
beneficial or productive use of the land or aquatic resources. Damage
to private property caused by protected wildlife does not constitute a
taking of that property by a government agency that protects or
reintroduces that wildlife. This proposed rule would substantially
advance a legitimate government interest (conservation and recovery of
a listed species) and would not present a barrier to all reasonable and
expected beneficial use of private property.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), we have
considered whether this proposed rule has significant federalism
effects and have determined that a federalism summary impact statement
is not required. This proposed rule would not have substantial direct
effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. In keeping
with Department of the Interior policy, we requested information from
and coordinated development of this proposed rule with the affected
resource agencies in New Mexico and Arizona. Achieving the population
objective for the MWEPA, which serves as one of the recovery criteria
for the Mexican wolf, will contribute to the rangewide recovery of the
species, which will contribute to its eventual delisting and its return
to State management. No intrusion on State policy or administration is
expected, roles or responsibilities of Federal or State governments
will not change, and fiscal capacity will not be substantially or
directly affected. This proposed rule would operate to maintain the
existing relationship between the State and the Federal Government.
Therefore, this proposed rule does not have significant federalism
effects or implications to warrant the preparation of a federalism
summary impact statement under the provisions of Executive Order 13132.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (February 7, 1996; 61 FR
4729), we have determined that this proposed rule will not unduly
burden the judicial system and will meet the requirements of sections
(3)(a) and (3)(b)(2) of the Order.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relatives with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we have notified the Native American
Tribes within and adjacent to the nonessential experimental population
area about the proposed rule and DSEIS. They have been advised through
written contact, including informational mailings from the USFWS and
email notifications to attend video and teleconference informational
sessions, and will be provided an opportunity to comment on the DSEIS
and proposed rule. If future activities resulting from this proposed
rule may affect Tribal
[[Page 59974]]
resources, the USFWS will communicate and consult on a government-to-
government basis with any affected Native American Tribes in order to
find a mutually agreeable solution.
Paperwork Reduction Act
This proposed rule does not contain any new collection of
information that requires approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.). OMB has previously approved the information collection
requirements associated with permitting and reporting requirements
associated with native endangered and threatened species, and
experimental populations, and assigned the following OMB control
numbers:
<bullet> 1018-0094, ``Federal Fish and Wildlife Permit Applications
and Reports--Native Endangered and Threatened Species; 50 CFR 10, 13,
and 17'' (expires 01/31/2024), and
<bullet> 1018-0095, ``Endangered and Threatened Wildlife,
Experimental Populations, 50 CFR 17.84'' (expires 9/30/2023).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
We have prepared a draft supplemental environmental impact
statement (DSEIS) pursuant to the National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.) in connection with this proposed rule to
revise the Mexican wolf experimental population designation. The
purpose of the DSEIS is to identify and disclose the environmental
consequences resulting from the proposed action of revising the
existing experimental population designation of the Mexican wolf. On
April 15, 2020, we published a notice of intent (85 FR 20967) to
prepare the DSEIS, which opened a public scoping period from April 15,
2020, to June 15, 2020. We used the information gathered during scoping
to inform the DSEIS and this proposed rule.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects when undertaking
certain actions. This proposed rule is not expected to significantly
affect energy supplies, distribution, or use because the actions
contemplated in this proposed rule involve the reintroduction of
Mexican wolves. Mexican wolves reintroduced in the MWEPA do not change
where, when, or how energy resources are produced or distributed.
Because this action is not a significant energy action, no statement of
energy effects is required.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, or other
appropriate recommendations.
References Cited
A complete list of all references cited in this proposed rule is
available at <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R2-ES-2021-
0103, or upon request from the Mexican Wolf Recovery Program, U.S. Fish
and Wildlife Service, New Mexico Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this document are the staff members of the
Mexican Wolf Recovery Program (see FOR FURTHER INFORMATION CONTACT).
Authority
The authorities for this action are the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) and the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245; unless
otherwise noted.
0
2. Amend Sec. 17.84, in paragraph (k), by:
0
a. Revising paragraph (k)(1);
0
b. Adding paragraphs (k)(7)(iv)(C)(1) and (2), (k)(7)(v)(A)(1) and (2),
and (k)(7)(vi)(E);
0
c. Revising paragraph (k)(9)(iii);
0
d. Adding paragraph (k)(9)(v); and
0
e. Revising paragraph (k)(10).
The revisions and additions read as follows:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(k) * * *
(1) Purpose of the rule. The U.S. Fish and Wildlife Service (USFWS)
finds that reestablishment of an experimental population of Mexican
wolves into the subspecies' probable historical range will further the
conservation and recovery of the Mexican wolf subspecies. The USFWS
also finds that the experimental population is not essential under
Sec. 17.81(c)(2).
* * * * *
(7) * * *
(iv) * * *
(C) * * *
(1) Until the USFWS has achieved the genetic objective for the
MWEPA set forth at paragraph (k)(9)(v) of this section by documenting
that at least 22 released wolves have survived to breeding age in the
MWEPA, the USFWS or a designated agency may issue permits only on a
conditional, annual basis according to the following provisions: Either
(i) Annual release benchmarks (for the purposes of this paragraph,
the term ``benchmark'' means the minimum cumulative number of released
wolves surviving to breeding age since January 1, 2016, as documented
annually in March) have been achieved based on the following schedule:
Table 1 to Paragraph (k)(7)(iv)(C)(1)(i)
------------------------------------------------------------------------
Year Benchmark
------------------------------------------------------------------------
2021....................................................... 7
[[Page 59975]]
2022....................................................... 9
2023....................................................... 11
2024....................................................... 13
2025....................................................... 14
2026....................................................... 15
2027....................................................... 16
2028....................................................... 18
2029....................................................... 20
2030....................................................... 22
------------------------------------------------------------------------
; or
(ii) Permitted take on non-Federal land, or on Federal land under
paragraph (k)(7)(v) of this section, during the previous year (April 1
to March 31) did not include the lethal take of any released wolf or
wolves that were or would have counted toward the genetic objective set
forth at paragraph (k)(9)(v) of this section.
(2) After the USFWS has achieved the genetic objective set forth at
paragraph (k)(9)(v) of this section, the conditional annual basis for
issuing permits will no longer be in effect.
(v) * * *
(A) * * *
(1) Until the USFWS has achieved the genetic objective for the
MWEPA set forth at paragraph (k)(9)(v) of this section by documenting
that at least 22 released wolves have survived to breeding age, the
USFWS or a designated agency may issue permits only on a conditional,
annual basis according to the following provisions: Either
(i) Annual release benchmarks (for the purposes of this paragraph,
the term ``benchmark'' means the minimum cumulative number of released
wolves surviving to breeding age since January 1, 2016, as documented
annually in March) have been achieved based on the following schedule:
Table 2 to Paragraph (k)(7)(v)(A)(1)(i)
------------------------------------------------------------------------
Year Benchmark
------------------------------------------------------------------------
2021....................................................... 7
2022....................................................... 9
2023....................................................... 11
2024....................................................... 13
2025....................................................... 14
2026....................................................... 15
2027....................................................... 16
2028....................................................... 18
2029....................................................... 20
2030....................................................... 22
------------------------------------------------------------------------
; or
(ii) Permitted take on Federal land, or on non-Federal land under
paragraph (k)(7)(iv) of this section, during the previous year (April 1
to March 31) did not include the lethal take of any released wolf or
wolves that were or would have counted toward the genetic objective set
forth at paragraph (k)(9)(v) of this section.
(2) After the USFWS has achieved the genetic objective set forth at
paragraph (k)(9)(v) of this section, the conditional annual basis for
issuing permits will no longer be in effect.
* * * * *
(vi) * * *
(E) No requests for take in response to unacceptable impacts to a
wild ungulate herd may be made by the State game and fish agency or
accepted by the USFWS until the genetic objective at paragraph
(k)(9)(v) of this section has been met.
* * * * *
(9) * * *
(iii) Based on end-of-year counts, we will manage to achieve and
sustain a population average greater than or equal to 320 wolves in
Arizona and New Mexico. In order to achieve the current demographic
recovery criteria for the United States, this average must be achieved
over an 8-year period, the population must exceed 320 Mexican wolves
each of the last 3 years of the 8-year period, and the annual
population growth rate averaged over the 8-year period must be stable
or increasing.
* * * * *
(v) The USFWS and designated agencies will conduct a sufficient
number of releases into the MWEPA from captivity to result in at least
22 released Mexican wolves surviving to breeding age.
(10) Evaluation. The USFWS will continue to evaluate Mexican wolf
reestablishment progress and prepare periodic progress reports and
detailed annual reports. In addition, approximately 5 years after
[EFFECTIVE DATE OF FINAL RULE], the USFWS will prepare a one-time
overall evaluation of the experimental population program that focuses
on modifications needed to improve the efficacy of this rule and the
progress the experimental population is making to the recovery of the
Mexican wolf.
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-23627 Filed 10-28-21; 8:45 am]
BILLING CODE 4333-15-P
</pre></body>
</html>Indexed from Federal Register on October 29, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.