[Federal Register Volume 61, Number 85 (Wednesday, May 1, 1996)]
[Proposed Rules]
[Pages 19237-19248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10665]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD07


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to 
reintroduce the endangered Mexican gray wolf (Canis lupus baileyi) into 
two designated recovery areas within the subspecies' probable historic 
range. The Blue Range Wolf Recovery Area consists of the entire Apache 
and Gila National Forests in east-central Arizona and west-central New 
Mexico. The White Sands Wolf Recovery Area consists of all land within 
the boundary of the White Sands Missile Range in south-central New 
Mexico together with designated land immediately to the west. The 
wolves reintroduced into these areas are classified as one nonessential 
experimental population under section 10(j) of the Endangered Species 
Act (Act) of 1973, as amended. The proposed rule sets forth management 
directions and provides for limited allowable legal take of wolves 
within a defined Mexican Wolf Experimental Population Area.

DATES: Comments from all interested parties must be received by July 1, 
1996.

ADDRESSES: Send comments and materials concerning this proposal to the 
Mexican Wolf Recovery Program, U.S. Fish and Wildlife Service, P.O. Box 
1306, Albuquerque, New Mexico 87103-1306. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the above address. Copies of the draft 
Environmental Impact Statement or its summary can be obtained at this 
address.

FOR FURTHER INFORMATION CONTACT: Mr. David R. Parsons (see ADDRESSES 
section) at telephone 505/248-6920; or facsimile 505/248-6922.

SUPPLEMENTARY INFORMATION:

Background

    Legislative: The Endangered Species Act Amendments of 1982, Pub. L. 
97-304, made significant changes to the Act, including the creation of 
section 10(j), which provides for the designation of specific 
populations of listed species as ``experimental populations.'' Under 
previous authorities of the Act, the Service was permitted to 
reestablish (reintroduce) populations of a listed species into 
unoccupied portions of its historic range for conservation and recovery 
purposes. However, local opposition to reintroduction efforts, stemming 
from concerns by some about potential restrictions, and prohibitions on 
Federal and private activities contained in sections 7 and 9 of the 
Act, reduced the effectiveness of reintroduction as a management tool.
    Under section 10(j), a population of a listed species reestablished 
outside its current range but within its probable historic range may be 
designated as ``experimental,'' at the discretion of the Secretary of 
Interior (Secretary), if reintroduction of the experimental population 
furthers the conservation of the listed species. An experimental 
population must be separate geographically from nonexperimental 
populations of the same species. Designation of a population as 
experimental increases the Service's management flexibility.
    Additional management flexibility exists if the Secretary finds the 
experimental population to be ``nonessential'' to the continued 
existence of the species. For purposes of section 7 (except section 
7(a)(1), which requires Federal agencies to use their authorities to 
conserve listed species), nonessential experimental populations located 
outside national wildlife refuge or national park lands are treated as 
if they are proposed for listing. This means that Federal agencies are 
under an obligation to confer (as if the species were only proposed for 
listing) as opposed to consult (required for a listed species) on any 
actions authorized, funded, or carried out by them that are likely to 
jeopardize the continued existence of the species. Nonessential 
experimental populations located on national wildlife refuge or 
national park lands are treated as threatened, and formal consultation 
may be required. Activities undertaken on private lands are not 
affected by section 7 of the Act unless they are authorized, funded, or 
carried out by a Federal agency.
    Individual animals used in establishing an experimental population 
can be removed from a source population if their removal is not likely 
to jeopardize the continued existence of the species (see Findings 
Regarding Reintroduction, below), and a permit has been issued in 
accordance with 50 CFR Part 17.22.
    The Mexican wolf was listed as an endangered subspecies on April 
28, 1976 (41 FR 17742). The gray wolf species in North America south of 
Canada was listed as endangered (except in Minnesota where it was 
listed as threatened) without reference to subspecies on March 9, 1978 
(43 FR 9607). The Mexican Wolf Recovery Plan was adopted by the 
Directors of the Service and the Mexican Direccion General de la Fauna 
Silvestre in 1982. The plan guides recovery efforts for the subspecies, 
laying out a series of recommended actions. The recovery plan is 
currently being revised, and the revised document will more precisely 
define the points at which downlisting and delisting will occur.
    Biological: This proposed experimental population rule addresses 
the Mexican wolf (Canis lupus baileyi), an endangered subspecies of 
gray wolf that was extirpated from the southwestern United States by 
1970. The gray wolf (C. lupus) is native to most of North America north 
of Mexico City. An exception is in the southeastern United States, 
which was occupied by the red wolf (C. rufus). The gray wolf occupied 
areas that supported populations of hooved mammals (ungulates), its 
major food source.
    The Mexican wolf historically occurred over much of New Mexico, 
Arizona, Texas, and northern Mexico, mostly in or near forested, 
mountainous terrain. Numbering in the thousands before European 
settlement, the Mexican wolf declined rapidly when its reputation as a 
livestock killer led to concerted eradication efforts. Other factors 
contributing to its decline were commercial and recreational hunting 
and trapping of wolves; killing of wolves by game managers on the 
theory that more game animals would be available for hunters; habitat 
alteration; and human safety concerns (although no documentation exists 
of Mexican wolf attacks on humans).
    The subspecies is now considered extirpated from its historic range 
in the southwestern United States because no wild wolf has been 
confirmed since 1970. Occasional sightings of ``wolves'' continue to be 
reported from United States locations, but none have been confirmed 
through clear evidence. Recent field research has revealed no confirmed 
reports of wolves remaining in Mexico. Investigations are continuing.

[[Page 19238]]

    When Mexican wolves were eradicated, their natural history was 
poorly understood. Appendix A to the draft Environmental Impact 
Statement provides life history and biological descriptions of Mexican 
wolves to the extent they are known or can be inferred from historical 
evidence, observations of captive Mexican wolves, and studies of gray 
wolves in other geographic regions. (The draft Environmental Impact 
Statement should be referred to for background and supporting 
information and literature references on all aspects of this proposed 
rule; see ADDRESSES section.)
    Recovery efforts: The Mexican Wolf Recovery Plan's objective is to 
conserve and ensure survival of the subspecies by maintaining a captive 
breeding program and reestablishing a viable, self-sustaining 
population of at least 100 Mexican wolves in a 5,000 square mile area 
within the subspecies' historic range. (The recovery plan is currently 
under revision.)
    A captive breeding program was established in the 1970's with two 
wild male Mexican wolves caught from 1977 to 1980 (from Durango and 
Chihuahua, Mexico) and one wild pregnant female wolf caught in 1978 
(from Durango, Mexico). Two additional captive populations were 
determined in July 1995 to be pure Mexican wolves; each has two 
founders. The captive population has increased to 139 as of March 1996; 
114 are held at 23 facilities in the United States and 25 at five 
facilities in Mexico. This population has been managed since 1990 for 
maximum reproduction to support the proposed reintroduction effort. The 
goal is to have at least 100 animals in the United States facilities 
prior to any releases into the wild.
    On April 20, 1992, the Service issued a ``Notice of Intent to 
Prepare an Environmental Impact Statement on the Experimental 
Reintroduction of Mexican Wolves (Canis lupus baileyi) into Suitable 
Habitat within the Historic Range of the Subspecies'' (57 FR 14427). 
This notice also announced the time and place of public scoping 
meetings. The draft Environmental Impact Statement was released for 
public review and comment on June 27, 1995 (60 FR 33224). The location 
and times of 14 public meetings were also announced in this notice. In 
September of 1995, the Service announced that three public hearings 
would be held in October 1995 (60 FR 49628). All announced meetings and 
hearings were held. The public comment period closed on October 31, 
1995. Approximately 18,000 people have commented or expressed an 
opinion on the draft Environmental Impact Statement. Following an 
analysis of the public comments, a final Environmental Impact Statement 
will be issued around July 1996.
    The proposed Mexican wolf recovery actions and this proposed rule 
were developed by the Service after consultation with representatives 
of Federal, State, and other agencies, with potentially affected 
private parties, and with wolf experts nationally. Public comments 
received at and after scoping meetings for the draft Environmental 
Impact Statement were considered. (See draft Environmental Impact 
Statement, Chapter 1 section on Scoping and Chapter 5-Consultation and 
Coordination.)
    Mexican wolf recovery areas: The Service has determined that the 
proposed reintroductions in the White Sands Wolf Recovery Area and the 
Blue Range Wolf Recovery Area have the greatest potential for 
successfully achieving the current recovery objective for Mexican 
wolves. (See paragraph (j)(6) of the proposed rule and Figures 1 and 2 
for precise boundaries of these areas. Chapters 2 and 3 of the draft 
Environmental Impact Statement describe the selection of these two 
areas and provide detailed descriptions of them.)
    The two wolf recovery areas are within the Mexican wolf's probable 
historic range. Both contain vast, relatively remote, and isolated 
expanses of federally-managed land. Suitable wolf habitat containing 
relatively abundant prey such as deer and elk is available. As the 
Mexican wolf is considered extinct in the wild in the United States, 
both areas are wholly separate geographically from any known, 
naturally-occurring nonexperimental populations of wild wolves. A 
larger Mexican Wolf Experimental Population Area, which also is wholly 
separate geographically from any known, naturally-occurring 
nonexperimental populations of wild wolves, is defined in the rule, 
paragraph (j)(6), (see Figure 3). Mexican wolf recovery is not proposed 
throughout this larger area. Its purpose is to establish that any wild 
wolf found in this larger area is a member of the nonessential 
experimental population, and therefore subject to the provisions of 
this rule, and not an ``endangered'' status wolf with full protection 
of the Act.
    Reintroduction procedures: Male and female pairs from the captive 
population will be selected for release based on genetics, reproductive 
performance, behavioral compatibility, response to the adaptation 
process, and other factors. Selected pairs will be moved to the 
Service's captive wolf management facility on the Sevilleta National 
Wildlife Refuge in central New Mexico where measures will be taken to 
improve their adaptation to life in the wild.
    Wolves will be reintroduced by a ``soft release'' approach designed 
to reduce the likelihood of quick dispersal away from the release 
areas. This involves holding the animals in pens on site for up to 
several months in order to acclimate them and to increase their 
affinity for the area. (The soft release approach is described in more 
detail in Chapter 2 of the draft Environmental Impact Statement.) The 
releases will begin in 1996 or as soon thereafter as feasible.
    Approximately five family groups of captive raised Mexican wolves 
will be released over a period of 3 years into the White Sands Wolf 
Recovery Area, with the goal of reaching a long-term sustainable 
subpopulation of 20 wolves by 1998. In the Blue Range Wolf Recovery 
Area, approximately 14 family groups will be released over a period of 
5 years, with the goal of reaching a long-term sustainable 
subpopulation of 100 wild wolves by 2004. The proposed action is 
flexible, using either the White Sands Wolf Recovery Area or the Blue 
Range Wolf Recovery Area, or both, and in the order of their use.
    Management of the reintroduced population: The proposed 
nonessential experimental designation enables the Service to develop 
measures for management of the population that are less restrictive 
than the mandatory prohibitions that protect species with 
``endangered'' status. This includes limited allowance of both 
governmental and private take of individual wolves under narrowly 
defined circumstances. Management flexibility is needed to make 
reintroduction compatible with current and planned human activities, 
such as livestock grazing and hunting, in the reintroduction area. It 
is also critical to obtaining needed State, tribal, local, and private 
cooperation. Thus, this flexibility will improve the likelihood of 
success.
    Reintroduction will occur under management plans that allow 
dispersal by the new wolf subpopulations beyond the primary recovery 
zones where they will be released, into the secondary recovery zones of 
the two designated wolf recovery areas (see Figures 1 and 2). The 
Service and cooperating agencies will not allow the wolves to establish 
territories outside these wolf recovery area boundaries without 
landowner consent on private or tribal lands within the Mexican Wolf 
Experimental Population Area.

[[Page 19239]]

    No measures are expected to be needed to isolate the experimental 
population from naturally occurring populations because no Mexican 
wolves are now known to occur in the wild. However, the Service will 
attempt to take every reasonable step to ensure that no naturally 
occurring wild population (see definition in Rule Glossary) that might 
exist within the recovery areas (which is considered highly unlikely) 
are affected by the reintroduction of captive-raised, nonessential 
experimental wolves. Surveys for wolf sign in these areas will be 
conducted prior to any reintroduction. If a naturally occurring wild 
population is found within one or both of the designated wolf recovery 
areas, the proposed reintroduction there would not go forward with such 
wild wolves present. Further, if a naturally occurring wild population 
is found within one or both of the designated wolf recovery areas 
within 90 days after members of the experimental population are 
initially released (which also is considered highly unlikely), all 
wolves in the reintroduced sub-population in such recovery area(s) 
would be removed and the reintroduction would not continue there. Such 
a wild population would have full endangered status under the Act.
    Identification and monitoring: Prior to placement in release pens, 
the adult wolves will receive permanent identification marks and radio 
collars. Pups will receive surgically implanted transmitters prior to 
release and the pups will be recaptured and fitted with radio collars 
when they are large enough. Wild-born pups of the reintroduced 
population that are captured will be given a permanent identification 
mark and radio collar.
    The Service and cooperating agencies will measure the success or 
failure of the reintroductions, and the effects of such success or 
failure on the conservation and recovery of Mexican wolves, by 
continuously monitoring, researching, and evaluating the status of 
released wolves in the wild. The agencies will prepare periodic 
progress reports, annual reports, and full evaluations after 3 and 5 
years that will recommend continuation or termination of the 
reintroduction effort. The reports will also evaluate whether, and how, 
to use the second wolf recovery area, that is, the one not used 
initially.
    Findings regarding reintroduction: The Service finds that the 
reintroduced experimental population is reasonably likely to become 
established and survive in the wild within the Mexican wolf's probable 
historic range. Under the proposed rule and based on available data, 
the Service projects that the Blue Range Wolf Recovery Area 
subpopulation will achieve the 1982 Mexican Wolf Recovery Plan goal of 
100 wolves occupying 5,000 square miles by 2004.
    The White Sands Wolf Recovery Area will support an estimated 20 
wolves occupying 1,000 square miles by 1998. This likely would not be 
an independently viable subpopulation. Nevertheless, a subpopulation in 
this size range could be maintained through supplemental releases (or, 
speculatively, by natural immigration of wolves from another nearby 
population if one existed, e.g., from a reintroduced subpopulation in 
the Blue Range Wolf Recovery Area). Even if the White Sands Wolf 
Recovery Area subpopulation is not viable, per se, the Service finds 
that, through monitoring and research, such a reintroduction would 
provide vital information about the ecology and behavior of wild 
Mexican wolves and about the ability of captive-raised gray wolves to 
survive in the wild. A reintroduction there would provide a valuable 
assessment of the soft release approach to reintroducing captive-raised 
wolves. Further, wolves successfully reintroduced into the White Sands 
Wolf Recovery Area could be used as release stock for future 
reintroductions elsewhere, which would increase the likelihood of 
success compared to using captive-raised wolves as release stock.
    Some members of the experimental population are expected to die 
during the reintroduction efforts after removal from the captive 
population. The Service finds that even if the entire experimental 
population died, this would not appreciably reduce the prospects for 
future survival of the subspecies in the wild. That is, future 
reintroductions still would be feasible even if the reintroductions 
proposed here failed. The individual Mexican wolves selected for 
release will be as genetically redundant with other members of the 
captive population as possible, thus minimizing any adverse effects on 
the genetic integrity of the remaining captive population. The Service 
has detailed lineage information on each captive Mexican wolf. The 
captive population is managed for the Service under the American Zoo 
and Aquarium Association's Species Survival Plan program. The 
Association maintains a Studbook and provides an expert advisor for 
small population management.
    Management of the demographic and genetic makeup of the population 
is guided by the SPARKS computer program. Kinship values, which range 
from zero to one, are a measure of the relatedness of an individual to 
the rest of the population. Wolves with higher kinship values are 
genetically well-represented in the population. Only those individuals 
whose kinship values are above the mean for the captive population as a 
whole will be used for release. In addition, the PEDPAC computer 
program will be used to identify suitable release candidates by 
examining the influence of removing an individual animal on the 
survival of the founders' genes. This management approach will 
adequately protect the genetic integrity of the captive population and 
thus the continued existence of the subspecies. The United States 
captive population of Mexican wolves has approximately doubled in the 
last 3 years demonstrating the captive population's reproductive 
potential to replace reintroduced wolves that die. In view of all these 
safeguards the Service finds that the reintroduced population would not 
be ``essential'' under 50 CFR 17.81(c)(2).
    The Service finds that release of the experimental population will 
further the conservation of the subspecies and of the gray wolf species 
as a whole. Currently, no viable populations of the Mexican wolf 
subspecies are known to exist in the wild. No wild populations of the 
gray wolf species are known to exist in the United States south of 
Montana, Minnesota, Wisconsin, and Michigan. (The Service is in the 
process of reintroducing wild gray wolves from Canada into central 
Idaho and Yellowstone National Park in Wyoming.) The Mexican wolf is 
the most southerly and the most genetically distinct of all North 
American gray wolf subspecies. The Mexican wolf is also considered the 
rarest of the surviving (nonextinct) subspecies and has been accorded 
the highest recovery priority by international wolf experts.
    Releasing captive-raised Mexican wolves furthers the objective of 
the Mexican Wolf Recovery Plan. The Plan, if fully implemented, will 
result in the reestablishment of a wild population of at least 100 
Mexican wolves. Also, release of wolves into the wild will reduce the 
potential negative effects of keeping them in captivity in perpetuity. 
If a reintroduction into the wild from the captive population does not 
occur within a reasonable period of time, genetic, physical, or 
behavioral changes resulting from prolonged captivity could render the 
captive animals unsuited for reintroduction and devastate their 
prospects for recovery.
    Designation of the released wolves as nonessential experimental is 
considered necessary to obtain needed State, tribal,

[[Page 19240]]

local, and private cooperation. This designation also allows for 
management flexibility to mitigate negative impacts of Mexican wolf 
recovery, such as livestock depredation. Without such flexibility 
intentional illegal killing of wolves would likely harm the prospects 
for successful recovery.
    Potential for conflict with Federal and other activities: As 
indicated, considerable management flexibility has been incorporated 
into the proposed experimental population rule to reduce potential 
conflicts between wolves and the activities of governmental agencies, 
livestock operators, hunters, and others. No major conflicts with 
current management of Federal, State, private, or tribal lands are 
anticipated. Mexican wolves are expected to be able to tolerate most of 
the current land uses in the designated wolf recovery areas. However, 
temporary restrictions on human activities may be imposed around 
release sites, active dens, and rendezvous sites. Limited backcountry 
National Forest road closures may be necessary if illegal killings of 
wolves occur; this would not affect the White Sands Wolf Recovery Area. 
Also, the USDA's Animal Damage Control Division will discontinue use of 
M-44's and choking-type snares in ``occupied Mexican wolf range'' (see 
definition in proposed Section 17.84(j)(10)). Other predator control 
activities may be restricted or modified pursuant to a cooperative 
management agreement or a conference between the United States 
Department of Agriculture's Animal Damage Control Division and the 
Service.
    The Service and other authorized agencies may harass, take, remove, 
or translocate Mexican wolves under certain circumstances described in 
detail in the proposed rule. Private citizens also are given broad 
authority to harass Mexican wolves (for purposes of scaring them away 
from livestock) and they may take (including to kill or injure) them 
under narrow circumstances, that is, in cases of defense of human life 
or when wolves are in the act of attacking their livestock (if certain 
conditions are met). In addition, ranchers can seek compensation from a 
privately-funded depredation compensation fund if depredation on their 
livestock occurs.
    The Service does not intend to change the proposed ``nonessential 
experimental'' designation to ``essential experimental,'' 
``threatened'', or ``endangered'' and the Service does not intend to 
designate critical habitat for the Mexican wolf. Critical habitat can 
not be designated under the nonessential experimental classification, 
16 U.S.C. 1539(j)(2)(C)(ii). The Service foresees no likely situation 
which would result in such changes in the future. Nevertheless, to 
ensure that such changes do not occur, the following condition exists 
in the proposed rule, paragraph (j)(9)--if legal actions or lawsuits 
compel a change in the population's legal status to essential 
experimental, threatened, or endangered, or compel the designation of 
critical habitat for wolves within the experimental population area, 
then all reintroduced Mexican wolves will be removed from the wild and 
the experimental population rule will be revoked.

Public Comments Solicited

    The Service solicits comments or suggestions on the proposed 
experimental population rule from the public, States, tribes, other 
concerned governmental agencies, the scientific community, industry, 
potentially affected landowners, or any other interested party. 
Comments must be received within 60 days of publication of this 
proposed rule in the Federal Register.
    The Service will hold public hearings to obtain additional verbal 
and written information. The location, dates, and times of these 
hearings will be announced in a forthcoming issue of the Federal 
Register, in newspapers, and in a mailing to those persons on the 
Mexican Wolf Recovery Program mailing list.
    Any final decision on this proposal will take into consideration 
the comments and any additional information received by the Service. 
These may lead to a final rule that differs from this proposal.

National Environmental Policy Act

    A draft Environmental Impact Statement on the Service's proposal to 
reintroduce the Mexican wolf in the southwestern United States has been 
prepared and is available to the public (see ADDRESSES section). The 
draft Environmental Impact Statement should be referred to for analysis 
of the Proposed Action and alternatives to it; also, the draft 
Environmental Impact Statement contains detailed references for the 
background information provided here.

Required Determinations

    This proposed rule has been reviewed by the Office of Management 
and Budget under Executive Order 12866. The rule will not have 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). The final 
rule will not significantly change costs to industry or governments. 
Furthermore, the rule produces no adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States enterprises to compete with foreign-based enterprises in 
domestic or export markets.
    This proposed rule has been reviewed under Executive Order 12630, 
the Attorney General Guidelines, Department Guidelines, and the 
Attorney General Supplemental Guidelines to determine the takings 
implications of the proposed rule, if it were promulgated as currently 
drafted. One issue of concern is the depredation of livestock by 
reintroduced wolves. However, such depredation by a wild animal would 
not be a ``taking'' under the 5th Amendment. One of the reasons for the 
experimental nonessential designation is to allow the agency and 
private entities flexibility in managing the wolves, including the 
elimination of a wolf when there is a confirmed kill of livestock.
    This proposed rule has been reviewed under Executive Order 12612 to 
determine Federalism considerations in policy formulation and 
implementation. Evidently, one or more counties in the vicinity of the 
wolf reintroduction area have enacted ordinances specifically 
prohibiting the introduction of the wolf (among other species) within 
county boundaries. However, the United States Congress has given the 
Secretary of the Interior explicit statutory authority, in section 
10(j) of the Act, to promulgate this rule, and under the Supremacy 
Clause of the United States Constitution, this has the effect of 
preempting State regulation of wildlife to the extent in conflict with 
this proposed rule. Nevertheless, the Service has endeavored to 
cooperate with State wildlife agencies and county and tribal 
governments in the preparation of this proposed rule.

Author

    The primary author of this document is Mr. David R. Parsons (see 
ADDRESSES section) at telephone 505/248-6920; or facsimile 505/248-
6922.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

[[Page 19241]]

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. In Sec. 17.11(h), the table entry for ``Wolf, gray'' under 
MAMMALS is revised to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

    3. Section 17.84 is amended by adding paragraph (j) to read as 
follows:


Sec. 17.84   Special rules--vertebrates.

* * * * *
    (j) Mexican gray wolf (Canis lupus baileyi).
    (1) The Mexican gray wolf (Mexican wolf) subpopulations 
reestablished in the Blue Range Wolf Recovery Area and in the White 
Sands Wolf Recovery Area within the Mexican Wolf Experimental 
Population Area, identified in paragraph (j)(6) of this section, are 
one nonessential experimental population. This nonessential 
experimental population will be managed in accordance with these 
provisions.
    (2) The Fish and Wildlife Service (Service) finds that 
reintroduction of an experimental population of Mexican wolves into the 
subspecies' probable historic range will further the conservation of 
the Mexican wolf subspecies and of the gray wolf species. The Service 
also finds that the experimental population is not ``essential,'' under 
50 CFR 17.81(c)(2).
    (3) You must not take any wolf in the wild within the Mexican Wolf 
Experimental Population Area except as provided in this rule. The 
Service may refer take of a wolf contrary to this rule to the 
appropriate authorities for prosecution.
    (i) Throughout the entire Mexican Wolf Experimental Population 
Area, you will not be in violation of the Endangered Species Act (Act) 
for unavoidable and unintentional take (including killing or injuring) 
of a wolf, when such take is non-negligent and incidental to a legal 
activity, such as hunting, trapping, driving, or recreational 
activities, and you report the take promptly (within 24 hours) to the 
Service's Mexican Wolf Recovery Coordinator or to a Service appointed 
agency representative.
    (ii) Also throughout the entire Mexican Wolf Experimental 
Population Area, excluding areas within the national park system and 
national wildlife refuge system, no Federal agency or their contractors 
will be in violation of the Act for take of a wolf resulting from any 
authorized agency action. This provision does not exempt agencies and 
their contractors from complying with section 7(a)(4) of the Act which 
requires a conference with the Service if they propose an action that 
is likely to jeopardize the continued existence of the Mexican wolf.
    (iii) No land use restrictions will be imposed on private or tribal 
reservation lands for Mexican wolf recovery without the concurrence of 
the private owner or tribal government. On public lands, public and 
tribal agencies may temporarily restrict human access and disturbance-
causing land use activities, such as timber harvesting and mining, 
within a 1-mile radius around release pens when wolves are in them, 
around active dens between March 1 and June 30, and around active wolf 
rendezvous sites between June 1 and September 30, as necessary. If 
documented illegal killing of a wolf occurs the United States Forest 
Service may, in consultation with the Service, close back-country roads 
on National Forest lands (except thoroughfares) for as long as 
necessary to protect the wolves.
    (iv) In areas within the national park system and national wildlife 
refuge system, Federal agencies must treat Mexican wolves as a 
threatened species for purposes of complying with section 7 of the Act.
    (v) On public lands leased for grazing anywhere within the Mexican 
Wolf Experimental Population Area, including within the designated wolf 
recovery areas, when and where livestock are legally present, livestock 
owners or their agents:
    (A) May harass wolves, for purposes of scaring them away, in the 
general vicinity (within 500 yards) of livestock (i.e., cattle, sheep, 
horses, mules, and burros or as defined in State and tribal wolf 
management plans as approved by us) in an opportunistic, noninjurious 
manner (no temporary or permanent physical damage may result) at any

[[Page 19242]]

time; provided that wolves cannot be purposely attracted, tracked, 
waited for, or searched out and then harassed; and provided that such 
harassment is reported to the Service's Mexican Wolf Recovery 
Coordinator or to a Service appointed agency representative within 7 
days; and,
    (B) May receive a written permit under the Act from the Service or 
an agency designated by the Service, valid for up to 45 days, to take 
(including kill or injure) a specific number of wolves actually engaged 
in the act of killing, wounding, or biting livestock; provided that, 
prior to the issuance of such a permit, six or more breeding Mexican 
wolf pairs occur in the Blue Range Wolf Recovery Area, or three or more 
breeding Mexican wolf pairs occur in the White Sands Wolf Recovery 
Area; and provided that an authorized agent of the Service, the United 
States Department of Agriculture's (USDA) Animal Damage Control 
Division, or the State has documented previous livestock loss or injury 
caused by wolves and agency efforts to resolve the problem are 
completed. Livestock owners or their agents must report take of wolves 
under such a permit to the Service's Mexican Wolf Recovery Coordinator 
or to a Service appointed agency representative within 24 hours. There 
must be evidence of freshly wounded or killed livestock by wolves.
    (vi) On private or tribal land anywhere within the Mexican Wolf 
Experimental Population Area, property owners, livestock owners, 
tenants, or their designated agents:
    (A) may harass wolves in the immediate vicinity (within 500 yards) 
of people, buildings, facilities, pets, livestock, or other domestic 
animals in an opportunistic, noninjurious manner (no temporary or 
permanent physical damage may result) at any time; provided that wolves 
cannot be purposely attracted, tracked, or searched out and then 
harassed; and provided that such harassment is reported to the 
Service's Mexican Wolf Recovery Coordinator or to a Service appointed 
agency representative within 7 days; and,
    (B) may take (including kill or injure) any wolf actually engaged 
in the act of killing, wounding, or biting livestock; provided that 
livestock freshly (less than 24 hours) wounded (torn flesh and 
bleeding) or killed by wolves is present; and further provided that the 
take is reported to the Service's Mexican Wolf Recovery Coordinator or 
a Service appointed agency representative within 24 hours.
    (vii) Authorized Service, USDA Animal Damage Control Division, 
tribe, and State employees may capture and/or translocate any Mexican 
wolf in the nonessential experimental population consistent with the 
Service's approved management plan or special management measure. Such 
plan or measure may include capture and/or translocation of wolves that 
prey on livestock, attack pets or domestic animals other than livestock 
on private land, impact game populations in ways which may inhibit 
further wolf recovery, prey on members of the desert bighorn sheep herd 
found on the White Sands Missile Range and San Andres National Wildlife 
Refuge, so long as the State of New Mexico lists it as a species to be 
protected, are considered problem wolves, are a nuisance, or are 
conflicting with a major land use, or are necessary for research. 
Authorized Federal, State, or tribal personnel may also carry out wolf 
capture and/or translocation for other purposes the Service has 
authorized, such as genetic management, and may use lethal methods of 
take when reasonable attempts to capture wolves alive fail and the 
Service determines that removal of a particular wolf or wolves from the 
wild is necessary. Authorized Federal, State, or tribal personnel may 
carry out any management measure that is a part of a Service approved 
management plan. Also, the USDA Animal Damage Control Division will 
discontinue use of M-44's and choking-type snares in ``occupied Mexican 
wolf range'' (see definition in proposed section 17.84(j)(10)). The 
Service may restrict or modify other predator control activities 
pursuant to a cooperative management agreement or a conference between 
us and the USDA's Animal Damage Control Division.
    (viii) You may harass or take a Mexican wolf in self defense or 
defense of others, provided that you promptly report the harassment or 
take to the Service's Mexican Wolf Recovery Coordinator or to a Service 
appointed agency representative. If the Service or an agency authorized 
through a cooperative management plan determine that a wolf presents a 
threat to human life or safety, the Service or the authorized agency 
may place it in captivity or euthanize it.
    (ix) Intentional taking of any wolf in the Mexican Wolf 
Experimental Population Area, except as described above, is prohibited. 
The Service encourages individuals authorized to take wolves to use 
nonlethal means. You must immediately (within 24 hours) deliver all 
wolves (live or dead), pelts, or parts taken to the Service's Mexican 
Wolf Recovery Coordinator or to a Service appointed agency 
representative.
    (4) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any wolf or wolf part from 
the experimental population taken or possessed in violation of these 
regulations or in violation of applicable State or tribal fish and 
wildlife laws or regulations or the Act.
    (5) You may not attempt to commit, solicit another to commit, or 
cause to be committed, any offense defined in this section.
    (6) The two designated recovery areas for Mexican wolves classified 
as nonessential experimental that lie within the subspecies' probable 
historic range are:
    (i) The White Sands Wolf Recovery Area in south-central New Mexico, 
including all of the White Sands Missile Range, the White Sands 
National Monument, and the San Andres National Wildlife Refuge, and the 
area adjacent and to the west of the Missile Range bounded on the south 
by the southerly boundary of the USDA Jornada Experimental Range and 
the northern boundary of the New Mexico State University Animal Science 
Ranch; on the west by the New Mexico Principal Meridian; on the north 
by the Pedro Armendaris Grant boundary and the Sierra-Socorro County 
line; and on the east by the western boundary of the Missile Range 
(Figure 1). Actual releases of captive-raised wolves will take place, 
generally as described in our draft Environmental Impact Statement on 
Mexican wolf reintroduction, within the White Sands Wolf Recovery Area 
primary recovery zone. This is the area within the White Sands Missile 
Range bounded on the north by the road from the former Cain Ranch 
Headquarters to Range Road 16, Range Road 16 to its intersection with 
Range Road 13, Range Road 13 to its intersection with Range Road 7; on 
the east by Range Road 7; on the south by Highway 70; and on the west 
by the Missile Range boundary. The Service will allow the wolf 
subpopulation to expand into the White Sands Wolf Recovery Area 
secondary recovery zone, which is the remainder of the White Sands Wolf 
Recovery Area not in the primary recovery zone.
    (ii) The Blue Range Wolf Recovery Area, including all of the Apache 
National Forest and all of the Gila National Forest in east-central 
Arizona and west-central New Mexico (Figure 2). Actual releases of 
captive-raised Mexican wolves will take place, generally as described 
in our draft Environmental Impact Statement on Mexican wolf 
reintroduction, within the Blue Range Wolf Recovery Area primary 
recovery zone. This is the area within

[[Page 19243]]

the Apache National Forest bounded on the north by the Apache-Greenlee 
County line; on the east by the Arizona-New Mexico State line; on the 
south by the San Francisco River (eastern half) and the southern 
boundary of the Apache National Forest (western half); and on the west 
by the Greenlee-Graham County line (San Carlos Apache Reservation 
boundary). The Service will allow the wolf subpopulation to expand into 
the Blue Range Wolf Recovery Area secondary recovery zone, which is the 
remainder of the Blue Range Wolf Recovery Area not in the primary 
recovery zone.
    (iii) The boundaries of the Mexican Wolf Experimental Population 
Area are the portion of Arizona lying north of Interstate Highway 10 
and south of Interstate Highway 40; the portion of New Mexico lying 
north of Interstate Highway 10 in the west, north of the New Mexico-
Texas boundary in the east, and south of Interstate Highway 40; and the 
portion of Texas lying north of United States Highway 62/180 and south 
of the Texas-New Mexico boundary (Figure 3). The Service is not 
proposing wolf recovery throughout this area, only within the White 
Sands and Blue Range Wolf Recovery Areas described in paragraph 
(j)(6)(i) and (j)(6)(ii) of this subsection. The purpose of the larger 
experimental population area designation is to distinguish the legal 
status of any wolf found there. After the first captive wolf release, 
wolves found in the wild in the Mexican Wolf Experimental Population 
Area will be subject to management under this rule. If a wolf is 
captured inside the Mexican Wolf Experimental Population Area after the 
first release but outside the designated wolf recovery areas, it will 
be returned and re-released or put into the captive breeding program. 
If a wolf is found in the United States outside the boundaries of the 
Mexican Wolf Experimental Population Area (and not within any other 
wolf experimental population area) the Service will presume it to be of 
wild origin with full endangered status (or threatened in Minnesota) 
under the Act, unless evidence, such as a radio-collar or 
identification mark, establishes otherwise. If such evidence exists, 
the Service or an authorized agency will attempt to promptly capture 
the wolf and return and re-release it or put into the captive breeding 
program. Such a wolf is otherwise not subject to this rule outside the 
designated Mexican Wolf Experimental Population Area.
    (7) If Mexican wolves of the experimental population occur on 
public lands outside the designated wolf recovery areas, but within the 
Mexican Wolf Experimental Population Area, the Service or an authorized 
agency will attempt to recapture any radio-collared lone wolf and any 
lone wolf or member of an established pack causing livestock 
depredations. The agencies will not routinely recapture and return pack 
members that make occasional forays onto public land outside the 
designated wolf recovery areas and uncollared lone wolves on public 
land. However, the Service will capture and return to a recovery area 
or to captivity packs from the nonessential experimental population 
that establish territories on public land outside the designated wolf 
recovery areas. If any wolves move onto private or tribal lands outside 
the designated recovery areas, but within the Mexican Wolf Experimental 
Population Area, the Service or an authorized agency will develop 
management actions in cooperation with the land owner including 
recapture if requested by the land owner or tribal government.
    (8) The Service will continuously evaluate Mexican wolf 
reintroduction progress and prepare periodic progress reports, detailed 
annual reports, and full evaluations after 3 and 5 years that recommend 
continuation or termination of the reintroduction effort.
    (9) The Service does not intend to change the ``nonessential 
experimental'' designation to ``essential experimental,'' 
``threatened,'' or ``endangered'' and does not intend to designate 
critical habitat for the Mexican wolf. Critical habitat cannot be 
designated under the nonessential experimental classification. 16 
U.S.C. 1539(j)(2)(C)(ii). The Service foresees no likely situation 
which would result in such changes. The Service would remove from the 
wild all reintroduced Mexican wolves designated as nonessential 
experimental and revoke the experimental status and regulations if 
legal actions or lawsuits compel a change in the population's legal 
status to essential experimental, threatened, or endangered or compel 
the designation of critical habitat within the Mexican Wolf 
Experimental Population Area, or if within 90 days of the initial 
release date, the Service discovers a naturally occurring population of 
wild wolves, consisting of at least two breeding pairs that for 2 
consecutive years have each successfully raised two offspring, existing 
within the White Sands Wolf Recovery Area or Blue Range Wolf Recovery 
Area boundaries. The Service would manage and protect any such 
naturally occurring wolves as endangered species under the Act.
    (10) Definitions--Key terms used in the rule have the following 
definitions.
    Breeding pair. An adult male and an adult female wolf that have 
produced at least two pups that survived until December 31 of the year 
of their birth, during the previous breeding season.
    Depredation. The confirmed killing or maiming of lawfully present 
domestic livestock on Federal, State, tribal, or other public lands, or 
private lands by one or more wolves. The Service, USDA Animal Damage 
Control, or Service-authorized State or tribal agencies will confirm 
killing or maiming of domestic livestock.
    Engaged in the act of killing, wounding, or biting livestock. To be 
engaged in the pursuit and grasping, biting, attacking, wounding, or 
feeding upon livestock that are alive. If wolves are observed feeding 
on livestock carcasses, you cannot assume that wolves killed the 
livestock until proper authorities investigate and confirm that wolves 
were responsible for that or other livestock losses in the immediate 
area (1-mile radius).
    Harass. Harass is defined as ``intentional or negligent act or 
omission which creates the likelihood of injury to the wildlife by 
annoying it to such an extent as to significantly disrupt normal 
behavioral patterns which include, but are not limited to breeding, 
feeding, or sheltering'' (50 CFR 17.3). For the purposes of this 
proposed experimental population rule the Service permits only 
``opportunistic,'' noninjurious harassment (see definition below) and 
limits it to approaching wolves on foot, horseback, or nonmotorized or 
motorized vehicle (no closer than 20 feet); discharging firearms or 
other projectile launching devices in proximity to but not in the 
direction of wolves; throwing objects in the general direction of but 
not at wolves; or making any loud noise in proximity to wolves. The 
basic intent is to scare or chase wolves from the immediate area 
without causing physical injuries.
    Impact on game populations in ways which may inhibit further wolf 
recovery. The Service encourages States and tribes to describe 
unacceptable impacts on game populations in their management plans 
subject to our approval. Until such time the term will mean the 
following: Two consecutive years with a cumulative 35 percent decrease 
in population or hunter harvest estimates for a particular species of 
ungulate in a game management unit or distinct herd segment compared to 
the prewolf 5-year average (unit or herd must contain average of 
greater than 100 animals). If wolf predation is shown to be a primary 
cause of ungulate population declines (greater than 50 percent of 
documented adult or young mortality), then wolves

[[Page 19244]]

may be moved to reduce ungulate mortality rates and assist in herd 
recovery, but only in conjunction with application of other common, 
professionally acceptable, wildlife management techniques.
    Occupied Mexican wolf range. (1) Area of confirmed presence of 
resident breeding packs or pairs of wolves or area consistently used by 
at least one resident wolf over a period of at least one month. The 
Service must confirm or corroborate wolf presence. Exact delineation of 
the area will be described by:
    (i) Five-mile radius around all locations of wolves and wolf sign 
confirmed as described above (nonradio-monitored);
    (ii) 5-mile radius around radio locations of resident wolves when 
fewer than 20 radio locations are available (for radio-monitored wolves 
only); or
    (iii) 3-mile radius around the convex polygon developed from more 
than 20 radio locations of a pack, pair, or single wolf taken over a 
period of at least 6 months (for radio-monitored wolves).
    (2) This definition applies only within the Mexican Wolf 
Experimental Population Area.
    Opportunistic, noninjurious harassment (see ``harass''). This is 
the only type of harassment the Service permits under the experimental 
population rule. Opportunistic means as the wolf presents itself (i.e., 
the wolf travels onto and is observed on private land or near 
livestock). You cannot track a wolf and then harass it or harass it by 
aircraft. You cannot chase and harass a wolf for an extended period of 
time (over 15 minutes). Any harassment must not cause bodily injury, 
maiming, or death.
    Population of naturally occurring wild wolves. At least two 
breeding pairs of wolves successfully raising at least two young each 
year (until December 31 of the year of their birth), for 2 consecutive 
years in the Mexican Wolf Experimental Population Area.
    Primary recovery zone. An area where the Service proposes to 
release Mexican wolves, and where the Service may return and re-release 
them if necessary, and where managers will actively support recovery of 
the reintroduced population.
    Problem wolves. Wolves that have depredated on lawfully present 
domestic livestock or wolves from a group or pack including adults, 
yearlings, and young-of-the-year that were directly involved in the 
depredations; or fed upon the livestock remains that were a result of 
the depredation; or were fed by or are dependent upon adults involved 
with the depredations (because before these young animals mature to 
where they can survive on their own, they will travel with the pack and 
learn the pack's depredation habits). Wolves that have depredated on 
domestic animals other than livestock, two times in an area within 1 
year. Wolves that are habituated to humans, human residences, or other 
facilities.
    Secondary recovery zone. An area adjacent to a primary recovery 
zone which the Service does not propose for Mexican wolf releases, but 
in which the Service allows released wolves to disperse, and where 
managers will actively support recovery of the reintroduced population.
    Take. The Act defines ``take'' as--``to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct'' (16 U.S.C. 1532(19)). See above definition of 
Harass which includes definition of permitted harassment, and see 
definition of Unavoidable and unintentional take below.
    Unavoidable and unintentional take. Accidental, non-negligent take 
(see above definition of ``Take'') which occurs despite reasonable 
care, is incidental to an otherwise lawful activity and without the 
purpose to do so. Examples would include striking a wolf with an 
automobile or capturing a wolf in a trap set obviously for another 
species. Note--Shooting a wolf when the individual states he or she 
believed it to be an animal other than a wolf does not qualify as 
unavoidable or unintentional take. Shooters have the responsibility to 
be sure of their targets.
    Wolf recovery area. A designated area where managers will actively 
support reestablishment of Mexican wolf populations.

Figures to Sec. 17.84(j)

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BILLING CODE 4310-55-C

    Dated: December 20, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-10665 Filed 4-30-96; 8:45 am]
BILLING CODE 4310-55-P