Federal Register, Volume 75 Issue 149 (Wednesday, August 4, 2010)

[Federal Register Volume 75, Number 149 (Wednesday, August 4, 2010)]
[Proposed Rules]
[Pages 46894-46898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19199]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2010-0045]
[MO 92210-0-0008]

Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To List the Mexican Gray Wolf as an Endangered Subspecies
With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status and
critical habitat review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on two petitions to list the Mexican gray wolf (Canis
lupus baileyi) (Mexican wolf) as an endangered subspecies and designate
critical habitat under the Endangered Species Act of 1973, as amended
(Act). Although not listed as a subspecies, the Mexican wolf is
currently listed as endangered within the broader listing of gray
wolves. Based on our review, we find that the petitions present
substantial scientific or commercial information indicating that the
Mexican wolf subspecies may warrant listing such that reclassifying the
Mexican wolf as a separate subspecies may be warranted. One of the
petitions also requested listing of the Mexican wolf as an endangered
Distinct Population Segment (DPS). While we have not addressed the DPS
portion of the petition in this finding, we will further evaluate that
information during the status review. Therefore, with the publication
of this notice, we are initiating a review of the status of the Mexican
wolf subspecies to determine if listing the Mexican wolf as a
subspecies or DPS is warranted. To ensure that this status review is
comprehensive, we are requesting scientific and commercial data and
other information regarding the Mexican wolf. Based on the status
review, we will issue a 12-month finding on the petitions, which will
address whether the petitioned action is warranted, as provided in
section 4(b)(3)(B) of the Act.

DATES: To allow us adequate time to conduct this review, we request
that we receive information on or before October 4, 2010. After this
date, you must submit information directly to the New Mexico Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT section
below). Please note that we may not be able to address or incorporate
information that we receive after the above requested date.

ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for docket FWS-R2-ES-2010-0045 and then follow the instructions
for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R2-ES-2010-0045; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all information received on http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Information Solicited
section below for more details).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
New Mexico Ecological Services Field Office, 2105 Osuna NE,
Albuquerque, NM 87113, by telephone (505-346-2525) or by facsimile
(505-346-2542). If you use a telecommunications device for the deaf
(TDD), please call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Information Requested

When we make a finding that a petition presents substantial
information indicating that listing an entity may be warranted, we are
required to promptly review the status of that entity (status review).
To ensure that the status review is complete and based on the best
available scientific and commercial information, we request information
on the status of the Mexican wolf. We request information from the
public, other governmental agencies, Native American Tribes, the
scientific community, industry, and any other interested parties
concerning the status of the Mexican wolf. We seek information on:
(1) The historical and current status and distribution of the
Mexican wolf, its biology and ecology, taxonomy, and ongoing
conservation measures for the subspecies and its habitat in the United
States and Mexico; and
(2) Information relevant to the factors that are the basis for
making a listing determination for a species under section 4(a) of the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.),
which are:
(a) The present or threatened destruction, modification, or
curtailment of the species' habitat or range;

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(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting the species'
continued existence and threats to it or its habitat.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species must be made ``solely on the basis of the best scientific and
commercial data available.'' Based on the status review, we will issue
a 12-month finding on the petition, as provided in section 4(b)(3)(B)
of the Act.
You may submit your information concerning this status review by
one of the methods listed in the ADDRESSES section. If you submit
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the
website. If you submit a hardcopy that includes personal identifying
information, you may request at the top of your document that we
withhold this personal identifying information from public review.
However, we cannot guarantee that we will be able to do so. We will
post all hardcopy submissions on http://www.regulations.gov. Please
include sufficient information with your submission (such as full
references and page numbers) to allow us to verify any scientific or
commercial information you include.
Information and materials we receive, as well as supporting
documentation we used in preparing this finding, will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
New Mexico Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT).

Background

Petition History

On August 11, 2009, we received a petition from the Center for
Biological Diversity requesting that the Mexican wolf be listed as an
endangered subspecies or DPS and critical habitat be designated under
the Act. On August 12, 2009, we received a petition dated August 10,
2009, from WildEarth Guardians and The Rewilding Institute requesting
that the Mexican wolf be listed as an endangered subspecies and
critical habitat be designated under the Act. The petitions clearly
identified themselves as such and included the requisite identification
information for the petitioner(s), as required by 50 CFR 424.14(a). On
October 22, 2009, we responded with letters to the petitioner(s)
indicating that the petitions were under review and that we would make
a finding as to whether or not the petitions present substantial
information indicating that the requested action may be warranted. In
response to complaints from the petitioners, we have agreed, pursuant
to a stipulated settlement agreement, to complete the 90-day finding in
response to these petitions by July 31, 2010. This finding addresses
both petitions.

Previous Federal Actions

The Mexican wolf was listed as an endangered subspecies on April
28, 1976 (41 FR 17742). The gray wolf species (Canis lupus) in North
America south of Canada was listed as endangered on March 9, 1978,
except in Minnesota where it was listed as threatened (43 FR 9607).
This listing of the species as a whole subsumed the previous Mexican
wolf subspecies listing, although it stated that the Service would
continue to recognize valid biological subspecies for the purpose of
research and conservation (43 FR 9607). We initiated recovery programs
for the gray wolf in three broad geographical regions of the country:
the Northern Rockies, the Great Lakes, and the Southwest. In the
Southwest, a recovery plan was developed specifically for the Mexican
wolf, acknowledging and implementing the regional gray wolf recovery
focus on the conservation of the Mexican wolf as a subspecies. The 1982
Mexican Wolf Recovery Plan recommended a two-pronged approach to
conservation that included establishment of a captive breeding program
and reintroduction of wolves to the wild (Service 1982, p. 28).
In 1996, we published a Final Environmental Impact Statement,
``Reintroduction of the Mexican Wolf within its Historic Range in the
Southwestern United States,'' after assessing potential locations for
the reintroduction of the Mexican wolf. On April 3, 1997, the
Department of the Interior issued its Record of Decision on the Final
Environmental Impact Statement, and on January 12, 1998, a final rule,
``Establishment of a Nonessential Experimental Population of the
Mexican Gray Wolf in Arizona and New Mexico'' (63 FR 1752), was
published and established the Mexican Wolf Experimental Population Area
in central Arizona and New Mexico, and designated the reintroduced
population as a nonessential experimental population under section
10(j) of the Act. In March of that year, 11 Mexican wolves from the
captive breeding program were released to the wild.
On April 1, 2003, we published a final rule revising the listing
status of the gray wolf across most of the conterminous United States
(68 FR 15804). Within that rule, we established three DPS designations
for the gray wolf. Gray wolves in the Western DPS and the Eastern DPS
were reclassified from endangered to threatened, except where already
classified as threatened or as an experimental population. Mexican
wolves in the Southwestern DPS retained their previous endangered or
experimental population status. On January 31, 2005, and August 19,
2005, U.S. District Courts in Oregon and Vermont, respectively, ruled
that the April 1, 2003, final rule violated the Act (Defenders of
Wildlife v. Norton, 1:03-1348-JO (D.Or. 2005) and National Wildlife
Federation v. Norton, 1:03-CV-340, (D. Vt. 2005)). The Courts
invalidated the revisions of the gray wolf listing, and also
invalidated the three DPS designations in the April 1, 2003, rule and
the associated special regulations. The status of the Mexican wolf was
not changed by the listing rule or the Courts' invalidation of the
rule, but the invalidation of the three DPS

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designations suspended ongoing recovery planning efforts for the
Southwestern DPS as the DPS was no longer considered valid.

Species Information

The Mexican wolf is a genetically distinct subspecies of the North
American gray wolf; adults weigh 23-41 kilograms (kg) (50-90 pounds
(lbs)) with a length of 1.5-1.8 meters (m) (5-6 feet (ft)) and height
at shoulder of 63-81 centimeters (cm) (25-32 inches (in)) (Young and
Goldman 1944; Brown 1983, p. 119). Mexican wolves are typically a
patchy black, brown to cinnamon, and cream color, with primarily light
underparts (Brown 1983, p. 118); solid black or white Mexican wolves do
not exist as seen in other North American gray wolves.
Integration of ecological, morphological, and genetic evidence
supports several conclusions relevant to the southwestern United States
regarding gray wolf taxonomy and range. First, there is agreement that
the Mexican wolf is distinguishable from other gray wolves based on
morphological and genetic evidence. Second, recent genetic evidence
continues to support the observation that historic gray wolf
populations existed in intergradations across the landscape as a result
of their dispersal ability (Leonard et al. 2005, pp. 9-17). Third,
evidence suggests that the southwestern United States (southern
Colorado and Utah, Arizona and New Mexico) included multiple wolf
populations distributed across a zone of intergradation and
interbreeding, although only the Mexican wolf inhabited the
southernmost extent (Leonard et al. 2005, pp. 9-17). Currently, Mexican
wolves exist in the wild only where they have been reintroduced, and
that population has oscillated between 40 and 60 wolves since 2003.
Historically, Mexican wolves were associated with montane woodlands
and adjacent grasslands (Brown 1983, p. 19) in areas where ungulate
prey were numerous. Wolf packs establish territories, or home ranges,
in which they hunt for prey. Data from 2008 on the reintroduced Mexican
wolf population shows an average home range size of 195 square miles
(mi\2\) (505 square kilometers (km\2\ )), with home ranges varying from
approximately 60 to 503 mi\2\ (155 to 1302 km\2\) (Service 2010, p.
37). Recent studies have shown the preferred prey of Mexican wolves to
be elk (Reed et al. 2006, pp. 1127-1133; Merkle et al. 2009, pp. 480-
485).
Gray wolves die from a variety of causes including disease,
malnutrition, debilitating injuries, interpack strife, and human
exploitation and control (Service 1996, p. A-2). In the reintroduced
Mexican wolf population, causes of mortality have been largely human-
related (vehicular collision and illegal shooting). Additionally,
reintroduced Mexican wolves have been removed from the wild for
management purposes. To date, the Mexican wolf population has had a
failure (mortality plus removal) rate too high for natural or
unassisted population growth, and, as stated above, the population has
oscillated between 40 and 60 wolves since 2003. The most recent end-of-
year population survey in 2009 documented 42 Mexican wolves in the wild
(Service 2010, pp. 26, 61).

Evaluation of Information for this Finding

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations at 50 CFR 424 set forth the procedures for adding a species
to, or removing a species from, the Federal Lists of Endangered and
Threatened Wildlife and Plants. A species may be determined to be an
endangered or threatened species due to one or more of the five factors
described in section 4(a)(1) of the Act: (A) The present or threatened
destruction, modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
In considering what factors might constitute threats, we must look
beyond the exposure of the species to a factor to evaluate whether the
species may respond to the factor in a way that causes actual impacts
to the species. If there is exposure to a factor and the species
responds negatively, the factor may be a threat and, during the
subsequent status review, we attempt to determine how significant a
threat it is. The threat is significant, if it drives, or contributes
to, the risk of extinction of the species such that the species may
warrant listing as threatened or endangered as those terms are defined
in the Act. However, the identification of factors that could impact a
species negatively may not be sufficient to compel a finding that the
information in the petition and our files is substantial. The
information must include evidence sufficient to suggest that these
factors may be operative threats that act on the species to the point
that the species may meet the definition of threatened or endangered
under the Act.
The petitioners assert that listing the Mexican gray wolf under the
Act as a subspecies is both biologically warranted and legally
required. It is important to mention that we already recognize the
endangered status of the Mexican wolf under the current listing of the
gray wolf species (43 FR 9607). However, this 90-day finding evaluates
the information provided by the petitioners and other information
readily available in our files, and determines whether it is
substantial scientific or commercial information indicating that
listing of the Mexican wolf as a subspecies may be warranted. Our
evaluation of this information is presented below.
The petitioners assert that listing the Mexican wolf as a
subspecies under the Act is appropriate on the basis of taxonomy. The
petitioners cite Young and Goldman 1994, Hall 1981, Bogan and Melhop
1983, Hoffmeister 1986, Nowak 1995, Leonard et al. 2005, Wayne et al.
1992, Garcia-Moreno et al. 1996, and Hedrick et al. 1997 in asserting
that the Mexican wolf is clearly identified as a taxonomically valid
subspecies. Information in our files support this assertion and
indicate that, in the past, the Service has recognized the Mexican wolf
as a taxonomically valid subspecies (41 FR 17742; 43 FR 9607).
The petitioners assert the Mexican wolf is in danger of extinction
due to four of the five factors set forth at 16 U.S.C. 1533(a)(1)(A)-
(E), stating the only factor not considered a threat to the Mexican
wolf is Factor B. Several analyses of the five listing factors have
been conducted for the Mexican wolf. The initial proposal to list the
Mexican wolf as endangered in 1975 (40 FR 17590), and the 1978 listing
of the entire gray wolf species as endangered throughout the
coterminous United States (except for Minnesota, where it was
classified as threatened) (43 FR 9607), found that threats from habitat
loss (Factor A), sport hunting (Factor B), and inadequate regulatory
protection from human persecution (Factor D) were responsible for the
subspecies' decline and near extinction.
We again assessed threats to the Mexican wolf in 2003 as part of
the Southwest DPS when we reclassified the gray wolf into three DPSs
(68 FR 15804). The reclassification rule stated that habitat
destruction or modification (Factor A) was not currently considered a
threat or deterrent for restoration of southwestern (Mexican) gray
wolves. ``Take'' for commercial or recreational purposes, Factor B, was
not considered a threat, nor were diseases and parasites (Factor C).
Illegal killing was considered

[[Page 46897]]

in Factor C in the 2003 rule, and was recognized as a factor that may
slow, but not likely preclude, recovery in the Southwest. Regulatory
protection for reintroduced Mexican wolves was deemed adequate (Factor
D). Finally, public attitudes toward gray wolves were cited as a
primary determinant in the long-term recovery status of wolves (Factor
E), and the 2003 rule anticipated that the potential for human-wolf
conflicts would increase as the number of wolves increased.
The most recent analysis of the five listing factors was performed
in the Mexican Wolf Conservation Assessment (Service 2010, pp. 44-62).
While Factor A was not considered a threat to the current wild
population of Mexican wolves, the document states the degree to which
habitat alteration may hinder future recovery must consider projections
of future events and landscape trends in relation to updated recovery
criteria. According to Carroll et al. (2003, pp. 536-548; 2006, pp. 25-
37), there are a number of adequately sized, ecologically suitable
blocks of habitat in the Southwest, southern Rockies, and Mexico for
establishment of wolf populations; however, as the petitioners assert,
these sites may be impacted in the future by human population growth
and associated road development.
The petitioners assert that disease and predation (Factor C) are a
current threat to the Mexican wolf. Disease and predation have not been
recognized as a threat in any of our analyses. In the recent
Conservation Assessment, disease is not considered a threat to the
Mexican wolf based on known occurrences in the wild population and the
active vaccination program (Service 2010, p. 51). Predation is also not
considered a threat to the Mexican wolf because no wild predator
regularly preys on wolves (Service 2010, p. 51).
The petitioners assert that regulatory protections for Mexican
wolves are inadequate (Factor D). The petitioners refer to restrictions
within the 1998 rule (63 FR 1752), recommendations in the program's
Three-year review (Paquet et al. 2001) that have not been implemented,
and an unpublished powerpoint by Parsons and Ossario (2007) to show
that current regulatory mechanisms are a primary cause for the failure
to reach reintroduction objectives. We will further evaluate the
adequacy of existing regulatory mechanisms during our status review.
The petitioners assert that other natural or manmade factors
(Factor E) affect the continued existence of the Mexican wolf. The
petitioners reference studies of captive Mexican wolves by Hedrick et
al. (1997) and Fredrickson et al. (2007) and assert the Mexican wolf
contains reduced genetic diversity from their original population, and
that signs of inbreeding depression have been observed such as smaller
size, reduced fertility, and lower litter sizes. Information in our
files generally supports this assertion. However, while inbreeding may
have the potential to decrease fitness, growth rate, and genetic
variation of the current wild population unless management actions to
increase genetic representation are employed (Service 2010, pp. 58-60),
the information presented by the petitioners and readily available in
our files does not indicate that inbreeding may be a current threat to
the captive population of Mexican wolves.
Finally, the petitioners assert that federal control of wolves,
illegal shootings, and vehicular collisions affect the continued
existence of the Mexican wolf (Factor E). Information in our files
supports the assertion that two sources of human-caused mortality
(vehicular collision and illegal shooting) are responsible for the
majority of the deaths within the wild population of Mexican wolves,
and that the cumulative effects from the combination of human-caused
wolf mortality and removal of wolves for management purposes has
resulted in a failure rate (combined removal and mortality) too high to
allow recovery through unassisted population growth (Service 2010, p.
61).

Finding

Section 4(b)(3)(A) of the Act requires that we make a finding on
whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files. To
the maximum extent practicable, we are to make this finding within 90
days of our receipt of the petition and publish our notice of the
finding promptly in the Federal Register.
Our process for making this 90-day finding under section 4(b)(3)(A)
of the Act is limited to a determination of whether the information in
the petition presents ``substantial scientific and commercial
information,'' which is interpreted in our regulations as ``that amount
of information that would lead a reasonable person to believe that the
measure proposed in the petition may be warranted'' (50 CFR 424.14(b)).
We have reviewed the petitions and the literature cited in the
petitions, and evaluated the information to determine whether the
sources that were cited supported the petitioned actions. We also
reviewed reliable information that was readily available in our files
to clarify and verify information in the petitions. Based on our
evaluation of the information provided in the petitions, we find that
the petitions present substantial scientific or commercial information
indicating that listing the Mexican wolf as a subspecies may be
warranted. One of the petitions received also included listing the
Mexican wolf as a DPS. Since substantial scientific or commercial
information was found at the subspecies level, in this finding we did
not assess whether the petitions present substantial scientific or
commercial information indicating listing the Mexican wolf as a DPS may
be warranted. However, we will fully assess whether the species
warrants listing as either a subspecies or a DPS in the 12-month
finding.
On the basis of our determination under section 4(b)(3)(A) of the
Act, we have determined that the petitions present substantial
scientific or commercial information indicating that reclassification
of the gray wolf to list the Mexican wolf as a subspecies throughout
its entire range may be warranted. Because we have found that the
petitions present substantial information indicating that listing the
Mexican wolf as a subspecies may be warranted, we are initiating a
status review to determine whether listing the Mexican wolf as a
subspecies under the Act is warranted.
The ``substantial information'' standard for a 90-day finding
differs from the Act's ``best scientific and commercial data'' standard
that applies to a status review to determine whether a petitioned
action is warranted. A 90-day finding does not constitute a status
review under the Act. In a 12-month finding, we will determine whether
a petitioned action is warranted after we have completed a thorough
status review of the species, which is conducted following a
substantial 90-day finding. Because the Act's standards for 90-day and
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a
warranted finding.

References Cited

A complete list of references cited in this finding is available
upon request from the New Mexico Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT section above).

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Author

The primary authors of this notice are the staff members of the New
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT section above).

Authority

The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).

Dated: July 12, 2010
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-19199 Filed 8-3-10; 8:45 am]
BILLING CODE 4310-55-S