[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Rules and Regulations]
[Pages 25593-25611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10467]



[[Page 25593]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2009-0077; 92220-1113-0000; ABC Code: C3]
RIN 1018-AW63


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of Sonoran Pronghorn in 
Southwestern Arizona

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
reestablishing the Sonoran pronghorn, a federally listed endangered 
mammal, in its historical habitat in King Valley, Kofa National 
Wildlife Refuge, in Yuma County, and the Barry M. Goldwater Range--
East, Maricopa County, in southwestern Arizona. We are reestablishing 
the Sonoran pronghorn under section 10(j) of the Endangered Species Act 
of 1973, as amended, and classify that reestablished population as a 
nonessential experimental population (NEP). The NEP is located in 
southwestern Arizona in an area north of Interstate 8 and south of 
Interstate 10, bounded by the Colorado River on the west and Interstate 
10 on the east; and an area south of Interstate 8, bounded by Highway 
85 on the west, Interstates 10 and 19 on the east, and the United 
States-Mexico border on the south.
    This action is one of the recovery actions that the Service, 
Federal and State agencies, and other partners are conducting 
throughout the historical range of the species. This final rule 
establishes the NEP and provides for limited allowable legal taking of 
Sonoran pronghorn within the defined NEP area. An Environmental 
Assessment and Finding of No Significant Impact have been prepared for 
this action (see ADDRESSES section below).

DATES: The effective date of this rule is June 6, 2011.

ADDRESSES: This final rule, along with the public comments, 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI), is available on the Internet at http://www.regulations.gov and 
http://www.fws.gov/southwest/es/arizona/. Supporting documentation is 
also available for public inspection, by appointment, during normal 
business hours, at the U.S. Fish and Wildlife Service's Arizona 
Ecological Services Office at 2321 W. Royal Palm Road, Suite 103, 
Phoenix, AZ 85021.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Office, 2321 W. Royal Palm Road, Suite 103, 
Phoenix, AZ 85021 (telephone 602-242-0210, facsimile 602-242-2513). If 
you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
this final rule establishing a Sonoran pronghorn nonessential 
experimental population (NEP). For more information on the Sonoran 
pronghorn, refer to the February 4, 2010, proposed rule (75 FR 5732) 
and the 1998 Revised Sonoran Pronghorn Recovery Plan (Service 1998: 
http://ecos.fws.gov/docs/recovery_plan/981203.pdf) and its amendments 
(Service 2002: http://ecos.fws.gov/docs/recovery_plan/031126.pdf).

Regulatory Background

    We listed the Sonoran pronghorn subspecies (Antilocapra americana 
sonoriensis) as endangered throughout its range on March 11, 1967 (32 
FR 4001), under the Endangered Species Preservation Act of October 15, 
1966, without critical habitat. This subspecies was included as an 
endangered species when the Endangered Species Act was signed into law 
in 1973 (Act; 16 U.S.C. 1531 et seq.). The Act provides that species 
listed as endangered are afforded protection primarily through the 
prohibitions of section 9 and the requirements of section 7. Section 9 
of the Act, among other things, prohibits the take of endangered 
wildlife. ``Take'' is defined by the Act as to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or attempt to 
engage in any such conduct. Service regulations (50 CFR 17.31) 
generally extend the prohibitions of take to threatened wildlife. 
Section 7 of the Act outlines the procedures for Federal interagency 
cooperation to conserve federally listed species and protect designated 
critical habitat. It mandates that all Federal agencies use their 
existing authorities to further the purposes of the Act by carrying out 
programs for the conservation of listed species. It also states that 
Federal agencies will, in consultation with the Service, ensure that 
any action they authorize, fund, or carry out is not likely to 
jeopardize the continued existence of a listed species or result in the 
destruction or adverse modification of designated critical habitat. 
Section 7 of the Act does not affect activities undertaken on private 
or other non-Federal land unless they are authorized, funded, or 
carried out by a Federal agency.
    Under section 10(j) of the Act, the Secretary of the Department of 
the Interior can reestablish populations outside the species' current 
range and designate them as ``experimental.'' With the experimental 
population designation, the relevant population is treated as 
threatened for purposes of section 9 of the Act, regardless of the 
species' designation elsewhere in its range. Threatened designation 
allows us discretion in devising management programs and special 
regulations for such a population. Section 10(j) of the Act allows us 
to adopt whatever regulations are necessary and advisable to provide 
for the conservation of a NEP. In these situations, the general 
regulations that extend most section 9 prohibitions to threatened 
species do not apply to that species, and the 10(j) rule contains the 
prohibitions and exemptions necessary and appropriate to conserve that 
species.
    For the purposes of section 7 of the Act, we treat an NEP as a 
threatened species when the NEP is located within a National Wildlife 
Refuge or unit of the National Park Service, and section 7(a)(1) and 
the consultation requirements of section 7(a)(2) of the Act apply. 
Section 7(a)(1) requires all Federal agencies to use their authorities 
to carry out programs for the conservation of listed species. Section 
7(a)(2) requires that Federal agencies, in consultation with the 
Service, ensure that any action authorized, funded, or carried out is 
not likely to jeopardize the continued existence of a listed species. 
When NEPs are located outside a National Wildlife Refuge or National 
Park Service unit, then for the purposes of section 7, we treat the 
population as proposed for listing, and only two provisions of section 
7 apply--section 7(a)(1) and section 7(a)(4).
    In these instances, NEPs provide additional flexibility because 
Federal agencies are not required to consult with us under section 
7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather 
than consult) with the Service on actions that are likely to jeopardize 
the continued existence of a species proposed to be listed. The results 
of a conference are in the form of conservation recommendations that 
are optional as the agencies carry out, fund, or authorize activities. 
Because the NEP is, by definition, not essential to the continued 
existence of the species

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(see below) then the effects of proposed actions on the NEP will 
generally not rise to the level of jeopardizing the continued existence 
of the species. As a result, a formal conference will likely never be 
required for Sonoran pronghorn established within the NEP area. 
Nonetheless, some agencies (e.g., Bureau of Land Management (BLM)) 
voluntarily confer with the Service on actions that may affect a 
proposed species. Section 10(j)(2)(c)(ii) precludes the designation of 
critical habitat for nonessential populations. Activities that are not 
carried out, funded, or authorized by Federal agencies are not subject 
to provisions or requirements in section 7.
    Based on the best scientific and commercial data available, we must 
determine whether the experimental population is essential or 
nonessential to the continued existence of the species. The regulations 
(50 CFR 17.80(b)) state that an experimental population is considered 
essential if its loss would be likely to appreciably reduce the 
likelihood of survival of that species in the wild. All other 
populations are considered nonessential. We have determined that this 
experimental population is not essential to the continued existence of 
the species in the wild (see Status of Reestablished Populations 
section below). Therefore, the Service is designating a nonessential 
experimental population for the species in this area.
    Sonoran pronghorn used to establish the experimental population 
will come from a captive-rearing pen on Cabeza Prieta National Wildlife 
Refuge (NWR), as long as appropriate permits are issued in accordance 
with our regulations (50 CFR 17.22) prior to the animals' removal. The 
donor population is a captive-bred population derived primarily from 
wild stock at Cabeza Prieta NWR and from a wild Sonoran pronghorn 
population in northwestern Sonora, Mexico. The purpose of the captive 
population is to provide stock for augmenting existing U.S. and Mexican 
populations of Sonoran pronghorn, as well as supplying founder animals 
for establishment of an additional U.S. herd(s), in accordance with 
recovery actions 2.1-2.4 of the Sonoran Pronghorn Recovery Plan 
(Service 2002, pp. 47-48). The proposed population establishment will 
involve two phases: (1) Construction and operation of a captive-
breeding pen at Kofa NWR, with subsequent releases to establish a new 
herd; and (2) relocation of excess Sonoran pronghorn from the existing 
breeding pen at Cabeza Prieta NWR to the eastern portion of the BMGR-E, 
east of Highway 85 and south of Interstate 8, with the intent of 
establishing another herd.

Biological Information

    The Sonoran pronghorn was first described by Goldman (1945, pp. 3-
4) and is small in terms of cranial measurements compared to the 
measurements of other subspecies of pronghorn (Nowak and Paradiso 1971, 
p. 857). Historically, the Sonoran pronghorn ranged in the United 
States from approximately the Santa Cruz River, Arizona, in the east, 
to the Gila Bend and Kofa Mountains, Arizona, to the north, and to 
Imperial Valley, California, to the west (Service 1998, pp. 4-6). In 
northwestern Sonora, Mexico, the subspecies is thought to have occurred 
historically as far south as Bahia Kino and east to Santa Ana and 
Nogales. In Baja California, Mexico, the subspecies occurred in the 
northeast from the United States border south to the vicinity of Punta 
Estrella (Phelps and Webb 1981, pp. 20-21; Service 2002, Fig. 2). 
Currently, three populations of the Sonoran pronghorn are extant: (1) A 
U.S. population in southwestern Arizona, south of Interstate 8, west of 
Highway 85, and east of the Copper and Cabeza Prieta mountains (80-90 
wild pronghorn); (2) a population in the El Pinacate Region of 
northwestern Sonora (101 pronghorn); and (3) a population south and 
east of Mexico Highway 8 and west and north of Caborca, Sonora (381 
pronghorn). The three populations are geographically isolated due to 
barriers such as roads and fences (Service 2002, pp. 4-10, Fig. 1). The 
current range of the Sonoran pronghorn in the United States is defined 
by the boundaries described in number (1) above. Section 10(j)(2)(A) of 
the Act states that, ``The Secretary may authorize the release (and the 
related transportation) of any population (including eggs, propagules, 
or individuals) of an endangered species or a threatened species 
outside the current range of such species * * *'' Consistent with years 
of survey data, we are confident that no Sonoran pronghorn population 
occurs outside of the current range (Phelps 1981, pp. 23-24; Service 
2002, pp. 16 and 47).
    Threats to the Sonoran pronghorn include:
    (1) Highways, fences, railroads, developed areas, and irrigation 
canals that block access to essential forage or water resources;
    (2) a variety of human activities that disturb pronghorn or degrade 
habitat, including livestock grazing in the United States and Mexico; 
military activities; recreation; poaching and hunting; clearing of 
desert scrub and planting of buffelgrass (Pennisetum ciliare), 
particularly in Sonora; gold mining southeast of Sonoyta, Sonora; 
dewatering and development along the Gila River and R[iacute]o Sonoyta; 
and high levels of undocumented immigration and drug trafficking across 
the international border, and associated law enforcement response in 
the United States;
    (3) wildfire, fueled by nonnative perennial and ephemeral plants 
that have increased fine fuels and allowed fire to become a much more 
frequent event in the Sonoran Desert;
    (4) drought and associated limited food and water; and
    (5) small population size and random changes in demographics.
    Populations at low levels may experience random variations in sex 
ratios, age distributions, and birth and death rates among individuals, 
which can cause fluctuations in population size and possibly extinction 
(Service 2002, pp. 14-35; Primack 2002, pp. 196-197). In very sparse 
populations, males may have trouble finding females, causing an unequal 
sex-ratio, which may lead to a reduction in productivity (Primack 2002, 
pp. 310-311). In 2002, a severe drought was the primary cause of a 
major die off of Sonoran pronghorn. The U.S. population declined in 
2002 by 83 percent, to 21 animals (Bright and Hervert 2005, p. 46). The 
Mexican populations declined at the same time, but not to the same 
degree. The population southeast of Highway 8 declined by 18 percent, 
while the El Pinacate population declined by 26 percent. The 
differences between the rates of decline north and south of the border 
may be due to high levels of human disturbance on the U.S. side, due 
primarily to heightened levels of illegal immigration, smuggling, and 
law enforcement response (Service 2008, p. 55).

Recovery Efforts

    Restoring an endangered or threatened species to the point where it 
is recovered is a primary goal of the endangered species program. Thus, 
in 1982 we published the Sonoran Pronghorn Recovery Plan (Plan) 
(Service 1982), which was produced by a Recovery Team comprised of 
representatives from the Arizona Game and Fish Department (AGFD), 
Cabeza Prieta NWR, BLM, and Organ Pipe Cactus National Monument 
(OPCNM). The Plan was subsequently revised in 1994, 1998, and 2002. 
Major recovery actions include:
    (1) Enhance present populations of Sonoran pronghorn by providing 
supplemental forage and/or water;

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    (2) Determine habitat needs and protect present range;
    (3) Investigate and address potential barriers to expansion of 
presently used range, and investigate, evaluate, and prioritize present 
and potential future reintroduction sites within the historical range;
    (4) Establish and monitor a new, separate herd(s) to guard against 
catastrophes decimating the core population;
    (5) Continue monitoring populations and maintain a protocol for a 
repeatable and comparable survey techniques; and
    (6) Examine additional specimen evidence to assist in verification 
of taxonomic status (Service 1998, pp. iii-iv).
    The 2002 Supplement did not include delisting criteria; however, 
eight short-term recovery actions were identified as necessary to 
downlist the species to threatened. The supplement goes on to say that 
accomplishing these actions would provide the information necessary to 
determine delisting criteria. One of the short-term recovery actions 
was ``evaluating potential transplant locations, establishing 
methodology and protocols, developing interagency agreements (including 
with Mexico as required), acquiring funding, and initiating 
reestablishment projects'' (Service 2002, p. 38).
    After the catastrophic die off of Sonoran pronghorn in 2002, the 
Service and its partners embarked on a number of aggressive recovery 
actions to ensure the species' continued existence and to begin to 
rebuild populations. The cornerstone of these actions was a semi 
captive breeding facility, constructed in Childs Valley of Cabeza 
Prieta NWR in 2003, and stocked with wild Sonoran pronghorn in 2004. In 
2009, as of May, 69 Sonoran pronghorn resided in the pen. To date, 44 
Sonoran pronghorn have been released into the wild population. The goal 
of the facility is to produce at least 20 fawns each year for release 
to the current U.S. population, to newly established population(s) in 
the United States, and to augment Mexican populations.
    A number of other projects are under way to increase availability 
of green forage and water during dry periods and seasons, offsetting to 
some extent the effects of drought and barriers that prevent Sonoran 
pronghorn from accessing greenbelts and water, such as the Gila River 
and R[iacute]o Sonoyta. Nine emergency water sources (six on Cabeza 
Prieta NWR, one on OPCNM, and two on BMGR-West) have been constructed 
in recent years throughout the range of the U.S. population. Four 
forage enhancement plots, each consisting of a well, pump, pipelines, 
and irrigation lines, have been developed to irrigate the desert and 
produce forage for pronghorn. Another plot is nearing completion, and 
two additional plots will be installed over the next 5 years. These 
crucial projects, intended to pull the U.S. population back from the 
brink of extinction, have been cooperative efforts among the Service, 
AGFD, Marine Corps Air Station--Yuma, Luke Air Force Base, BLM, and 
OPCNM, with volunteer efforts from the Arizona Desert Bighorn Sheep 
Society, Arizona Antelope Foundation, and the Yuma Rod and Gun Club.
    The U.S. wild population of Sonoran pronghorn has rebounded from 21 
in 2002 to 80-90 in 2010; this increase has been facilitated by the 
collaborative recovery efforts for this species. However, at 80-90 
animals currently, the U.S. population is far from being secure. We 
have begun to work with our Mexican partners on recovery of the Sonoran 
pronghorn in Sonora. Although the number of pronghorn in Sonora (482 
animals) is significantly greater than in the United States, the safety 
net of water sources and forage plots is not in place there, and a 
severe drought could decimate those populations.

Reestablishment Areas

    O'Brien et al. (2005) used landscape-level classification and 
modeling to assess potential Sonoran pronghorn habitat in southwestern 
Arizona, including current and historical range, as a means of 
beginning the process of identifying potential locations for 
establishing a second U.S. Sonoran pronghorn herd. Both models 
identified greater than 4,632 square miles (sq. mi) (greater than 
12,000 square kilometers (sq. km)) of potential habitat (O'Brien et al. 
2005, pp. 28-30). The largest blocks of potential habitat outside of 
the current range were the Ranegras and Harquahala plains, King Valley 
at Kofa NWR north of Interstate 8; Sentinel Plain and other areas to 
the west between Interstate 8 and the Gila River; and areas not 
currently occupied south of Interstate 8 and immediately west of 
Highway 85. The models also identified a large land area east of 
Highway 85 and south of Interstate 8 as potential habitat. The authors 
did not evaluate potential habitats in the far eastern portions of the 
historical range of the Sonoran pronghorn in Arizona (O'Brien et al. 
2005, Figs. 3 and 4). O'Brien et al. (2005, p. 32) further explained 
that their models were an initial step toward identifying and 
evaluating potential translocation sites. They recommended soliciting 
public input, and reviewing predator presence and density, fencing, and 
the presence of preferred forage and water as additional steps in the 
evaluation process (O'Brien et al. 2005, p. 32).
    An Interdisciplinary Team (IDT), comprising members of the Sonoran 
Pronghorn Recovery Team, the Tohono O'odham Nation, and representatives 
from land management agencies located in southwestern Arizona, was 
convened in 2008 to address these and other issues and considerations, 
and to recommend specific areas for establishing an additional U.S. 
herd or herds. Development of alternatives for population establishment 
entailed consideration of three key variables: (1) Geographical areas 
for establishing populations outside of the current range; (2) 
potential establishment techniques; and (3) legal status of established 
populations under the Act. Each of these three key variables had a 
range of options. The IDT evaluated the three key variables to arrive 
at the most effective combinations of geographical areas, establishment 
techniques, and legal status options.
    The IDT conducted a mapping exercise to identify areas within the 
historical range of Sonoran pronghorn in the United States that were 
under Federal or State ownership and that contained suitable habitat 
for the species. The result of this exercise was identification of 
seven potential reestablishment areas, designated Areas A through G. 
The seven areas were then ranked by the IDT, using seven selection 
criteria, to determine the best areas for translocation. Area A (King 
Valley at Kofa NWR, and adjacent portions of primarily Yuma Proving 
Grounds and BLM lands) and Area D (primarily portions of the BMGR-E, 
BLM lands, and a portion of the Tohono O'odham Nation, all east of 
Highway 85) were ranked 1 and 2, respectively.
    Public scoping for the Sonoran pronghorn population establishment 
project included three open houses held in November 2008 on successive 
evenings at Yuma, Tucson, and Phoenix, Arizona. After consideration of 
public input, two alternatives were carried forward in the National 
Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) process, 
including establishment of Sonoran pronghorn in Areas A and D, which we 
will implement as per this final rule. Specific population 
establishment techniques are described for both areas (see Release 
Procedures, below), and we are establishing Sonoran pronghorn as a NEP 
in these areas under section 10(j) of the Act.
    The NEP encompasses Areas A and D in Arizona, as well as all areas 
into

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which Sonoran pronghorn are likely to disperse. The NEP is defined as 
follows: An area north of Interstate 8 and south of Interstate 10, 
bounded by the Colorado River on the west and Interstate 10 on the 
east; and an area south of Interstate 8, bounded by Highway 85 on the 
west, Interstates 10 and 19 on the east, and the United States-Mexico 
border on the south.
    Section 10(j) of the Act requires that an experimental population 
be wholly separate geographically from other wild populations of the 
same species. The Colorado River; Interstates 8, 10, and 19; and 
Highway 85, which form the boundaries of the NEP, are barriers to 
movement. Interstate 8 separates Area A from the current U.S. 
population, and Highway 85 forms a boundary between Area D and the 
current U.S. population. We do not expect Sonoran pronghorn to cross 
these barriers. Brown and Ockenfels (2007, p. 29) found that high-speed 
highways with right-of-way fences, such as these, were virtually 
Sonoran pronghorn-proof due to comprehensive fencing and high-volume 
traffic, and that interstate highways are effectively impassable for 
the species. Only once, in 1973, has a Sonoran pronghorn been known to 
cross Interstate 8 (Phelps 1981, p. 27). In 2008, a Sonoran pronghorn 
crossed Highway 85 and its associated right-of-way fences into BMGR-E 
(Howard 2008, pers. comm.); this is the only confirmed case of a 
Sonoran pronghorn crossing Highway 85 and its right-of-way fences. 
However, in July 2010, an unconfirmed sighting of a pronghorn doe was 
reported well east of Highway 85 in BMGR-E. This animal was not 
collared or ear-tagged, so its origins are uncertain, but it presumably 
crossed Highway 85 into BMGR-E from the wild population. No other 
documented cases of Sonoran pronghorn crossing Highway 85 and its 
right-of-way fences are known.
    Nonetheless, in the unlikely event that a Sonoran pronghorn moves 
outside the NEP, the individual or individuals would not constitute a 
population. Our regulations define ``population'' as a ``group of fish 
or wildlife * * * in common spatial arrangement that interbreed when 
mature'' (50 CFR 17.3) and thus determine that a ``geographic 
separation'' is any area outside the area in which a particular 
population sustains itself. See Wyo. Farm Bureau Fed'n v. Babbitt, 199 
F. 3d 1224, 1234 (10th Cir. 2000). These definitions preclude the 
possibility of population overlap as a result of the presence of 
individual dispersing Sonoran pronghorn--by definition lone dispersers 
do not constitute a population or even part of a population, since they 
are not in ``common spatial arrangement'' sufficient to interbreed with 
other members of a population. The evidence suggests that the 
likelihood of a lone pronghorn crossing the NEP boundary is very low, 
so it follows that the probability of that lone disperser encountering 
another Sonoran pronghorn of the opposite sex and reproducing is even 
more remote.
    The status, as endangered or as a member of the NEP, of any 
dispersing Sonoran pronghorn that manages to cross Highway 85, 
Interstate 8, or other barriers between the NEP and the current range 
is defined geographically. Any Sonoran pronghorn within the NEP area is 
considered a member of the nonessential experimental population 
(including any dispersing animals from within the current range that 
cross into the NEP area), whereas any Sonoran pronghorn outside of the 
NEP is fully protected under the Act as an endangered species.
    The geographical extent of the NEP designation includes areas 
unlikely to be used by Sonoran pronghorn, as only portions of this 
proposed NEP area contain suitable habitat. In the NEP area, Sonoran 
pronghorn habitat is limited to undeveloped areas within valleys. 
Mountainous areas, such as the Kofa, Castle Dome, Palomas, and Gila 
Bend mountains, do not provide habitat for this species; nor do 
developed areas within the valleys, such as agricultural areas and 
towns and cities. However, the NEP area represents what we believe to 
be the maximum geographical extent to which Sonoran pronghorn could 
move if released in Areas A and D. Once released into these areas, we 
expect the Sonoran pronghorn population(s) to grow and expand into 
adjacent suitable habitats, potentially moving to the boundaries of the 
NEP. In the unlikely event that any of the released Sonoran pronghorn, 
or their offspring, move across interstate highways or other barriers 
(e.g., rivers or mountainous areas, developed agriculture areas, or 
urban areas) to outside the designated NEP area (but not into the area 
occupied by the wild population), then the Service will evaluate the 
need, in the context of the 10(j) requirements, to amend the 10(j) rule 
to enlarge the boundaries of the NEP area to include the area of the 
expanded population. As discussed above, the likelihood of Sonoran 
pronghorn moving from the NEP area into the current range is very low.

Release Procedures

    The IDT developed the methods of release of Sonoran pronghorn into 
Areas A and D with the objective of maximizing the likelihood of 
success in establishing herds, while minimizing the impact to the 
source population (the animals in the captive breeding pen at Cabeza 
Prieta NWR) and limiting mortality or injury to translocated Sonoran 
pronghorn to the maximum extent possible. In King Valley, Kofa NWR 
(Area A), a rectangular-shaped, 0.5-square-mile (sq.-mi) (1.29-square-
kilometer (sq.-km)) captive-breeding pen will be constructed. The pen 
will include water sources and irrigated areas to enhance forage 
production, as well as two observation towers from which the animals 
will be monitored. In December 2011/January 2012, we anticipate moving 
11 Sonoran pronghorn (10 females and 1 male) to the pen from the 
captive-rearing pen at Cabeza Prieta NWR. These animals will be 
captured, either by use of a boma (a circular trap used inside the pen) 
or tranquilizer dart gun and moved one or two at a time by helicopter.
    Prior to movement to Kofa NWR, Sonoran pronghorn will be screened 
for epizootic hemorrhagic disease (EHD) and bluetongue (BTV). Both 
diseases can infect bighorn sheep and mule deer, as well as Sonoran 
pronghorn. To ensure these diseases are not inadvertently moved to Kofa 
NWR, only Sonoran pronghorn not exhibiting clinical signs (active 
lesions) of EHD and BTV will be transported to the new captive breeding 
pen at Kofa NWR. Biennial rotation of the breeding male and death of 
any Sonoran pronghorn in the breeding pen at Kofa NWR would require 
additional flights to bring new animals from Cabeza Prieta NWR. Methods 
perfected at Cabeza Prieta NWR will be employed in these activities, 
which have been used successfully with minimal mortality of pronghorn.
    Assuming successful captive-breeding at the Kofa NWR pen, up to 20 
Sonoran pronghorn will be released annually into suitable habitats 
outside of but adjacent to the pen site at Kofa NWR, beginning as early 
as the winter of 2012 or 2013 and recurring each winter until 2020. 
Sonoran pronghorn in the pen, as well as animals released, will be 
closely monitored to determine success or need for adaptive management. 
Success criteria will be developed by the recovery team prior to the 
release of any animals, but the objective will be to continue releases 
until the population can sustain itself without augmentation. 
Concurrently, but only if excess animals are available from the 
captive-breeding pen at Cabeza Prieta NWR (not needed to augment 
existing herds or for the pen at Kofa NWR), these animals will be

[[Page 25597]]

captured from the pen, transported to a holding pen in Area D, held 
temporarily, and then released as a group. The holding pen in Area D is 
located in the Midway Well area near Hat Mountain (an area locally 
known as BMGR-E ``Area B'') in Maricopa County, Arizona. Ideally, the 
Sonoran pronghorn will be captured together and moved quickly to a 
holding pen, allowed to recover for a brief period, and released 
together.
    Released animals in Area D will be monitored via aircraft and on-
the-ground personnel to determine survival, reproduction, and other 
measures of success. Details of the monitoring plan will be developed 
prior to release and will include collection of enough data to 
quantitatively determine if we are meeting success criteria and, if 
not, what needs to be corrected to ensure success. Through adaptive 
management, release techniques and other management will be revised as 
needed to ensure success. Additional description of the release 
procedures and monitoring protocols can be found in the final EA (for 
copies of this document, see ADDRESSES above).

Status of Reestablished Populations

    We have determined that these reestablished populations are 
nonessential, based on the following:
    (a) Wild populations of the Sonoran pronghorn, totaling about 562 
to 572 animals, currently exist at: (1) Cabeza Prieta NWR, OPCNM, BMGR, 
and adjacent BLM lands; (2) in the El Pinacate region of Sonora; and 
(3) south and east of Highway 8 in Sonora.
    (b) A captive-breeding pen at Cabeza Prieta NWR maintains a captive 
population and provides stock to augment the wild populations in 
Arizona and Sonora. The pen has been highly successful. It was first 
stocked with Sonoran pronghorn in 2004; the original group of 11 
animals has grown to 69 (May 2010), and another 44 Sonoran pronghorn 
have been released from the pen into the wild.
    (c) The first priority for use of animals in the captive-breeding 
pen at Cabeza Prieta NWR is to augment herds within the boundaries of 
the current range of the species. Relocation of Sonoran pronghorn from 
the captive breeding pen to Kofa NWR will not appreciably inhibit the 
augmentation efforts for the herds within the boundaries of the current 
range of the species. Sonoran pronghorn produced at the Cabeza Prieta 
NWR pen that are not needed to augment herds within the current range 
or to populate the Kofa NWR pen will be used to establish a population 
in Area D.
    (d) The possible failure of this action will not appreciably reduce 
the likelihood of survival of the species in the wild, because (1) the 
first priority for use of Sonoran pronghorn from the captive-breeding 
pen at Cabeza Prieta NWR is to augment the wild herd, and (2) recovery 
actions have been, and continue to be, implemented in the United States 
to reduce the effects of drought on the species (Service 2009, pp. 9, 
18-19).
    (e) Through programs of work endorsed by the Canada/Mexico/U.S. 
Trilateral Committee for Wildlife and Ecosystem Conservation and 
Management, the Service and AGFD coordinate with our Mexican partners 
on recovery actions for Sonoran pronghorn in Mexico, enhancing the 
likelihood of their survival and recovery.
    We will ensure, through our section 10 permitting authority and the 
section 7 consultation process, that the use of Sonoran pronghorn from 
the donor population at Cabeza Prieta NWR for releases in Areas A or D 
is not likely to jeopardize the continued existence of the species in 
the wild. Establishment of additional Sonoran pronghorn populations 
within the species' historical range is a necessary step in recovery 
(Service 2002, p. 38).
    The special rule that accompanies this 10(j) rule is designed to 
broadly exempt take of Sonoran pronghorn from the section 9 
prohibitions outside of National Wildlife Refuge and National Park 
Service lands, as long as the take is incidental to otherwise lawful 
activities. We provide this exemption because we believe that 
incidental take of members of the NEP associated with otherwise lawful 
activities will not pose a substantial threat to the recovery of 
Sonoran pronghorn, as activities that currently occur or are 
anticipated in the NEP area are generally compatible with Sonoran 
pronghorn recovery. For example, in Area A, there are vast expanses of 
open valleys without major barriers to Sonoran pronghorn movement that 
provide suitable habitat. These valleys include King Valley at Kofa 
NWR, Palomas Plain, the southern end of the Ranegras Plain, and 
portions of the Yuma Proving Grounds. The La Posa Plain and Castle Dome 
Plain also provide habitat. Highway 95 runs north-south through those 
plains, and although it may somewhat inhibit movement to the west side 
of those plains, it is not a substantial barrier because it lacks 
right-of-way fences. In Area D, there is considerable habitat in the 
valleys among the Sauceda, Sand Tank, Batamote, and other mountains in 
that region.
    There are existing military activities at Yuma Proving Grounds in 
Area A and BMGR-E in Area D, but pronghorn have coexisted with military 
activities for many years at the BMGR (deVos 1990, pp. 49-50; Krausman 
et al. 2004, pp. 29-33; Krausman et al. 2005, pp. 20-22); as a result, 
we believe they will persist with the similar activities conducted at 
Yuma Proving Grounds and in Area D. Although some forms of military 
activities could potentially result in incidental death or injury of 
individual pronghorn, no incidental take has ever been documented due 
to military activities, even before precautions were set in place as a 
result of section 7 consultations to minimize the likelihood of such 
take at the BMGR.
    There is some likelihood of Sonoran pronghorn drowning in canals in 
Area A. Canals are present in agricultural areas on the southern, 
eastern, and northeastern portions of Area A; Sonoran pronghorn are 
known to drown in such canals (Rautenstrauch and Krausman 1986, p. 9). 
The major canal in Area A most likely to be accessed by Sonoran 
pronghorn is the Wellton Canal, located north of the Gila River and on 
the northern edge of the agricultural lands in the Gila Valley. It is 
equipped with ramps and steps designed to prevent ungulate drownings. 
In addition, a series of wildlife water sources exists to the north of 
the canal as alternative water sources. Most of the canals elsewhere in 
Area A are too small to result in Sonoran pronghorn entrapment, or are 
surrounded by agriculture or other developments and are unlikely to be 
accessed by Sonoran pronghorn. Other activities such as recreational 
hunting and camping, vehicle use, livestock grazing, and small-scale 
rural or agricultural development, are anticipated to either have 
minimal effects on Sonoran pronghorn or will be limited in extent 
(e.g., rural and agricultural development).
    Under section 7(a)(1) of the Act, all Federal agencies are mandated 
to use their authorities to conserve listed species. In addition, the 
BLM has a policy of conferring with the Service, under section 7(a)(4), 
on their actions that may affect proposed species (BLM 6840 Manual). 
Some activities do have greater potential to compromise the success of 
the Sonoran pronghorn reestablishment than those described above. For 
instance, construction of new highways, particularly those with rights-
of-way fencing, or new canals in the NEP could create barriers to 
movement and bisect important pronghorn habitats. There is also the 
potential for BLM to permit large-scale solar power

[[Page 25598]]

plants, which would be constructed in the valleys and could eliminate 
up to tens of thousands of acres of habitat. Other BLM-authorized 
projects, such as agricultural leases, could also potentially remove 
large blocks of habitat and perhaps compromise the success of this 
project. The potential for these projects to impact the reestablishment 
is probably greatest on BLM lands in the valleys to the east of Kofa 
NWR. The Service will have the opportunity through the section 7(a)(4) 
conference process to work with the BLM to minimize the potential 
adverse effects of solar plants, agricultural leases, highways, or 
other projects that may compromise Sonoran pronghorn recovery.

Management

    The lands within the NEP area are managed and listed in descending 
order of acreage within areas A and D as follows: Area A--the Service 
(Kofa NWR), Department of the Army (Yuma Proving Grounds), BLM, Arizona 
State Lands Department, private landowners, and Colorado River Indian 
Tribes; Area D: Tohono O'odham Nation, BLM, Department of the Air Force 
(BMGR-E), private owners, and Arizona State Land Department. Outside of 
Areas A and D, but within the NEP, land ownership is similar, but also 
includes lands within the Gila River Indian Reservation, Ak-Chin Indian 
Reservation, Pascua Yaqui Indian Reservation, San Xavier Reservation, 
Buenos Aires NWR, Saguaro National Park, OPCNM, Tucson Mountain Park, 
and Coronado National Forest. Due to the management flexibility 
provided by the NEP designation and the special rule, we do not 
anticipate that establishment of Sonoran pronghorn in Areas A or D and 
subsequent dispersal of Sonoran pronghorn from the release sites will 
affect management on Tribal, BLM, National Forest, Department of 
Defense, State, or private lands.
    Through section 7 consultations on NWR lands and National Park 
Service lands, some changes in management may occur to reduce adverse 
effects to Sonoran pronghorn, including minimizing the likelihood of 
incidental take. However, we believe few changes will be needed, 
because management of these lands already is broadly compatible with 
Sonoran pronghorn recovery. Other Federal agencies that propose actions 
on Kofa NWR or National Park Service lands will also be required to 
consult with us under section 7 of the Act, if such activities may 
affect Sonoran pronghorn. For instance, some activities conducted by 
Yuma Proving Grounds (e.g., overflights of Kofa NWR) will be subject to 
the consultation requirements. Some Federal agencies, such as BLM, that 
propose actions outside of Kofa NWR or National Park Service lands may 
elect to work with the Service voluntarily through the section 7(a)(4) 
conferring process to ensure that adverse effects of their actions on 
Sonoran pronghorn in the NEP area are minimized.
    The Service (Cabeza Prieta NWR, Kofa NWR, and the Ecological 
Services office in AZ), AGFD, OPCNM, Luke Air Force Base, BLM, and 
other partners, in close coordination with the Sonoran Pronghorn 
Recovery Team, will plan and manage the establishment of new 
populations of Sonoran pronghorn. This group will closely coordinate on 
releases, monitoring, and coordination with landowners and land 
managers, among other tasks necessary to ensure successful population 
establishment. Management issues related to the Sonoran pronghorn NEP 
that have been considered include:
    (a) Mortality: ``Incidental take,'' as defined by regulation at 50 
CFR 17.3, is take that is incidental to, and not the purpose of, the 
carrying out of an otherwise lawful activity, such as agricultural 
activities and other rural development, ranching, military training and 
testing, camping, hiking, hunting, vehicle use of roads and highways, 
and other activities that are in accordance with Federal, Tribal, 
State, and local laws and regulations. With the finalization of this 
10(j) rule, incidental take of Sonoran pronghorn within the NEP area 
outside of National Wildlife Refuge and National Park Service lands 
will not be prohibited, provided that the take is unintentional, not 
due to negligent conduct, and is in accordance with the special rule 
that is a part of this 10(j) rule. However, if there is evidence of 
intentional take, not authorized by the special rule or by a section 10 
permit, of a Sonoran pronghorn within the NEP we will refer the matter 
to the appropriate law enforcement entities for investigation. We 
expect levels of incidental take to be low, because, as discussed in 
paragraph (d) under Status of Reestablished Populations, above, the 
establishment of new populations is compatible with most existing human 
use activities and practices for the area. In the current range of the 
Sonoran pronghorn in the United States, no incidental take has been 
documented from military activities, recreation, use of highways, and 
most other activities that occur both in the current range and in the 
NEP, the exception being canals, in which Sonoran pronghorn have 
drowned on several occasions. More specific information regarding take 
can be found in the Regulation Promulgation section of this final rule.
    (b) Special handling: In accordance with 50 CFR 17.21(c)(3), ``any 
employee or agent of the Service, any other Federal land management 
agency, the National Marine Fisheries Service, or a State conservation 
agency, who is designated by his agency for such purposes, may, when 
acting in the course of his official duties'', handle Sonoran pronghorn 
to aid sick or injured Sonoran pronghorn, or to salvage dead Sonoran 
pronghorn. However, other personnel and their agents, not specifically 
named in these regulations, will need to acquire permits from the 
Service for these activities.
    (c) Coordination with landowners and land managers: During the NEPA 
scoping process, the Service and cooperators identified issues and 
concerns associated with the proposed Sonoran pronghorn population 
establishment. The population establishment was also discussed with 
potentially affected State agencies, tribes, and private landowners. 
All land owners and managers also had an opportunity to review and 
comment on the draft EA and proposed rule. State and Federal land 
management agencies either supported or did not oppose the 
reestablishment of a Sonoran pronghorn herd and designation as a NEP; 
however, at least two private landowners in the NEP expressed 
opposition to the proposal. U.S. Customs and Border Protection strongly 
encouraged limiting reestablishment to Area A. See the section Summary 
of Public and Peer Review Comments and Recommendations below for 
summaries of those comments and how we addressed any concerns.
    (d) Monitoring and Adaptive Management: A monitoring and adaptive 
management plan for the population establishment program will be 
implemented by the Service, AGFD, and other partners to determine if 
the program is successful, and to adjust management as needed to ensure 
success. Success criteria have not yet been finalized, but they will 
include the concept that the objective of the program is to establish 
Sonoran pronghorn herds that are self-sustaining without augmentation 
via releases from captive pens or holding facilities, thereby 
contributing to recovery goals. The monitoring will assess all aspects 
of the population establishment program, from capture and movement of 
the animals to the captive breeding pen (Area A) or holding area (Area 
D), monitoring of the animals in these captive facilities, and 
monitoring and

[[Page 25599]]

tracking released Sonoran pronghorn in the release areas, including 
Sonoran pronghorn water sources and any forage enhancement vegetation 
plots developed to support the established herds. Monitoring of 
released Sonoran pronghorn will be conducted to determine the 
following:
    (1) Mortality and recruitment rates,
    (2) causes of mortality among adult and juvenile Sonoran pronghorn,
    (3) reliance on freestanding water sources,
    (4) movement corridors and barriers to movements, and
    (5) habitat preferences.
    Each released animal will be fitted with an ear tag and radio 
collar. A limited number of Sonoran pronghorn will be fitted with 
Geographic Positioning System (GPS) platform telemetry collars. It is 
expected the GPS transmitters will function for up to 3 years. 
Telemetry flights with a fixed-wing aircraft will be conducted twice a 
month. Each Sonoran pronghorn will be observed from an altitude of 
1,000 feet (ft.) above ground level with the aid of binoculars. Group 
size and composition (sex and age), habitat type, and terrain will be 
recorded. Additional monitoring of individual Sonoran pronghorn and 
herd movements will be done from the ground, particularly from high 
points where valley habitats of the Sonoran pronghorn can be viewed. 
All monitoring flights and on-the-ground surveillance will be closely 
coordinated with and approved by the tribal, military, and other land 
managers and owners where such monitoring will occur. As Sonoran 
pronghorn become established and breed in the establishment areas, the 
percentage of animals tagged or radio-collared will decline over time, 
and additional animals may need to be captured and radio collared to 
adequately monitor the herds. We will attempt to maintain radio collars 
on at least 10 percent of a population.
    Monitoring data will be assessed regularly by the Recovery Team, 
and methods will be revised as needed to increase the likelihood of 
successful population establishment and to increase efficiency. A 
comprehensive review, assessment, and report of the reestablishment 
program by the Recovery Team will occur at a frequency of no less than 
once every 5 years. If at any point the program is not meeting its 
stated objective, or is falling short of meeting the success criteria, 
techniques and methods will be reviewed and revised as needed to 
correct problems and increase the likelihood of success. If revisions 
fall outside the scope of the action evaluated in the EA and FONSI, all 
necessary environmental compliance will be completed before those 
revised techniques or methods are implemented. Additional details of 
the monitoring and adaptive management plan, including quantifiable and 
measurable success criteria, will be finalized and posted on our Web 
site at http://www.fws.gov/southwest/es/arizona/ prior to release of 
Sonoran pronghorn into Areas A or D.
    (e) Public awareness and cooperation: Public scoping for the 
Sonoran pronghorn population establishment project was conducted in the 
fall of 2008. Actions included an October 30, 2008, scoping letter sent 
to approximately 6,000 recipients, a news release to local media 
sources, and a series of 3 open houses held in the Arizona cities of 
Yuma, Tucson, and Phoenix, during November 18-20, 2008. We accepted 
written public scoping comments until December 12, 2008. We received 44 
written responses about the project. In our EA, we discussed issues 
identified in the responses. The IDT and the Service used these issues 
to refine the proposed action and alternatives in the EA, and to 
identify mitigation measures to avoid or reduce potential project 
effects. The IDT and the Service also used the public concerns to 
determine which resources would be the greatest focus of the EA 
analysis. The comments received during the scoping process are listed 
in the EA, and were considered in the formulation of alternatives 
considered in the NEPA process. The following section describes the 
public outreach we conducted and the responses received during the 
public and peer review comment periods on the proposed rule and draft 
EA.

Section 7 Consultation

    A special rule under section 4(d) of the Act is included in this 
establishment of an experimental population under section 10(j) of the 
Act. A population designated as experimental is treated for the 
purposes of section 9 of the Act as threatened, regardless of the 
species' designation elsewhere in its range. The development of 
protective regulations for a threatened species is an inherent part of 
the section 4 listing process. The Service must make this determination 
considering only the ``best scientific and commercial data available.'' 
A necessary part of this listing decision is also determining what 
protective regulations are ``necessary and advisable to provide for the 
conservation of [the] species.'' Determining what prohibitions and 
authorizations are necessary to conserve the species, like a listing 
determination of whether the species meets the definition of threatened 
or endangered, is not a decision that Congress intended to undergo 
section 7 consultation.
    Actions associated with the establishment of the experimental 
population, such as construction of pens or the movement of wild 
animals, will undergo section 7(a)(2) consultation, as appropriate.

Summary of Public and Peer-Review Comments and Recommendations

    On February 4, 2010, we published our proposed rule to establish a 
NEP of Sonoran pronghorn in southwestern Arizona (75 FR 5732), and 
requested written comments from the public on the proposed rule and 
draft EA. We also contacted the appropriate Federal, State, and local 
agencies; tribes; scientific organizations; and other interested 
parties and invited them to comment on the proposed rule and draft EA. 
The initial comment period was open from February 4, 2010, to April 5, 
2010. A second comment period was open from June 9, 2010, to July 9, 
2010 (75 FR 32727). A public hearing was held in Gila Bend, Arizona, on 
February 23, 2010; however, no verbal or written comments were 
submitted at that hearing.
    In accordance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we solicited opinions from three expert biologists 
who are familiar with this species regarding pertinent scientific or 
commercial data and assumptions relating to supportive biological and 
ecological information for the proposed rule. Reviewers were asked to 
review the proposed rule for accuracy and validity of its biological 
information and assumptions. Two out of three peer reviewers provided 
comments. They were both supportive of the proposal to reestablish the 
Sonoran pronghorn in areas of southwestern Arizona, but suggested 
revisions or had some questions about the proposal. The remaining peer 
reviewer asked for additional information, but did not submit a final 
peer review. Their letter requesting additional information is counted 
as a response, with no position taken.
    We reviewed all comments received from the peer reviewers, 
agencies, and the public for substantive issues and new information 
regarding the proposed NEP. Substantive comments received during the 
comment period have been addressed below and, where appropriate, 
incorporated directly into this final rule. The comments are grouped 
below as peer review and agency or public comments.
    We received responses from 29 parties, comprising private 
individuals

[[Page 25600]]

(15), nongovernmental organizations (4), peer reviewers (3), state 
agencies (2), Federal agencies (3), university (1), and anonymous (1). 
Some commenters clearly supported (10), opposed (4), or took no 
position (7) on the proposal. In addition, two supported the 
reestablishment, but opposed the NEP. One supported population 
reestablishment, but conditioned their support of the NEP on continued 
strong commitment by the Department of Defense to Sonoran pronghorn 
conservation. One conditioned their support on implementation of 
predator control, acknowledgement of the importance of water sources, 
and no impacts to hunting. Two others opposed the proposal unless 
predator control was conducted. One supported the Kofa NWR 
reestablishment but not the BMGR-E reestablishment, and one supported 
the BMGR-E reestablishment, but opposed the NEP and establishment of a 
population at Kofa NWR.
    The two peer reviewers who submitted comments agreed with the 
following determinations: (1) The proposed establishment of 
experimental, nonessential populations of Sonoran pronghorn is well 
considered and has great potential to enhance the status of Sonoran 
pronghorn in the United States, and (2) proposed survey, monitoring, 
and capture techniques, and operation of the captive breeding pen, are 
within accepted practices in wildlife management. However, one 
commenter asked that the details of the monitoring program and success 
criteria be more clearly stated.

Peer-Review Comments

    (1) Comment: Continual improvement in capture methods should be 
pursued on non-endangered subspecies across the range of the pronghorn 
to increase efficiency in capturing and maintaining captive 
populations.
    Our Response: Consistent with Adaptive Management in the EA and the 
recovery plan, we will continue to evaluate new information, including 
publications, reports, and personal communications with others working 
on Sonoran pronghorn throughout its range. We will also learn from our 
experiences with Sonoran pronghorn to fine tune and improve capture 
methodologies, with the goal of minimizing stress and the possibility 
of injury or mortality of captured animals, while increasing efficiency 
of capture operations.
    (2) Comment: Although habitat modeling to identify habitat suitable 
for reestablished populations is adequate at the landscape scale, 
additional work is needed to pinpoint the adequacy of habitat prior to 
releases. Cholla is a key forage plant that is missing or scarce north 
of Interstate 8. Supplemental feeding may be necessary in that area 
during prolonged drought.
    Our Response: As discussed under ``Reestablishment Areas'' above, 
an IDT was tasked with identifying and ranking possible reestablishment 
areas within the historical range of the Sonoran pronghorn. Areas A and 
D ranked first and second of seven areas identified. Potential 
locations for a captive pen at Kofa NWR are somewhat limited by 
extensive wilderness designation that precludes construction and 
operation of that facility. Hence a block of non-wilderness, large 
enough to accommodate the pen, was selected in northern King Valley. 
This is a good location, because the pen will be located off well-
traveled roads, yet it is relatively close to Highway 95, the access 
route from Yuma, and its location in the northern part of the valley 
provides an opportunity for pronghorn released directly from the pen to 
spread out throughout King Valley before moving off-refuge to areas of 
Yuma Proving Grounds or BLM lands. The IDT considered the absence of 
chain fruit cholla on Kofa NWR in its rankings of the seven areas. One 
of the seven criteria used to rank the areas was forage quality. The 
absence of chain fruit cholla is a concern; however, the value of that 
plant in the diet of the Sonoran pronghorn is primarily as a source of 
preformed water; it provides little nutrition (Fox 1997, pp. 76, 79). 
As a result, if freestanding water is available or can be provided 
dependably, the importance of chain fruit cholla in the diet is much 
reduced. Five water sources outside of the pen at Kofa NWR will be 
built to provide dependable water for Sonoran pronghorn. Water sources 
and chain fruit cholla are available on BMGR-E in Area D near where the 
holding pen will be constructed, and, if needed, additional water 
sources will be constructed; hence, water for drinking is not 
anticipated to be a limiting factor at BMGR-E.
    (3) Comment: The movement of released Sonoran pronghorn might be 
underestimated, particularly as the populations grow. In particular, 
there is a possibility of Sonoran pronghorn moving south in Area D into 
Organ Pipe Cactus NM east of Highway 85, and then west into the areas 
occupied by the wild population.
    Our Response: Some of the young male Sonoran pronghorn released 
from the pen in Cabeza Prieta NWR have moved extraordinary distances, 
and across barriers including, on at least two occasions, the right-of-
way fence along Highway 85, a vehicle barrier constructed on the U.S./
Mexico border, and Highways 2 and 8 in Sonora, Mexico. Released Sonoran 
pronghorn that wander over large areas tend to continue these long-
distance movements until they find and join an existing herd or another 
Sonoran pronghorn. Although such movements are expected to be unusual, 
we agree that as Sonoran pronghorn are released and as populations 
grow, individuals will periodically make long-distance movements and 
some animals could potentially move across Highway 85 from Area D into 
areas occupied by the wild herd. Similarly, Sonoran pronghorn released 
from the pen at Cabeza Prieta NWR may occasionally move across Highway 
85 into Area D.
    Although these movements could occur more frequently as populations 
on both sides of Highway 85 increase, we do not anticipate they will 
ever be more than rare events for the reasons discussed in 
``Reestablishment Areas'' above, hence we do not anticipate overlap of 
the wild population and the NEP. Lone dispersers do not constitute a 
population or even part of a population, because they are not in 
``common spatial arrangement'' sufficient to interbreed with other 
members of a population (see discussion under ``Reestablishment 
Areas''). Furthermore, the likelihood of a Sonoran pronghorn moving 
from the release site on BMGR-E south to the area east of Highway 85 in 
OPCNM is remote, because a Sonoran pronghorn would have to traverse 
miles of rugged terrain from the holding pen at Midway Wash through the 
Batamote/Coffee Pot Mountain region to reach the Hickiwan Valley or 
Pozo Redondo Valley, and then move south and west from there across 
Highway 86 and through the Gunsight Hills, then down the western bajada 
of the Ajo Mountains. Years of surveys have shown that Sonoran 
Pronghorn do not use the rugged slopes and mountainous terrain 
characteristic of this area (Hervert et al. 2005, p. 12).
    (4) Comment: One peer reviewer expressed concern that there is a 
remote possibility of a Sonoran pronghorn moving through Area D south 
and east to Buenos Aires NWR, where a population of Mexican pronghorn 
(Antilocapra americana mexicana) currently exists.
    Our Response: Buenos Aires NWR is in the southeastern portion of 
the NEP area, and is within the historical range of the Sonoran 
pronghorn (Service 2002, p. 17). The NEP area includes all regions into 
which Sonoran pronghorn could

[[Page 25601]]

potentially move from release sites. Although over 90 miles southeast 
of the release site, we agree there is a small probability that Sonoran 
pronghorn could reach Buenos Aires NWR at some point in the future. The 
major barrier between the two areas is likely a complex of rugged 
terrain between the release site and Sonoran pronghorn habitat to the 
east and south, formed by the Batamote, Sauceda, Sand Tank, and other 
ranges. If a Sonoran pronghorn could get past that barrier, then 
potentially it could move through the valleys of the Tohono O'odham 
Nation, and then around the north end of the Quinlan Mountains, across 
Highway 86 and south through the Altar Valley to Buenos Aires NWR. 
Historically a more direct route probably existed south of the 
Baboquivari Mountains in Mexico, but a vehicle barrier and livestock 
fence on the United States/Mexico border now block that route.
    In the unlikely event that a Sonoran pronghorn reached Buenos Aires 
NWR, the Service would be required to assess the effects of its actions 
at the refuge, including managing herds of Mexican pronghorn, and 
conduct intra-Service section 7 consultation if those activities may 
affect the Sonoran pronghorn. A decision on how to proceed would emerge 
from that process and would be based on the circumstances at the time.
    (5) Comment: The proposed rule stated that success criteria would 
be developed by the recovery team prior to release of any Sonoran 
pronghorn into areas A or D. Success criteria drive the types of 
monitoring needed. Some parameter(s) of success need to be identified.
    Our Response: Broadly defined, success will be measured by our 
ability to achieve the purpose of the program, which, as stated in the 
EA (p. 19) and our recovery plan (Service 2002, p. 38), is to 
contribute to recovery of the Sonoran pronghorn by establishing 
additional populations in suitable habitat within its historical range 
in Arizona. In accordance with 50 CFR 17.81(c)(4), a technical 
definition of what it means to establish a population of Sonoran 
pronghorn will, as the commenter notes, be forthcoming; however, it 
will almost certainly involve the presence of Sonoran pronghorn 
surviving and breeding in the wild to an extent that, at some point, 
release of additional animals to augment the population--either via the 
captive breeding pen at Kofa NWR or the holding pen in Area D-- is no 
longer needed to sustain the population.
    (6) Comment: If the reestablished populations cannot be sustained 
into the future without intensive management, this needs to be clearly 
stated.
    Our Response: Some level of management will always be needed to 
maintain the reestablished herds. These management actions will be 
undertaken by the Service, in conjunction with our partners, including 
AGFD. The Sonoran pronghorn will need to be monitored to track their 
status, water sources will need to be maintained for them, and the 
lands they occupy must remain as habitat capable of supporting a viable 
herd. However, once a population is established to the degree that 
additional augmentation is no longer needed to sustain it, we 
anticipate that some intensive management actions, including the 
maintenance of a captive rearing pen, will no longer be necessary.
    (7) Comment: Not enough information is presented to determine if 
the proposed monitoring will be adequate to determine whether the 
program is successful, and to better determine the role of water and 
forage enhancement plots in recovery, mortality, and recruitment rates; 
causes of mortality by age and sex, movements; and the role of habitat 
in the life history of the Sonoran pronghorn.
    Our Response: The monitoring should not only allow us to determine 
whether the program is a success, but if it is failing to meet its 
objectives, the reason(s) why it is failing must emerge from the 
monitoring data. The latter is crucial for making appropriate changes 
in management to correct problems and ensure we achieve sustainable 
herds in Areas A and D. Although our monitoring plan is not yet 
complete, released animals in Area D will be monitored primarily via 
aircraft to determine survival, reproduction, and other measures of 
success. We acknowledge that all of the parameters noted by the 
commenter above are important in terms of tracking the status of 
Sonoran pronghorn populations. All of these factors will be carefully 
considered in the development of the monitoring program in Areas A and 
D.

Public Comments

    (8) Comment: Establishment of additional herds of Sonoran pronghorn 
in the United States is not needed because the animals at Cabeza Prieta 
NWR are safe from extinction. Specifically, their continued existence 
is ensured because Sonoran pronghorn have been captively reared, 
resulting in a wild population of greater than 70 animals. An awareness 
of the population's precarious nature has been raised, their status 
will be closely watched, and animals from self-sustaining herds in 
Mexico can be brought to the United States if the current population 
crashes.
    Our Response: The 1998 revision of the Sonoran Pronghorn Recovery 
Plan established downlisting criteria to reclassify the subspecies from 
endangered to threatened. Included in the downlisting criteria were 
stipulations that an estimated 300 adult Sonoran pronghorn occur in one 
U.S. population and a second separate population be established in the 
United States, or numbers are determined to be adequate to sustain the 
population through time (Service 1998, p. 37). At 80-90 wild Sonoran 
pronghorn, the current U.S. population is not safe from extinction. A 
1996 population viability analysis concluded that at least 300 Sonoran 
pronghorn were needed in a population to achieve reasonable population 
persistence over time; however, to prevent loss of genetic diversity, 
500 or more animals were needed (Defenders of Wildlife 1996, p. vii). 
The 2002 Supplement and Amendment to the Recovery Plan identified 
``evaluating potential transplant locations, establishing relocation 
methodology and protocols, developing interagency agreements (including 
with Mexico as required), acquiring funding, and initiating 
reestablishment projects'' as one of eight priority, near-term actions 
needed to further recovery (Service 2002, p. 38.). In regard to 
bringing additional animals north from Sonora, Mexico, to augment the 
U.S. population, we cannot depend on the continued availability of 
Sonoran pronghorn from Sonora, both in terms of required international 
permits and the ability of Mexican populations to sustain additional 
harvest. In conclusion, establishing additional herds of Sonoran 
pronghorn in the United States is consistent with the recovery plan for 
the species and will further its recovery, consistent with Service 
mandates under section 4(f)(1) of the Act.
    (9) Comment: Part of the funding for the population reestablishment 
is coming from the Department of Homeland Security (DHS) as mitigation 
for damage to Cabeza Prieta NWR, so the money should be spent at Cabeza 
Prieta NWR.
    Our Response: Funding provided by DHS for the establishment of 
additional Sonoran pronghorn herds in the United States was closely 
negotiated, and the use of those funds was specifically defined for 
certain recovery actions. Mitigation funds for establishment of 
additional U.S. herds were secured to mitigate effects of vehicle 
barriers at Cabeza Prieta NWR and the BMGR, and the effects of the Ajo 
1 SBInet Tower

[[Page 25602]]

Project. The purpose of this mitigation was to offset effects to 
Sonoran pronghorn from these projects, not to mitigate or repair damage 
to resources at Cabeza Prieta NWR. Consistent with the recovery plan, 
one of the greatest needs for recovering the Sonoran pronghorn is to 
establish additional herds, off of Cabeza Prieta NWR. The Service and 
DHS agreed that use of the mitigation funds to establish additional 
Sonoran pronghorn herds outside of the current range was an appropriate 
offsetting measure.
    (10) Comment: The proposed reestablishment will fail unless 
predators of Sonoran pronghorn are controlled. Specifically, commenters 
mentioned the need to control mountain lions at Kofa NWR and coyotes.
    Our Response: Coyote, mountain lion, and bobcats are known to prey 
on Sonoran pronghorn (Service 2002, p. 22). Predation generally has an 
insignificant effect except on small populations (Lee et al. 1998, p. 
61). Coyotes are the most abundant large predator sympatric with 
Sonoran pronghorn. In 20 mortality investigations not related to 
capture operations, coyotes killed at least 5 Sonoran pronghorn and are 
suspected in the death of another. Of 23 Sonoran pronghorn released 
from the captive breeding pen at Cabeza Prieta NWR in December 2009, 4 
were predated by coyotes within the first 3 weeks. Since that time, one 
other Sonoran pronghorn found dead from the original group of 23 was 
probably predated, although the type of predator is unknown (Atkinson 
2010, pers. comm.). Coyotes are thought to prey heavily on Sonoran 
pronghorn fawns as well.
    Steps will be taken to deter predators from entering the captive 
breeding pen at Kofa NWR, including a perimeter fence constructed of 
woven wire 5.5 ft. (1.7 m) tall and buried 1 ft. (0.3 m) into the 
ground. The interior of the fence will be lined with material that will 
create a visual blind for predators. In addition, two layers of 
electric fences will be installed just outside of the woven wire fence 
to deter predators. Monitors will check for presence of Sonoran 
pronghorn predators inside the pen and holding facility daily, and if 
any are found, they will be removed. The holding facility at BMGR-E 
will be equipped with 5.5-ft (1.7-m) tall woven wire, but it will not 
be buried and no electric fence will be installed. However, the 
potential for predation will be minimized because pronghorn will not be 
in the facility for more than a few days, and someone will be staying 
with them all the time until they are released.
    No predator control is proposed outside the pen at Kofa NWR and the 
holding facility at BMGR-E, because predation types and levels are 
anticipated to be similar to those at Cabeza Prieta NWR, where up to 
this point, predator control has not been deemed necessary to recover 
the Sonoran pronghorn. We anticipate that predation of released animals 
in Area A and D is unlikely to affect the success of the 
reestablishments, and mortality of released animals due to predators is 
expected to be similar to that experienced at Cabeza Prieta NWR. We 
will monitor the success of the population reestablishments, and 
consistent with adaptive management and recovery actions 2.411 and 
2.412 in the recovery plan, we will evaluate the monitoring data and 
propose additional actions, if deemed necessary. Those additional 
actions could include predator control outside of the captive breeding 
pen at Kofa NWR or the holding pen at BMGR-E. However, predator control 
outside the pens is not covered in the EA for establishing a NEP of 
Sonoran pronghorn at Kofa NWR or BMGR-E. Hence, if predator control 
were proposed, it would be closely coordinated with land managers and 
AGFD, and would only proceed after all required environmental 
compliance was completed.
    (11) Comment: Development of additional water sources, such as 
wildlife drinkers or tanks, should be undertaken to support the 
population reestablishments. In addition, an ``Adopt a Game Tank'' 
program should be implemented for interested parties to monitor, 
maintain, and repair water tanks for wildlife and game species.
    Our Response: At Kofa NWR, we propose to develop up to seven water 
sources for Sonoran pronghorn, including up to two inside of the pen 
and five outside of the pen, but none in the Kofa Wilderness. At BMGR-E 
and Area D, numerous developed wildlife water sources occur in 
paloverde-mixed cacti-mixed scrub vegetation on the bajadas that could 
potentially be used by Sonoran pronghorn. As a result, no new water 
sources are planned for Area D; however, the need for additional 
wildlife water sources will be evaluated and, if needed, new water 
sources will be installed to support the reestablished Sonoran 
pronghorn. Construction of any additional water sources in Area D would 
be preceded by cultural resource surveys and any necessary 
environmental compliance. The water sources at Kofa NWR were planned in 
anticipation of the needs of the Sonoran pronghorn. Additional water 
sources at Kofa NWR, beyond those mentioned above, are not anticipated; 
however, consistent with proposed adaptive management and recovery 
actions 2.411 and 2.412 in the recovery plan, we will evaluate the 
monitoring data and propose additional water sources if deemed 
necessary to support the reestablished populations. Any additional 
water sources proposed at Kofa NWR would be outside the current scope 
of the program and supporting environmental compliance; hence 
additional coordination with land managers and AGFD and all necessary 
environmental compliance would be completed prior to construction of 
any additional water sources.
    (12) Comment: The five water sources outside of the captive pen at 
Kofa NWR should have their locations generally described and mapped. 
Some flexibility in locations is desirable, so precise locations are 
unnecessary. Cultural resource surveys should be conducted prior to 
construction, and water sources should be built with the minimum 
disturbance necessary and in the least visually obtrusive manner 
possible.
    Our Response: The approximate locations of the five water sources 
outside the pen at Kofa NWR have been identified and mapped in the EA 
(p. 36). Cultural resource surveys shall be conducted prior to any 
ground-disturbance activities, and the water sources will be built with 
the minimum disturbance necessary and in the least visually obtrusive 
manner possible.
    (13) Comment: The efficacy of additional water sources outside of 
the pens is questionable based on published studies. The effects of 
additional water sources on other species, as well as degradation of 
areas around water sources as a result of increased wildlife use, need 
to be fully evaluated.
    Our Response: The benefits and costs of water developments for 
wildlife in the arid southwest have been debated for many years (see 
reviews in Rosenstock et al. 1999 and Krausman et al. 2006). Artificial 
water sources in the southwest are used by a variety of wildlife 
species, with nongame species far outnumbering game species (O'Brien et 
al. 2006, pp. 544-548). Some species will use freestanding water 
opportunistically, whereas others require it to occupy an area 
(Krausman et al. 2006, pp. 565-566). Water sources can affect the 
distribution of wildlife species and habitat use patterns of 
individuals, although in some cases the effect is small (Marshal et al. 
2006a, pp. 616-617). There is no evidence that water catchments elevate 
predation rates on wildlife (O'Brien et al. 2006, p. 589), and plant 
communities and forage resources in washes with water sources

[[Page 25603]]

do not differ from washes without water, providing no evidence that 
water sources cause detrimental effects to Sonoran Desert plant 
communities via herbivory or trampling by animals attracted to the 
water (Marshal et al. 2006b, pp. 621-622). Construction of the five 
water sources outside the pen and up to two water sources inside the 
pen at Kofa NWR will have a disturbance footprint, but the acreage 
affected is small (about 0.5 acre in total), and most of the 
disturbance will be temporary. None of the water sources are proposed 
in wilderness.
    Monson (1968, pp. 67-68) found there was no hard evidence that 
Sonoran pronghorn drink freestanding water; rather, he surmised they 
obtained all the water they need from the plants they consume. However, 
more recent work indicates they drink water, and that it is probably 
crucial for survival during seasonal and long-term drought periods (Fox 
et al. 2000; pp. 1-18; Morgart et al. 2005, pp. 57-58). Hervert et al. 
(2005, p. 14) found that placement of water sources in palo verde-mixed 
cacti associations, such as occur in King Valley of Kofa NWR, would 
likely functionally convert them to higher quality habitats, in some 
cases making them suitable for Sonoran pronghorn. This could be 
especially important at Kofa NWR, where chain fruit cholla is absent, 
but at Cabeza Prieta NWR, it is an important source of preformed or 
dietary water for Sonoran pronghorn (Fox et al. 2000, pp. 1-18). 
Currently existing developed and natural wildlife water sources within 
Area A are primarily located in habitats that are not likely to be used 
by Sonoran pronghorn or used only infrequently. For example, there are 
no developed wildlife water sources in potential Sonoran pronghorn 
habitat in King Valley. Creating new water sources for the 
reestablished Sonoran pronghorn herd in Area A is important to the 
success of the project. Sonoran pronghorn will benefit, with minimal 
impacts to plant communities, other wildlife, and wilderness values.
    (14) Comment: One commenter suggested that if Sonoran pronghorn 
once inhabited the Chuckwalla Bench or East Mojave of California, then 
the Mojave National Preserve should be considered as a reestablishment 
site.
    Our Response: Although the historical distribution of the Sonoran 
pronghorn is not entirely known, none of the reports or publications we 
have reviewed indicate the Sonoran pronghorn ranged into what is known 
today as the Mojave National Preserve in California. Phelps and Webb 
(1981, p. 21) show the historical distribution in California lying 
entirely south of Interstate 10. The 1982 version of the recovery plan 
(Service 1982, p. 2) adopted the distribution as interpreted by Hall 
and Kelson (1959, p. 1023), which did not show the subspecies occurring 
in California. However, Mearns (1907, p. 231) mentions observing 
pronghorn tracks near ``Gardner's and Laguna stations'' in 1894 in the 
Colorado Desert west of the Colorado River. Figure 2 in the 1998 
recovery plan (Service 1998, p. 6) and in the 2002 revision (Service 
2002, p. 17) show the historical distribution extending into California 
north to the vicinity of Blythe and westward into an area that includes 
the Chuckwalla Bench. Figure 1 of the 1998 plan extended the range 
north to the vicinity of Parker Dam. The southern boundary of the 
Mojave National Preserve is Interstate 40, which is no closer than 70 
miles to Parker Dam.
    We find no other reference suggesting Sonoran pronghorn occurred 
historically any closer to the Mojave National Preserve than Parker 
Dam. As a result, establishment of Sonoran pronghorn at the Preserve 
will be outside of its historical distribution as we understand it. 
Although section 10(j) of the Act does not limit experimental 
populations to a species' historical range, the suitability of habitats 
that are clearly outside of the historical range is questionable. 
Moreover, our analysis of potential reestablishment sites was limited 
to portions of the historical range in Arizona (O'Brien et al. 2005, p. 
25); the suitability of the Mojave National Preserve as a potential 
establishment site has not been evaluated. As a result, pursuing an 
additional herd of Sonoran pronghorn at the Mojave National Preserve is 
not a desired action at this time.
    (15) Comment: One commenter supported the reestablishment proposal, 
but believed it was inappropriate to allow hunting of Sonoran 
pronghorn.
    Our Response: Hunting of Sonoran pronghorn is currently prohibited 
by section 9 of the Act. This designation of a NEP with a special rule 
will not change that prohibition.
    (16) Comment: Designation as a NEP implies that the proposed 
release and subsequent establishment of an additional wild population 
can fail completely without adverse consequence to the continued 
existence of the species. This conclusion lacks scientific support; 
thus the population should be given full protection under the Act or 
designated as an experimental, essential population. Commenters also 
note that agency authorized take under 10(j) rules can be abused to the 
point of precluding recovery; a commenter cited the Mexican gray wolf 
NEP designation as a case in point. Another commenter offered the 
example of the NEP population of California condor in Arizona, which 
they asserted is being used as an excuse not to limit lead ammunition 
in the California condor recovery area.
    Our Response: Because the establishment of a second Sonoran 
pronghorn herd is identified as a downlisting criterion in the recovery 
plan (Service 2002, p. 36), if such establishment failed, it would 
adversely affect recovery. However, we do not believe the loss of the 
experimental population would reduce appreciably the likelihood of the 
survival of the species in the wild, which is why we are designating 
the reestablished population as a nonessential experimental population. 
The Sonoran pronghorn occurs in three other populations, including two 
in Mexico and one in southern Arizona. Currently, the total in all 
three populations is approximately 562 to 572 animals in the wild. As 
described above under ``Recovery Efforts,'' a variety of aggressive 
management actions have been to taken to avert catastrophic declines in 
the U.S. population in the event of a drought. The first priority for 
use of animals in the captive-breeding pen at Cabeza Prieta NWR is to 
augment herds within the boundaries of the current range of the species 
in the United States and Mexico; hence, any use of animals to establish 
herds in Areas A or D would only be carried out after the needs of the 
wild populations are met. For these reasons, and for further 
justification for why reestablished Sonoran pronghorn herds are not 
essential to the continued existence of the species, refer to the 
section ``Status of Reestablished Populations.''
    In regard to authorized take precluding recovery, the Sonoran 
pronghorn population reestablishments are very different from that of 
the Mexican gray wolf or California condor. As detailed in the special 
rule, only take incidental to otherwise authorized activities plus 
intentional take as necessary for translocation, aiding sick Sonoran 
pronghorn, taking biological data, salvaging dead Sonoran pronghorn, or 
affixing, removing, or servicing radio transmitters will be allowed. As 
described in the sections ``Status of the Reestablished Populations'' 
and ``Management,'' we anticipate very little mortality or injury 
associated with military, recreational, agricultural, and other uses in 
the NEP that could potentially result in incidental take.

[[Page 25604]]

    (17) Comment: The survival and growth of the NEP hinges on the good 
faith and stewardship of the action agencies on whose land the NEP 
resides. If agency commitments to conservation are not fulfilled, the 
Service should reconsider the NEP designation and take whatever action 
is necessary to ensure the recovery of Sonoran pronghorn. Conferring 
under Section 7 is an opportunity to ensure the actions of Federal 
agencies are consistent with recovery of the Sonoran pronghorn.
    Our Response: The Service is dedicated to achieving the recovery of 
the Sonoran pronghorn, which includes using all of our authorities to 
achieve success in regard to reestablished Sonoran pronghorn 
populations in Areas A and D. As we have discussed (see Regulatory 
Background), we will work with Federal action agencies through the 
section 7(a)(4) conference provisions of the Act in areas outside of 
National Park and Wildlife Refuge lands, and via the section 7(a)(2) 
consultation process where the NEP might be affected within Parks and 
Refuges. Luke Air Force Base, which manages BMGR-E lands in Area D, has 
been a consistent and strong partner in recovery of the Sonoran 
pronghorn and has contributed millions of dollars to recovery. We fully 
anticipate that they will continue to be a strong partner. Through the 
development of the NEP proposal, we were and continue to be in close 
contact with Yuma Proving Grounds, which manages lands in Area A and 
has agreed to cooperate with us on this project. The BLM has pledged 
its support, and furthermore has a policy of conferring with the 
Service on activities that may affect proposed species, including NEPs. 
Thus, their standard for conferring exceeds that in the regulations, 
which only require conferring if a Federal action is likely to 
jeopardize the continued existence of a proposed species or is likely 
to result in adverse modification or destruction of proposed critical 
habitat (50 CFR 402.10(a)).
    Because of this support and cooperation, and as we anticipate 
Sonoran pronghorn recovery will be compatible with current and future 
activities within the NEP (see discussion under ``Management''), we 
believe there will be no need to reconsider the NEP designation. 
However, if at any time in the future the status of the wild 
populations declines dramatically or other circumstances suggest that 
the loss of reestablished populations would be likely to appreciably 
reduce the likelihood of survival of the species in the wild, the 
Service will reevaluate the NEP designation in accordance with our 
policies and regulations. Furthermore, a comprehensive review, 
assessment, and report of the reestablishment program by the Recovery 
Team will occur at least every 5 years. If at any point the program is 
not meeting its stated objective, or is falling short of meeting the 
success criteria, all aspects of the program can be reevaluated and 
modified as needed to better meet the recovery needs of the species.
    (18) Comment: Because the legal status of Sonoran pronghorn will be 
defined geographically (i.e., if they are in the NEP area they are part 
of the NEP population; if they are outside the NEP, they are fully 
protected under the Act), wild, endangered Sonoran pronghorn could lose 
the majority of their protections simply by natural movements. If it 
turns out that crossings by wild pronghorn into BMGR-E are occurring 
and/or increasing, the Service should assess and potentially reconsider 
the new populations' designation and requirements under section 10(j) 
of the Act.
    Our Response: As we have earlier discussed (see discussion under 
``Reestablishment Areas''), we do not expect Sonoran pronghorn to cross 
over the substantial barriers that separate the NEP area from the wild 
herd. Only once or twice has a Sonoran pronghorn been known to cross 
Highway 85 and its associated right-of-way fences into BMGR-E. 
Released, pen-raised Sonoran pronghorn have a greater tendency to move 
than do wild Sonoran pronghorn. We have also seen Sonoran pronghorn 
make unusual movements in response to severe drought. However, the fact 
remains that such crossings are rare. As the wild population continues 
to recover and when a population becomes established in Area D, the 
likelihood of pronghorn crossing Highway 85, both into or out of the 
NEP, will probably increase. But because highways and their associated 
right-of-way fences are nearly impermeable barriers for Sonoran 
pronghorn (Brown and Ockenfels 2007, pg. 29), we do not anticipate more 
than occasional lone animals moving across the highway, and the 
occurrence of that will remain a rare event. However, if at any time in 
the future the wild population and the NEP begin to intermingle because 
of unexpected and common movement of Sonoran pronghorn across barriers 
between those populations, the Service will reevaluate the NEP 
designation in accordance with our policies and regulations.
    (19) Comment: The wild and NEP populations should, at some point in 
the future, be allowed to intermingle in order to maximize genetic 
diversity and reduce possible effects from stochastic events. Linking 
these habits and populations may be crucial for long-term survival of 
the species.
    Our Response: We acknowledge that allowing movement of Sonoran 
pronghorn among populations increases the viability of those 
populations and their likelihood of persistence over the long term. 
However, accomplishing that is problematic logistically and 
economically. The barriers that separate the NEP and wild populations 
are not temporary structures. Interstate 8, canals, and the 
agricultural and rural development that separate the current range from 
pronghorn habitat in Area A are probably insurmountable barriers. 
Overpasses or underpasses may be possible to allow movement of Sonoran 
pronghorn across Highway 85, which separates the wild population from 
the NEP in Area D; however, whether such a connection is feasible or 
likely to be sufficiently successful to affect our expectation of very 
infrequent intermingling is unknown at present.
    (20) Comment: The assertion that U.S. Customs and Border Protection 
operations pose a threat to the survival and recovery of Sonoran 
pronghorn is inconsistent with the best scientific and commercial data.
    Our Response: The proposed rule identified high levels of 
undocumented immigration and drug trafficking across the international 
border and associated law enforcement as a threat to the Sonoran 
pronghorn. The proposed rule went on to say that the ``U.S. population 
declined in 2002 by 83 percent to 21 animals (Bright and Hervert 2005, 
p. 46). The Mexican populations declined at the same time, but not to 
the same degree. The population southeast of Highway 8 declined by 18 
percent, while the El Pinacate population declined by 26 percent. The 
differences between the rates of decline north and south of the border 
may be due to high levels of human disturbance on the United States 
side primarily as a result of heightened levels of illegal immigration, 
smuggling, and law enforcement response (Service 2008, p. 55)'' (75 FR 
5735). Whether these activities pose a threat to the survival and 
recovery of the Sonoran pronghorn has not been thoroughly addressed. 
Recent analysis has shown there are about 8,000 miles of unauthorized 
routes on the approximately 1,000-sq.-mi refuge, mostly in designated 
wilderness. These are most likely attributable to both illegal cross-
border traffic and associated law enforcement response by Border Patrol 
(McCasland 2010, pers. comm.). Furthermore, there is strong anecdotal 
evidence suggesting

[[Page 25605]]

Sonoran pronghorn are avoiding areas of high cross-border traffic and 
law enforcement response, including the Granite forage enhancement plot 
and the pass near Bates Well (Service 2009, pp. 47-48). Border Patrol 
presence deters illegal cross-border traffic, but that deterrence has a 
substantial impact on its own (Milstead and Barnes 2002, pp. 87-88; 
Neeley 2006, p. 9; Duncan et al. 2010, pp. 123-130). However, as Border 
Patrol achieves operational control of the border region, we anticipate 
that human disturbance will be reduced over time.
    (21) Comment: Kofa NWR is much more likely to support a successful 
reintroduction of Sonoran pronghorn than the area east of Highway 85 
(Area D), which is a high-traffic area for human and narcotics 
smuggling. Attempting a reestablishment in Area D is inconsistent with 
the recovery plan, which specifies that a second, but not a third, U.S. 
population is needed for downlisting.
    Our Response: Although not ranked as high as Area A (which includes 
Kofa NWR), Area D (including the area east of Highway 85) was ranked 
second of the seven areas evaluated by the IDT as potential release 
sites. The IDT believes Area D has good potential to support Sonoran 
pronghorn, and the subspecies existed here historically, possibly into 
the late 1980s (Service 1998, p. 9). Degree of disturbance, including 
that caused by illegal cross-border traffic and Border Patrol, were 
taken into account in the rankings of each area. Further, as discussed 
in the above comment, we anticipate that both illegal immigration and 
Border Patrol operations will lessen over time. The recovery plan 
identifies establishment of a second U.S. herd as a criterion for 
downlisting (Service 2002, p. 36); however, it does not suggest 
population reestablishments should be limited to only one. Recovery 
action 2 in the 1998 recovery plan is to ``establish and monitor new 
separate herd(s)'' (Service 1998, p. 40). Replication of effort in 
regard to population reestablishment is prudent in the event that 
populations in Area A or Area D are not successful. The holding pen at 
Area D will also serve as an outlet for excess pronghorn produced at 
the captive rearing pen at Cabeza Prieta NWR. Production of animals for 
release is expected to be more than 20 Sonoran pronghorn per year from 
that pen (23 were released from the pen in December 2009). Once animals 
are established at the pen at Kofa NWR, and as the wild herds are 
bolstered by releases, fewer animals will be needed, allowing releases 
to Area D. In addition, conditions such as drought within the current 
range of the Sonoran pronghorn may make release of captively propagated 
Sonoran pronghorn into the wild herd undesirable in some years. Area D 
will provide another option for use of these excess animals. Also, the 
ultimate goal of the Act is to delist the species, so it no longer 
needs the protections of the Act. Additional populations beyond what is 
being proposed in this action may be needed to achieve full recovery.
    (22) Comment: The full effects of the rulemaking are not evaluated, 
because the analysis in the EA is limited to Areas A and D, but the NEP 
area is much larger, encompassing 10 million acres. For example, U.S. 
Customs and Border Protection will be required to consult on its 
activities at OPCNM east of Highway 85. Because of the scope and cost 
of the effort, along with potential effects of a wide range of 
activities, the proposed action appears to be a major Federal action 
significantly affecting the human environment. The commenter encourages 
the Service to limit the NEP to areas west of Highway 85.
    Our Response: NEPA implementing regulations at 40 CFR 1508.9 define 
an EA as: ``a concise public document for which a Federal agency is 
responsible that serves to: (1) Briefly provide sufficient evidence and 
analysis for determining whether to prepare an environmental impact 
statement or a FONSI, (2) aid an agency's compliance with the Act when 
no environmental impact statement is necessary, and (3) facilitate 
preparation of an environmental impact statement when one is necessary. 
The EA shall include brief discussions of the need for the proposal, of 
alternatives as required by section 102(2)(E) of NEPA, of the 
environmental impacts of the proposed action and alternatives, and a 
listing of agencies and persons consulted'' (40 CFR 1508.9(b)).
    Sonoran pronghorn pens, holding facilities, water sources, and 
releases will all occur in Areas A and D, and are consistent with the 
regulations cited above. Those are the areas on which the effects of 
the alternatives were focused in the EA. Over time, and as populations 
grow, Sonoran pronghorn could move outside of Areas A and D and 
potentially to the boundaries of the NEP. In the event that Sonoran 
pronghorn move to the boundaries of the NEP but not outside of it, the 
effects of Sonoran pronghorn presence in these areas would be minimal 
because of the NEP designation and the special rule that together 
broadly allow Federal actions to go forward without section 7 
consultations, and private actions that may result in incidental take 
of the species will not require incidental take permits from the 
Service. In National Parks and Wildlife Refuges, for the purposes of 
section 7 only, the Sonoran pronghorn will be listed as a threatened 
species, requiring consultations for actions that may affect the 
species. However, we expect few if any changes would be needed in those 
lands to comply with the Act (see ``Management''). Thus, based on our 
EA we find that in no case do the effects of the action within Areas A 
or D or within the NEP generally, rise to the level of significantly 
affecting the human environment. A ``major Federal action'' includes 
actions with effects that may be major and which are potentially 
subject to Federal control and responsibility (40 CFR 1508.18). Due in 
part to the regulatory relief provided by the NEP designation and 
special rule, the effects of the action are not major as documented in 
our FONSI.
    The likelihood of Sonoran pronghorn moving into that portion of 
Area D east of Highway 85 on OPCNM is low. The few Sonoran pronghorn 
that have moved into that area have either died or not stayed there, 
likely because of poor habitat quality. In any case, it is probably 
more likely that wild Sonoran pronghorn would colonize that area from 
west of Highway 85 than from the release site in Area D (see our 
response to the third peer review comment). In that scenario, U.S. 
Customs and Border Protection would need to consult on their activities 
in that area affecting Sonoran pronghorn with or without the NEP 
designation.
    (23) Comment: During pen construction at Kofa NWR, any desert 
tortoises or rosy boas found should be immediately translocated to a 
release site agreed upon by the AGFD, Service, and BMGR.
    Our Response: In the event that State-sensitive species, such as 
rosy boas (Lichanura trivirgata) or desert tortoises (Gopherus 
agassizii) are found during any phase of construction at either the 
captive breeding pen at Kofa NWR or the holding pen at BMGR-E, they 
will be relocated no more than 0.5 mi (0.8 km) away in the direction of 
the most suitable and typical habitat for the species (rock outcrops or 
rocky hillsides, and in the case of the tortoise, dissected washes with 
caliche caves). If rosy boas are found during the day, they shall be 
held temporarily in a climate-controlled environment (e.g., a cooler) 
and released in the evening to prevent overheating.
    (24) Comment: A commenter expressed concern that reestablishment at 
Kofa NWR would interfere with the

[[Page 25606]]

hunting opportunities for bighorn sheep (Ovis canadensis) or other 
species on the refuge. In particular, the commenter questions whether 
areas of the refuge would be closed to public use during the Sonoran 
pronghorn fawning season or whether areas currently open to bighorn 
sheep hunting would be closed on Kofa NWR to protect Sonoran pronghorn.
    Our Response: An area extending 0.25 mi (0.40 km) out from the 
boundaries of the captive breeding pen at Kofa NWR will be closed to 
the public. The pen will be in King Valley, in an area not frequented 
by bighorn sheep, so it will have no impact on sheep hunting. No other 
closures are needed or will be implemented at Kofa NWR to support the 
Sonoran pronghorn reestablishment.
    (25) Comment: A commenter inquired how a 10(j) designation could be 
established on the BMGR when there are still Sonoran pronghorn in that 
area.
    Our Response: Areas west of Highway 85 and south of Interstate 8 on 
the BMGR are not within the NEP. The wild herd, with the full 
protections of the Act, occupies this area. Only those areas of BMGR-E 
east of Highway 85 are in the NEP. Those areas are not currently 
occupied by Sonoran pronghorn. Highway 85 and its right-of-way fence 
provide a physical barrier to Sonoran pronghorn movement between the 
wild population and the NEP (see discussion in ``Reestablishment 
Areas'').
    (26) Comment: One commenter asked if the NEP area is clearly 
delineated from the area in which the wild, fully protected Sonoran 
pronghorn occur, and if there is a chance of confusion in areas that 
include both NEP and fully protected Sonoran pronghorn (e.g., BMGR). 
Furthermore, the commenter asked if a potential exists for incidental 
take of Sonoran pronghorn occurring in the current range due to its 
close proximity to the NEP.
    Our Response: The boundaries of the NEP are clearly delineated by 
major highways, the Colorado River, and an international border. Where 
the NEP adjoins the area occupied by the wild population, the boundary 
between the two includes Interstate 8 (boundary with Area A) and 
Highway 85 (boundary with Area D). Because of those clear boundaries, 
the likelihood of confusing wild and NEP Sonoran pronghorn is low, 
because the status of each is determined geographically. Designation of 
the NEP adjacent to the current range alters neither the likelihood of 
incidental take, nor the activities that could result in incidental 
take of Sonoran pronghorn in the wild herd.
    (27) Comment: No sufficient or verifiable evidence exists to show 
that Kofa NWR or any areas north of the Gila River are within the 
historical range of the Sonoran pronghorn. Hence, establishing a 
population of pronghorn at Kofa NWR is inappropriate.
    Our Response: The commenter provides much supporting information 
that brings into question whether Sonoran pronghorn ever occupied King 
Valley or other portions of Kofa NWR. We acknowledge that delineating 
the historical range of the Sonoran pronghorn is problematic because of 
a lack of specimens in key areas; the anecdotal nature of sightings, of 
which some of the most relevant are very old; and taxonomic 
uncertainty--the Mexican pronghorn occurs elsewhere in southern 
Arizona. The uncertainty in defining historical range is reflected in 
the prior and current Sonoran pronghorn recovery plans. The 1982 plan, 
adopting the range as described by Hall and Kelson (1959, p. 1023), did 
not show the range of the Sonoran pronghorn north of Ajo, which is well 
south of the Gila River (Service 1982, p. 2). The 1998 and 2002 
versions of the recovery plan adopted a more expansive view of 
historical range first exposed by Phelps and Webb (1981, p. 21); this 
later view included Kofa NWR. Phelps and Webb (1981, p. 22) provide 
evidence of Sonoran pronghorn on the Harquahala Plain in the 1850s, 
northeast of Kofa NWR, and along the Gila River in 1852, south of the 
Kofa NWR. As shown in the 2002 supplement and amendment to the recovery 
plan (Service 2002, p. 17), based on the best scientific and commercial 
information available, the Sonoran pronghorn recovery team and the 
Service believe Kofa NWR is within the historical range of the 
subspecies.
    (28) Comment: Yuma Proving Grounds is not going to ignore their 
mission and cease firing if Sonoran pronghorn are in their artillery 
footprint. Yuma Proving Grounds could bomb herds of expensively reared 
Sonoran pronghorn, and military operations may alter behavior and 
physiology of the species. No protocols are in place at Yuma Proving 
Grounds to minimize death or injury of Sonoran pronghorn. This is a 
moral issue that must not be overlooked, as well as an additional 
financial loss of valuable animals.
    Our Response: Specific capabilities at Yuma Proving Grounds include 
testing of artillery; mortars; mines; ground and aircraft weapons; 
target acquisition and fire control systems; wheeled and tracked 
vehicles; and air delivery material, equipment, and techniques. 
Primarily artillery and tank testing activities occur on the Kofa Range 
portion of Yuma Proving Grounds, which lies directly south of Kofa NWR 
and is the portion of Yuma Proving Grounds most likely to be colonized 
by Sonoran pronghorn. We acknowledge that military activities at Yuma 
Proving Grounds may result in some mortality and injury of Sonoran 
pronghorn (see discussion in ``Status of Proposed Population''). 
However, similar to BMGR-E, the vast majority of the Kofa Range portion 
of Yuma Proving Grounds is relatively undisturbed. The likelihood of a 
Sonoran pronghorn being hit by an artillery shell or shrapnel, 
colliding with a vehicle, or encountering lethal or injurious hazards 
is very small. At BMGR-E, no Sonoran pronghorn have ever been 
documented to have been killed or injured by military activities. Luke 
Air Force Base implements protocols to ensure that Sonoran pronghorn 
are not harmed on the live fire Tactical Ranges, but even before those 
protocols were put in place in 1997, no Sonoran pronghorn were ever 
known to have been killed or injured on the BMGR as a result of 
military activities. There is no evidence to suggest, nor do we 
anticipate, that military activities at Yuma Proving Grounds will 
compromise the recovery efforts for the Sonoran pronghorn in Area A.
    (29) Comment: One commenter questioned the timeline in the EA, 
which had the construction of the captive pen at Kofa NWR beginning in 
spring of 2010.
    Our Response: Implementation of the action will not begin until 
after publication of this rule and the signing of the FONSI.
    (30) Comment: Creating irrigated forage enhancement plots in King 
Valley at Kofa NWR will exacerbate nonnative, invasive plant problems. 
In particular, the nonnative Sahara mustard (Brassica tournefourtii) 
and Mediterranean grass (Schismus sp.) are likely to increase.
    Our Response: We acknowledge that irrigating the desert will cause 
increased growth of plants, including nonnative species such as Sahara 
mustard and Mediterranean grass. We propose irrigated areas to enhance 
forage within the captive pen at Kofa NWR. No forage enhancement plots 
are proposed outside the captive pen. Although we have not surveyed the 
pen site for Sahara mustard or Mediterranean grass, both almost 
certainly occur there. Mediterranean grass is likely ubiquitous. Sahara 
mustard achieves its greatest densities in fine, sandy soils, but still 
occurs on bajadas and in gravelly soils such as occurs at the pen site. 
Both species thrive in disturbed

[[Page 25607]]

sites; hence, hoof action from Sonoran pronghorn may further enhance 
populations of these nonnatives. That said, these species have not 
increased noticeably in forage enhancement plots at Cabeza Prieta NWR, 
including inside the captive breeding pen. The plant communities and 
soils are similar between the forage plots at Cabeza Prieta and at the 
pen site in Kofa NWR, so we have no reason to believe these species 
will respond any differently at Kofa NWR. Furthermore, the fencing and 
visual screening on the perimeter of the pen at Kofa NWR will likely 
reduce spread of seed from Sahara mustard and Mediterranean grass to 
areas outside the pen. Consistent with our monitoring and adaptive 
management plan, if our actions create a nonnative invasive plant 
problem, we will evaluate that problem and take appropriate action to 
correct it.
    (31) Comment: In comments provided on the Environmental Assessment, 
the U.S. Customs and Border Protection strongly encouraged limiting 
reestablishment to Area A (Kofa) due to concerns that the experimental 
population might impede border security operations.
    Our Response: The Service and the Recovery Team believe that it is 
important to efforts to conserve the Sonoran pronghorn to have two 
population centers within the experimental area. Based on our 
evaluation of possible reintroduction sites, Kofa (Area A) and BMGR-
East (Area D) have the best combination of size, forage availability, 
water availability, fragmentation, disturbance, logistics, and other 
factors and that is why we have chosen those two areas. Release of 
animals into BMGR-East would only occur after we have achieved strongly 
positive results from our efforts at Kofa and we have surplus animals 
from Cabeza Prieta and Kofa that could be placed in BMGR-East. We do 
not anticipate reaching that point for at least 5 years and probably 
longer. The Service is committed to coordinating closely with U.S. 
Customs and Border Protection and other partners before implementing 
release of Sonoran pronghorns into BMGR-East so as to limit any 
potentially adverse effects to operations and activities of U.S. 
Customs and Border Protection and our other partners. We have added 
language to the text of the regulation clarifying that incidental take 
caused by border security and enforcement carried out by Federal law 
enforcement officials (e.g., U.S. Customs and Border Protection) would 
not be prohibited.

Finding

    We followed the procedures required by the Act, NEPA, and the 
Administrative Procedure Act during this Federal rulemaking process. 
Therefore, we solicited public and peer-review comments on the proposed 
NEP designation. As required by law, we have considered all comments 
received on the proposed rule and draft EA before making this final 
determination. Based on the above information, and using the best 
scientific and commercial data available (in accordance with 50 CFR 
17.81), we find that creating an NEP of Sonoran pronghorn and releasing 
them into the NEP area in Kofa NWR of Area A and BMGR-E of Area D will 
further the conservation of the species.

Administrative Change to 50 CFR 17.84

    We are making a nonsubstantive change to correct a paragraph 
designation error in 50 CFR 18.74(u), the nonessential experimental 
population rule for Rio Grande silvery minnow. In that rule, there are 
four subparagraphs, numbered (1) through (4). Paragraph (u)(4) is 
further broken down into three subparagraphs. According to the correct 
format for the Code of Federal Regulations, these subparagraphs should 
be designated as paragraphs (i) through (iii). However, they are 
erroneously designated as paragraphs (a) through (c). We are making 
this correction as part of this final rule.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. We are certifying that this rule will not have a significant 
economic effect on a substantial number of small entities. The 
following discussion explains our rationale.
    The area affected by this rule includes an area north of Interstate 
8, east of the Colorado River, and west of Interstates 10 and 19; and 
an area south of Interstate 8, east of Highway 85, and west of 
Interstates 10 and 19. Because of the substantial regulatory relief 
provided by NEP designations, we do not expect this rule to have any 
significant effect on recreational, agricultural, ranching, military, 
or other activities within the NEP area. In addition, when NEPs are 
located outside a National Wildlife Refuge or unit of the National Park 
System, we treat the population as a species proposed for listing for 
the purposes of Section 7 and only two provisions apply: Section 
7(a)(1) and section 7(a)(4). In these instances, NEPs provide 
additional flexibility because Federal agencies are not required to 
consult with us under section 7(a)(2). Section 7(a)(1) requires Federal 
agencies to use their authorities to carry out programs to further the 
conservation of listed species. Section 7(a)(4) requires Federal 
agencies to confer (rather than consult) with the Service on actions 
that are likely to jeopardize the continued existence of a proposed 
species.
    The BLM has a policy (BLM 6840 Manual) of conferring on activities 
that may adversely affect proposed species. The results of a conference 
are advisory in nature and do not restrict agencies from carrying out, 
funding, or authorizing activities. The section

[[Page 25608]]

7(a)(2) requirements will apply if Sonoran pronghorn may be affected by 
Federal activities within National Wildlife Refuges and National Park 
Service units in the NEP; however, we do not anticipate any significant 
changes to management because these areas are already managed in a way 
that will promote recovery of the Sonoran pronghorn. The principal 
activities on private property in the NEP are agriculture, ranching, 
rural living, and recreation. We believe the presence of the Sonoran 
pronghorn will not affect the use of private or tribal lands for these 
purposes because there will be no new or additional economic or 
regulatory restrictions imposed upon States, non-Federal entities, or 
members of the public due to the presence of the Sonoran pronghorn.
    This rule authorizes incidental take of Sonoran pronghorn within 
the NEP area outside of National Wildlife Refuges and National Park 
Service units. The regulations implementing the Act define ``incidental 
take'' as take that is incidental to, and not the purpose of, carrying 
out of an otherwise lawful activity such as military training, 
livestock grazing, recreation, and other activities that are in 
accordance with Federal, tribal, state, and local laws and regulations. 
Intentional take for purposes other than aiding sick, injured, or 
orphaned Sonoran pronghorn; collection of biological data; or other 
conservation purposes as described in the special rule at the end of 
this document are not authorized unless for research or educational 
purposes, which would require a recovery permit under section 
10(a)(1)(a) of the Act.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    a. On the basis of information contained in the ``Regulatory 
Flexibility Act'' section above, this rule will not ``significantly or 
uniquely'' affect small governments. We have determined and certify 
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., 
that this rulemaking will not impose a cost of $100 million or more in 
any given year on local or State governments or private entities. A 
Small Government Agency Plan is not required. As explained above, small 
governments will not be affected because the NEP designation will not 
place additional requirements on any city, county, or other local 
municipalities.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This NEP designation 
for the Sonoran pronghorn will not impose any additional management or 
protection requirements on the states or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. When reestablished populations of 
federally listed species are designated as NEPs, the Act's regulatory 
requirements regarding the reestablished listed species within the NEP 
are significantly reduced. Section 10(j) of the Act and the 
accompanying special rule can provide regulatory relief with regard to 
the taking of reestablished species within an NEP area. For example, 
with the exception of actions on National Wildlife Refuge or National 
Park Service lands within the NEP, this rule allows for the taking of 
reestablished Sonoran pronghorn when such take is incidental to an 
otherwise legal activity, such as military training and testing, 
agriculture, rural and urban development, livestock grazing, camping, 
hiking, hunting, recreational vehicle use, sightseeing, nature or 
scientific study, rockhounding, and geocaching; or other activities 
that are in accordance with applicable tribal, Federal, State, and 
local laws and regulations. Because of the substantial regulatory 
relief provided by NEP designations, we do not believe the 
reestablishment of this species will conflict with existing or proposed 
human activities or hinder public use of lands within the NEP.
    A takings implication assessment is not required because this rule 
(1) will not effectively compel a property owner to suffer a physical 
invasion of property and (2) will not deny all economically beneficial 
or productive use of the land or aquatic resources. This rule 
substantially advances a legitimate government interest (conservation 
and recovery of a listed species) and does not present a barrier to all 
reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this rule has significant Federalism effects and have 
determined that a Federalism assessment is not required. This rule will 
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 rule with the 
affected resource agencies in Arizona. The AGFD has been a key 
participant in the recovery program for the Sonoran pronghorn, 
including serving on the IDP that helped develop the reestablishment 
proposal. Achieving the recovery goals for this species 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. The 
special rule operates to maintain the existing relationship between the 
State and the Federal Government and is being undertaken in 
coordination with the State of Arizona. Therefore, this rule does not 
have significant Federalism effects or implications to warrant the 
preparation of a Federalism Assessment under the provisions of 
Executive Order 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988 (February 7, 1996; 61 FR 
4729), the Office of the Solicitor has determined that this 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 Secretarial Order 3206 (American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act) (June 5, 1997); the President's memorandum of April 29, 
1994, Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951); Executive Order 13175; and the Department of 
the Interior's requirement at 512 DM 2, we have notified the Native 
American Tribes within and adjacent to the NEP area about the proposed 
and final rule. They have been advised through written contact, 
including informational mailings from the Service, and were provided an 
opportunity to comment on the draft EA and proposed rule. No comments 
were received from Tribes on these documents. If future activities 
resulting from this rule may affect Tribal resources, the Service will 
communicate and consult on a Government-to-Government basis with any 
affected Native American Tribes in order to find a mutually agreeable 
solution.

[[Page 25609]]

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR part 
1320, which implement provisions of the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.), require that Federal agencies obtain approval 
from OMB before collecting information from the public. The Office of 
Management and Budget has approved our collection of information 
associated with reporting the taking of experimental populations and 
assigned control number 1018-0095. We may not collect or sponsor, and 
you are not required to respond to, a collection of information unless 
it displays a currently valid OMB control number.

National Environmental Policy Act

    We have prepared an EA and FONSI, as defined under the authority of 
NEPA. It is available from the Arizona Ecological Services Field 
Office, 2321 West Palm Royal Road, Suite 103, Phoenix, AZ 85021, or 
from our Web site at http://www.fws.gov/southwest/es/arizona/ or on 
www.regulations.gov under Docket No. FWS-R2-ES-2009-0077.

Energy Supply, Distribution or Use (E.O. 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, and 
use. Because this action is not a significant energy action, no 
Statement of Energy Effects is required.

References Cited

    A complete list of all references cited in this rule is available 
upon request from the Arizona Ecological Services Field Office (see 
ADDRESSES section).

Authors

    The primary authors of this rule are staff of the Arizona 
Ecological Services Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Final Regulation Promulgation

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

PART 17--[AMENDED]

0
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.


0
2. Amend Sec.  17.11(h) by revising the entry for ``Pronghorn, 
Sonoran'' under ``MAMMALS'' in the List of Endangered and Threatened 
Wildlife 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
 
                                                                      * * * * * * *
Pronghorn, Sonoran...............  Antilocapra           U.S.A. (AZ), Mexico  Entire, except       E                      1, 3           NA           NA
                                    americana                                  where listed as an
                                    sonoriensis.                               experimental
                                                                               population.
Pronghorn, Sonoran...............  Antilocapra           U.S.A. (AZ), Mexico  In Arizona, an area  XN                      782           NA     17.84(v)
                                    americana                                  north of
                                    sonoriensis.                               Interstate 8 and
                                                                               south of
                                                                               Interstate 10,
                                                                               bounded by the
                                                                               Colorado River on
                                                                               the west and
                                                                               Interstate 10 on
                                                                               the east; and an
                                                                               area south of
                                                                               Interstate 8,
                                                                               bounded by Highway
                                                                               85 on the west,
                                                                               Interstates 10 and
                                                                               19 on the east,
                                                                               and the U.S.-
                                                                               Mexico border on
                                                                               the south.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.84 by redesigning paragraphs (u)(4)(a) through 
(u)(4)(c) as paragraphs (u)(4)(i) through (iii) and by adding a new 
paragraph (v) to read as follows:


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (v) Sonoran pronghorn (Antilocapra americana sonoriensis).
    (1) The Sonoran pronghorn (Antilocapra americana sonoriensis) 
population identified in paragraph (v)(12) of this section is a 
nonessential experimental population (NEP).
    (2) No person may take this species, except as provided in 
paragraphs (v)(3) through (v)(6) of this section.
    (3) Any person with a valid permit issued by the U.S. Fish and 
Wildlife Service under Sec.  17.32 may take pronghorn within the NEP 
area for scientific purposes, the enhancement of

[[Page 25610]]

propagation or survival of the species, and other conservation purposes 
consistent with the Endangered Species Act.
    (4) A Sonoran pronghorn may be taken within the boundaries of Yuma 
Proving Grounds; Barry M. Goldwater Range; lands of the Arizona State 
Land Department; Bureau of Land Management lands; privately owned 
lands; and lands of the Tohono O'odham Nation, Colorado River Indian 
Tribes, Gila River Indian Reservation, Ak-Chin Indian Reservation, 
Pascua Yaqui Indian Reservation, and San Xavier Reservation within the 
NEP area, provided that such take is incidental to, and not the purpose 
of, carrying out any otherwise lawful activity; and provided that such 
taking is reported as soon as possible in accordance with paragraph 
(v)(6) of this section. Otherwise lawful activities are any activities 
in compliance with applicable land management regulations, hunting 
regulations, tribal law, and all other applicable law and regulations, 
and include, but are not limited to, military training and testing, 
border security and enforcement carried out by Federal law enforcement 
officials (e.g., U.S. Customs and Border Protection), agriculture, 
rural and urban development, livestock grazing, camping, hiking, 
hunting, recreational vehicle use, sightseeing, nature or scientific 
study, rockhounding, and geocaching, where such activities are 
permitted.
    (5) Any employee or agent of the U.S. Fish and Wildlife Service, 
the Arizona Department of Game and Fish, and the tribes listed in 
paragraph (v)(4) of this section, who is designated for such purpose 
may, when acting in the course of official duties, take a Sonoran 
pronghorn if such action is necessary to:
    (i) Aid a sick, injured, or orphaned Sonoran pronghorn, including 
rescuing such animals from canals;
    (ii) Dispose of a dead Sonoran pronghorn specimen, or salvage a 
dead specimen that may be useful for scientific study;
    (iii) Move a Sonoran pronghorn for genetic purposes or to improve 
the health of the population; or
    (iv) Capture and release a Sonoran pronghorn for relocation, to 
collect biological data, or to attach, service, or detach radio-
telemetry equipment.
    (6) Any taking pursuant to paragraphs (v)(3) through (v)(5) of this 
section must be reported as soon as possible by calling the U.S. Fish 
and Wildlife Service, Arizona Ecological Services Office, 201 N Bonita 
Avenue, Suite 141, Tucson, AZ 85745 (520/670-6150), or the Cabeza 
Prieta National Wildlife Refuge, 1611 North Second Avenue, Ajo, AZ 
85321 (520/387-6483). Upon contact, a determination will be made as to 
the disposition of any live or dead specimens.
    (7) No person may possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any Sonoran pronghorn or 
Sonoran pronghorn parts taken in violation of these regulations.
    (8) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed, any offense defined in 
paragraphs (v)(2) and (7) of this section.
    (9) The boundaries of the designated NEP area are based on the 
maximum estimated range of pronghorn that are released in and become 
established within the NEP area. These boundaries are physical barriers 
to movements, including major freeways and highways, and the Colorado 
River. All release sites will be within the NEP area.
    (i) All Sonoran pronghorn found in the wild within the boundaries 
of the NEP area will be considered members of the NEP. Any Sonoran 
pronghorn occurring outside of the NEP area are considered endangered 
under the Act.
    (ii) The Service has designated the NEP area to accommodate the 
potential future movements of wild Sonoran pronghorn. All released 
Sonoran pronghorn and their progeny are expected to remain in the NEP 
area due to the geographical extent of the designation and substantial 
barriers to movement that form the boundaries of the NEP.
    (10) The NEP will be monitored closely for the duration of the 
program. Any pronghorn that is determined to be sick, injured, or 
otherwise in need of special care will be recaptured to the extent 
possible by Service and/or State or Tribal wildlife personnel or their 
designated agent and given appropriate care. Such pronghorn will be 
released back to the wild as soon as possible, unless physical or 
behavioral problems make it necessary to return them to a captive-
breeding facility.
    (11) The Service plans to evaluate the status of the NEP every 5 
years to determine future management status and needs, with the first 
evaluation occurring not more than 5 years after the first release of 
pronghorn into the NEP area. All reviews will take into account the 
reproductive success and movement patterns of individuals released, 
food habits, and overall health of the population. This evaluation will 
include a progress report.
    (12) The areas covered by this proposed nonessential experimental 
population designation are in Arizona. They include the area north of 
Interstate 8 and south of Interstate 10, bounded by the Colorado River 
on the west and Interstate 10 on the east, and an area south of 
Interstate 8, bounded by Highway 85 on the west, Interstates 10 and 19 
on the east, and the U.S.-Mexico border on the south.
    (13) Note: Map of the NEP area for the Sonoran pronghorn in 
southwestern Arizona follows:
BILLING CODE 4310-55-P

[[Page 25611]]

[GRAPHIC] [TIFF OMITTED] TR05MY11.128

BILLING CODE 4310-55-C

    Dated April 19, 2011.
 Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-10467 Filed 5-4-11; 8:45 am]
BILLING CODE 4310-55-P