[Federal Register Volume 86, Number 217 (Monday, November 15, 2021)]
[Proposed Rules]
[Pages 62980-62982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24809]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0035; FXES11130400000-212-FF04E00000]
RIN 1018-BB98


Endangered and Threatened Wildlife and Plants; Replacement of the 
Regulations for the Nonessential Experimental Population of Red Wolves 
in Northeastern North Carolina

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), withdraw the 
proposed rule to replace the existing regulations governing the North 
Carolina nonessential experimental population designation of the red 
wolf (Canis rufus) under section 10(j) of the Endangered Species Act 
(Act), as amended. Based on recent court decisions involving the North 
Carolina nonessential experimental population designation of the red 
wolf (NC NEP), having considered the public comments submitted in 
response to the proposed

[[Page 62981]]

rule, and upon further consideration of the proposal, we have 
determined that withdrawing the proposed rule is the best course of 
action at this time. The NC NEP will be managed under the provisions of 
the existing regulations and as informed by relevant court orders.

DATES: The U.S. Fish and Wildlife Service is withdrawing the proposed 
rule published on June 28, 2018 (83 FR 30382), as of November 15, 2021.

ADDRESSES: This withdrawal of the proposed rule and supporting 
documents are available on the internet at https://www.regulations.gov 
at Docket No. FWS-R4-ES-2018-0035.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S. 
Fish and Wildlife Service, Raleigh Ecological Services Field Office, 
551F Pylon Drive, Raleigh, NC 27606; telephone 919-856-4520; or 
facsimile 919-856-4556. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

    Please refer to our June 28, 2018, proposed rule (83 FR 30382) for 
a detailed description of previous Federal actions concerning the red 
wolf.

Service Actions

    On April 24, 2018, the Service completed a species status 
assessment (SSA) and 5-year status review for the red wolf. The SSA 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the red wolf. The SSA can be found on the Southeast Region 
website at https://www.fws.gov/southeast/wildlife/mammals/red-wolf/ and 
at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0035. In 
the 5-year status review, we determined that the species continues to 
meet the definition of an endangered species, as defined under section 
3 of the Act (16 U.S.C. 1531 et seq.), and did not recommend a change 
in status. The 5-year review is available at https://ecos.fws.gov/docs/five_year_review/doc5714.pdf.
    On June 28, 2018, we published in the Federal Register (83 FR 
30382) a proposed rule to replace the existing regulations governing 
the NC NEP, which were codified in 1995 (see 60 FR 18940; April 13, 
1995), in title 50 of the Code of Federal Regulations (CFR) at Sec.  
17.84(c) (50 CFR 17.84(c)). In the June 28, 2018, proposed rule, we 
made available a draft environmental assessment for the proposed 
regulations, and we opened a 30-day comment period, which ended July 
30, 2018. On July 10, 2018, we held a public information session and 
public hearing on the proposed rule and draft environmental assessment. 
On August 13, 2018, we published in the Federal Register (83 FR 39979) 
a document reopening the proposed rule's comment period for another 15 
days to allow the public an additional opportunity to review and 
comment on the proposed rule and draft environmental assessment.

Legal Actions

    On November 12, 2015, Southern Environmental Law Center, on behalf 
of Red Wolf Coalition, Defenders of Wildlife, and the Animal Welfare 
Institute (plaintiffs), filed a complaint challenging the Service's 
management of the NC NEP, alleging, in part, that we violated section 9 
of the Act by authorizing take of red wolves by private landowners 
without satisfying the requirements of 50 CFR 17.84(c)(4)(v). On 
September 28, 2016, the U.S. District Court for the Eastern District of 
North Carolina (Court) issued a preliminary injunction prohibiting the 
take of red wolves either directly or by landowner authorization, 
pursuant to 50 CFR 17.84(c)(4)(v) and (c)(10), without first 
demonstrating that the red wolf is a threat to human safety or the 
safety of livestock (see Red Wolf Coal v. United States Fish & Wildlife 
Serv., 210 F. Supp. 3d 796 (E.D.N.C. 2016)). On November 4, 2018, the 
Court permanently enjoined the Service from taking red wolves either 
directly or by landowner authorization, pursuant to 50 CFR 
17.84(c)(4)(v) and (c)(10) without first demonstrating that such red 
wolves are a threat to human safety or the safety of livestock or pets 
(see Red Wolf Coal v. United States Fish & Wildlife Serv., 346 F. Supp. 
3d 802 (E.D.N.C. 2018)). At that time, we announced that we would 
evaluate the implications of the Court's decision on the June 28, 2018, 
proposed rule.
    On November 16, 2020, plaintiffs filed a complaint against the 
Service alleging violations of the Act and of the Administrative 
Procedure Act (APA; 5 U.S.C. 551 et seq.) in connection with management 
of the NC NEP. Specifically, they alleged that the Service interpreted 
its existing regulations at 50 CFR 17.84(c) as prohibiting additional 
releases of captive red wolves into the NC NEP and prohibiting 
implementation of the Red Wolf Adaptive Management Work Plan (RWAMWP) 
and that this interpretation constituted a new policy that was adopted 
in contravention of the Act and the APA. Shortly after filing the suit, 
plaintiffs filed a motion for preliminary injunction to require the 
Service to release red wolves from captivity and reinstate the use of 
the RWAMWP. On January 22, 2021, the Court granted plaintiffs' motion 
for preliminary injunction determining that plaintiffs were likely to 
succeed on the merits of their claims that the Service adopted a policy 
preventing the Service from releasing captive red wolves into the NC 
NEP in violation of the Act and the APA. The Court's injunction barred 
the Service from effecting this policy and ordered the Service to 
develop a plan to release red wolves into the NC NEP and submit the 
plan to the Court by March 1, 2021 (see Red Wolf Coalition v. U.S. Fish 
and Wildlife Service (No. 2:20-CV-75-BO) (January 22, 2021)). On March 
1, 2021, the Service filed with the Court our plan to release red 
wolves into the NC NEP. On April 14, 2021, the Court issued an order 
directing the Service to immediately implement that release plan.

Background

    On April 13, 1995, we published in the Federal Register (60 FR 
18940) a final rule amending the regulations at 50 CFR 17.84(c) for the 
nonessential experimental populations of red wolves in North Carolina 
and Tennessee. Since that time, the NC NEP has been managed under the 
regulations set forth in the April 13, 1995, final rule at 50 CFR 
17.84(c). On June 28, 2018, we published in the Federal Register (83 FR 
30382) a proposed rule to replace those existing regulations. The 
purpose of the proposed rule was to incorporate the most recent science 
and lessons learned related to the management of red wolves to further 
the conservation of the species. We proposed to establish a more 
manageable wild population that would allow for more resources to 
support the captive population component of the red wolf program (which 
is the genetic fail safe for the species), serve the future needs of 
new reintroduction efforts, retain the influences of natural selection 
on the species, eliminate regulatory burden on private landowners, and 
provide a population for continued scientific research on wild red wolf 
behavior and population management.
    The June 28, 2018, rule proposed to:
     Establish an NC NEP management area to include Alligator 
River National Wildlife Refuge (NWR) and the Dare County Bombing Range. 
A small group (i.e., one or two packs likely consisting

[[Page 62982]]

of fewer than 15 animals) of red wolves would be maintained in the NC 
NEP management area and actively managed under the RWAMWP.
     Specify that the primary role of the NC NEP would be to 
provide a source of red wolves that are raised in, and adapted to, 
natural conditions for the purpose of facilitating future 
reintroductions.
     Not prohibit take of red wolves on private lands and non-
Federal public lands outside of the NC NEP management area.

Withdrawal of Proposed Rule

    During the two comment periods on the June 28, 2018, proposed rule, 
we received more than 16,000 public comments. Of those, more than 99 
percent of the comments opposed the proposed rule and recommended 
greater conservation efforts for red wolves in the NC NEP. In general, 
commenters were concerned about the reduction in the size of the NEP 
area and lack of take prohibitions on private and non-Federal lands 
outside the NC NEP management area; many commenters asserted that the 
proposed rule did not further the conservation of the red wolf. 
Additionally, many commenters recommended that the rule include 
measures for improving working relationships with private landowners 
and other stakeholders, and foster increased tolerance of red wolves on 
private lands.
    After fully considering the recent court decisions involving the NC 
NEP discussed above under Legal Actions and concerns raised in the 
comments we received in response to the June 28, 2018, proposed rule, 
we are withdrawing the June 28, 2018, proposed rule. We will manage the 
NC NEP under the existing regulations at 50 CFR 17.84(c), as informed 
by relevant court orders, which include authority to release captive 
red wolves and conduct adaptive management. The NC NEP will continue to 
encompass the five counties of the Albemarle Peninsula in North 
Carolina (Beaufort, Dare, Hyde, Tyrrell, and Washington Counties). 
Furthermore, the Service currently has a permit from the North Carolina 
Wildlife Resources Commission (which regulates take of coyotes) 
authorizing the Service to conduct coyote sterilization on Federal 
lands and non-Federal lands with the written consent of the landowner 
within the five-county NC NEP.
    Authorized take will be limited to protection of oneself or others 
from potential harm, protection of livestock or pets in immediate 
danger, and unintentional take. Otherwise, take prohibitions under 
section 9 of the Act will be enforced. While we remain concerned that 
the existing regulations at 50 CFR 17.84(c) may not provide some 
private landowners and stakeholders with the management flexibility 
sufficient to improve tolerance of red wolves, we continue to work with 
stakeholders to identify ways to foster more effective coexistence 
between people and wolves. For example, the Service has implemented a 
new project under its Partners for Fish and Wildlife Program, Prey for 
the Pack, which is intended to improve these relationships and create a 
more supportive environment for conservation of red wolves. Through 
this program, the Service works with willing private landowners within 
the NC NEP to provide funding and technical assistance to restore and 
enhance habitat on private lands to benefit red wolf prey species 
(e.g., white-tailed deer, rabbits) in exchange for landowner 
willingness to tolerate red wolf use of their property and to provide 
the Service access to conduct red wolf management activities. We will 
continue to work with our partners and stakeholders to establish the 
support necessary for red wolf conservation.

Authors

    The primary authors of this rule are the staff members of the 
Service's South Atlantic-Gulf Interior Region.

Authority

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

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-24809 Filed 11-12-21; 8:45 am]
BILLING CODE 4333-15-P