[Federal Register Volume 87, Number 126 (Friday, July 1, 2022)]
[Rules and Regulations]
[Pages 39348-39373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14025]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2021-0103; FXES111302WOLF0-FF02ENEH00]
RIN 1018-BE52
Endangered and Threatened Wildlife and Plants; Revision to the
Nonessential Experimental Population of the Mexican Wolf
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS),
revise the regulations for the nonessential experimental population of
the Mexican wolf (Canis lupus baileyi) in the Mexican Wolf Experimental
Population Area under section 10(j) of the Endangered Species Act of
1973, as amended (ESA). The regulatory revisions in this rule include a
revised population objective, a new genetic objective, and the
temporary restriction of three take provisions. This rule also includes
an essentiality determination under section 10(j) of the ESA. The
experimental population, inclusive of these revisions, will contribute
to the long-term conservation and recovery of the Mexican wolf by
alleviating demographic and genetic threats in this population
consistent with our rangewide recovery strategy and goals for the
Mexican wolf.
DATES: This rule is effective August 1, 2022.
ADDRESSES: This final rule, along with the October 29, 2021, proposed
rule, public comments on the proposed rule, a final supplemental
environmental impact statement, and record of decision, are available
on the internet at https://www.regulations.gov in Docket No. FWS-R2-ES-
2021-0103 or from the office listed in FOR FURTHER INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT: Brady McGee, Mexican Wolf Recovery
Coordinator, U.S. Fish and Wildlife Service, New Mexico Ecological
Services Field Office, 2105 Osuna Rd. NE, Albuquerque, NM 87113;
telephone 505-761-4748. Individuals in the
[[Page 39349]]
United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
You may also visit the Mexican Wolf Recovery Program's website at
https://www.fws.gov/program/mexican-wolf for information about the
experimental population designation for the Mexican wolf.
SUPPLEMENTARY INFORMATION:
Background
The Mexican wolf (Canis lupus baileyi) is a subspecies of gray wolf
that historically occurred in portions of the southwestern United
States and central and northern Mexico. Today, Mexican wolves occupy
the Mexican Wolf Experimental Population Area in central and southern
Arizona and New Mexico in the United States, and portions of the states
of Sonora and Chihuahua in Mexico. Mexican wolves predominantly prey on
elk in the United States, but other sources of prey throughout their
current range include deer, small mammals, and birds. Mexican wolves
are also known to scavenge on livestock (USFWS 2017b, pp. 12-19).
Similar to other gray wolves, Mexican wolves are social predators that
live and hunt in packs with an established territory. Mexican wolf
territories are dozens to several hundred square miles in size, and
Mexican wolves may disperse long distances to establish a new territory
(86 FR 59953, October 29, 2021, p. 86 FR 59959). Mexican wolves face
threats across their range from demographic stochasticity (fluctuations
in survival and reproduction associated with small population size);
genetic issues including inbreeding, loss of heterozygosity, and loss
of adaptive potential; and excessive human-caused mortality, including
illegal killing (80 FR 2488, January 16, 2015; see also USFWS 2017a,
pp. 23-34, and USFWS 2017b, p. 9, for additional discussion of these
threats).
The Mexican wolf is listed under the Endangered Species Act of
1973, as amended (ESA; 16 U.S.C. 1531 et seq.), as endangered wherever
it is found (80 FR 2488; January 16, 2015) except in the Mexican Wolf
Experimental Population Area, where is it listed as a nonessential
experimental population. The current List of Endangered and Threatened
Wildlife under the ESA is found in part 17 of title 50 of the Code of
Federal Regulations (CFR) at 50 CFR 17.11(h).
The 1982 amendments to the ESA included the addition of section
10(j), which allows for the designation of populations of listed
species planned for reintroduction as ``experimental populations.'' Our
implementing regulations at 50 CFR 17.81 state that the Service may
designate a population of endangered or threatened species that we have
released or will release into suitable natural habitat outside the
species' current natural range, but within its probable historical
range, as an experimental population. Hereafter in this document, we
refer to a species-specific rule issued under section 10(j) of the ESA
as a ``10(j) rule.''
This Rulemaking Action
This final rule designates Mexican wolves in the Mexican Wolf
Experimental Population Area (MWEPA) as a nonessential experimental
population on the List of Endangered and Threatened Wildlife at 50 CFR
17.11(h) with a revised rule issued under section 10(j) of the ESA at
50 CFR 17.84(k). We developed the rule to comply with the District
Court of Arizona remand (``March 31, 2018, order'') of our 2015 10(j)
rule for the Mexican wolf (80 FR 2512; January 16, 2015).
On October 29, 2021, we published in the Federal Register (86 FR
59953) a proposed rule to revise the regulations for the nonessential
experimental population designation of the Mexican wolf in the MWEPA in
Arizona and New Mexico (``proposed rule''). The proposed rule included
a revised population objective, a new genetic objective, and the
temporary restriction of three take provisions for the Mexican wolf in
the MWEPA, as well as a fresh essentiality determination under section
10(j) of the ESA. We proposed revisions that would individually and
collectively contribute to the long-term conservation and recovery of
the Mexican wolf by alleviating significant threats and achieving
recovery goals consistent with our recovery strategy for the Mexican
wolf (USFWS 2017b, pp. 10-17). We sought comments on the proposed rule
and on a draft supplemental environmental impact statement (DSEIS)
during a 90-day public comment period, ending January 27, 2022. We held
three public information sessions and two public hearings during the
public comment period. In total, we received more than 82,000 written
and oral comments on the proposed rule and DSEIS.
In accordance with our policy, ``Notice of Interagency Cooperative
Policy for Peer Review in Endangered Species Act Activities'' (59 FR
34270, July 1, 1994), and a recent memo updating the peer review policy
for listing and recovery actions (August 22, 2016), we also sought the
expert opinion of five appropriate independent specialists regarding
the scientific data and interpretations contained in the proposed rule.
The purpose of such peer review is to ensure that we base our decision
on scientifically sound data, assumptions, and analysis. This final
rule incorporates and addresses comments received during the public
comment and peer review processes.
For further information on the biology of the Mexican wolf,
including its habitat use and lifecycle, the history of conservation
and recovery efforts for this species under the ESA, and our legal and
statutory framework (including the basis for our action), please see
the proposed rule (86 FR 59953; October 29, 2021), which is available
at https://www.regulations.gov in Docket No. FWS-R2-ES-2021-0103.
Rationale for Revisions to the Experimental Population Designation in
Relation to Recovery
Our revisions to the experimental population designation for the
MWEPA contribute to the long-term conservation and recovery of the
Mexican wolf by alleviating threats and achieving demographic and
genetic management objectives that align with several of our recovery
criteria for the Mexican wolf from the Mexican Wolf Recovery Plan,
First Revision (USFWS 2017b, pp. 18-20) (``revised recovery plan'').
The revised recovery plan was not available to serve as a foundation
for the revisions to the MWEPA that we finalized in the 2015 10(j) rule
(80 FR 2512, January 16, 2015, pp. 2514-2515). First, this rule revises
the population objective established in the 2015 10(j) rule of 300 to
325 wolves. In this rule, we state that, based on end-of-year counts,
we will manage to achieve and sustain a population average greater than
or equal to 320 wolves in Arizona and New Mexico. This average must be
achieved over an 8-year period, the population must exceed 320 Mexican
wolves each of the last 3 years of the 8-year period, and the annual
population growth rate averaged over the 8-year period must demonstrate
a stable or increasing population, as calculated by a geometric mean.
We estimate that when the MWEPA population reaches and maintains
the revised population objective in this rule, the population will have
a 90 percent likelihood of persistence over 100 years. We consider this
level of persistence to
[[Page 39350]]
demonstrate that demographic threats have been alleviated to an extent
that is consistent with our recovery strategy and criteria for the
Mexican wolf (USFWS 2017a, pp. 32-33, 35-36; USFWS 2017b, pp. 9, 11,
13, 18-22; Miller 2017, entire). Therefore, the revised population
objective will contribute to the long-term conservation and recovery of
the Mexican wolf because it will result in a population in which the
threat of demographic stochasticity has been sufficiently ameliorated.
Second, this rule establishes a new genetic objective for the
MWEPA. In this rule, we state that the USFWS and designated agencies
will conduct a sufficient number of releases into the MWEPA from
captivity to result in at least 22 released Mexican wolves surviving to
breeding age.
We estimate that when the MWEPA population reaches the genetic
objective, 90 percent of the gene diversity available in captivity will
have been transferred to the MWEPA. We expect this infusion of
available gene diversity to the MWEPA to alleviate the risk of genetic
threats in the MWEPA such as inbreeding, lack of heterozygosity, and
lack of adaptive potential, consistent with our recovery strategy and
criteria for the Mexican wolf (USFWS 2017b, pp. 9, 11, 13-15, 18-20,
22-24). Therefore, the new genetic objective will contribute to the
long-term conservation and recovery of the Mexican wolf by lessening or
alleviating genetic threats.
Third, this rule temporarily restricts the use of three take
provisions from the 2015 10(j) rule: take on Federal land, take on non-
Federal land in conjunction with a removal action, and take in response
to an unacceptable impact to a wild ungulate herd. For take on Federal
and non-Federal land, this rule states that until the USFWS has
achieved the genetic objective by documenting that at least 22 released
wolves have survived to breeding age in the MWEPA, the USFWS or a
designated agency may issue permits only on a conditional, annual basis
according to the following provisions: Either
1. Annual release benchmarks (for the purposes of this paragraph,
the term ``benchmark'' means the minimum cumulative number of released
wolves surviving to breeding age since January 1, 2016, as documented
annually in March) have been achieved based on the following schedule:
------------------------------------------------------------------------
Year Benchmark
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2021.................................................... 7
2022.................................................... 9
2023.................................................... 11
2024.................................................... 13
2025.................................................... 14
2026.................................................... 15
2027.................................................... 16
2028.................................................... 18
2029.................................................... 20
2030.................................................... 22
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; or
2. Permitted take on non-Federal land, or on Federal land during
the previous year (April 1 to March 31) did not include the lethal take
of any released wolf or wolves that were or would have counted toward
the genetic objective.
After the USFWS has achieved the new genetic objective described
above, the conditional annual basis for issuing permits will no longer
be in effect.
For the provision for take in response to an unacceptable impact to
a wild ungulate herd, this rule states that no requests for take in
response to unacceptable impacts to a wild ungulate herd may be made by
the State game and fish agency or accepted by the USFWS until the
genetic objective has been met.
We expect the temporary restriction of three take provisions to
reduce the take of released wolves during the near-term period in which
we are trying to improve the gene diversity of the MWEPA because the
Service will not issue take permits for take on Federal and non-Federal
land unless conditional benchmarks toward recovery are met, or accept
requests to take wolves in response to an unacceptable impact to a wild
ungulate herd, until the genetic objective is met (USFWS 2022a, pp. 26-
32, including table 2.1 on pp. 28-29). Reducing the take of released
wolves will decrease the amount of time it takes to reach the genetic
objective compared to not restricting these forms of take (USFWS 2022a,
pp. 116-118). The growth of the MWEPA population in recent years
necessitates a strong temporal focus on improving gene diversity in the
near term because it will be more difficult to improve gene diversity
and alleviate genetic threats at larger population sizes (USFWS 2017b,
pp. 33-34).
The time period for the restriction of these three take provisions
is based on our expectation that once the genetic objective is reached,
the gene diversity of released wolves will have integrated into the
population through breeding events between released and wild wolves
such that released wolves will no longer represent a pool of unique
gene diversity. In other words, as more released wolves survive and
breed in the wild, the unique contribution of each released wolf to the
gene diversity of the MWEPA diminishes. Because of this scenario,
restricting these take provisions beyond the time at which we achieve
the genetic objective would not result in the protection of unique gene
diversity contributed by wolves released from captivity. Therefore, the
short-term restriction of these three take provisions contributes to
the long-term conservation and recovery of the Mexican wolf because the
restriction will support achieving the genetic objective, which will
lessen genetic threats in the MWEPA consistent with our recovery
strategy and criteria for the Mexican wolf as just described.
We note that the 2021 minimum population count of 196 wolves in the
MWEPA demonstrates the sixth consecutive year of steady growth in
recent years and that the population has doubled in size since 2015
(2015 minimum population count of 98 wolves) (USFWS files). With each
continued year of positive population growth trajectory, the threat of
demographic stochasticity in the MWEPA lessens. Inherent in our efforts
to achieve the population objective is our recognition that Mexican
wolf mortality from all sources, including human-caused mortality, must
be sufficiently low to support population growth and persistence (USFWS
2017a, pp. 31-32; USFWS 2017b, pp. 20-22, 31-34). Therefore, the
Service and our partners continue to monitor key demographic rates,
balance our utilization of nonlethal and lethal management techniques
to address conflict situations, and strengthen efforts to reduce the
illegal killing of Mexican wolves (USFWS 2017b, pp. 31-34; USFWS 2019,
entire; USFWS 2022b, pp. 30-42).
We note that as of April 1, 2022, we have documented 13 released
wolves surviving to breeding age in the MWEPA that contribute to
meeting the genetic objective. Also, over the last 4 years (2018-2021),
we have seen a steady increase in gene diversity (from 74.54 to 76.23)
and a decrease in mean kinship (a measure of the relatedness of
individuals in a population to each other) (from 0.2546 to 0.2377),
suggesting that our efforts to improve the genetic status of the
population are beginning to exert a positive effect. As of August 17,
2021, both of these metrics are at their best values since 2010, when
gene diversity measured 76.47 and mean kinship measured 0.235 (Scott et
al. 2022, 2020, 2019; Siminski and Spevak 2011-2017; USFWS files). We
expect to continue documenting the number of released wolves that
survive
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to breeding age, including their reproductive activity, and to track
population-level genetic metrics to validate improvements in the
genetic status of the population.
Additional discussion of our rationale for these revisions is
provided in the proposed rule (86 FR 59953, October 29, 2021, pp.
59959-59963).
Experimental Population
Location and Boundaries of the Experimental Population
The Mexican wolf experimental population is located in the MWEPA,
as designated in the 2015 10(j) rule (80 FR 2512, January 16, 2015, p.
2558). The boundaries of the MWEPA are the portions of Arizona and New
Mexico that are south of Interstate Highway 40 (I-40) to the
international border with Mexico (see map at 50 CFR 17.84(k)(4)). The
boundaries of the MWEPA are consistent with the recovery strategy
established in the revised recovery plan, and the MWEPA is wholly
geographically separate from any nonexperimental populations of the
same (sub)species, as described in the proposed rule (86 FR 59953,
October 29, 2021, pp. 59963-59964).
Overview of the Experimental Population
The MWEPA is a large area in Arizona and New Mexico that includes
Federal, State, Tribal, and private land. It contains three managements
zones, Zone 1, Zone 2, and Zone 3, that provide areas for initial
release, translocation, and occupancy of Mexican wolves (see
definitions at 50 CFR 17.84(k)(3) and the map of the MWEPA designated
area at 50 CFR 17.84(k)(4)).
Release Procedures
The USFWS and our partners release Mexican wolves into the MWEPA
using several different management strategies, including the cross-
fostering of captive pups into wild dens as a form of initial release;
the initial release of adults or sub-adults individually, as pairs with
and without pups, or as multigenerational packs; and translocations of
wild wolves from one location to another. We intend to continue
releasing Mexican wolves from captivity into the MWEPA primarily to
increase the gene diversity of the experimental population as necessary
to achieve our genetic objective and alleviate genetic threats to the
population. In addition, we may release or translocate wolves for other
management purposes such as replacing a mate for a breeding pair due to
a wolf mortality or transferring wolves to Mexico. We provide
additional detail about our release procedures in the proposed rule (86
FR 59953, October 29, 2021, p. 59964), including our procedures to
utilize permanent identification marks and radio-collars to identify
Mexican wolves in the MWEPA and differentiate them from wolves that may
disperse from other gray wolf populations.
How does the experimental population contribute to the conservation of
the species?
We intend to manage the MWEPA population to achieve the recovery
criteria in the revised recovery plan for a population of Mexican
wolves in the United States (USFWS 2017b, pp. 18-25; 86 FR 59953,
October 29, 2021, p. 59965). The following information is summarized
from our proposed rule, which can be referenced for additional
supporting information (86 FR 59953, October 29, 2021, pp. 59965-
59967).
Possible Adverse Effects on Wild and Captive Breeding Populations
Adverse effects on the captive population of Mexican wolves will
not occur from the release of captive wolves to the MWEPA because the
captive population is managed specifically to support the
reintroduction of wolves to the wild and remains capable of supporting
both the U.S. and Mexico reintroduction efforts through the release of
surplus wolves (Scott et al. 2022, entire). Adverse effects to the wild
population in Mexico will not occur because we do not rely on, nor have
we conducted any, translocation of wolves from Mexico into the MWEPA.
Likelihood of Population Establishment and Survival
The MWEPA has demonstrated that it is an established population
with a high likelihood of survival. In particular, in the last 6 years
under the management provisions of the 2015 10(j) rule, the population
has grown steadily in size to its current minimum population size of
196 wolves. The Service's Mexican Wolf Recovery Program has
transitioned from its previous focus on preventing the extinction of
the Mexican wolf (USFWS 2010, p. 79) to pursuing a binational recovery
strategy that we intend to achieve within two to three decades (USFWS
2017b, pp. 28-29).
Effects of the MWEPA Population on Recovery Efforts
The MWEPA population contributes to the binational recovery of the
Mexican wolf because it serves as the population that counts toward the
recovery criteria in the revised recovery plan for a population in the
United States. The revisions in this rule bring the management of the
MWEPA into alignment with our recovery strategy and criteria for the
Mexican wolf in the revised recovery plan to ensure that the
experimental population contributes to the long-term conservation and
recovery of the Mexican wolf.
Actions and Activities That May Affect the Introduced Population
Consistent with our findings in the past (63 FR 1752, January 12,
1998, p. 1755; 80 FR 2512, January 16, 2015, p. 2551), we do not
foresee that the introduced population will be adversely affected by
existing or anticipated Federal or State actions or private activities
because although some actions or activities may affect individual
wolves, these effects will not hinder the growth or distribution of the
population or its ability to achieve the demographic and genetic
objectives established in this rule, as described in our proposed rule
(86 FR 59953, October 29, 2021, p. 59966).
Experimental Population Regulation Requirements
The following requirements are summarized or expanded upon from our
discussion in the proposed rule (86 FR 59953, October 29, 2021, pp.
59967-59970):
Appropriate Means To Identify the Experimental Population
The location of the experimental population is the MWEPA, as
defined at 50 CFR 17.84(k). We can identify Mexican wolves based on the
permanent identification marks we give them prior to release, by radio
collar, DNA analysis, or visual observation.
Is the experimental population essential to the continued existence of
the species in the wild?
Essential experimental populations are those whose loss would be
likely to appreciably reduce the likelihood of survival of the species
in the wild (50 CFR 17.80(b)). The Service defines ``survival'' as the
condition in which a species continues to exist in the future while
retaining the potential for recovery (USFWS and NMFS 1998, p. xix).
Inherent in the definition of ``essential'' is the effect the potential
loss of the experimental population would have on the species (49 FR
33885, August 27, 1984, p. 49 FR 33890).
The ESA states that, prior to any release, the Secretary must find
by regulation that such release will further
[[Page 39352]]
the conservation of the species (16 U.S.C. 1539(j)(2)). Reintroductions
are, by their nature, experiments, the fate of which is uncertain.
However, it is always our goal for reintroductions to be successful and
contribute to recovery. The importance of reintroductions to recovery
does not necessarily mean these populations are ``essential'' under
section 10(j) of the ESA. In fact, Congress' expectation was that ``in
most cases, experimental populations will not be essential'' (H.R.
Conference Report No. 835, supra at 34). The preamble to our August 27,
1984, final rule reflects this understanding, stating that an essential
population will be a special case and not the general rule (49 FR
33885, August 27, 1984, p. 49 FR 33888). When the Service published the
final rule for the MWEPA designation in 1998, we did not anticipate
making another essentiality determination for the MWEPA in the future.
However, the remand of the 2015 10(j) rule requires the Service to make
a fresh essentiality determination because the geographic expansion of
the MWEPA results in wolves occupying new areas that were not
contemplated for wolf occupancy during the original essentiality
determination. At the time of the original determination, we found the
experimental population to be ``nonessential'' because the captive
population provided a secure source of surplus animals for
reintroduction and the primary repository of genetic material for the
species; therefore, if the reintroduced wolves did not survive,
additional reintroduction efforts could be taken if the reasons for
failure were understood (63 FR 1752, January 12, 1998, p. 1754).
This rule determines that the experimental population in the MWEPA,
as defined by the geographic revision and expansion of the MWEPA in the
2015 10(j) rule, is not essential to the continued existence of the
Mexican wolf in the wild under section 10(j) of the ESA. We reference
our proposed determination (86 FR 59953, October 29, 2021, pp. 59967-
59969), and offer the following rationale to clarify the information we
relied on in our determination.
Mexican wolves currently occur in two locations in the wild: in the
MWEPA in the United States, and in the Sierra Madre Occidental in
northern Mexico, where the population numbers around 45 wolves in 2022.
Reintroduction efforts in Mexico have been underway for over a decade,
demonstrating sustained effort to establish and manage a wild
population that contributes to recovery under the ESA. Mexico continues
to focus on releasing wolves to the wild (from captivity or
translocated from the MWEPA) and monitor natural population growth and
expansion toward achieving the recovery criteria in the revised
recovery plan. If the Mexican wolf population in the MWEPA were lost,
Mexican wolves would continue to persist in the wild with Federal legal
protection from Mexico. Thus, the existence of a protected wild
population outside of the MWEPA is one of the factors in our
determination that the experimental population is not essential to the
continued existence of the Mexican wolf in the wild.
The second, and equally important, factor in our determination is
our expectation that we could restart a population in the MWEPA or
elsewhere in suitable habitat in the United States if the unexpected
loss of the MWEPA were to occur. Our expectation is supported by our
history--that is, the experiment to reintroduce Mexican wolves to the
wild, which we began in 1998 as part of the species recovery effort
under section 10(j) of the ESA, has demonstrated success and is
repeatable. Several pieces of information influence our expectation
that a future re-reintroduction is feasible and, therefore, support a
nonessential determination, including the following:
If the unexpected loss of the MWEPA population were to occur, the
Service and our partners have the knowledge and logistical capability
to re-start the population and manage it to contribute to the long-term
conservation and recovery of the Mexican wolf. To start, the Mexican
wolf is a well-known subspecies for which we have gained first-hand
biological and ecological knowledge for more than two decades. We have
observed, monitored, and analyzed wolves' natural behavior in the wild
such as the establishment of territories, dispersal, reproduction,
survival, and mortality. We have reported our findings throughout the
course of the reintroduction and recovery effort, including program
reviews (Paquet et al. 2001, entire; AMOC and IFT 2005, entire),
recovery plans (USFWS 1982; USFWS 2017a; USFWS 2017b), regulatory
documents (e.g., 80 FR 2488, January 16, 2015; 80 FR 2512, January 16,
2015), environmental impact statements (USFWS 1996, entire; USFWS 2014,
entire; USFWS 2022a, entire), and annual progress reports covering
every year of the reintroduction (USFWS files). In addition,
significant scientific research has been conducted regarding many
facets of Mexican wolf biology and ecology (e.g., Parsons and
Nicholopoulos 1995, entire; Hedrick et al. 1997, entire; Reed et al.
2006, entire; Asa et al. 2007, entire). Because of our experience
establishing and maintaining a population and the extent of supporting
biological information available, we understand the needs of this
subspecies sufficiently to undertake another reintroduction.
In addition, since 1998, we have learned about the communities in
which the reintroduction and recovery effort takes place. Within this
context, we have demonstrated our ability to explore solutions to a
variety of challenges and to adaptively manage the reintroduction
effort. We have:
Tested and utilized different wolf release techniques,
including hard and soft releases; release of adults, pairs, or packs;
and cross-fostering puppies;
Adapted our response to conflicts based on the demographic
status of the experimental population and the needs of local
communities, including our use of management tools such as
translocations, removals, and novel nonlethal techniques;
Provided animal husbandry in captive, semi-captive, and
wild settings, including vaccination protocols to reduce the risk of
diseases in Mexican wolves or the transfer of diseases to humans;
Developed and expanded collaborative recovery efforts with
partners in both the United States and Mexico;
Sustained budgetary and staffing capacity for the
reintroduction effort for several decades, including public outreach
programs and stakeholder engagement;
Championed and participated in financial programs to
reduce economic impacts on livestock operators; and
Adjusted the regulatory, policy, and guidance frameworks
that provide the structure for the reintroduction and recovery effort.
Therefore, we have the capability to construct a management
approach for a new reintroduction (again, assuming understanding of the
reasons for the loss of the current population) and adjust it as
necessary to support the release, establishment, growth, vigor, and
maintenance of an experimental population within a human-dominated
landscape. Specifically, we expect to release packs, pairs, and
individual animals over several years to re-establish the population as
appropriate to the circumstances. While the release of adult wolves is
not currently our preferred release strategy, we recognize that the
release of adult wolves would be necessary and appropriate if we were
restarting a reintroduction, and we
[[Page 39353]]
would work with our partners to select preferred release sites. We do
not expect to achieve a population of the current size (close to 200
wolves) within the first few years, but rather seek to establish a base
of released wolves representative of the gene diversity available in
captivity. We will continue releases as necessary and, with our
partners, support the natural growth and expansion of the population
through the use of a variety of adaptive management strategies and
tools such as those we have utilized since the reintroduction began.
If we were to conduct a new reintroduction due to the loss of the
current population, we would rely on the availability of captive
Mexican wolves for release to the wild. Therefore, the capability of
the captive breeding program to provide wolves to re-start the
population and provide long-term support of the reintroduction over at
least several decades is an important factor in our essentiality
determination. Our assessment of the capability of the captive breeding
program rests first on the mission of the Mexican Wolf Species Survival
Program (``SSP''), which is to support the reestablishment of the
Mexican wolf in the wild through captive breeding, public education,
and research. The dedication of this program to reestablishment
supports our expectation that participating facilities will support and
engage in the new reintroduction effort (Scott 2022, pers. comm.).
Second, the logistical capacity of the captive breeding program has
increased significantly since 1998, such that it is more capable of
producing surplus wolves for release to the wild today than it was when
we first designated the MWEPA over two decades ago. In 2021, the
captive program housed 387 wolves in 62 facilities (Scott et al. 2022,
p. 7), compared to fewer than 200 wolves in less than 50 facilities in
1998. The physical capacity of the captive breeding program could
continue to expand with the addition of new facilities, which would
further increase the number of surplus wolves produced as well as
benefitting ongoing genetic management needs (Scott et al. 2022, p.
10). In addition to its expanded physical capacity, the SSP has
benefitted from over four decades of husbandry experience and research
across many participating institutions, again supporting our contention
that the captive breeding program has the capacity and capability to
re-start and sustain support for a wild population.
Importantly, one question that is central to the potential to
restart a reintroduction of the Mexican wolf in the future is whether
surplus wolves produced by the SSP would have sufficient gene diversity
to establish a genetically robust population. This concern stems from
the slow loss of gene diversity that has occurred, and will continue to
occur, in the captive population because no new founders are available
to add diversity (Scott et al. 2022, pp. 9-10). This is a difficult
question to answer because a finite threshold of gene diversity below
which reintroduction would not be possible for Mexican wolves has not
been defined or observed by the Service, the SSP, or other researchers.
In other words, we recognize that re-starting a reintroduction at some
point in the future when the captive population has lower gene
diversity than its current level (Scott et al. 2022, p. 9) means that
genetic concerns will be amplified more than they are today, but that
does not equate to infeasibility. Rather, surplus wolves would be
available to release to the wild that would still represent the
available gene diversity remaining from the founding wolves and the
three integrated captive lineages. In fact, a population could be
restarted today that would potentially be equally or more genetically
diverse with lower overall mean kinship and better representation of
the three Mexican wolf lineages than the first reintroduction effort
simply by the selection of different wolves and different management
strategies in the wild when the population was small. In addition,
genetic management strategies, such as an expansion of the number of
breeding pairs in the captive population (Scott et al. 2022, p. 10),
the use of stored genetic material from captive wolves (such as frozen
semen and oocytes (Scott et al. 2022, appendix 9, pp. 82-85)), or the
use of other novel reproductive or genetic technologies, could be used
to slow the loss of gene diversity in captivity over time and offer
robust future reintroduction scenarios with appropriately diverse
surplus wolves.
As we have discussed throughout this rule, we expect the MWEPA to
further the conservation and recovery of the Mexican wolf by
contributing to the persistence of a population that achieves specific
recovery goals for the subspecies. However, we consider the MWEPA
nonessential because the loss of all reintroduced Mexican wolves within
the MWEPA is not likely to appreciably reduce the likelihood of
survival of the subspecies in the wild. Our determination is based on
the existence of a second wild population of Mexican wolves, our
increased capability to initiate and maintain a reintroduced population
of Mexican wolves, and the ongoing maintenance of the captive
population.
Management Restrictions, Protective Measures, and Other Special
Management
We have developed a section 10(a)(1)(A) permit under section 10 of
the ESA to allow for certain activities with Mexican wolves that occur
both inside and outside the MWEPA. If Mexican wolves travel outside the
MWEPA, we intend to capture and return them to the MWEPA or place them
in captivity. This approach is consistent with the revised recovery
plan, which directs Mexican wolf recovery south of Interstate Highway
40 (I-40) in Arizona and New Mexico. Mexican wolves are managed south
of I-40 under this rule, which provides management flexibility and
contributes to the conservation and recovery of the Mexican wolf.
Mexican wolves that move outside of the geographic boundaries of the
MWEPA are fully endangered and the allowable forms of take provided for
in this rule to address conflict situations are not available.
Livestock operators and the public cannot haze or harass wolves outside
of the MWEPA without violating the ESA.
Review and Evaluation of the MWEPA Population
As described at more length in our October 29, 2021, proposed rule,
the following evaluations of the MWEPA population and the rangewide
progress of the Mexican wolf toward recovery will be forthcoming:
Evaluation of this revised rule 5 years after rule
implementation begins (i.e., one evaluation based on data through the
2027 annual population count, synchronized with the 2027 recovery plan
evaluation, below, for publication in 2028);
MWEPA quarterly reports (i.e., four reports per year,
annually, ongoing);
MWEPA annual reports (i.e., one report per year, annually,
ongoing);
5-year status evaluations of the Mexican wolf subspecies
pursuant to section 4(c)(2) of the ESA (i.e., one report every 5 years,
with next evaluations occurring in 2023 and 2028, ongoing);
5- and 10-year recovery progress evaluations, pursuant to
the revised recovery plan (i.e., one report for each evaluation, using
data through 2022 and 2027, with publication in 2023 and 2028,
respectively); and
A phasing evaluation for western Arizona pursuant to 50
CFR
[[Page 39354]]
17.84(k)(9)(iv)(D) (i.e., one evaluation in 2023).
Consultation With State Game and Fish Agencies, Local Governments,
Tribes, Federal Agencies, and Private Landowners in Developing and
Implementing This Rule
In accordance with 50 CFR 17.81(d), to the maximum extent
practicable, this rule represents an agreement between the USFWS, the
affected State and Federal agencies, and persons holding any interest
in land that may be affected by the establishment of this experimental
population. In addition to the information provided in the proposed
rule (86 FR 59953, October 29, 2021, p. 59970), we also describe our
coordination and consultation efforts in the final supplemental
environmental impact statement (FSEIS) (USFWS 2022a, pp. 164-166).
Summary of Comments and Recommendations
From April 15 to June 15, 2020, we conducted a public scoping
process under the National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) based on our intent to modify the 2015 final 10(j) rule
(see 85 FR 20967, April 15, 2020). We received more than 87,000 public
comments during scoping. We responded to these comments in the draft
supplemental environmental impact statement (DSEIS), appendix G (USFWS
2021, pp. 182-227). We subsequently opened a 90-day public comment
period on the proposed 10(j) rule and DSEIS on October 29, 2021 (86 FR
59953). During the public comment period, we held three public
information sessions and two public hearings; approximately 400 members
of the public attended and participated in these events. We received
more than 82,000 public written and oral comments during the comment
period. In total, we received more than 169,000 comment submissions
over the course of the two comment periods.
As part of this rulemaking, we have carefully reviewed the
requirements of NEPA and its regulations (Council on Environmental
Quality regulations at 40 CFR 1502.9); this final rule, as well as the
process by which it was developed and finalized, complies with all
provisions of the ESA, NEPA, and applicable regulations. We identified
public comments specific to the NEPA process and provided responses to
these issues in the FSEIS rather than in this rule; in addition, we
carried the scoping comments and responses forward from the DSEIS to
the FSEIS because the scoping comments and responses addressed a number
of issues that were brought up subsequently during the public comment
period on the DSEIS and proposed rule (USFWS 2022a, pp. 188-240). In a
few cases, a comment was equally pertinent to the rule as well as the
FSEIS, in which case we have included our response in this rule as
well.
Below, we provide synthesized, substantive comments pertinent to
the rulemaking and our responses. We considered substantive comments to
be those that provided information relevant to our requested action
such as data, pertinent anecdotal information, or opinions backed by
relevant experience or information, and literature citations. Due to
the similarity of many comments, we combined multiple comments into a
single, synthesized comment for many issues. We considered non-
substantive those comments that expressed a statement or opinion
without providing supporting information or relevance; restated data or
information that we already have but without an alternate perspective
to consider; restated elements of the March 31, 2018, order; or were
beyond the scope of our proposed revisions as defined during scoping.
Comments from peer reviewers, Federal agencies, and State agencies are
grouped separately. Comments from local governments are included in the
general public comments. We did not receive any comments from Native
American Tribes. All substantive information provided during the
comment periods, including the public hearings, has either been
incorporated directly into this final determination or is addressed
below.
Peer Reviewer Comments
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited and received expert opinions from five
knowledgeable individuals with expertise that included a Doctor of
Philosophy degree (Ph.D.) or Master of Science degree (M.S.) with
significant experience in wildlife ecology or a related field; expert
knowledge of wildlife biology and management, demographic management of
mammals (especially carnivores), population modeling, small population
management, genetics of small populations, captive breeding and
reintroduction of a species to the wild, scientific literature on
wolves or other carnivores, and/or human dimensions or socioeconomic
considerations related to large carnivore management; and prior
experience as a peer reviewer for scientific publications.
We asked peer reviewers to respond to seven scientific questions
regarding the proposed revision to the regulations for the experimental
population designation of the Mexican wolf, as appropriate to their
expertise, in addition to providing their general review. We reviewed
all peer review comments that we received. Below, we provide a summary
of the peer reviewers' answers to our seven questions, as well as our
responses to singular issues raised by peer reviewers that we consider
having particular bearing on our ability to support the final rule with
the best available information. In addition to the summary and
responses below, we have incorporated their information and
recommendations into this final rule as appropriate.
1. A 10(j) rule may provide flexibility for managing a reintroduced
species but must foremost further the conservation of the species. Does
the balance of the proposed rule, in total, contribute to the
conservation and recovery of the Mexican wolf?
Four peer reviewers answered this question. One peer reviewer did
not think the proposed rule, in total, contributes to the conservation
and recovery of the Mexican wolf. This reviewer stated that the
proposed rule relies heavily on Mexico and private entities to
contribute to recovery, and that designating and managing the
population as nonessential is a high-risk approach. One reviewer agreed
that the proposed rule would contribute to the conservation and
recovery of the Mexican wolf, but identified concerns with the
methodologies used to depict the population's trajectory and to measure
gene diversity, and also identified the need for additional clarity
related to allowable forms of take outside of the MWEPA, the
relationship between the proposed restricted forms of take and illegal
take, and whether the program's human-wolf conflict measures are
effective in reducing illegal take. Another reviewer agreed that all of
the proposed revisions would contribute to the conservation and
recovery of the Mexican wolf and cited recent population growth and the
use of supplemental feeding and cross-fostering techniques as
indications of, or contributing factors in, the Service's recent
progress toward demographic and genetic recovery goals. The fourth
reviewer responded that in total the proposed rule would contribute to
the conservation and recovery of the Mexican wolf but caveated that
``contribute to'' is not synonymous with ``ensure.''
2. Are the expected effects of the proposed revisions on the
overall biological status of the experimental
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population adequately described and supported by relevant analysis? If
not, what information is missing and how is it relevant?
One reviewer stated that the population viability analysis in the
revised recovery plan relied on by the Service as the foundation for
establishing the proposed population and genetic objectives is likely
very robust for predicting population growth at low population
densities. However, this reviewer suggested updating the model in 5 to
10 years with updated vital rates and incorporating density-dependent
effects to address the potential for the model to underestimate
extinction probabilities and overestimate genetic diversity in the long
term, because the data used in the population viability model (Miller
2017, entire) may overestimate the proportion of females breeding and
do not include a link between density and reproduction. This same
reviewer also cautioned that removal of wild-born wolves could impact
gene diversity if those wolves had advantageous mutations.
Another reviewer stated that the proposed population objective is
an improvement from the population objective in the 2015 10(j) rule and
provided critique that the program's current methodology to document
minimum population size annually may not provide an accurate and
precise population estimate against which to measure progress toward
the proposed population objective.
A third reviewer responded to this question by reiterating a
concern that the methodology used to document the minimum population
size may be inadequate to determine whether the population's growth
rate is stable or increasing, as necessitated by the proposed
population objective. This reviewer provided recommendations on several
methodologies and statistical models to estimate survival or other
demographic parameters for the Service to consider and stated support
for updating the population viability model used in the revised
recovery plan during the 5-year evaluation of the recovery plan. The
reviewer also questioned how the Service arrived at the genetic
objective of 22 released wolves surviving to breeding age based on the
population viability model in the revised recovery plan and cautioned
against using model results as actual targets rather than as
guideposts. This reviewer suggested that measuring genetic variation
would be a more appropriate method to assess genetic diversity in the
MWEPA than counting the number of released wolves that survive to
breeding age. The reviewer discussed inbreeding and reduced fitness in
Mexican wolves and suggested that allowing Mexican wolves to hybridize
with other wolf ecotypes (gray wolves from other populations) may
contribute to the future adaptive potential of the Mexican wolf.
The fourth reviewer stated that each of the proposed revisions
should have a positive impact on population performance and that the
expected effects of the revisions are adequately described, noting that
the removal of an upper target for abundance is particularly important
for long-term sustainability of the Mexican wolf. This reviewer noted
that the inclusion of more than 15 years of Mexican wolf data in the
population viability model and the selection of conservative values for
model parameters add significant confidence to the model's predictive
power for demographic and genetic uses. The reviewer noted that the
habitat modeling by Mart[iacute]nez-Meyer et al. (2017) also
substantively informs recovery efforts, while noting that updating the
habitat model over time with information on population performance
could address general concerns related to the reliability of habitat
quality assessments that rely solely on presence data. This reviewer
questioned why the Service did not use a direct measure of genetic
diversity as a genetic objective and stated that the Service overstated
the future conditions of the population in response to released wolves
surviving to breeding age.
3. Does the proposed rule, including the allowable forms of take,
allow for the experimental population to achieve the demographic
recovery criterion for the United States in the Mexican Wolf Recovery
Plan, First Revision (2017)?
One reviewer stated that the proposed rule does not allow for the
experimental population to achieve the demographic recovery criterion
because there is no numerical trigger to determine when different
allowable forms of take are permitted. Another reviewer stated that the
proposed reduction in take would have a positive effect on Mexican wolf
recovery but would not address the problem of illegal take, which
accounts for the majority of human-caused mortality for the Mexican
wolf. This reviewer recommended using a ``similarity of appearance''
listing for coyotes within the MWEPA under section 4(e) of the ESA. A
third reviewer stated that they believe the proposed rule would
contribute to achieving the recovery criterion in the revised recovery
plan based on the recent annual increases in the MWEPA population, the
Service's ongoing efforts to reduce conflict and increase support for
the recovery effort, and the removal of the upper threshold on wolf
abundance.
4. Does the proposed rule, including the allowable forms of take,
allow for the experimental population to achieve the genetic recovery
criterion for the United States in the Mexican Wolf Recovery Plan,
First Revision (2017)?
One reviewer stated that the proposed revisions to the allowable
forms of take may not avoid the potential for negative impacts to
genetic diversity because the revisions consider only released wolves,
they do not consider wild-born wolves with new genetic mutations that
may be important to the population's genetic diversity, especially its
heterozygosity. Another reviewer restated concern for whether the
proposed genetic objective is valid compared to other ways to measure
the genetic status of the population. A third reviewer did not mention
the effect of the take provisions on the ability of the proposed rule
to achieve the genetic criterion beyond a general statement
acknowledging the Service's efforts through memoranda of understanding
(MOUs), education/outreach, and diversionary feeding to reduce
conflicts that could lead to wolf removals. This reviewer stated that
the success of cross-fostering also provides evidence that the genetic
criterion will be met. This reviewer reiterated concern that the
genetic objective is not a direct measure of genetic health but stated
that the genetic objective will likely lead to the genetic benefits the
Service is expecting and is easy to quantify and measure.
5. Is the information, data, and analysis we provide to
substantiate our essentiality determination based on the best available
science? Is there scientific information or data that we did not
include in our essentiality determination that is relevant and should
be considered?
One reviewer stated that the logic behind designating the MWEPA as
nonessential is not well supported and is a high-risk approach due to
the other wild population occurring in Mexico and the captive
population being run by private entities that are not legally bound to
recover the Mexican wolf. Another reviewer agreed that the MWEPA
population could likely be restarted from captivity but suggested the
Service consider an essentiality designation because the growth of the
second wild population of Mexican wolves in Mexico has been fairly
stagnant and the reintroduction effort is very expensive. This reviewer
also questioned whether the nonessential
[[Page 39356]]
determination limits the ability of the Service to reintroduce the
Mexican wolf outside of its historical range. A third reviewer
communicated their impression that the concept of essentiality is
convoluted and ambiguous, and that the Service was unclear in its
discussion whether we were referring to the subspecies at-large or the
Mexican wolf in the wild. This reviewer stated that given the emphasis
on the ``three Rs'' (resilience, representation, and redundancy) in the
recovery of the Mexican wolf, considering the MWEPA as nonessential to
the persistence of wild wolves seems tenuous, although according to
strict legal definitions may be true.
6. Do the proposed revisions, and the rule as a whole, allow for
flexible and responsive management of conflict situations that can
address local community concerns related to social and economic impacts
while still providing for the conservation and recovery of the Mexican
wolf?
One reviewer stated that the rule allows for flexible and response
management of conflict situations but may not adequately provide for
the conservation and recovery of the Mexican wolf. Another reviewer
stated that the management activities provided for in the rule are
generally consistent with recommendations from the literature on
reducing wildlife conflicts to support conservation. This reviewer
stated that the scientific literature contains mixed evidence as to how
depredation compensation rates should be determined, with some
literature suggesting that full compensation reduces incentives for
producers to undertake proactive measures to reduce conflicts and
therefore may lead to more depredations, while other literature
suggests that additional indirect costs should be incorporated to fully
compensate losses. A third reviewer stated that the conflict management
efforts appear to be comprehensive, and an evaluation may assist in
determining which components of the program are most effective. The
fourth reviewer stated that the answer to the question is values-based
and therefore difficult to predict. This reviewer gave the example that
the rule may make demonstrable progress toward reestablishing Mexican
wolves but still may not satisfy certain stakeholders. However, this
reviewer stated that, collectively, the proposed revisions and the rule
would allow for flexible and responsive management to address
conflicts, further stating that the rule clearly attempts to minimize
significant impacts and to produce realistic predictions for various
expenses, recognizes the need for adaptive management and maintaining
broad support for recovery efforts, and demonstrates continued effort
to pursue funding and partnerships to ensure the overall success of the
program.
7. Is the rule based on the best available biological and social
science? Are there demonstrable errors of fact or interpretation of
data or scientific information in the proposed rule?
One reviewer stated that using a geometric mean, rather than the
arithmetic mean, would better capture population performance in the
demographic recovery criterion and population objective. Another
reviewer provided recommendations on new analytical methods to evaluate
data that could lead to improved inferences and management decisions.
Several reviewers commented on the proposed nonessential
designation. One reviewer stated that reliance on a captive population
to replenish wild populations after an extinction event does not
represent the survival of the species in the wild or recovery across
ecologically and geographically diverse areas in the subspecies' range,
as recommended in the recovery strategy in the revised recovery plan.
This reviewer further cautioned that the proposed rule considers wolves
in captive-breeding facilities and in Mexico to be ``populations,'' but
this is a very high-risk approach because private facility
participation in captive breeding is voluntary (facilities are not
legally bound to recover Mexican wolves), and the Mexican government is
not bound to U.S. law. Additionally, this commenter stated that more
than 90 percent of the remaining wild Mexican wolves inhabit the MWEPA,
and it is likely that new genetic mutations have emerged, providing an
evolutionary avenue for locally adapted Mexican wolves. Because these
alleles do not exist in the captive population or in Mexico's
population, the reviewer considers the MWEPA essential.
One reviewer stated that while there were no observable errors of
fact or interpretation with the social science data or literature
presented by the Service, there is additional literature related to
cattle prices, indirect effects from livestock depredations, and
management costs that may have relevance for the determination of
economic impacts of the proposed revisions. This reviewer provided
specific examples of cattle price variability to highlight the
variation in economic impacts experienced by an individual producer
from a depredation and the management decisions that follow. This
reviewer also provided information about the potential indirect
economic effects of depredations and noted that the Service had
accounted for some, but not all, possible indirect effects in its
analysis, while also noting that a systematic accounting of all
possible indirect effects is not available in the literature. The
reviewer stated that there is insufficient evidence to establish the
extent of indirect effects. The reviewer also provided examples of
management costs associated with depredation activity, including fence
maintenance and repair from livestock prone-to-flight behavior,
veterinary costs of injured animals, and other management interventions
such as herding dogs and additional riders to check herds.
Another reviewer stated that the proposed rule is arguably based on
the best available science, although that does not mean there may not
be debate in the scientific community over the choice of models, data
to populate them, statistical evaluations, and interpretation of
results. This reviewer clarified that no single issue or issues
collectively mentioned by the reviewer would result in the inability to
achieve recovery. This reviewer suggested the Service add a description
of our annual count methods because that is how the Service will assess
progress toward the population objective, recommended that the Service
conduct a cost-benefit analysis of diversionary feeding related to
effective law enforcement levels or other actions, and questioned
whether the potential impacts of the border wall on Mexican wolf
recovery, other than on the probability of wolf dispersal across the
border, were considered.
Specific Peer Review Comments
Comment: The MWEPA population estimates are based on an ad hoc
estimation approach (USFWS 2019, pp. 21-22) and these point estimates
are used to depict population trajectory and estimate population growth
rate. There is no measure of the precision of the estimates; this could
influence estimates of extinction risk.
Our response: We conduct an annual population minimum count in the
MWEPA. Our methods for conducting these counts have been consistent
since 2008, and thus should be comparable over time and reflect the
population trend. The minimum counts represent wolves and/or wolf sign
observed between November and early February each year. Because we
utilize a minimum count, we consider our results to serve as a
conservative population estimate (i.e., the true population is above
the reported count). Thus, extinction risk is appropriately
conservative and may be slightly
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overestimated based on utilizing minimum counts. For small populations
of mammals, population counts are likely the best method; however, we
also recognize that research is appropriate at this stage of the MWEPA
reintroduction (196+ wolves) to determine appropriate population
estimate methods in the future for a larger population of wolves (i.e.,
more than 300).
Comment: MWEPA population estimates are essentially point estimates
of the ``minimum number known alive,'' and their validity, as actual
population estimates, is dependent on whether the probability of
detection each year remains constant. These counts are an index of
population size, yet they are used to estimate population growth rate,
but there are two issues here. As mentioned, it is not known if the
probability of detection between years is constant (in this case it is
assumed), and there is no measure of precision around the count, so
whether the count of population size between years actually differs is
obscured.
Our response: See our response above. In addition, for small
populations of mammals that are hard to detect through sightability
models or double counts from the air (e.g., wolves avoid detection from
helicopters by simply not moving, and it is only through radio
telemetry that we are able to find collared wolves or the uncollared
wolves associated with them), minimum population counts are likely the
best method to determine or estimate population size. We have had very
limited success attempting to grid areas with helicopters to detect
wolves without radio telemetry, even with food caches placed in areas
of known wolf occupancy. Thus, we rely on tracks, scats, and remote
cameras to document uncollared packs.
Comment: Population estimates are made at the end of the year and
include all age classes; the number of adult and subadult wolves should
be presented separate from the number of pups surviving until the end
of the year.
Our response: We document the number of pups surviving until the
end of the year during our annual population count. We are currently
updating the content and format of our annual reports (for 2021 and
subsequent years) and will consider providing this information in
future annual reports.
Comment: The genetic objective of releasing 22 wolves does not
ensure that these wolves actually breed and contribute their allelic
diversity to the wild. Despite the realistic probabilities used to
predict the success of released wolves contributing their genes to the
population, they are still just predictions and should be stated as
such.
Our response: We have clarified our language to describe the future
conditions of the population where they are speculative.
Comment: The continued monitoring of the genetic variation present
in the wild Mexican wolf populations would be a more appropriate method
to assess genetic diversity and its erosion over time, compared to
assuming that when a certain number of wolves reaches breeding age they
will mate, their offspring will survive and reproduce, and genetic
diversity will be maintained.
Our response: The genetic objective we are establishing serves as
an indicator that we have transferred a large degree of the gene
diversity available in captivity to the wild population. Our genetic
monitoring will continue to include multiple components, including the
number of released wolves surviving to breeding age and their
reproductive success when known, as well as genetic metrics for the
population such as gene diversity and mean kinship. As stated in our
responses above, we recognize that we need to adapt our current genetic
and population monitoring strategies in the near future to address
logistical issues associated with monitoring a growing population and
ensuring our methods continue to produce reliable estimates to track
progress toward recovery. We are beginning to explore different
monitoring schemes and will discuss relevant findings or decisions in
upcoming program reviews.
Comment: Permitting or facilitating adaptive introgression may be
necessary to ensure the adaptive potential of the MWEPA population. Is
the Service planning an introgression zone between gray wolves in
Colorado and Mexican wolves?
Our response: Genetic monitoring of the MWEPA population will
continue to be necessary to ensure that genetic threats to the Mexican
wolf are lessened and alleviated. We currently collect and report
genetic data on individual wolves and the population based on the known
pedigrees of collared wolves and blood and scat samples taken in the
field; as explained in our responses above, we expect to modify our
genetic monitoring scheme over time. We recognize adaptive
introgression can be a useful genetic tool in certain situations. At
the current time, the Service does not have any intention to initiate
or allow adaptive introgression between gray wolves and Mexican wolves
as part of our genetic management of Mexican wolves. As of April 2022,
Colorado Parks and Wildlife has not solidified its gray wolf
reintroduction strategy; therefore, it is difficult to determine the
timing and extent of future dispersal contact that may occur between
gray wolves and Mexican wolves or the potential genetic effect of this
contact on Mexican wolves. As more information becomes available, we
will consider the implications in our management and monitoring
strategies.
Comment: Where did the policy of releasing 22 wolves that attain
breeding age, which are then assumed to contribute allelic diversity to
the wild population, originate from?
Our response: Miller (2017) explored various population viability
scenarios that demonstrated that 22 released wolves surviving to
breeding age, with some portion of surviving animals breeding, would
achieve representation in the wild of 90 percent of the gene diversity
available in captivity (see table 16 in Miller 2017). Specifically, the
``[EISx2]'' scenarios resulted in gene diversity retention relative to
the SSP for the MWEPA of 0.897-0.901, which is effective in achieving
the Service's objective to ensure the wild population represents 90
percent of the gene diversity in captivity.
Comment: It appears that inbreeding depression or reduced fitness
is likely occurring in the MWEPA. A reanalysis of data that explores
the effect of the inbreeding coefficient of wild pairs on whether they
successfully produce a litter, on litter size, and pup survival is
warranted with a more up-to-date dataset (1998 to 2021).
Our response: The Service agrees that reanalysis of inbreeding
depression will be a necessary task during the recovery of the Mexican
wolf. We will consider a reanalysis of inbreeding depression during the
5- or 10-year recovery plan evaluations in order to guide the ongoing
recovery effort; however, we have not solidified our plans for the
evaluations at this time. The inbreeding analysis conducted in
association with the revised recovery plan and supporting biological
report (USFWS 2017b, p. 33 and appendix C) is based on the largest,
most comprehensive, and up-to-date data set available (89 litters over
16 years). It suggests that inbreeding may affect the probability of
producing a litter but is not significantly affecting litter size, as
previously thought (Fredrickson et al. 2007).
Comment: Illegal take of Mexican wolves has been high, particularly
in the last decade. Although there is a comprehensive human-wolf
conflict management program in place, its effectiveness or relation to
allowable
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forms of take is not clear; will restricting forms of legal take reduce
illegal take?
Our response: We have not conducted a formal assessment of our
human-wolf conflict management strategies at this time to determine
their individual efficacy in reducing human-caused mortality of Mexican
wolves. The purpose of the take restrictions in this rule is to ensure
that the management flexibility authorized in the MWEPA supports the
long-term conservation and recovery of the Mexican wolf, and that the
likelihood of take is reduced during conflict situations in which other
management options are available. We note that we are currently
revising the revised recovery plan to diversify and strengthen the
recommended actions the Service and our partners may implement to
reduce human-caused mortality. We will assess the efficacy of our
efforts to reduce human-caused mortality in the 5-year review of the
revised recovery plan in 2023.
Comment: Under section 4(e) of the ESA (``Similarity of Appearance
Cases''), the Secretary of the Interior can deem another species as
endangered or threatened if that species is so similar in appearance
that curtailing take of that species would help conserve the endangered
species. In this case, preventing take of coyotes (Canis latrans),
which can be confused with the Mexican wolf, may help curtail illegal
take of wolves.
Our response: A section 4(e) ``similarity of appearance'' listing
would be a separate regulatory action under the ESA and is therefore
beyond the purview of this rule.
Comment: Cross-fostering and supplemental feeding appear critical
to achieving genetic goals. Carroll et al. (2019) argued that
supplemental feeding could mask the effects of inbreeding; however,
relevant field data indicate survival of wolf pups that are
supplementally fed is likely enhanced and this methodology will likely
increase the rate at which 22 individuals are integrated into the
population.
Our response: We agree. We supplementally feed most packs (a few
packs are logistically too difficult to feed) that have cross-fostered
pups to increase the likelihood that cross-fostered pups survive.
Comment: Carroll et al. (2019) criticized the population viability
model for maintaining a long-term reliance on supplemental feeding
because it provided a demographic boost that was important in achieving
demographic goals, but Miller (2017) also demonstrated that if
ultimately it is determined that supplemental feeding is inappropriate,
there are other ways to maintain growth in the wolf population (e.g.,
boosting adult survival).
Our response: We agree. We are committed to maintaining the growth
of the Mexican wolf population until we reach our recovery goals
through a variety of management actions; we expect to reduce
supplemental or diversionary feeding in the future as we scale back
management support of the population in association with meeting
recovery goals and documenting that threats have been alleviated.
Comment: The population viability model (Miller 2017) did not
include density dependence or a link between density and reproduction.
The model results may be reliable for near-term population projections
(5 to 10 years) but likely underestimate extinction probabilities and
overestimate genetic diversity in the long term, because they
overestimate effective population size from too many breeding females.
The population viability model could be revised in the future by
updating the vital rates populating the model and including density-
dependent effects and group sizes, particularly if density increases.
Our response: Miller (2017) did not include density-dependent
reproduction in the model because there is no scientific evidence
supporting a link between the number of pups born, their survival, and
population density (p. 6). The model did include a density-dependent
mortality function but acknowledged that Mexican wolf density in the
MWEPA is low enough that density-dependent effects on mortality are not
likely to occur (ibid, p. 7). We intend to revisit the population
viability model in the future and will investigate data for any
demonstrable changes from previous projections. For instance, we have
observed higher annual growth rates than predicted by the model.
Comment: The proposed rule states that if no released wolves were
removed during the prior year, then any removals that were conducted
would not negatively impact gene diversity. This may not be true. It
depends on which wolves are removed; for example, removing diverse
wild-born individuals could have a negative effect on gene diversity if
those wolves have new, advantageous mutations.
Our response: We understand the perspective offered by the reviewer
but consider it important to recognize that we may not always have the
ability or information to determine whether a particular wolf has a
new, advantageous mutation when we are trying to resolve a conflict
situation. We have revised our language where relevant to ensure we do
not suggest that wild wolves may not have valuable gene diversity. Our
approach to count the number of released wolves surviving to breeding
age in both the genetic objective and associated benchmarks is focused
on the transfer of captive gene diversity to the wild and supporting
the success of those wolves to reach breeding age.
Comment: Although Miller (2017) used population and vital rate
estimates from Mexican wolves, estimates of survival of Mexican wolves
were made using the Heisey and Fuller (1985) method, and this method
has assumptions and sampling requirements that can be difficult to
verify. Given the large number of wolves that have been radio-collared
over the course of the recovery program, estimates of survival could be
explored using more robust statistical models, such as Cox-proportional
hazard models or known-fate models, or integrated population models.
Such modeling approaches should be considered in subsequent analyses.
Our response: We will consider alternative analytical approaches in
the future for estimating survival; however, the methods utilized are
within scientific standards, particularly for a population with limited
emigration or immigration (Miller 2017, appendix D, pp. 67-72).
Comment: Beyond decreasing the probability of wolf dispersal, were
other potential implications of a border wall and the associated
increase in human disturbance (e.g., related to law enforcement)
considered?
Our response: We did not consider the implications of the border
wall during the development of the regulatory revisions in this rule
because we do not think the border wall or associated human disturbance
will affect the ability of the MWEPA to support a robust population of
Mexican wolves. We agree that the border wall could affect wolf
territory configuration and dispersal in localized areas near the
border occasionally, but not to an extent that threatens the
persistence of the population or its ability to achieve the population
objective. Habitat along the border is typically unsuitable, or has low
suitability, and we do not expect wolves to occupy this area
consistently.
Comment: There does not appear to be a numerical trigger to
distinguish when different allowable forms of take are permitted. The
proposed rule would allow the population to be reduced to a low number
as long as no released wolves are part of the allowable take. Recovery
goals are both genetic and numerical; with no numerical threshold
[[Page 39359]]
for when proposed allowable take is permitted or not, progress toward
recovery could be hindered.
Our response: This rule does not include a numerical trigger that
dictates the utilization of allowable forms of take in relation to
population size, as our focus in this rule is to comply with the March
31, 2018, order to ensure that the expanded take flexibility authorized
by the 2015 10(j) rule is protective of genetic diversity. We expect to
adjust the amount of take allowed by the Service and conducted by the
Service and our partners, through our management actions as needed, to
ensure that adult wolf mortality remains below 25 percent (USFWS 2017a,
pp. 20-22). We currently do not consider the level of take expected to
occur through the three forms of take that are restricted in this rule
to affect population demography (USFWS 2022a, p. 117).
Comment: Much of the rationale in the proposed rule's Regulatory
Flexibility Act discussion is based on Ramler et al. (2014). This study
was a non-random survey of 18 ranches and a correlation to calf
weights. The subsequent assumptions in the proposed rule about the
number of ranches affected are simple, as noted. The rule also states
that effects on livestock production are not significant, and do not
need to be addressed when not significant.
Our response: Ramler et. al (2014) found no evidence that wolf
packs with home ranges that overlap ranches have any detrimental
effects on calf weights. Primary factors that contributed to weight
loss were determined to be associated with climate and individual ranch
husbandry practices. However, the study did find that for ranches that
experienced a confirmed cattle depredation by wolves, calves on average
experienced a weight loss of approximately 22 pounds, or 3.5 percent of
body weight. Ramler et. al (2014) was one of several studies used to
estimate the indirect effects of wolf presence on weight loss due to
associated stresses.
Comment: There is mixed evidence in the literature as to how
compensation rates should be determined to be most effective at
mitigating wildlife-livestock conflicts. Some argue that direct
compensation programs may create a moral hazard problem (see e.g.,
Nyhus et al. 2005), which would imply that 100 percent (or higher)
compensation reduces incentives for producers to undertake other risk-
reducing management activities; thus, full compensation may lead to
more depredations. In contrast, other literature suggests that
compensations ratios need to be greater than 1 (i.e., more than 100
percent compensation for confirmed depredations) to fully compensate
producers for the economic impacts of wolves, including unconfirmed
depredations and the indirect effect of depredations (e.g., Ramler et
al. 2014; Steele et al. 2013; Laporte et al. 2010; Sommers et al. 2010;
Oakleaf et al. 2003).
Our response: We have followed, and will continue to follow, the
available literature on this topic, which we agree suggests that
different approaches may be relevant in determining adequate and
appropriate depredation compensation and does not reach consensus.
Livestock producers in the MWEPA currently have compensation programs
available in Arizona and New Mexico, including compensation for
confirmed depredations and access to collaborative nonlethal conflict
avoidance tools and techniques.
Comment: To estimate the potential value of depredated livestock,
the USFWS uses a 10-year weighted average of market values, where
weights are determined by the proportion of depredated animals that are
calves versus cows and prices per hundredweight (cwt) were based on
500-pound (lb) calves and 1,000-lb cows (USFWS 2021, p. 124). These
assumptions result in an expected average value of $1,094.72 per
depredated cow/calf based on 2020 dollars. This approach is not
inherently flawed--it can provide a reasonable average estimate over
long-time horizons--but it oversimplifies the cattle market and the
potential economic impacts of a depredation of a specific animal at a
specific time and place.
Our response: Our economic analysis presented data on cattle prices
since 1996. Over that period, the price for cattle in 2020 dollars (per
hundred pounds, or cwt) ranged from a low of $94.92 in 1998, to a high
of $169.83 in 2014. The average price during this period was $117.50/
cwt compared to the average price over the last 10 years (2010-2019),
which we used in our analysis, of $134.45/cwt.
There are many independent factors affecting cattle prices on a
yearly basis that lie beyond the control of ranchers. These include
supply-side factors such as the quality and quantity of cattle from
other areas and demand-side factors related to consumer choices.
Independently, ranchers try to raise their optimal herd size based on
local factors such as the cost of forage, labor, medical expenses, loan
rates, and expected sales price. It is beyond the scope of our study to
try and develop a detailed, predictive macroeconomic model of the
Arizona/New Mexico cattle industry. Recognizing the numerous factors
that can influence prices and quantities, we decided to limit our
selection of market prices to only the last 10 years of data because
including older data would pick up historical influences on market
prices and quantities that more likely than not are not as influential
or relevant in today's market. We agree that relying on the last 10
years of data to predict future cattle prices represents a simplified
approach, but as noted by our peer reviewer, the approach is not flawed
and is reasonable given the limitations.
Comment: The USFWS references the documented indirect effects of
predator pressure on livestock weight gain, and explicitly attempts to
account for it in their calculation of potential economic impacts.
Other indirect effects, however, do not appear to be considered or
accounted for. It would, admittedly, be difficult to accurately account
for the full range of indirect effects.
Our response: Our economic analysis recognizes that in addition to
the direct effects that the presence of wolves can have on cattle
stocks (i.e., depredations), there are a number of potential indirect
effects on the herds as well. One of these indirect effects, which we
specifically attempt to account for in our economic analysis, is the
effect of stress on cattle herds foraging within the vicinity of
wolves. As our reviewer points out, indirect effects may include weight
loss; reduction in conception rates; reduced utilization of available
forage; increased risks of injury, illnesses, and diseases; and general
effects on manageability. We have attempted to review the existing
literature on these factors, and where reasonable data exists, we have
attempted to use this information to quantitatively estimate the
indirect effects on cattle herds due to the presence of wolves.
Specifically, we considered the impact of weight losses on affected
herds and how that may impact the profitability of ranching operations.
As our peer reviewer notes, it is difficult to model the other specific
effects, many of which would also manifest themselves in the form of
weight loss, due to a scarcity of applicable studies that attempt to
better understand all of these interactive effects that may be caused
by the presence of wolves. We believe that by accounting for the
indirect effects of potential weight losses, we have realistically
captured the most significant financial impact of indirect effects on
affected ranches.
[[Page 39360]]
Comment: The proposed rule explicitly acknowledges potential
management responses, noting that estimated costs are likely an
overestimate since proactive and reactive management tools are
available to reduce the indirect effects associated with weight loss;
however, the costs of said management tools do not appear to be
explicitly accounted for within estimates of the economic impact on
small enterprises (although some may be offset by federally funded or
subsidized programs). Additionally, some existing literature (see e.g.,
Rashford et al. 2010; Lehmkuhler et al. 2007) has identified a range of
potential costs associated with managing livestock in the presence of
wolves, including fence maintenance and repair, veterinary costs,
reporting/verification costs, and other management adjustments.
Our response: Our economic analysis recognizes the fact that ranch
operations within the vicinity of wolves may experience indirect
economic effects associated with depredations. We recognize there are
several potential categories of indirect economic effects, including
stress-related effects of wolf presence on the herd, additional labor
time for ranch owners to pursue depredation claims, and the investment
in additional range labor time and materials in order to prevent
depredations (USFWS 2014, chapter 4, pp. 29-48). The FSEIS attempted to
reasonably estimate the financial cost of several of these indirect
effects on affected ranches based on the studies available that
provided credible research and results that could be incorporated into
the analysis. We specifically were able to factor in an estimate for
owner-operator labor time associated with processing depredation
claims, as well as estimating the financial impact of expected weight
losses on a stressed herd.
We were unable to find research that would enable us to also
attempt to credibly measure the financial impact associated with
undertaking additional measures to prevent depredations. While there
are some studies that do recognize these impacts (e.g., Rashford et al.
2010; Lehmkuhler et al. 2007) in association with other indirect
impacts (e.g., weight loss) in association with the presence of gray
wolves, we were unable to extrapolate any findings that could be
credibly applied to our analysis. We note that by explicitly accounting
for the financial impact of weight loss of stressed herds that we are,
in fact, accounting for some of the interactive costs associated with
preventative measures, as such measures would not only serve as a
detriment to depredations but also serve to reduce stresses on the herd
and any associated weight losses. Relatedly, our Mexican wolf recovery
program provides both management and financial assistance to ranchers
to minimize potential wolf-cattle conflicts. Our latest Mexican wolf
recovery program progress report (number 22, January-December 2019)
discusses how the Service engaged in such practices during this period
and intends to develop a future database to aid in monitoring and
evaluating the effectiveness of such activities (USFWS 2019, pp. 37-
39).
Comment: Given there is only one population of Mexican wolves under
the Service's control, coupled with the uncertainties associated with
alternative population sources, it is unclear how the MWEPA cannot be
considered essential.
Our response: Neither section 10(j) of the ESA nor our implementing
regulations specify that management control of nonexperimental
populations is a factor in determining whether an experimental
population is essential.
Comment: The MWEPA holds most of the remaining wild Mexican wolves
(more than 90 percent), including several wild-born generations. It is
highly likely that new genetic mutations have emerged in the wild,
providing an evolutionary avenue for locally adapted Mexican wolves.
Those alleles will not be in the captive population or Mexico's
population, thus making the MWEPA essential.
Our response: We agree that there is potential for new genetic
mutations to have emerged, or to emerge in the future, in the wild that
may benefit the adaptive potential of Mexican wolves in the MWEPA.
However, this fact alone does not equate to essentiality as defined by
statutory language or our regulations.
Comments From Federal Agencies
Comment: The Service should clarify its process to consider whether
future range expansion beyond the MWEPA via natural dispersal is
appropriate for the Mexican wolf due to the potential effects of
climate change, and whether the increase in genetic diversity from the
genetic objective is sufficient to provide adaptive capacity against
climate change. The Service should consider the updated National Fish,
Wildlife and Plants Climate Adaptation Strategy and consider
implementing an adaptive approach where clear trends in wolf movements
north of I-40 result in consideration of expanded experimental
population boundaries.
Our response: The Service's recovery strategy for the Mexican wolf
in the revised recovery plan includes discussion of the geographic and
genetic representation needed for long-term conservation and recovery
of the Mexican wolf. The revised recovery plan builds two evaluation
periods into the recovery process to ensure that the plan's strategy
continues to be appropriate and effective (USFWS 2017a, p. 26);
therefore, although we do not currently consider climate change a
threat to the Mexican wolf, we will continue to revisit this issue as
we evaluate our recovery strategy in the future. We also refer the
commenter to our discussion of climate change related to our strategy
for Mexican wolf recovery in our response to public comments on the
revised recovery plan (see USFWS 2017c, pp. 12-13).
Comments From States
Comments we received from the States regarding our October 29,
2021, proposal to revise the regulations for the nonessential
experimental population of the Mexican wolf in the MWEPA are addressed
below. We note that some comments from the States expressed support for
various features of the rule, such as the Service's intention to align
the 10(j) designation with the revised recovery plan, the Service's
current focus on pursuing recovery within the historical range of the
Mexican wolf, and the Service's intention to capture and return to the
MWEPA or captivity any Mexican wolf that disperses outside of the
MWEPA. We do not provide responses to statements that are consistent
with our approach. In other instances, we have incorporated information
supplied in these comments directly into the rule and similarly do not
restate those issues here.
Comment: One State agency requested that we add language to the
regulatory text in the rule stating that we have developed a
10(a)(1)(A) permit to allow for specific management activities within
and outside of the MWEPA and clarifying that we will capture and return
to the MWEPA or place in captivity Mexican wolves that travel outside
of the MWEPA.
Our response: We state our intention to manage wolves that disperse
beyond the MWEPA through the 10(a)(1)(A) permit in the preamble of the
rule (see Management Restrictions, Protective Measures, and Other
Special Management, above). However, only management activities that
take place within the experimental population boundaries are included
in the regulatory text of the rule.
[[Page 39361]]
Comment: Maintenance of the nonessential experimental population
designation is critical to the Service's ability to implement
responsive management actions such as cross fostering, translocations,
and removals. Maintaining the existing designation is also important
for maintaining the trust of the public and other agencies as a
precedent for other reintroduction efforts under the ESA's section
10(j).
Our response: The Service acknowledges the importance of
maintaining the trust of our partners. An essentiality determination
under section 10(j) of the ESA is based on whether the best available
information supports that the population is essential to the continued
existence of the species. Based on the best available information, we
have determined the MWEP to be nonessential. We note that the primary
difference between an essential and nonessential experimental
population is the requirement to conduct interagency consultation under
section 7(a)(2) of the ESA for populations determined to be essential
and the potential to designate critical habitat under section 4(b)(2)
of the ESA. Regardless of the designation as an essential or
nonessential experimental population, members of the experimental
population will be treated as a threatened species which allows for
developing regulations to allow for responsive and flexible management.
Comment: The final rule should stress that the new population
objective is not intended to portray an unlimited number of wolves
growing indefinitely, but rather recognizes natural variation around a
target population size.
Our response: We discuss our expectations for the future growth of
the population in the FSEIS (USFWS 2022a, pp. 24, 28, table 2.1). We
have ensured that the preamble of this rule does not suggest that we
expect an unlimited number of wolves growing indefinitely in the MWEPA
under the revised population objective; we point to our statement in
the proposed rule that, under the proposed population objective, we
would continue to manage Mexican wolves in the MWEPA to maintain a
population average greater than or equal to 320 wolves until delisting
occurs (86 FR 59953, October 29, 2021, p. 59959), which remains
consistent with the final rule.
Comment: The final rule should include timeframes or guidelines for
when the States can request management of Mexican wolves if adverse
impacts to ungulates are occurring.
Our response: The final rule provides this information at Sec.
17.84(k)(7)(vi)(E).
Comment: Recent efforts to cross-foster genetically valuable
Mexican wolf pups from captivity to the wild are demonstrating that
this approach can be successfully used to achieve the proposed genetic
objective. It is resulting in improvements in the population's gene
diversity, mean kinship, and founder genome equivalents. The Service is
on track to achieve the benchmark in the recovery plan for 9 released
wolves to survive to breeding age at the 5-year review.
Our response: The Service and our partners have committed
significant resources since 2014 to test cross-fostering as a release
strategy to improve the genetic health of the MWEPA. We agree that this
technique appears to be proving successful and has become a valuable
tool to address genetic threats in the MWEPA. As of April 1, 2022, 13
released wolves surviving to breeding age have been counted toward the
genetic objective and genetic recovery criterion (USFWS files).
Comment: While the proposed genetic and population objectives are
appropriate and necessary for the recovery of the Mexican wolf, they
may result in additional hardships for livestock producers. Therefore,
a companion provision should be included in the rule to implement an
aggressive program to improve the coexistence component of the recovery
program.
Our response: The Service acknowledges that the increased number of
wolves in the MWEPA could result in impacts to livestock producers and
that permit restrictions will decrease the ability of some livestock
operators to assist in conflict resolution in certain situations. We
will continue to work with our partners and livestock operators to
expand and improve our coexistence efforts as an integral part of the
recovery program, but we have not added any mandatory coexistence
measures to the regulatory text of this rule.
Comments From the Public
Comment: Many commenters stated that a single population of an
average of 320 wolves in the MWEPA is insufficient for recovery. Many
of these commenters stated that a metapopulation of three populations
with 750 to 1,000 wolves is necessary for recovery because multiple
interbreeding populations are necessary for resiliency and increasing
genetic diversity. Other commenters discussed the concept of ecological
effectiveness, recommending a population objective of 500 breeding
animals.
Our response: These commenters did not provide new information that
the Service has not already considered and responded to in its
development of the recovery criteria in the revised recovery plan for
the Mexican wolf (USFWS 2017c, pp. 19-20) or the population objective
for the MWEPA (85 FR 20967, April 15, 2020; USFWS 2021, pp. 202-206).
Therefore, we did not make any changes to this rule in response to
these comments.
Comment: Commenters questioned or expressed concern with the
recovery strategy to have one population in the MWEPA and one in
Mexico, stating that dispersal between the two areas would be
infrequent, associated with a high risk of mortality, and dependent on
successful navigation of low habitat quality and an impermeable border
wall.
Our response: We provide our rationale for the recovery strategy
for the Mexican wolf in the revised recovery plan and address issues
such as dispersal between Mexican wolf populations in the United States
and Mexico. The 2015 10(j) rule revisions included the extension of the
experimental population boundaries to the international border with
Mexico in recognition that management of dispersing wolves between the
two populations would be necessary. We addressed comments about this
topic in the DSEIS (USFWS 2021, pp. 199-202) and previously in our
response to public comments on the revised recovery plan (USFWS 2017c,
p. 18).
Comment: One commenter expressed concern that under the proposed
population objective, the requirement of an 8-year average of 320 with
the last 3 years stable or increasing could allow for the Service to
translocate or remove/take around 150 wolves at some point after the
population objective has been reached and exceeded.
Our response: The Service is establishing a population objective in
this rule that will result in a robust population that contributes to
recovery; we intend to manage the population in accordance with meeting
and maintaining this objective.
Comment: A commenter mentioned the proposed rule does not include a
human-caused mortality criterion or management actions that will
substantively address this issue.
Our response: Human-caused mortality is a broad term that
encompasses several forms of mortality for Mexican wolves, including
vehicular collision, shooting, trapping, and management removal. This
rule maintains multiple provisions from the existing regulations in the
2015 10(j)
[[Page 39362]]
rule that address the threat of human-caused mortality, including
prohibitions to restrict the take of Mexican wolves (Sec. 17.84(k)(5))
and limitations on activities that may disturb Mexican wolves and
affect their persistence (Sec. 17.84(k)(8)). In addition, this rule
provides new restrictions on three forms of take that could result in
human-caused mortality, as well as providing a revised population
objective to ensure the population continues to grow as necessary to
alleviate demographic threats. In addition, the Service is expanding
our efforts to address human-caused mortality in our revisions to the
revised recovery plan (USFWS 2022b, pp. 30-33).
Comment: Several commenters noted the delay in receiving
compensation for depredations and stated that an increase in the wolf
population will make the situation more severe for livestock operators.
Our response: The Service is aware of the delays in receiving
compensation in previous years. The Service's Wolf Livestock Loss
Demonstration Project Grant Program for eligible States and Tribes has
served as the primary funding source for compensation and requires a
50:50 non-Federal match; most delays in receiving compensation have
occurred as a result of grant funding and match funding not being
available at the same time. The Service has made improvements to the
Wolf Livestock Loss Demonstration Project Grant Program and worked with
its partners to secure match funding, helping to alleviate this issue.
Comment: One commenter noted that the Service is inconsistent
because it says that no unique genes would be lost if released wolves
did not survive in the MWEPA, but then it uses genetic importance as a
reason not to remove wolves during conflict situations.
Our response: Wolves released to the wild from captivity are
considered surplus wolves whose genes are represented by related wolves
still held in captivity. Therefore, a released wolf could be replaced
with a related surplus wolf from captivity if necessary. However,
because we are trying to improve gene diversity in the MWEPA, it is
important for released wolves to survive and breed so that genes from
captivity that are currently underrepresented in the wild become
integrated into a more genetically diverse MWEPA population.
Comment: Multiple commenters questioned whether the Service has
objectives related to ensuring specific representation of the three
founding lineages of the captive population, such as to achieve 50
percent, 25 percent, and 25 percent, respectively, of the Certified
(McBride), Ghost Ranch, and Aragon lineages.
Our response: We currently focus on increasing founder
representation rather than lineage representation in the wild; however,
we do not have specific objectives related to this metric at the
current time.
Comment: Many commenters discussed the basis of the proposed
genetic objective to ensure that 90 percent of the genes in the captive
population are expressed in the MWEPA population. Several commenters
noted that wildlife managers typically set genetic retention goals
relative to the current source population. These commenters questioned
or critiqued the Service's approach to aim to retain 90 percent of gene
diversity at 100 years in the future because the projected diversity in
the captive population 100 years in the future is a much lower value.
These commenters expressed concern over the already-depleted genetic
status of the captive population and the concept of tying the genetic
future of the wild populations to the ongoing deterioration of gene
diversity in captivity. Another commenter stated that the SSP uses 90
percent gene retention as a standard in conserving some captive
populations, but this does not make it a ``community of practice
standard'' as claimed in the revised recovery plan nor is it
appropriate for the Service to use it as a foundation for recovery
criteria.
Our response: We expect to achieve the genetic objective in this
rule within 8 years.
We used a metric (i.e., the number of animals that survive to
breeding age) as the basis of the revised recovery plan genetic
criterion that coupled model performance with performance of the wild
populations (Miller 2017, entire) to ensure that a large degree of the
gene diversity available in captivity is transferred to the wild
population to reduce the likelihood of genetic threats such as
inbreeding. We provide our rationale for our objectives and strategy in
the revised recovery plan (USFWS 2017a, pp. 13-15, 22-24; USFWS 2017c,
pp. 28-29), which formed the basis for the genetic objective in this
rule.
Comment: Some of the commenters recommended releasing adult pairs
with pups instead of, or in addition to, cross-fostering captive
puppies into wild dens because adult wolves could more quickly affect
the genetics of the MWEPA and because adult releases have had a higher
success rate. Several of these commenters stated that the concept of
``effective migrants'' is a better scientific principle than released
wolves surviving to breeding age because it ensures that reproduction
of released wolves takes place and that genes from captive wolves are
integrated into the population. These commenters stated that the
Service's proposal is insufficient scientifically for genetic recovery
and should be replaced by actual evidence of increased heterozygosity
and increased allelic diversity in the population, validated by
monitoring to ensure retention. Commenters stated that the rule should
commit to all release strategies to achieve genetic objectives.
Our response: This rule maintains the zone definitions of the 2015
10(j) rule, which allow for the release and translocation of adult and
sub-adult wolves or puppies in specific geographic locations within the
MWEPA. While we have stated our current preference for cross-fostering
puppies compared to releasing adult wolves, this rule does not alter
the availability of the release strategies supported by the commenters.
We provide our rationale for using ``released wolves surviving to
breeding age'' as the metric for the establishment of a genetic
objective from the MWEPA in our FSEIS (USFWS 2022a, pp. 11, 24-26) and
have previously addressed this in our response to comments on the
revised recovery plan (USFWS 2017c, p. 79).
Comment: Commenters recommended that released wolves should be
tracked, and that genomic survey and analysis should be used to
determine how many released captive wolves have contributed genetically
to the wild population and what their actual contribution has been.
Commenters also restated the recommendation for a replacement release
objective, in which the Service would release captive wolves to make up
for wolves lost due to removal or illegal killing.
Our response: We track released wolves using global positioning
system (GPS) or radio-collars and provide data on survival and
reproduction of released wolves in quarterly and/or annual reports. We
establish our expectations for releases and translocations in our
annual Initial Release and Translocation Plan and during annual
management meetings with the SSP. Both of these processes are
reflective of the needs of the population, including awareness of
demographic rates, progress toward management objectives, or other
special management considerations.
Comment: One commenter recommended that at a minimum, captive
releases should result in increasing the level of gene diversity,
founder genome equivalents, and mean kinship to a level at least 50
percent
[[Page 39363]]
between that expected in the captive population and that expected in
the wild population, given no releases, because if achieved, this could
relieve some of the deleterious impacts of inbreeding depression in the
wild population.
Our response: We will continue to monitor the gene diversity,
founder genome equivalents, and mean kinship of the MWEPA, as stated in
this rule in response to other comments, to validate that genetic
threats are being alleviated over time. There is no definitive standard
in the literature upon which to assess the extent to which deleterious
impacts of inbreeding depression would be reduced according to the
commenter's recommendation, although we recognize it as a protective
recommendation that strives to ensure adequate gene diversity in the
MWEPA for the long-term health of the population, as consistent with
the purpose of our genetic objective.
Comment: One commenter stated that it is unlikely that the pedigree
of cross-foster pups released to the wild would closely match the
pedigree of the releases simulated by the population viability model
used in the revised recovery plan (Miller 2017); therefore, the model
results suggesting that 22 released wolves surviving to breeding age is
sufficient may not be robust. Other commenters questioned whether
cross-foster releases have less genetic impact than adult releases
because cross-fostered pups come from the same litter.
Our response: The Miller 2017 population viability model ran 1,000
iterations to explore the range of outcomes possible for each scenario.
We agree that any single model run may not accurately represent the
same specific wolves that we have released in the MWEPA, but the model
results are robust in estimating that 22 released wolves will ensure
that approximately 90 percent of the gene diversity available in
captivity is represented in the wild because the results stem from
averaging the results of many iterations (see Miller 2017, p. 16). We
recognize that cross-foster pups come from the same litter and are
therefore related, but we do not expect all pups placed in a wild den
to survive; that is, we expect pup survival of approximately 50 percent
during their first year of life. Therefore, the 22 released wolves
surviving to breeding age will come from different litters placed
during different cross-fostering events. Regardless, the wolves
prioritized for release to the wild are those that have gene diversity
that is not represented, or that is underrepresented, in the MWEPA and
that will, therefore, be beneficial to release.
Comment: Some commenters questioned whether the SSP can continue to
support the number of cross-foster events the Service has conducted in
recent years or raised concern that cross-fostering could lead to
higher relatedness in the MWEPA if cross-foster puppies continue to
come from the same captive pairings each year.
Our response: The Service works with SSP facilities on an annual
basis to plan breeding events to support cross-fostering in the MWEPA.
The number of breeding events that can be supported across SSP
facilities and the relative genetic importance of specific pairings
(breeding events) to produce puppies that would provide unique gene
diversity to the MWEPA are integral components of our planning. The SSP
can continue to provide puppies for cross-fostering based on the number
of breeding age animals in the population and the number of facilities
available to support breeding events.
Comment: One commenter questioned how it is possible that captive
wolves being released could have gene diversity that is not represented
in the MWEPA population, given that the Service has been releasing
wolves since 1998.
Our response: No new genes have been added to the captive
population since the merging of the three founding lineages occurred in
the mid-1990s; however, the captive population still contains genes not
represented in the MWEPA because wolves with those genes have either
not yet been released, have not been integrated into the population due
to mortality, or are significantly underrepresented in the MWEPA.
Comment: One commenter stated that the frozen semen bank developed
by the SSP contains genetic variation not currently expressed in the
wild population. The commenter recognized that it may take several more
years to develop artificial insemination procedures from frozen semen
but stated that the Service should pursue this strategy in addition to
ensuring 22 released wolves survive to breeding age.
Our response: We agree that the frozen semen bank may offer an
opportunity to infuse additional gene diversity to the MWEPA. We will
continue to explore and support opportunities to test and utilize
technological procedures to slow the loss of gene diversity in the
captive population and ensure the representation of available diversity
in the wild as these procedures become available.
Comment: Genomic survey and analysis in wolves is readily available
and inexpensive compared to the overall cost estimated for Mexican wolf
recovery. In 2022, the best state-of-the-art scientific information,
such as actual genetic variation using genomic survey and analysis,
should be used for this important aspect of the recovery plan.
Our response: We agree that genomic survey and analysis techniques
are available, may be affordable, and can be further integrated into
our ongoing monitoring of the genetic status of the MWEPA population.
Comment: One or more commenters stated that the inbreeding
depression documented by Fredrickson et al. (2007) likely still exists
in the population, because it would be unlikely for it to disappear
without an extreme breeding scheme. A commenter noted that natural
selection would be more likely to result in the purging of inbreeding
if supplemental feeding were stopped, as supplemental feeding may be
improving the survival of inbred litters. This commenter recommended
that any future evaluation of the genetic fitness of Mexican wolves
contributing to a determination on their recovery must be made in the
absence of supplemental feeding for at least five generations (20
years). Another commenter stated that viability estimates for the
population from the population viability model (Miller 2017) would
likely be different if the effect of inbreeding had been calculated
differently for packs that are supplementally fed versus those that are
not. This commenter suggested looking at larger, longer-term datasets
from other gray wolf populations to inform input parameters related to
inbreeding. A commenter stated that supplemental feeding is likely
accelerating inbreeding accumulation and the loss of genetic variation
in the population.
Our response: As stated in our responses to other comments, we
expect to conduct additional analyses related to inbreeding during the
recovery process for the Mexican wolf. When we collect that future data
set, we can determine the appropriate methods for incorporating data
from packs/litters that have been supplementally fed. We expect to
decrease the use of supplemental feeding as the population reaches
recovery and some management activities are curtailed; this may include
assessing genetic health within the context of a different (lesser)
supplemental feeding regime such as suggested by the commenter.
Comment: One commenter questioned what will happen if 22 released
wolves have not survived to breeding age by
[[Page 39364]]
2030, which is the end of the benchmarks proposed by the Service.
Our response: If 22 released wolves have not survived to breeding
age by 2030, we will extend the temporary restriction until the genetic
objective is reached, using the same annual process that accompanies
the benchmarks to evaluate whether permits for take on Federal and non-
Federal land will be issued in the year ahead.
Comment: Several commenters noted that very few take permits have
been issued to the public. Some commenters made this statement as
support that take restrictions are not needed, while others stated that
the Service and its partner agencies have been the ones taking Mexican
wolves and the proposed revisions to the regulations do not limit this
form of killing and removal. One commenter stated that the Service
acknowledges in the 2017 biological report (USFWS 2017a) that
management removals function as a type of mortality to the population,
and therefore the Service needs to address its own level of removal in
the 10(j) rule.
Our response: The Service considers it important to retain the
ability to remove wolves in specific situations in which nonlethal
management actions are ineffective at resolving conflicts. The agency's
level of removal is consistent with the recovery needs of the Mexican
wolf, as evidenced by the growth of the population for the last 6 years
during the implementation of the 2015 10(j) rule.
Comment: One commenter stated that the proposed revised take
provisions do not result in significant differences in take compared to
the 2015 10(j) rule. One commenter stated that basing the projection on
the number of permits that have been issued does not limit what could
be issued in the future.
Our response: The Service did not intend for the take provisions in
the 2015 10(j) rule to lead to an excessive level of take that would
hinder the recovery of the Mexican wolf, nor have we used any take
provision excessively since implementation of the 2015 10(j) rule
began. However, we recognize that as written in the 2015 10(j) rule,
several of the take restrictions provide expanded take flexibility
without ensuring commensurate progress toward recovery. To analyze the
possible effects of the take provisions on Federal and non-Federal
land, we extrapolated the number of permits that may be issued in the
future based on our current level of permit issuance (USFWS 2022, pp.
28-29, table 2.1). We agree that based on this approach, there are not
large differences in take compared to the 2015 10(j) rule, and that it
would be possible to issue many more permits than our projections
estimate. The potential for issuance of a large number of permits
emphasizes that without limiting or restricting the take provisions,
this rule may not support the long-term conservation and recovery of
the Mexican wolf. By temporarily restricting three take provisions
during a critical period of recovery, as we do in this rule, we ensure
that genetic threats to the Mexican wolf are rapidly lessened and
alleviated.
Comment: One commenter questioned what the incentive is for Service
staff to achieve the benchmarks, since not meeting the benchmarks will
continue to result in restricted take.
Our response: The Service considers the permits to be a form of
management flexibility to address conflict situations across the MWEPA,
in particular as the wolf population grows and the number of conflicts
increases. Therefore, the Service would utilize the permits when doing
so will be appropriate in the context of the long-term conservation and
recovery of the Mexican wolf; in other words, the incentive for Service
staff to achieve the benchmarks is to reach recovery targets and to
increase our management flexibility to address conflicts.
Comment: A number of commenters stated that the Service and State
agencies should ban coyote hunting in the MWEPA due to the loophole
provided by the McKittrick policy for people who shoot wolves claiming
they thought they were coyotes.
Our response: Regulating coyote hunting is beyond the scope of
these revisions that the Service is taking to comply with the March 31,
2018, order.
Comment: Several commenters recommended that the Service should not
remove wolves for natural predation on wild ungulates. These commenters
recommended the Service remove the take provision for unacceptable
impact to a wild ungulate herd. In contrast, other commenters
questioned whether the Service has any mechanisms to address drastic
declines in elk herds during the (estimated) 6 years in which State
game and fish agencies would not be able to request take in response to
an unacceptable impact to a wild ungulate herd. One of these commenters
stated that the level of wolf removal that may be needed after the
period of restriction is likely to be much more severe than without the
restriction. Several other commenters questioned why we would need to
limit the State game and fish agencies from requesting to utilize the
unacceptable impact take provision if translocation of wolves is an
option, or why the restriction is necessary at all given the strict
process by which the Service would approve any requests made by the
States. This commenter clarified that the Service's statement that we
would not know how much take would occur is false, because the Service
would have to approve the take.
Our response: Mexican wolf predation on wild ungulates occurs as a
normal part of Mexican wolf ecology. We recognize that in infrequent
situations, predation could result in a drastic decline in a localized
wild ungulate herd, and that this may be a management concern for the
State game and fish agencies and hunting and guiding businesses in the
MWEPA. The take provision for take in response to an unacceptable
impact to a wild ungulate herd addresses these infrequent situations,
rather than the ongoing, natural background level of predation that
occurs from the presence of Mexican wolves across the landscape.
Therefore, we consider this take provision to be a reasonable component
of our management in the MWEPA, and consistent with the recovery of the
Mexican wolf. Our temporary restriction of this take provision ensures
that the gene diversity of the MWEPA population improves sufficiently
to decrease gene threats prior to allowing for the removal of wolves in
response to an unacceptable impact to a wild ungulate herd. As we
explain in the FSEIS (USFWS 2022, pp. 111-116), we do not expect wolf
density to reach a level where unacceptable impacts occur during the
period of restriction. However, the restriction of take provisions
motivates the Service and our partners to accomplish the genetic
objective as quickly as possible, which will benefit the recovery of
the Mexican wolf. Therefore, if drastic declines were to begin to be
observed, efforts to release more wolves could shorten the period of
restriction. While we understand the commenters' statement that the
Service would approve future take requests under this take provision
and would therefore know how many wolves would be taken, we meant that
because we have not used this provision and do not know the
circumstances of future requests, it is difficult at this time to
estimate the level of take of released wolves that could occur through
this provision. After the genetic objective is achieved and the period
of restriction ends, the take of released wolves will not hinder the
genetic health of the MWEPA because released wolves will no longer
represent unique gene diversity, as described elsewhere in this rule.
Comment: Commenters expressed concern about the Service's proposal
to
[[Page 39365]]
restrict take provisions because take provisions promote management
flexibility and coexistence between wolves and local residents. These
commenters pointed out that the MWEPA is a working landscape where
wolves should be managed in a manner that is compatible with other
uses, such as livestock operations. These commenters stated that
without take authority, livestock operators will not be able to protect
themselves from direct economic impacts. Several commenters suggested
that at specific population sizes (e.g., more than 320 wolves) any
ongoing restriction of take provisions should be removed to ensure that
wolves do not cause additional impact and harm.
Our response: The Service strives to balance the recovery needs of
the Mexican wolf with the needs and concerns of local communities,
including livestock operators. The take restrictions in this rule were
developed to ensure that progress toward recovery dictates the
availability of management flexibility such as the issuance of permits
to livestock operators, while also ensuring that the Service and our
partners maintain the ability to address conflict situations. During
the period of restriction, the Service and our partners will work with
livestock operators to utilize nonlethal management response to
conflict situations, or, in the event that nonlethal measures are
ineffective, may remove a wolf or wolves to resolve the situation.
These management approaches will continue, regardless of population
size, until the genetic objective is reached. In addition, during the
period of restriction, domestic animal owners on non-Federal land will
maintain the ability to take a wolf that is in the act of biting,
killing, or wounding a domestic animal at the time of take.
Comment: Some commenters stated that ranchers in the MWEPA no
longer attempt to obtain a permit for take of Mexican wolves on Federal
or non-Federal land because the Service requirements for issuance are
so stringent and delayed that, even if granted, wolves have already
inflicted damage. The commenter stated that livestock operators and
local citizens believe no permits will be issued, making the take
permit on non-Federal land as currently managed a meaningless
management tool for depredating wolves. This commenter requested that
the Service assign additional staff to facilitate and deliver permits.
Our response: The Service will work towards improving the timing of
the issuance of permits. However, permits can only be issued in
conjunction with removal actions and are by definition a response to
inflicted damage by wolves that has already occurred.
Comment: Commenters stated that the rule must address all forms of
take to ensure the rule will protect the genetic diversity of the
Mexican wolf; one commenter recommended the Service initiate a process
to account for the genetic value of every wolf being considered for
removal. Another commenter stated that the Service's approach assumes
that only wolves released after 2016 are genetically valuable, which
the commenter states is not true.
Our response: The establishment of the genetic objective provides
an overarching strategy to improve the gene diversity of the MWEPA and
engages all management actions in the pursuit of achieving the
objective. Per the March 31, 2018, order, we specifically focus on
restricting three forms of take that were expanded in the 2015 10(j)
rule. We incorporate benchmarks for two of these take provisions that
connect the issuance of permits (i.e., management flexibility) to the
number of released wolves surviving to breeding age; these benchmarks
motivate the Service and our partners to release wolves and to utilize
nonlethal methods to manage conflicts so that released wolves that
could count toward the genetic objective may not be taken during the
course of management activities. The genetic objective we are
establishing serves as an indicator that we have transferred a large
degree of the gene diversity available in captivity to the wild
population. We do not intend to suggest that wild wolves may not have
valuable gene diversity. However, because we are trying to improve gene
diversity in the MWEPA, it is important for released wolves to survive
and breed so that genes from captivity that are currently
underrepresented in the wild become integrated into a more genetically
diverse MWEPA population. The Service and designated agencies currently
evaluate the genetic value of every wolf being considered for removal
within the context of other management considerations such as the level
of conflict occurring and the range of conflict response measures
available.
Comment: Several commenters questioned how the Service will verify
whether a wolf taken with a permit in the previous year was a released
wolf.
Our response: We intend to collar released wolves to assist in our
ability to determine whether a wolf taken with a permit was a released
wolf. Because cross-fostered pups are too small to be fitted with
collars, we microchip pups and obtain genetic markers through blood
samples to identify individuals. At 1 year of age, pups are nearly the
size of adults and can be fitted with collars. In any case, because we
take blood samples from released wolves prior to release, we will be
able to determine the identify of a wolf taken with a permit through
its microchip or subsequent blood or scat samples.
Comment: Several commenters recommended that the proposed
restriction of take provisions be made permanent rather than temporary
in order to ensure that take does not negatively affect Mexican wolf
recovery. One commenter stated that by making the restrictions
temporary, the rule will only serve short-term conservation needs of
the Mexican wolf and, therefore, falls into the same error as the 2015
10(j) rule. This commenter recommended implementing a monitoring
protocol that would require the restrictive provisions be put into
place again if the genetic health of the population declines in the
future.
Our response: As described throughout this rule, this rule aligns
the nonessential experimental population designation with the recovery
strategy and criteria outlined in the revised recovery plan for the
Mexican wolf, and therefore contributes to the long-term conservation
and recovery of the Mexican wolf. We consider temporary restriction of
the take provisions appropriate during the period in which we are
focused on achieving the genetic objective because this is when the
release of captive wolves will have the most positive contribution to
the MWEPA in lessening the risk of genetic threats. After we have
integrated a large degree of the gene diversity available from
captivity into the wild, the gene diversity of captive wolves will not
be as significant; in other words, it will already be represented in
the wild. Therefore, restricting the take provisions after the genetic
objective is met will not have the protective effect that it will have
prior to achieving the genetic objective.
Comment: Numerous commenters referenced scientific literature
related to the relationship between poaching (illegal killing) and the
level of legal protection afforded to wolves (e.g., Louchouarn et al.
2021). These commenters stated that the scientific literature makes
clear that illegal killing of wolves increases when protections for
wolves are lessened and that nonlethal methods to address conflict are
effective when properly implemented. These commenters stated that
Service policies to liberalize take permits will incentivize and
encourage
[[Page 39366]]
poaching, and therefore recommended that the Service permanently
suspend the use of any type of take permit or restrict all forms of
take significantly. Many of these commenters recognized that the
Service currently uses nonlethal methods to address conflict in some
situations and recommended that the Service increase its focus on
nonlethal methods to reduce and address conflicts by adding language to
the rule in support of, or to mandate, nonlethal methods of management.
Several commenters specified that instead of the Service expecting
livestock owners to assist with management actions in the future, the
Service should use its resources to expand the use and training of
nonlethal methods with livestock operators. In contrast, several
commenters noted that some nonlethal measures cause unexpected
consequences or are impractical, citing examples that range riders push
wolves onto a ranchers' neighbors and that it is impractical to expect
ranchers to install fladry (a rope mounted along the top of a fence,
from which are suspended strips of fabric or colored flags, that will
flap in a breeze) across tens of miles of fencing.
Our response: The effectiveness of nonlethal deterrents is
dependent on various characteristics of the area and individual
livestock operations. For instance, many tools (fladry, radio-activated
guard boxes, and electric fencing) are only effective in small areas.
The southwestern U.S. differs from other geographic areas where much of
the scientific literature has been developed in several aspects that
are relevant to the efficacy and logistical feasibility of nonlethal
tools, such as: (1) Calving pastures that are hundreds of square miles
versus less than 2 square miles, (2) reduced stocking rates that are
reflective of reduced feed and water in localized areas, and (3) year-
round calving rather than seasonal calving. Many nonlethal tools that
may be effective in other areas may not be as effective or logistically
feasible in the MWEPA. Nevertheless, some innovative tools
(diversionary feeding, range riding, hazing) have reduced depredations
in the MWEPA in certain situations. The Service will continue to focus
on, and expand, the use of nonlethal tools where appropriate and
utilize removal as a last resort to prevent depredations. Further, this
rule is more restrictive relative to take than the 2015 10(j) rule.
Based on the hypothesis referenced by commenters of an inverse
relationship between illegal killing and the level of protection
afforded to wolves, the prediction would be for this rule to result in
reduced illegal killing relative to the previous time period. We note
that this conclusion is far from a consensus in the literature.
Comment: Commenters suggested that the loss of newly released
wolves outside of the area previously designated as the Blue Range Wolf
Recovery Area (BRWRA) in the original 10(j) rule for the MWEPA (63 FR
1752; January 12, 1998) would not appreciably reduce the likelihood of
the species' survival because it would have no effect on the survival
of the previously established wolf population.
Our response: We consider all Mexican wolves in the MWEPA to
function as a single population regardless of their current location
compared to the previous geographic area designated as the BRWRA;
therefore, our essentiality determination is based on the MWEPA as a
whole, rather than solely the area beyond the boundaries of the
previously designated BRWRA that became allowable for wolf occupancy
under the 2015 10(j) rule.
Comment: Several commenters expressed support for an essential
determination because they claimed that an essential designation would
reduce illegal take or better support the SSP in providing genetic
diversity for Mexican wolves in the wild.
Our response: A determination of essential would result in several
changes to the experimental population, including conducting
interagency consultation under section 7(a)(2) of the ESA and the
potential to designate critical habitat under section 4(b)(2) of the
ESA. Neither of these provisions would directly impact the level of
illegal take occurring or the function or ability of the SSP to support
the reintroduction of the Mexican wolf to the wild.
Comment: Many commenters stated that an essential designation would
better support recovery due to the section 7 consultation requirements
and the potential to designate critical habitat for the Mexican wolf.
Our response: An essentiality determination under section 10(j) of
the ESA is based on whether the best available information supports
that the population is essential to the continued existence of the
species, not whether the consultation or critical habitat requirements
of the ESA resulting from an essential determination would have a
conservation benefit to the subspecies' recovery.
Comment: Several commenters stated that if we lose the wild
population, we lose several decades representing multiple generations
of adaptive evolution, and this supports an essential designation.
Our response: The ESA does not specify that maintenance of adaptive
evolution is a factor in an essentiality determination. We agree that
if we lost the MWEPA population we may lose some local adaptations in
that process; however, we consider the ability to restart a population
using captive wolves as a determining factor in our decision because
wolves from the captive population are still able to provide gene
diversity sufficient for reintroduction.
Comment: Commenters expressed concern that Mexican wolves should be
designated as essential because the population in Mexico is not big
enough or genetically diverse enough to promote the recovery of the
species.
Our response: We recognize that further alleviation of demographic
and genetic threats is necessary for the population in Mexico to
achieve recovery objectives. However, Mexico has released and managed
Mexican wolves in the wild for more than a decade, demonstrating a
consistent effort to establish a population for recovery. Because we
consider the wolves in Mexico to function as a population, and due to
Mexico's concerted and ongoing efforts to increase the abundance and
distribution of the population, we consider it a valid population to
consider in the context of our essentiality determination.
Comment: One commenter recommended that the Service should provide
examples of a 10(j) population that has been designated as essential
for comparison's sake and to show the agency's factual bar for an
essential determination.
Our response: The Service has never designated a 10(j) population
of any species as essential; therefore, we are unable to provide the
example requested by the commenter. In fact, Congress' expectation was
that ``in most cases, experimental populations will not be essential''
(H.R. Conference Report No. 835, supra at 34). The preamble to our
August 27, 1984, final rule reflects this understanding, stating that
an essential population will be a special case and not the general rule
(49 FR 33885, August 27, 1984, p. 49 FR 33888). We consider each
essentiality determination on a case-by-case basis due to the varying
circumstances and life history of the species. As we explain in our
determination in this rule, the existence of a robust captive
population and another wild population of Mexican wolves are central
factors in our determination.
[[Page 39367]]
Comment: Some commenters expressed concern that continued Mexican
wolf generations in captivity may result in evolutionary maladaptation
to the captive environment (e.g., see Frankham 2008).
Our response: We will continue to evaluate the suitability of
captive wolves prior to their release to the wild. SSP facilities
adhere to strict husbandry protocols to minimize the likelihood of
maladaptive behaviors.
Comment: One commenter stated that based on the size of the MWEPA
population and the number of breeding wolves in the captive population
it would be untenable to replace the MWEPA population because over 90
percent of the captive breeding-age wolves would need to be released.
Our response: We would not expect to restart a wild population in
the MWEPA that would immediately obtain the current size of the MWEPA
population (close to 200 wolves). We explain our approach to restarting
a population in the MWEPA in this rule (see above under Is the
experimental population essential to the continued existence of the
species in the wild?)
Comment: The Service received published scientific papers and gray
literature (reports) during the public comment period related to the
following topics: population viability analysis, Mexican wolf genetics,
the impact of lethal management on illegal killing, large carnivore
poaching, livestock predation, population estimation analysis, predator
tolerance/control, science and policy, large carnivore management,
research and independent/peer review transparency, improving the
framework of the ESA, threats to biodiversity and binational
conservation, the Mexican wolf's geographic range, metapopulation
connectivity, the vulnerability of the Mexican wolf to climate change,
and wolf conservation planning.
Our response: We have reviewed and incorporated this information
into this final rule where applicable.
Comment: A number of commenters raised concern that the Service is
aligning the 10(j) rule with the recovery plan. Commenters stated that
the Federal court prohibits aligning the 10(j) rule with the recovery
plan. Commenters are also concerned that aligning the 10(j) rule with
the recovery plan does not promote recovery since recovery plans are
discretionary and not mandatory. Some commenters expressed concern that
tying the new rule to the recovery plan is unnecessarily making the
rule vulnerable. Specifically, commenters referenced the judge's
statement that the rule must be flexible enough to remain valid through
changing conditions and future revisions for recovery plans. Commenters
also raised concern over the court-ordered revision of the recovery
plan due in October 2022, and the 5-year status review scheduled for
2022-2023, which they stated could result in changes to the recovery
plan, which they claim would render this new rule invalid or subject to
further litigation. Other commenters expressed that given the
significant scientific flaws in the recovery plan, the Service is
violating the court's order and the ESA's best available science
mandate by aligning the revised rule to the recovery plan.
Our response: See our discussion, above, in Rationale for Revisions
to the Experimental Population Designation in Relation to Recovery.
While implementation of recovery plans is discretionary and no partner
is required to implement a recovery plan, the Act requires the Service
to develop recovery plans for the conservation and survival of listed
species. Such plans must include criteria which, when met, would result
in a determination that the species be removed from listed status
(i.e., that the species is recovered). Because we must also determine
that our experimental population designations will further the
conservation of the species, it is appropriate for us to align our
10(j) rule with the recovery plan developed for the conservation of the
species. As noted above in Review and Evaluation of the MWEPA
Population, multiple reviews are built into our processes in
acknowledgement that conditions may change and necessitate adjustments.
Comment: One commenter stated that the judge told the Service that
it could not depend on another population when ensuring that the MWEPA
population furthers the conservation of the Mexican wolf, yet the MWEPA
population and genetic objectives are dependent on Mexico achieving its
recovery goals.
Our response: This final rule revises several features of the MWEPA
designation to ensure that the MWEPA supports the Service's recovery
strategy for the Mexican wolf as laid out in the revised recovery plan
(USFWS 2017b, pp. 10-17). Specifically, the population objective and
genetic objective in this final rule ensure that the MWEPA population
is robust and free from demographic and genetic threats. In other
words, the MWEPA population must function as an independent, robust,
healthy population in order to contribute to recovery, but it is not
the only population necessary for recovery.
Comment: Some commenters raised issues with the consultation that
was conducted on the 2015 10(j) rule under section 7 of the ESA. One
commenter stated that there were severe deficiencies in the
consultation process for the 2015 rule and the Service needs to conduct
a new consultation on the new rule and associated section 10(a)(1)(A)
permit; another commenter stated that the proposed revision provides no
indication that the Service initiated or completed intra-agency
consultation on the revised 10(j) rule.
Our response: As part of the Service's action to revise the
experimental population designation of the Mexican wolf in the MWEPA,
we have conducted section 7 consultation.
Comment: Some commenters expressed concern over trapping of Mexican
wolves. One commenter stated that the provisions in 50 CFR 17.84(k)
that relate to trapping must be modified in recognition that, except
for a few specific exceptions, trapping on public lands in New Mexico
is now illegal. Another commenter stated that private wolf trapping or
snaring should be a violation of the 10(j) rule and the FSEIS must
consider the effects of trapping on Mexican wolves. Other commenters
expressed concern about the impact of New Mexico's trapping regulation
on the ability of the Service to manage wolves.
Our response: Our regulations at Sec. 17.84(k)(5)(iii) and
(k)(7)(iv) provide the regulatory prohibitions and exceptions to those
prohibitions for taking a Mexican wolf with a trap, snare, or other
type of capture device in the MWEPA, including our due care provisions
at Sec. 17.84(k)(5)(iii)(A), which state that due care includes
following the regulations, proclamations, recommendations, guidelines,
and/or laws within the State or Tribal trust lands where the trapping
takes place.
Comment: Several commenters expressed confusion over whether the
numbering in the regulatory text of the October 29, 2021, proposed rule
would negate provisions with the same numbering from the 2015 10(j)
rule.
Our response: We are not eliminating any of the regulations
established by the 2015 10(j) rule other than those that are revised by
this final rule. We have ensured that the revisions and additions to
the regulatory text of Sec. 17.84(k) in this rule do not erroneously
negate any of the regulations established by the 2015 10(j) rule.
Comment: Many commenters mentioned geographic issues related to the
MWEPA, primarily in support of geographic expansion of the MWEPA beyond
the current MWEPA boundaries,
[[Page 39368]]
especially the I-40 boundary. These commenters offered many reasons for
geographic expansion, such as population resiliency and redundancy,
including a metapopulation configuration for recovery; adaption to
climate change; habitat availability; and issues related to depicting
historical range based on mitochondrial DNA rather than previous
morphological data.
Our response: We explained during scoping that we would not revise
the geographic boundaries of the MWEPA during the revision of the 2015
10(j) rule. Our focus in this rule is to comply with the March 31,
2018, order. We responded to public comments about geographic issues in
our response to scoping comments (USFWS 2022a, pp. 201-205) and
previously in our response to comments on the revised recovery plan
(USFWS 2017c, pp. 8-18).
Comment: Several commenters stated that the revised rule must
ensure the conservation of the Mexican wolf's ecosystems; this should
be done based on an analysis of the Mexican wolf's historical range,
the subspecies' genetic status, the size of the population, and the
area that will be required to support it in order to ensure future
viability and recovery. After identifying the Mexican wolf's
ecosystems, commenters recommended the Service must then consider
important features to conserve in those ecosystems.
Our response: This rule clearly explains the contribution of the
experimental population to the recovery of the Mexican wolf. For a
broader discussion of Mexican wolf recovery, including historical
range, genetics, population viability, habitat suitability, and other
aspects of ecosystem conservation as mentioned by the commenter, we
refer the commenter to the revised recovery plan and to the related
biological report and its appendices (USFWS 2017a, entire; USFWS 2017b,
entire).
Comment: Several commenters expressed disagreement with the
findings of the Service's takings analysis, stating that destruction of
livestock by Mexican wolves is a taking by the Federal Government.
Our response: Damage to private property caused by protected
wildlife does not constitute a ``taking'' of that property by a Federal
agency that protects or reintroduces that wildlife.
Summary of Changes From the October 29, 2021, Proposed Revision to the
Regulations for the Nonessential Experimental Population of the Mexican
Wolf
In this rule, we:
Revise the wording of the population objective in response
to peer review of the October 29, 2021, proposed rule (86 FR 59953) to
clarify our methodology to verify a stable or increasing population
over an 8-year period. This clarification is set forth under Regulation
Promulgation, below.
Revise and restructure our essentiality determination from
the October 29, 2021, proposed rule (86 FR 59953) to clarify the
information and rationale used in our determination. The essentiality
determination in this rule is provided above under Is the experimental
population essential to the continued existence of the species in the
wild?
Required Determinations
Regulatory Planning and Review--Executive Order 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
801 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities. We certify that this rule will not have a significant
economic effect on a substantial number of small entities. The
following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
considered the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
Importantly, the impacts of a rule must be both significant and
substantial to prevent certification of the rule under the Regulatory
Flexibility Act and to require the preparation of a regulatory
flexibility analysis. If a substantial number of small entities are
affected by the rule, but the per-entity economic impact is not
significant, the USFWS may certify. Likewise, if the per-entity
economic impact is likely to be significant, but the number of affected
entities is not substantial, the USFWS may also certify.
In our 2015 10(j) rule, we found that the experimental population
would not have significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act. The 2015 10(j)
rule expanded the geographic boundaries of the MWEPA, established new
management zones with provisions for initial release and
[[Page 39369]]
translocation of Mexican wolves, revised and added allowable forms of
take, and clarified definitions. We concluded that the rule would not
significantly change costs to industry or governments. Furthermore, the
rule produced no adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.
enterprises to compete with foreign-based enterprises in domestic or
export markets. We further concluded that no significant direct costs,
information collection, or recordkeeping requirements were imposed on
small entities by the action and that the rule was not a major rule as
defined by 5 U.S.C. 804(2) (80 FR 2512, January 16, 2015, pp. 2553-
2556).
Under this rule, we modify the population objective, establish a
genetic objective, and temporarily restrict three of the forms of take
of Mexican wolves in the MWEPA that we adopted in the January 16, 2015,
final 10(j) rule (80 FR 2512). We are making these revisions to ensure
the experimental population contributes to the long-term conservation
and recovery of the Mexican wolf. In addition, we are maintaining the
nonessential designation for the experimental population.
Because of the regulatory flexibility for Federal agency actions
provided by the MWEPA's 10(j) designation, we continue to expect this
rule not to have significant effects on any activities within Federal,
State, or private lands within the experimental population. In regard
to section 7(a)(2) of the ESA, except on National Park Service and
National Wildlife Refuge System lands, the population is treated as
proposed for listing, and Federal action agencies are not required to
consult on their activities. Section 7(a)(4) of the ESA requires
Federal agencies to confer (rather than consult) with the USFWS on
actions that are likely to jeopardize the continued existence of a
species. However, because a nonessential experimental population is, by
definition, not essential to the survival of the species, conferencing
is unlikely to be required within the MWEPA. Furthermore, the results
of a conference are strictly advisory in nature and do not restrict
agencies from carrying out, funding, or authorizing activities. In
addition, section 7(a)(1) of the ESA requires Federal agencies to use
their authorities to carry out programs to further the conservation of
listed species within the experimental population area. As a result,
and in accordance with these regulations, some modifications to the
Federal actions within the experimental population area may occur to
benefit the Mexican wolf, but we do not expect projects on Federal
lands to be halted or substantially modified as a result of these
regulations.
This rule will result in a larger population of Mexican wolves
occupying the MWEPA over the timeframe of recovery than the 2015 10(j)
rule, which has the potential to affect a greater number of small
entities involved in ranching and livestock production, particularly
beef cattle ranching (business activity code North American Industry
Classification System (NAICS) 112111), sheep farming (business activity
code NAICS 112410), and outfitters and guides (business activity code
NAICS 114210). Small entities in these sectors may be affected by
Mexican wolves depredating on, or causing weight loss of, domestic
animals (particularly beef cattle), or preying on wild native
ungulates, respectively. We have assessed impacts to small entities in
the FSEIS.
Small businesses involved in ranching and livestock production may
be affected by Mexican wolves depredating on domestic animals,
particularly beef cattle. Direct effects to small businesses could
include foregone calf or cow sales at auctions due to depredations.
Indirect effects could include impacts such as increased ranch
operation costs for surveillance and oversight of the herd, and weight
loss of livestock when wolves are present. Ranchers have also expressed
concern that a persistent presence of wolves may negatively impact
their property and business values. We do not foresee a significant
economic impact to a substantial number of small entities in the
ranching and livestock production sector based on the information
provided below.
The small size standard for beef cattle ranching entities and sheep
farms as defined by the Small Business Administration are those
entities with less than $1.0 million in average annual receipts (http://www.sba.gov/content/summary-size-standards-industry-sector). We
consider close to 100 percent of the cattle ranches and sheep farms in
Arizona and New Mexico to be small entities. The 2017 Census of
Agriculture reports that there were 7,057 cattle and calf operations
and 7,509 sheep farms in Arizona, and 10,880 cattle and calf operations
and 4,047 sheep farms in New Mexico.
Of the approximately 18,000 cattle ranches in Arizona and New
Mexico, 12,334 occur in counties in the MWEPA (USDA 2017). These
operations account for approximately 69 percent of the total for both
States. The actual number of ranches within the project area is far
less than this estimate because several counties extend beyond the
borders of the project area, or the ranches occur in areas where we do
not expect wolf occupancy due to low habitat suitability. The
Agricultural Census does not report sub-county farms or inventory, so
we rely on the county numbers as the best available data for estimating
the number of potentially affected small ranching operations.
Cattle ranches vary significantly in herd size, with
classifications ranging from a herd of 1 to 9 animals, to those with
more than 2,500 animals (2017 Census of Agriculture). Over 80 percent
of these ranches have fewer than 50 head of cattle.
We assessed whether a substantial number of entities will be
impacted by the regulatory revisions for the MWEPA by estimating the
annual number of depredations we expect to occur within the project
area when the Mexican wolf population reaches its population objective
of an average of 320 wolves. We reported in the October 29, 2021,
proposed rule (86 FR 59953) that between 1998 and 2019, on average,
there were 151 total depredations (confirmed and unconfirmed) by
Mexican wolves in any given year, which equates to 1.7 cow/calves
killed for every Mexican wolf. Based on this, we estimated the average
number of cattle killed (both confirmed and unconfirmed) in any given
year for 320 wolves would be 544 individuals (86 FR 59953, October 29,
2021, p. 59972). We expect the experimental population to grow from its
current minimum population estimate of 186 wolves to an 8-year average
population of 320 wolves. Assuming that one cow is depredated per
ranch, we stated in the October 29, 2021, proposed rule that we
expected the number of affected ranches to increase from 151 ranches to
544 ranches when the wolf population reaches 320 individuals. At this
point, if each expected depredation affects a unique ranch, then a
total of approximately 4 percent of ranches in the area would be
impacted. With the addition of more recently available data (wolf
population and confirmed depredations in 2020 and 2021), for this final
rule, we expect the average number of cattle killed (both confirmed and
unconfirmed) in any given year for 320 wolves will be 607 individuals
(USFWS files), affecting up to 607 individual ranches.
To the extent that some cattle ranches will most likely not be
impacted by wolf recovery because they are not located in suitable
habitat but are included in the total estimate of potentially affected
ranches because the Agricultural Census
[[Page 39370]]
does not provide data at a sub-county level, this estimate could
understate the percentage of ranches potentially affected. However, for
other reasons, this estimate could very well overstate the percentage
of cattle ranches affected as we recognize that annual depredation
events have not been, and may not be, uniformly distributed across the
ranches operating in occupied wolf range. Rather, wolves seem to
concentrate in particular areas, and to the extent that livestock are
targeted by the pack for depredations, some ranch operations will be
disproportionately affected. Therefore, it is more likely that fewer
than 607 ranches may experience more than one depredation, rather than
each of 607 ranches experiencing one depredation.
Compared to the 2017 total inventory of estimated ranch cattle
(259,192) for the project area of the Blue Range Wolf Recovery Area
(BRWRA), both confirmed and unconfirmed depredations per 100 Mexican
wolves account for 0.2 percent of the herd size. The economic cost of
Mexican wolf depredations in this time period has been a small
percentage of the total value of the livestock operations. With a
population objective of an average of 320 Mexican wolves in the MWEPA,
the expected value of 607 cattle (189 cattle killed per 100 Mexican
wolves on average for any year) at auction based on a weighted average
market value for a depredated cow/calf of $1,094.72 ($2020), the total
annual impact would be $664,495. If depredations uniquely affect a
separate operation, then a total of 607 operations would incur an
expected corresponding loss of $1,095.
Small businesses involved in ranching and livestock production
could also be indirectly affected by weight loss of livestock due to
the presence of Mexican wolves. For example, livestock may lose weight
because wolves force them off suitable grazing habitat or away from
water sources. Livestock may try to protect themselves by staying close
together in protected areas where they are more easily able to see
approaching wolves and defend themselves and their calves. A
consequence of such a behavioral change would likely be weight loss,
especially if the wolves are allowed to persist in the area for a
significant amount of time because the cattle would be afraid to spread
out to find more lucrative forage areas. Weight loss could also occur
if the presence of wolves causes the herd to move around more rapidly
as they try to keep away from wolves. Based on Ramler et al. 2014,
weight loss of cattle is associated with the ranches that have suffered
depredations. Therefore, we would expect the same ranches--that is, 607
ranches or fewer--that are impacted by depredations to potentially be
impacted by weight loss of their cattle. Because wolves' tendency to
prey on cattle is localized, we do not expect all 607 ranches and their
associated herds to be impacted.
Using a mid-point estimate of 6 percent weight loss for calves at
the time of auction, we calculated the impact on 2019 model ranches
assuming that wolf presence pressures persisted throughout the foraging
year. Based on mean market prices, a 6 percent weight loss for the herd
at the time of sale could result in a profit loss of $3,079 to $16,613,
depending on the size of the ranch. Under such a scenario, an affected
ranch could incur a 20 percent loss in profit using the model ranch
assumptions discussed in the report. This, however, is likely an
overestimate of impacts that would occur, as once wolves are detected
in an area, a variety of proactive and reactive management tools are
available to the landowner or the USFWS and our designated agencies
such that wolf presence would not persist throughout a foraging year.
This final rule is based on alternative one in our FSEIS. Under
this alternative, the experimental population regulations continue to
offer several provisions for harassment and take of Mexican wolves on
Federal and non-Federal land to address conflict situations between
wolves and livestock, although we are temporarily restricting two of
these until we reach the genetic objective of 22 released wolves
surviving to breeding age. The MWEPA regulations continue to provide
for the initial release of captive wolves into suitable habitat in
Zones 1 and 2, and we have demonstrated our intention to reduce
nuisance behavior associated with adult releases by using the cross-
fostering technique. Further, depredation compensation programs are
available to offset some of the economic impacts of livestock
depredations; these payments fully offset the impacts of confirmed
depredations for some operators but do not fully offset impacts for all
operators, such as those who experience unconfirmed losses for which
payment is not provided.
Based on the preceding information, we find that the impact of
direct and indirect effects of Mexican wolf depredations on livestock
is not significant and substantial. That is, if impacts are evenly
spread, less than 5 percent of small ranches in the MWEPA will be
impacted, which we do not consider to be a substantial number. If
impacts are disproportionately felt (several ranchers bear the burden
of the depredations), the number of affected ranches will be even less
(not substantial), but the impact to those affected may be significant
depending on the number of cattle on the ranch and other
characteristics.
Our revision of the experimental designation may also impact small
business entities associated with big game hunting, due to wolves'
predation on wild ungulates, specifically elk, in the MWEPA. Effects to
small businesses in this sector could occur from impacts to big game
populations, loss of hunter visitation, or a decline in hunter success,
leading to lost income or increased costs to guides and outfitters. We
would expect impacts to big game hunting to potentially occur from the
increased number of wolves in the MWEPA or from the temporary
restriction of the provision for take in response to an unacceptable
impact to a wild ungulate herd. Negative impacts to the big game
hunting economic sector would be most likely to occur during the period
that this take provision is restricted because State agencies will not
be able to request the removal of wolves if they are causing ungulate
herds to fall below management goals (i.e., an unacceptable impact).
As we describe in the FSEIS, we do not have a high degree of
certainty as to when impacts to ungulates may occur, but we speculate
based on information from gray wolves in other geographic areas that
impacts will not occur prior to the wolf-to-1,000-elk ratio reaching
above 4 wolves to 1,000 elk (potentially around 2024 or after). We
expect to meet our genetic objective by 2030, resulting in the
temporary restriction of this take provision for not more than 6 years.
After the genetic objective is reached and the restriction on this take
provision is lifted, the States could request the removal of wolves
causing unacceptable impacts, which would result in mitigation of any
reduction in hunting revenue occurring in that area. Currently, we (the
Service and the State game and fish agencies) do not have information
suggesting that impacts have occurred. No observable impact on wild
ungulates due to wolves has been documented, nor reductions in big game
hunting. In Arizona, total harvest of elk and percent success of
hunters increased from 2012 to 2017 (the most recent year for which we
have data) (AZGFD 2011, 2017) and stayed stable or increased slightly
in New Mexico from 2012 to 2019 (NMDGF files).
For the above reasons and based on currently available information,
we certify that the revision to the existing
[[Page 39371]]
nonessential experimental population designation of the Mexican wolf
will not have a significant economic impact on a substantial number of
small business entities. Therefore, a regulatory flexibility analysis
is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(1) This rule will not ``significantly or uniquely'' affect small
governments because it will not place additional requirements on any
city, county, or other local municipalities. We have determined that
this rule will not impose a cost of $100 million or more in any given
year on local or State governments or private entities. Therefore, a
small government agency plan is not required.
(2) This rule is not a ``significant regulation action'' under this
act; it will not produce a Federal mandate of $100 million or greater
in any year. The regulatory revisions to the MWEPA will not impose any
additional management or protection requirements on the States or other
entities.
Takings--Executive Order 12630 (E.O. 12630)
In accordance with E.O. 12630, this rule does not have significant
takings implications. When reestablished populations of federally
listed species are designated as nonessential experimental populations,
the ESA's regulatory requirements regarding the reestablished listed
species within the experimental population are significantly reduced.
In the 1998 final rule (63 FR 1752; January 12, 1998), we stated that
one issue of concern is the depredation of livestock by reintroduced
Mexican wolves, but such depredation by a wild animal would not be a
taking under the 5th Amendment. One of the reasons for the experimental
population is to allow the agency and private entities flexibility in
managing Mexican wolves, including the elimination of a wolf when there
is a confirmed kill of livestock.
A takings implication assessment is not required because this rule
will not effectively compel a property owner to suffer a physical
invasion of property and will not deny all economically beneficial or
productive use of the land or aquatic resources. Damage to private
property caused by protected wildlife does not constitute a taking of
that property by a government agency that protects or reintroduces that
wildlife. This rule will substantially advance a legitimate government
interest (conservation and recovery of a listed species) and will not
present a barrier to all reasonable and expected beneficial use of
private property.
Federalism--Executive Order 13132 (E.O. 13132)
In accordance with E.O. 13132, we have considered whether this rule
has significant federalism effects and have determined that a
federalism summary impact statement 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 New Mexico and Arizona. Achieving the
population objective for the MWEPA, which serves as one of the recovery
criteria for the Mexican wolf, will contribute to the rangewide
recovery of the species, which will contribute to its eventual
delisting and its return to State management. No intrusion on State
policy or administration is expected, roles or responsibilities of
Federal or State governments will not change, and fiscal capacity will
not be substantially or directly affected. This rule will operate to
maintain the existing relationship between the State and the Federal
Government. Therefore, this rule does not have significant federalism
effects or implications to warrant a federalism assessment under the
provisions of E.O. 13132.
Civil Justice Reform--Executive Order 12988 (E.O. 12988)
In accordance with E.O. 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 E.O.
Paperwork Reduction Act
This rule does not contain any new collection of information that
requires approval by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has
previously approved the information collection requirements associated
with permitting and reporting requirements associated with native
endangered and threatened species, and experimental populations, and
assigned the following OMB control numbers:
1018-0094, ``Federal Fish and Wildlife Permit Applications
and Reports--Native Endangered and Threatened Species; 50 CFR 10, 13,
and 17'' (expires 01/31/2024), and
1018-0095, ``Endangered and Threatened Wildlife,
Experimental Populations, 50 CFR 17.84'' (expires 9/30/2023).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relatives with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we have considered possible effects of
the revisions in this rule on federally recognized Indian Tribes. Our
revisions do not include a revision to the geographic boundaries of the
MWEPA, and we continue to recognize that the MWEPA overlaps with or is
adjacent to Tribal lands. We notified the Native American Tribes within
and adjacent to the MWEPA about this rule and invited eight Indian
Tribes to serve as cooperating agencies in the development of the
DSEIS. We communicated with all Indian Tribes in Arizona and New
Mexico, as well as Tribes outside of Arizona and New Mexico that may
have interest in land within the MWEPA, through written contact,
including informational mailings from the USFWS and email notifications
to attend video and teleconference informational sessions and public
hearings, and to provide an opportunity to comment on the DSEIS and
proposed rule. We invited all Tribes in Arizona and New Mexico to
request government-to-government consultation under Secretarial Order
3206, and we held Tribal Working Group meetings, open to all Tribes, to
discuss our proposed revisions within the context of Tribal land. If
future activities resulting from this rule may affect Tribal resources,
the USFWS will communicate and consult on a government-to-government
basis with any affected Native American Tribes in order to find a
mutually agreeable solution.
National Environmental Policy Act
We have prepared a final supplemental environmental impact
[[Page 39372]]
statement (FSEIS) pursuant to the National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.) in connection with this rule to revise
the Mexican wolf experimental population designation. The purpose of
the FSEIS is to identify and disclose the environmental consequences
resulting from the revision of the existing experimental population
designation of the Mexican wolf. The FSEIS is an outgrowth of the
public scoping process we conducted from April 15, 2020, to June 15,
2020 (85 FR 20967; April 15, 2020), and the public and peer review
comments we received on the draft supplemental environmental impact
statement (DSEIS) (see 86 FR 60029; October 29, 2021) and our October
29, 2021, proposed rule (86 FR 59953). We used the FSEIS, which we
published in the Federal Register on May 13, 2022 (87 FR 29272), to
inform our final decision on the revision to the regulations for the
experimental population of Mexican wolves in the MWEPA.
Energy Supply, Distribution, or Use--Executive Order 13211 (E.O. 13211)
E.O. 13211 requires agencies to prepare statements of energy
effects when undertaking certain actions. This rule is not expected to
significantly affect energy supplies, distribution, or use because this
rule allows the reintroduction and management of Mexican wolves.
Mexican wolves reintroduced and managed in the MWEPA do not change
where, when, or how energy resources are produced or distributed.
Because this action is not a significant energy action, no statement of
energy effects is required.
References Cited
A complete list of all references cited in this rule is available
at https://www.regulations.gov at Docket No. FWS-R2-ES-2021-0103, or
upon request from the Mexican Wolf Recovery Program, U.S. Fish and
Wildlife Service, New Mexico Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this document are the staff members of the
Mexican Wolf Recovery Program (see FOR FURTHER INFORMATION CONTACT).
Authority
The authorities for this action are the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.), as amended, and the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.84 by:
0
a. Revising paragraph (k)(1);
0
b. Adding paragraphs (k)(7)(iv)(C)(1) and (2);
0
c. Redesignating paragraphs (k)(7)(v)(A)(1) and (2) as (k)(7)(v)(A)(3)
and (4);
0
d. Adding new paragraphs (k)(7)(v)(A)(1) and (2);
0
e. Adding paragraph (k)(7)(vi)(E);
0
e. Revising paragraph (k)(9)(iii);
0
f. Adding paragraph (k)(9)(v); and
0
g. Revising paragraph (k)(10).
The revisions and additions read as follows:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(k) * * *
(1) Purpose of the rule. The U.S. Fish and Wildlife Service (USFWS)
finds that reestablishment of an experimental population of Mexican
wolves into the subspecies' probable historical range will further the
conservation and recovery of the Mexican wolf subspecies. The USFWS
also finds that the experimental population is not essential under
Sec. 17.81(c)(2).
* * * * *
(7) * * *
(iv) * * *
(C) * * *
(1) Until the USFWS has achieved the genetic objective for the
MWEPA set forth at paragraph (k)(9)(v) of this section by documenting
that at least 22 released wolves have survived to breeding age in the
MWEPA, the USFWS or a designated agency may issue permits only on a
conditional, annual basis according to the following provisions: Either
(i) Annual release benchmarks (for the purposes of this paragraph,
the term ``benchmark'' means the minimum cumulative number of released
wolves surviving to breeding age since January 1, 2016, as documented
annually in March) have been achieved based on the following schedule:
Table 1 to Paragraph (k)(7)(iv)(C)(1)(i)
------------------------------------------------------------------------
Year Benchmark
------------------------------------------------------------------------
2021.................................................... 7
2022.................................................... 9
2023.................................................... 11
2024.................................................... 13
2025.................................................... 14
2026.................................................... 15
2027.................................................... 16
2028.................................................... 18
2029.................................................... 20
2030.................................................... 22
------------------------------------------------------------------------
; or
(ii) Permitted take on non-Federal land, or on Federal land under
paragraph (k)(7)(v) of this section, during the previous year (April 1
to March 31) did not include the lethal take of any released wolf or
wolves that were or would have counted toward the genetic objective set
forth at paragraph (k)(9)(v) of this section.
(2) After the USFWS has achieved the genetic objective set forth at
paragraph (k)(9)(v) of this section, the conditional annual basis for
issuing permits will no longer be in effect.
(v) * * *
(A) * * *
(1) Until the USFWS has achieved the genetic objective for the
MWEPA set forth at paragraph (k)(9)(v) of this section by documenting
that at least 22 released wolves have survived to breeding age, the
USFWS or a designated agency may issue permits only on a conditional,
annual basis according to the following provisions: Either
(i) Annual release benchmarks (for the purposes of this paragraph,
the term ``benchmark'' means the minimum cumulative number of released
wolves surviving to breeding age since January 1, 2016, as documented
annually in March) have been achieved based on the following schedule:
Table 2 to Paragraph (k)(7)(v)(A)(1)(i)
------------------------------------------------------------------------
Year Benchmark
------------------------------------------------------------------------
2021.................................................... 7
2022.................................................... 9
2023.................................................... 11
2024.................................................... 13
2025.................................................... 14
2026.................................................... 15
2027.................................................... 16
2028.................................................... 18
2029.................................................... 20
2030.................................................... 22
------------------------------------------------------------------------
; or
(ii) Permitted take on Federal land, or on non-Federal land under
paragraph
[[Page 39373]]
(k)(7)(iv) of this section, during the previous year (April 1 to March
31) did not include the lethal take of any released wolf or wolves that
were or would have counted toward the genetic objective set forth at
paragraph (k)(9)(v) of this section.
(2) After the USFWS has achieved the genetic objective set forth at
paragraph (k)(9)(v) of this section, the conditional annual basis for
issuing permits will no longer be in effect.
* * * * *
(vi) * * *
(E) No requests for take in response to unacceptable impacts to a
wild ungulate herd may be made by the State game and fish agency or
accepted by the USFWS until the genetic objective at paragraph
(k)(9)(v) of this section has been met.
* * * * *
(9) * * *
(iii) Based on end-of-year counts, we will manage to achieve and
sustain a population average greater than or equal to 320 wolves in
Arizona and New Mexico. This average must be achieved over an 8-year
period, the population must exceed 320 Mexican wolves each of the last
3 years of the 8-year period, and the annual population growth rate
averaged over the 8-year period must demonstrate a stable or increasing
population, as calculated by a geometric mean.
* * * * *
(v) The USFWS and designated agencies will conduct a sufficient
number of releases into the MWEPA from captivity to result in at least
22 released Mexican wolves surviving to breeding age.
(10) Evaluation. The USFWS will continue to evaluate Mexican wolf
reestablishment progress and prepare periodic progress reports and
detailed annual reports. In addition, approximately 5 years after
August 1, 2022, the USFWS will prepare a one-time overall evaluation of
the experimental population program that focuses on modifications
needed to improve the efficacy of this rule and the progress the
experimental population is making to the recovery of the Mexican wolf.
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-14025 Filed 6-30-22; 8:45 am]
BILLING CODE 4333-15-P