Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 42298-42315 [06-6486]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 143 (Wednesday, July 26, 2006)]
[Rules and Regulations]
[Pages 42298-42315]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6486]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI80


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of Northern Aplomado Falcons in 
New Mexico and Arizona

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), plan to 
reintroduce northern aplomado falcons (Falco femoralis septentrionalis) 
(falcon) into their historical habitat in southern New Mexico for the 
purpose of establishing a viable resident population in New Mexico and 
Arizona. The falcon is being re-established under section 10(j) of the 
Endangered Species Act of 1973, as amended (Act), and would be 
classified as a nonessential experimental population (NEP). The 
geographic boundary of the NEP includes all of New Mexico and Arizona.
    This action is part of a series of reintroductions and other 
recovery actions that the Service, Federal and State agencies, and 
other partners are conducting throughout the species'' historical 
range. This final rule provides a plan for establishing the NEP and 
provides for limited allowable legal taking of the northern aplomado 
falcon within the defined NEP area. Birds can only be released when 
they are a few weeks old, and this condition only occurs in the spring 
and summer of each year. In order to accomplish a release in 2006, we 
must expedite on-the-ground implementation.

DATES: The effective date of this rule is July 26, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule, are available for 
public inspection, by appointment, during normal business hours at the 
New Mexico Ecological Services Field Office, 2105 Osuna Road, NE., 
Albuquerque, New Mexico 87113.
    You may obtain copies of the final rule, environmental analysis, 
and monitoring plan from the field office address above, by calling 
(505) 346-2525, or from our Web site at https://www.fws.gov/ifw2es/
NewMexico/.

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Acting Field 
Supervisor, New Mexico Ecological Services Field Office at the above 
address (telephone 505-346-2525, facsimile 505-346-2542).

SUPPLEMENTARY INFORMATION:

Background

    Background information that was previously provided in our February 
9, 2005, proposed rule (70 FR 6819) has been condensed in this rule.

Biological

    The northern aplomado falcon (hereafter referred to as falcon) is 
one of three subspecies of the aplomado falcon and the only subspecies 
recorded in the United States. This subspecies was listed as an 
endangered species on February 25, 1986 (51 FR 6686). The falcon is 
classified in the Order Falconiformes, Family Falconidae. Historically, 
falcons occurred throughout coastal prairie habitat along the southern 
Gulf coast of Texas, and in savanna and grassland habitat along both 
sides of the Texas-Mexico border, southern New Mexico, and southeastern 
Arizona. Falcons were also present in the Mexican States of Tamualipas, 
Veracruz, Chiapas, Campeche, Tabasco, Chihuahua, Coahuila, Sinaloa, 
Jalisco, Guerrero, Yucatan, and San Luis Potosi, and on the Pacific 
coast of Guatemala and El Salvador (Keddy-Hector 2000). Falcons were 
fairly common in suitable habitat throughout these areas until the 
1940s, but subsequently declined rapidly. From 1940 to the present in 
Arizona (Corman 1992), and from 1952 to 2000 in New Mexico (Meyer and 
Williams 2005), there were no documented nesting attempts by wild 
falcons. In 2001 and 2002, one pair of falcons nested in Luna County, 
New Mexico. This pair was unsuccessful in producing fledglings in 2001, 
but produced three fledglings in 2002. To date, the 2002 nest has been 
the only known successful falcon nest in either Arizona or New Mexico 
since 1952.
    The causes for decline of this subspecies have included widespread 
shrub encroachment resulting from control of range fires and intense 
overgrazing (Service 1986; Burnham et al. 2002) and agricultural 
development in grassland habitats used by the falcon (Hector 1987; 
Keddy-Hector 2000). Pesticide exposure was likely a significant cause 
of the subspecies'' extirpation from the United States with the 
initiation of widespread DDT (dichloro-diphenyl-trichloroethane) use 
after World War II, which coincided with the falcon's disappearance (51 
FR 6686, February 25, 1986). Falcons in Mexico in the 1950s were 
heavily contaminated with DDT residue, and these levels caused a 25 
percent decrease in eggshell thickness (Kiff et al. 1980). Such high 
residue levels can often result in reproductive failure from egg 
breakage (Service 1990).
    Collecting falcons and eggs may have also been detrimental to the 
subspecies in some localities. However, populations of birds of prey 
are generally resilient to localized collection pressure (Service 
1990). Currently, long-term drought, shrub encroachment in areas of 
Chihuahuan grasslands, and the increased presence of the great-horned 
owl (Bubo virginianus), which preys upon the falcon, may be limiting 
recovery of this subspecies. On the other hand, falcons appear to be 
relatively tolerant of human presence. They have been observed to 
tolerate approach to within 100 meters (m) (328 feet (ft)) of their 
nests by researchers and have nested within 100 m (328 ft) of highways 
in eastern Mexico (Keddy-Hector 2000), and are frequently found nesting 
in association with well-managed livestock grazing operations in Mexico 
and Texas (Burnham et al. 2002). Burnham et al. (2002) concluded that 
falcons would be able to coexist with current land-use practices in New 
Mexico on the broad scale.
    Over the past decade, widespread formal surveys have been conducted 
in southern New Mexico habitats capable of supporting individual or 
breeding falcons (suitable habitat). Standardized falcon surveys have 
been conducted annually in suitable falcon habitats on White Sands 
Missile Range and Fort Bliss by the Department of Defense throughout 
the past decade (Burkett and Black 2003; Griffin 2005a; Locke 2005). 
White Sands Missile Range in central New Mexico contains one million 
hectares (ha) (2.5 million acres (ac)). The northwest corner (81,000 ha 
(200,000 ac)) is highly suitable yucca/grassland preferred by falcons. 
There is presently no livestock grazing and no public access to this 
area. The 145,139-ha (358,643-ac) Armendaris Ranch, located in south 
central New Mexico, contains undeveloped Chihuauhuan desert grassland 
managed by Turner Properties in cooperation with the Turner Endangered 
Species Fund. Armendaris Ranch managers have volunteered to provide 
falcon

[[Page 42299]]

reintroduction sites, and the Armendaris Ranch and areas immediately 
adjacent to known falcon habitat in Luna County have been surveyed on 
several occasions in recent years (Howard 2006a; Meyer and Williams 
2005). Falcon surveys were conducted in 2003 on the Gray Ranch in 
southeastern New Mexico, which contains 130,410 ha (322,000 ac) (Lewis 
2005). It includes extensive desert grasslands at its lower elevations. 
Bird life is abundant on the Gray Ranch; 43 percent of New Mexico's 
avian species occur there and would provide an excellent prey base for 
falcons. The Bureau of Land Management (BLM) office in Las Cruces and 
the New Mexico Department of Game and Fish (NMDGF) have also recently 
sponsored formal surveys for falcons in suitable habitats in the 
subspecies'' historic range in New Mexico (Howard 2006a; Meyer and 
Williams 2005; Lister 2006a; Lister 2006c). Therefore, large areas of 
the southern New Mexico habitats most capable of supporting individual 
or breeding pairs of falcons have been formally surveyed for the 
presence of falcons during the past 10 years, and the results of these 
surveys follow.
    After a 50-year absence, an unsuccessful nesting attempt was 
documented in Luna County, New Mexico, in the spring of 2001 (Meyer and 
Williams 2005). In 2002, a pair at this location successfully fledged 
three chicks. In 2003, only a single female was seen in the area of the 
2002 nest. In 2004, a pair of falcons was seen for a short time at this 
location, but no nesting was detected and this male left in late May 
(Meyer and Williams 2005). In 2005, only a single female was observed 
at this site (Meyer 2005). In 2006, this breeding territory has been 
repeatedly surveyed, and no falcons were detected there from February 
through May, although a falcon was reported to be observed in a nearby 
area in late May (Lister 2006c).
    Formal surveys and reliable sightings submitted to the Service show 
that a small number of falcons have occurred in New Mexico, with a 
small number of sightings occurring in every decade since the 1960s 
(Williams 1997; Howard 2006a; Howard 2006b; Meyer and Williams 2005; 
Service 2005; Howe 2006). Although it is a species highly sought after 
by bird watchers and other naturalists, an average of only 2.5 
sightings was reported per year during the 1990s in New Mexico (Service 
2005). Despite increasing public interest, survey effort, and reporting 
requirements (e.g., section 10 (a)(1)(A) recovery permits), from 2000 
through 2005, this average only increased to 4.0 sightings reported per 
year in the State, including the Luna County appearance of the first 
nest in either New Mexico or Arizona since 1952 (Service 2005). On May 
8, 2002, two additional falcons were observed that were thought to be 
different from the known nesting pair in Luna County. However, only one 
individual thought to be from that potential second pair was present 
two days later, and a second falcon nest was never located anywhere in 
the NEP area (Meyer and Williams 2005). In 2003 and 2004, other than 
the Luna County territory, no additional falcons were reported from 
formal surveys in New Mexico (Meyer and Williams 2005). In 2005 and 
through April 2006, there were nine sightings at locations in New 
Mexico apart from the Luna County territory (Burkett 2005; Banwart 
2006; Howard 2006b; Locke 2006). Only the sighting on August 11, 2005, 
detected more than one falcon. The two falcons observed on that day did 
not exhibit behaviors that indicated they were a pair, and a photograph 
taken of one suggested it was a juvenile (Howard 2005a;b). Repeated 
follow-up by highly qualified, experienced falcon surveyors of four of 
these detections, including the sighting of two birds, revealed that 
none of these falcons appeared to be local residents or defending a 
territory (Griffin 2005b; Howard 2005b; Lister 2006b; Lister 2006c; 
Locke 2006). Absolute numbers of falcons sighted in New Mexico are 
unknown because all but one sighting has been of unbanded birds. 
Montoya et al. (1997) and Macias-Duarte et al. (2004) banded a number 
of juvenile falcons in the Mexican State of Chihuahua between 1996 and 
2002. To date, one juvenile bird banded in this study has been seen in 
New Mexico. It was observed on Otero Mesa in 1999 (Howard 2006a). In 
Arizona, the most recent documented occurrences of falcons were 
recorded in 1975 and 1977, with one unconfirmed sighting in southern 
Arizona near the Mexican border in November 2005 (Howard 2006a). These 
sightings in New Mexico and Arizona may represent falcons dispersing 
from the population in Chihuahua that were opportunistically foraging 
in areas rich in prey due to vegetative growth from precipitation 
(Howard 2005a).
    It has been noted that significant re-colonization of habitats in 
Arizona and New Mexico by naturally occurring birds in Chihuahua would 
likely take decades, if it occurred at all, because the reproductive 
rate of the falcons in Chihuahua has typically been low. The low 
reproductive rate is possibly due to the effects of extended drought, 
and this population has not been expanding (Burnham et al. 2002; Jenny 
and Heinrich 2004). In addition, the majority of the breeding pairs in 
Chihuahua are clustered in close proximity to one another, but most are 
approximately 120 to 135 miles away from the southern New Mexico border 
(Howard 2006c). As stated in the Recovery Plan for the falcon (1990), 
``Regardless of the status of the aplomado falcon in Mexico, an attempt 
should be made to establish populations in the United States. If 
release sites are carefully chosen, reestablished populations should be 
relatively free from pesticide contamination. Releases may facilitate 
range expansion because pesticide contamination may have reduced the 
ability of most populations to colonize new patches of suitable 
habitat. The potential for range expansion is now more promising as a 
result of recent brush control efforts in southern and coastal Texas 
and the discontinued use of DDT.''

Recovery Efforts

    There are currently 46 pairs of aplomado falcons in the captive 
population, which produces more than 100 young per year. From this 
captive population, 1,142 captive-bred falcons have been released in 
Texas (Juergens and Heinrich 2005). The Peregrine Fund conducted a 
pilot release project in Texas from 1985 to1989, and increased 
restoration efforts began in 1993. These releases have established at 
least 44 pairs in southern Texas and adjacent Taumalipas, Mexico, where 
no pairs had been recorded since 1942 (Jenny et al. 2004). Moreover, 
pairs of reintroduced falcons began breeding in 1995, and to date have 
successfully fledged more than 244 young (Juergens and Heinrich 2005). 
Nests have been located on a variety of structures, both artificial and 
natural. Predation by great-horned owls, raccoons (Procyon lotor), and 
coyotes (Canis latrans) is significant, affecting more than half of all 
nesting attempts (Jenny et al. 2004). Nesting productivity increased by 
approximately 40 percent in 2003 and 2004, when falcons were provided 
artificial nesting structures with barred sides arranged so that 
falcons can enter the nest while predators cannot (Jenny et al. 2004). 
Pairs of falcons in south Texas successfully fledged young where they 
had never been successful prior to the use of the new artificial nests. 
Beginning in 2002, falcons have also been released in west Texas under 
a Safe Harbor Agreement with The Peregrine Fund. In 2005, 138 falcons 
were released at six sites on private ranches in the trans-Pecos region 
of the

[[Page 42300]]

State, and of these, 116 successfully reached independence (Juergens 
and Heinrich 2005).
    All of these releases in Texas have occurred on private property 
under Safe Harbor Agreement permits, currently with an enrollment of 
more than 728,000 ha (1.8 million ac). Safe Harbor Agreements are 
between a private land owner and the Service that permit future 
incidental taking of listed species on their private land. Releases 
have also occurred on Laguna Atascosa, Matagorda Island, and Aransas 
National Wildlife Refuges in Texas. We believe that it is also possible 
to accelerate the establishment of a breeding population in the 
Southwest through reintroductions of captive-raised birds in New 
Mexico. The experience in Texas, where the population went from no 
known pairs in 1994, to 44 known pairs that produced at least 244 young 
by 2005, illustrates the rapidity with which a population can be 
established through reintroductions.
    Despite the relative success of the falcon releases in Texas, we 
believe the Safe Harbor Agreements used to release falcons in Texas are 
not the best mechanism for re-establishing falcons in New Mexico and 
Arizona. Safe Harbor Agreements can only be developed for private land 
owners. There is a vast amount of public land in New Mexico and 
Arizona, totaling approximately 40 percent of the reintroduction area. 
Therefore, public land is very important for recovery of the falcon in 
this area. Not only is the public land important because of its high 
percentage in the reintroduction area, but it is important because of 
its habitat characteristics. The historical range in the NEP area is 
Chihuahuan Desert grassland, and public lands make up approximately 50 
percent of the Chihuahuan Desert grassland compared to private land 
(Young et al. 2002). We believe there is very low probability that 
falcons will populate lands outside of their historical range because 
those habitats would not be suitable for falcons. Thus far, we have not 
detected falcons inhabiting areas outside of their historical range.
    Extensive grasslands that would support individual or breeding 
falcons occur on Otero Mesa, White Sands Missile Range, southern 
Hidalgo County (Gray Ranch), and the Armendaris Ranch/Stallion Range 
area (Howard 2006a). Approximately one-half of the Chihuahuan Desert 
grasslands in New Mexico are federally managed, and often intermingled 
with State and private land. Falcons moving between Safe Harbor lands 
and non-Safe Harbor lands would receive different levels of protection 
from the Act. Activities that may affect falcons on Federal lands (or 
on non-Federal lands for projects using Federal permitting, funding, or 
authorization) would require section 7(a)(2) consultation. Falcons 
released on private lands with Safe Harbor Agreements that move to non-
Safe Harbor lands would receive the full protection of the Act. Actions 
that may take falcons on private lands would also be subject to the 
Act's regulatory requirements. We believe such an approach would be 
less efficient than establishing an NEP, would be difficult to 
regulate, and would ultimately provide less conservation benefit to the 
falcon than establishing an NEP.
    The Secretary has broad discretion to manage populations to better 
conserve and recover endangered species. The term ``experimental 
population'' means any population, including any of their offspring, 
authorized by the Secretary for release, only when the population is 
wholly separate geographically from nonexperimental populations of the 
same species. In the case of the falcon, (1) This subspecies has been 
known to disperse up to 250 kilometers, (2) it would be virtually 
impossible to preclude naturally occurring individual falcons from 
intermingling with the experimental population, and (3) there has been 
only one pair that has reproduced one time within the NEP area. 
Designation of a 10(j) NEP requires that the reintroduced animals be 
``wholly separate'' from any existing population. We do not consider 
the pair of falcons that bred in 2002 in Luna County to constitute a 
population. Therefore, the exclusion of the counties surrounding the 
2002 pair from the 10(j) designation is not necessary. We identify the 
experimental population as all falcons found within the NEP area, 
including reintroduced falcons and any lone dispersers and their 
offspring. We believe this is the best manner by which to manage the 
falcon reintroduction program to achieve species recovery. The Act does 
not require the protection of individuals to the exclusion or detriment 
of overall species recovery, or otherwise limiting the Department of 
the Interior's flexibility and discretion to define and manage an 
experimental population pursuant to section 10(j) (Wyoming Farm Bureau 
Federation v. Babbitt, 199 F.3d 1224 (10th Cir. 2000)). That decision 
affirmed the Service's determination of whether individual wolves 
constituted a population.
    Regulations define ``population'' as a potentially self-sustaining 
``group of fish or wildlife in the same taxon below the subspecific 
level, in common spatial arrangement that interbreed when mature,'' (50 
CFR 17.3). The term experimental population means ``an introduced and/
or designated population (including any off-spring arising solely 
therefrom) that has been so designated in accordance with the 
procedures of this subpart but only when, and at such times as the 
population is wholly separate geographically from nonexperimental 
populations of the same species'' (50 CFR 17.80). These definitions 
preclude the possibility of population overlap as a result of the 
presence of individual dispersing falcons, because by definition, lone 
dispersers do not constitute a population or even part of a population, 
since they are not in ``common spatial arrangement'' sufficient to 
interbreed with other members of a population. Congress defined 
``species,'' consistent with its broad conservation and recovery goals, 
to constitute distinct, interbreeding population segments or 
subspecies, not individual animals. By definition then, an individual 
animal does not constitute a species, population, or population 
segment. In the case of the gray wolf, the Department of the Interior, 
exercising its discretion under section 10(j), reasonably interpreted 
the phrase ``current range'' to be the combined scope of territories 
defended by the breeding pairs of an identifiable wolf pack or 
population (Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224 
(10th Cir. 2000)). We have used the same approach for the falcon. 
Therefore, a population of falcons does not exist in the NEP area. 
Breeding falcons are not evenly distributed between the United States 
border and the Chihuahuan group of falcon pairs. There is a gap of 
approximately 222 km (138 mi) between the Luna County pair in New 
Mexico and the most northern, known Chihuahuan breeding pair in Mexico 
(Howard 2006c). The single pair of New Mexico falcons that successfully 
reproduced only once in 2002 (after a 50-year absence) is neither self-
sustaining, a group, nor in common spatial relationship with the group 
of approximately 25 to 35 breeding falcon pairs in Mexico. These Mexico 
falcons occur 160 kilometers (km) (100 miles (mi)) or more south of the 
United States border. They are clustered in common spatial 
relationship, are self-sustaining, and are interbreeding.
    We do not consider the New Mexico 2002 nesting pair and any 
offspring produced by the pair to be a population. Biologically, the 
term ``population'' is not normally applied to a single pair, and so 
the few birds sighted in New Mexico could be considered dispersers

[[Page 42301]]

from the Chihuahuan population. In addition, we have no authority to 
manage a population in a different country. Therefore, the existence of 
a group in Mexico should not preclude conservation and management of 
falcons in the United States in order to achieve species recovery. 
Furthermore, two, or even three, birds are not considered a self-
sustaining population. Self-sustaining populations require a sufficient 
number of individuals to avoid inbreeding depression and occurrences of 
chance local extinction (Caughley and Gunn 1996).
    Designation of an NEP under section 10(j) of the Act requires that 
the reintroduced animals be ``wholly separate geographically'' from any 
existing population. As stated above, we do not consider the pair of 
falcons that bred in 2002 in Luna County, New Mexico, to constitute a 
population. Therefore, the exclusion of the counties surrounding the 
2002 pair from the 10(j) designation is not necessary. Creating an NEP 
area that excludes the counties surrounding the documented New Mexico 
pair (Hidalgo, Grant, and Luna counties) would create a complex 
regulatory situation. If falcons that are released in the NEP area move 
into the excluded area, then they would receive the full protection of 
the Act. Federal land managers in the NEP-excluded area may therefore 
be subject to the full regulatory requirements of section 7(a)(2) for 
falcons that were released in the NEP area. If a falcon released in the 
NEP area settles on private lands, the private land owner would be 
prohibited from any action that may incidentally ``take'' the falcon. 
We believe the recovery of the falcon can be achieved without imposing 
these regulatory restrictions on land managers and the public that 
excluding some counties from the NEP area would require.

Reintroduction Sites

    Falcons historically occurred in Chihuahuan Desert grasslands 
within the NEP area, and habitats in these areas are similar to those 
that support nesting falcons in northern Mexico populations. Primary 
considerations for identifying falcon release sites include areas: (1) 
Within or in proximity to potentially suitable habitat, including open 
grassland habitats that have scattered trees, shrubs, or yuccas for 
nesting and perching; (2) supporting available prey for falcons (e.g., 
insects, small to medium-sized birds, rodents); (3) with minimal 
natural and artificial hazards (e.g., predators, open-water tanks) and 
potential hazards that can be minimized where practical; (4) with 
access for logistical support; (5) with a large extent of potentially 
suitable habitat surrounding a release site and its proximity to other 
similar habitats; and (6) with a willing landowner or land manager.
    While the NEP area will include both Arizona and New Mexico, the 
reintroduction sites will only be on lands within New Mexico. The State 
of Arizona is supportive of having falcons re-established in the State 
under a 10(j) designation, but does not wish to conduct 
reintroductions. Reintroduction sites within the NEP area will be 
selected to increase the distribution of the population and its rate of 
growth. Selection will be based upon suitability and extent of 
available habitat, as well as any dispersal patterns from prior 
releases. Released falcons are expected to move around within the areas 
of their release, but may disperse to more distant areas. The 10(j) 
designation and supporting 4(d) rule cover both private and public 
lands in New Mexico and Arizona, so Safe Harbor Agreements will not be 
necessary with private landowners.

Reintroduction

    The rearing and reintroduction techniques that will be used in 
establishing this NEP have proven successful in establishing a wild 
population of falcons in southern Texas. Falcons will be raised in The 
Peregrine Fund's captive propagation facility in Boise, Idaho. Newly 
hatched falcon chicks are fed by hand in sibling groups for up to 25 
days. They are then raised in sibling groups with minimal human 
exposure until their transportation to a reintroduction site at 32 to 
37 days of age. Careful timing of the age for reintroducing falcons is 
important to increase their chances for successfully fledging and 
reaching independence (Sherrod et al. 1987). Falcons are shipped by air 
between Boise and the release locations and driven to the hack site 
(i.e., release site). At the hack site, the falcons are placed in a 
protective box on top of a conspicuous tower and fed for 7 to 10 days. 
The box is then left open and falcons are allowed to come and go 
freely. Food is provided on the tower and, initially, the falcons 
return each day to feed. Eventually, the falcons begin chasing prey, 
making their own kills, and spending more and more time away from the 
hack site. A falcon is considered to be ``successfully released'' when 
it is no longer dependent on food provided at the hack site. This 
process generally takes from 3 to 6 weeks (Jenny et al. 2004). The hack 
site attendants will evaluate the progress of the released falcons. The 
reintroduction process can be extended to ensure a successful release 
or a bird may be returned to the propagation facility in Boise if it 
does not attain independence (Sherrod et al. 1987).

Status of Reintroduced Population

    Before authorizing the release of any population, the Secretary 
shall determine, on the basis of the best available information, 
whether or not such a population is essential to the continued 
existence of an endangered species or a threatened species. The 
proposed experimental falcon population will be designated ``non-
essential, experimental'' (NEP) because: (1) There are established 
populations in Mexico and a rapidly expanding population in south 
Texas; (2) reintroductions will continue in western Texas; (3) the 
Boise, Idaho, captive population is producing enough offspring to 
maintain the captive flock and provide falcons for release; and (4) the 
possible failure of this action would not appreciably reduce the 
likelihood of survival of the subspecies in the wild. We also believe 
the NEP designation lessens land-use restrictions associated with the 
Act, which makes the establishment of falcons in New Mexico and Arizona 
less controversial to private landowners and agency land managers, and 
should result in more cooperative falcon conservation efforts with 
stakeholders and a larger number of release sites and more widespread 
reintroductions. Therefore, the use of the NEP should be the fastest 
way to both (1) successfully establish a falcon population in New 
Mexico and Arizona, and (2) aid in recovery and eventual delisting of 
the falcon. Thus, we have determined this experimental population to be 
nonessential to the continued existence of the species according to the 
provisions of section 10(j) of the Act for the following reasons:
    (a) With at least three populations--one in eastern Mexico, a 
second in northern Chihuahua, Mexico, and a third becoming established 
in southern Texas--the experimental population is not essential to the 
continued existence of the species. The threat of extinction from a 
single catastrophic event has been reduced by a gradual increase of the 
southern Texas and captive populations. Thus, loss of the experimental 
population will not appreciably reduce the likelihood of falcon 
survival in the United States; and,
    (b) Any birds lost during the reintroduction attempt can be 
replaced through captive breeding. Production from the extant captive 
flock is already sufficient to support the release of birds

[[Page 42302]]

that would occur under this final rule, in addition to continued 
releases in west Texas (Juergens and Heinrich 2005).
    We fully expect that the NEP will result in the establishment of a 
self-sustaining, resident population, which will contribute to the 
recovery of the species. We expect these reintroductions to be 
compatible with current or planned human activities in the NEP area 
(Burnham et al. 2002). There has been only one reported conflict 
between human activities and falcons in Texas, where 1,142 falcons have 
been released over the course of 20 years (Burnham et al. 2002; Bond 
2005; Jenny 2005; Robertson 2006). That issue involved the use of 
agricultural pesticides in proximity to falcon reintroduction sites in 
Texas in the early 1990s, and a viable resolution of the conflict was 
obtained. The Service will use the best scientific and commercial data 
available, including, but not limited to, results from the monitoring 
plan developed with this rule and stakeholder meetings to prepare 5-
year evaluations of the reintroduction program. If the actions carried 
forward as a result of this final rule fail to demonstrate sufficient 
success toward recovery, as determined by the Service, then the 
Service, in coordination with other Federal land managers, the States 
of Arizona and New Mexico, and private collaborators, would reevaluate 
management strategies.
    Although there are still questions to research while these 
reintroductions proceed, the success of the southern Texas 
reintroductions suggests that this effort will have similar positive 
results for the recovery of the falcon. Based on that experience, we 
have good reason to believe that appropriately managed captively reared 
birds are suitable for release into the wild and can survive and 
successfully reproduce. Although prey-base biomass may be lower 
throughout the NEP area than in southern Texas, the prey-base biomass 
in the NEP area is similar to occupied habitat in Chihuahua, Mexico 
(Truett 2002). Furthermore, the establishment of a third self-
sustaining population in the United States provides further assurance 
that the species will recover here. For example, if the southern Texas 
population was significantly impacted by a catastrophic event, such as 
a Gulf coast hurricane, the NEP in New Mexico and the reintroduced 
falcons in western Texas would provide buffers for the species in the 
wild while the southern Texas population recovered.

Location of Reintroduced Population

    Section 10(j) of the Act requires that an experimental population 
be geographically separate from other populations of the same species. 
The NEP area covers all of New Mexico and Arizona, with the expectation 
that falcons would persist only within the Chihuahuan Desert, which 
extends north from Mexico into southern Texas, southern New Mexico, and 
southeastern Arizona. The NEP area is geographically isolated from 
existing falcon populations in Mexico and Texas by a sufficient 
distance to preclude significant contact between populations. There 
have been no documented nesting falcons in Arizona and only one known 
successful nest in New Mexico in over 50 years. However, we do not 
believe the presence of these falcons constitutes a population, as 
stated in the ``Recovery Efforts'' section above.
    It is difficult to predict where individual falcons may disperse 
following reintroduction within the NEP area. A 70-day-old male falcon 
dispersed 136 km (84.5 mi) from a hack site in Texas (Perez et al. 
1996), and a falcon banded in Chihuahua, Mexico, was observed 250 km 
(155 mi) north in New Mexico (Burnham et al. 2002). Perez et al. (1996) 
placed radio transmitters on 14 falcons in Texas and found that their 
home range size varied widely, from 36 to 281 square km (km\2\) (14 to 
108.5 square mi (mi\2\)). Natal dispersal may be localized (Burnham et 
al. 2002). Designation of a large NEP area around planned release sites 
takes into consideration the potential occurrence and dispersal of 
falcons in a large geographic area. Any falcon found within the NEP 
area will be considered part of the NEP.
    It is possible, though unlikely, that individual captive-bred 
falcons or their progeny from west Texas could disperse into the NEP 
area. The majority of falcon reintroductions in west Texas are further 
than 193 km (120 mi) from suitable habitat in New Mexico, and tall 
mountains separating the two regions may provide an obstacle to falcon 
migration. The Guadalupe Mountains span the border between Texas and 
New Mexico and rise to heights of 8,749 feet. Falcon reintroductions in 
west Texas only began in 2002, and as expected, there has not yet been 
any documented breeding by these reintroduced falcons. Furthermore, 
there have been no detections in New Mexico of falcons that were banded 
at west Texas reintroduction sites, and all of those reintroduced 
falcons should be banded.

Management

    Because of the substantial regulatory relief provided by NEP 
designations, we do not believe the reintroduction of falcons will 
conflict with existing human activities or hinder public use of the NEP 
area. The NEP designation will not require land managers to 
specifically manage for reintroduced falcons. When NEPs are located 
outside a National Wildlife Refuge or unit of the National Park System, 
we treat the population as proposed for listing and only two provisions 
of section 7 would apply: section 7(a)(1) and section 7(a)(4). In these 
instances, NEPs provide additional flexibility because Federal agencies 
are not required to consult with us under section 7(a)(2). Section 
7(a)(1) requires Federal agencies to use their authorities to further 
the conservation of listed species. Section 7(a)(4) requires Federal 
agencies to confer (rather than consult) with the Service on actions 
that are likely to jeopardize the continued existence of a proposed 
species. The results of a conference are advisory in nature and do not 
restrict agencies from carrying out, funding, or authorizing 
activities.
    The Service, The Peregrine Fund, Turner Endangered Species Fund, 
the States of New Mexico and Arizona, BLM, Department of Defense (DOD), 
and other cooperators will manage the reintroduction. They will closely 
coordinate on reintroductions, monitoring, coordination with landowners 
and land managers, and public awareness, among other tasks necessary to 
ensure successful reintroductions of falcons.
    (a) Monitoring: The Service has developed a monitoring plan 
specific to this NEP and associated release efforts (see ADDRESSES 
section). Falcons will be observed every day before they are released. 
Facilities for release of the birds will be modeled after facilities 
used for falcons in Texas. Information on survival of released birds, 
movements, behavior, reproductive success, and causes of any losses, 
will be gathered during the duration of the reintroduction program. 
Program progress will be summarized and reported annually at 
stakeholder meetings. As described above, we plan to evaluate the 
progress of the program every 5 years.
    (b) Disease: (see information previously provided in our February 
9, 2005, proposed rule).
    (c) Genetic Variation: The captive breeding population of falcons 
is managed by The Peregrine Fund to maintain and maximize genetic 
diversity (Burnham et al. 2002). This

[[Page 42303]]

population was derived from nestlings collected from robust populations 
in Chiapas, Tabasco, and Veracruz, Mexico. Genetic testing was 
conducted to insure that progeny from falcons collected in southeastern 
Mexico would be suitable for release in northern Mexico and the United 
States, where the subspecies had been extirpated. Results from both 
mitochondrial DNA and microsatellite variation were analyzed, and 
revealed no genetic divergence between samples that would indicate any 
problems from reintroducing this lineage into the Chihuahuan grasslands 
of the United States (Kiff, in litt., 1995; Mindell, in litt., 1997; 
Burnham et al. 2002). This finding is consistent with the known 
dispersal tendencies of falcons and the fact that these populations are 
recognized as the same subspecies of northern aplomado falcon (Falco 
femoralis septentrionalis).
    (d) Mortality: For purposes of section 9 of the Act, a population 
designated as experimental is treated as threatened, regardless of the 
species' designation elsewhere in its range. Therefore, for purposes of 
section 9 of the Act, northern aplomado falcons within the NEP will be 
treated as threatened wherever they are found. A threatened designation 
allows us greater discretion in devising management programs and 
special regulations for such a population.
    The Act defines ``incidental take'' as take that is incidental to, 
and not the purpose of, the carrying out of an otherwise lawful 
activity such as military training, livestock grazing, recreation, and 
other activities that are in accordance with Federal, tribal, State, 
and local laws and regulations. A person may take a falcon within the 
NEP area provided that the take is unintentional and was not due to 
knowing, intentional, or negligent conduct. Unintentional take will be 
considered ``incidental take,'' and is authorized under this final rule 
via a special rule under section 4(d) of the Act. Although a special 
rule under section 4(d) of the Act can contain the prohibitions and 
exceptions necessary and appropriate to conserve that species, 
regulations issued under section 4(d) for NEPs are usually less 
restrictive with regard to human activities in the reintroduction area. 
Thus, take of falcons which is not intentional and is incidental to 
otherwise lawful activity will be permitted. Applying the results 
obtained from the reintroductions in south Texas, we expect levels of 
incidental take to be low since the reintroductions should be 
compatible with existing land use practices in the area (Burnham et al. 
2002; Bond 2005; Jenny 2005). Intentional take such as shooting, 
knowingly destroying a nest, or knowingly harassing falcons from an 
active nest for purposes other than authorized data collection, will 
not be permitted.
    (e) Special Handling: (See information previously provided in our 
February 9, 2005, proposed rule).
    (f) Coordination with Landowners and Land Managers: The Service and 
cooperators identified issues and concerns associated with falcon 
reintroductions through the National Environmental Policy Act (NEPA) 
scoping and two public comment periods. The reintroductions have also 
been discussed with potentially affected State agencies and some 
private landowners wishing to have falcons released on their property. 
Affected State agencies, landowners, and land managers have indicated 
support for the reintroduction, provided the falcon experimental 
population is established as a NEP, and land-use activities in the NEP 
area are not constrained without the consent of affected landowners.
    (g) Potential for Conflict with Military, Industrial, Agricultural, 
and Recreational Activities: With proper management, we expect falcon 
reintroductions to be compatible with current and planned human 
activities in the NEP area, including agricultural, oil and gas 
development, military, or recreational activities. There has been only 
one reported conflict between human activities and falcons in Texas, 
where 1,142 falcons have been released over the course of 20 years 
(Burnham et al. 2002; Bond 2005; Jenny 2005; Robertson 2006), and that 
issue was resolved in the early 1990s. Well-managed activities on 
private, State, and some Federal lands within the NEP area should 
continue without additional restrictions during implementation of 
falcon reintroduction activities. As required by section 10(j) of the 
Act, when the NEP is located within a National Wildlife Refuge or 
National Park, for section 7 consultation purposes we will treat the 
reintroduced falcons as threatened under the Act, and therefore the 
consultation requirements of section 7(a)(2) will apply on these 
Federal lands. If proposed agricultural, oil and gas development, 
military, or recreational activities may affect the falcon's prey base 
within reintroduction areas, State and/or Federal biologists can 
determine whether falcons could be impacted and, if necessary, work 
with the other agencies and stakeholders in an attempt to avoid such 
impacts. If private activities impede the establishment of falcons, we 
will work closely with State and Federal agencies and/or landowners to 
suggest alternative procedures to minimize conflicts. The States of 
Arizona and New Mexico are not directed by this final rule to take any 
specific actions to provide any special protective measures, nor are 
they prevented from imposing restrictions under State law, such as 
protective designations and area closures. Neither of the States within 
the NEP area, both of which are participants in the northern aplomado 
falcon working group, has indicated that it would propose hunting 
restrictions or closures related to game species because of the falcon 
reintroduction.
    The principal activities on private property near the initial 
release areas are agriculture, livestock production, and hunting. We do 
not believe that use of these private properties by falcons will 
preclude such private uses because these activities and the falcons' 
needs do not conflict with each other. These same human uses are 
occurring near falcon reintroduction sites in south Texas. As stated 
above, there has been only one reported conflict between human 
activities and falcons in Texas, where 1,142 falcons have been released 
over the course of 20 years (Burnham et al. 2002; Bond 2005; Jenny 
2005; Robertson 2006), and that issue, which involved the use of 
pesticides, was resolved in the early 1990s.
    Reintroduced falcons may disperse into other parts of the NEP area 
or even outside the NEP area. We believe that the frequency of 
movements outside the NEP area is likely to be very low based on the 
history of falcon reintroduction in Texas (Burnham et al. 2002), and 
the fact that the NEP area is large, spanning two entire States, while 
the reintroduction area is a relatively small portion. Any falcons 
outside the NEP area will be considered endangered under the Act. Any 
falcons that occur within the NEP area will be considered part of the 
NEP and will be subject to the protective measures in place for the 
NEP. The decreased level of protections afforded to falcons that cross 
into the NEP is not expected to have any significant adverse impacts to 
the wild population, since we do not anticipate this to occur very 
often.
    (h) Protection of Falcons: We will reintroduce falcons in a manner 
that provides short-term protection from natural predators and human-
related sources of mortality. Reintroduction methods designed to 
discourage predators include tall hacking towers as artificial nests 
and full-time biologists to feed and protect the young falcons and 
reduce natural mortality. Reintroducing falcons in areas with less 
human

[[Page 42304]]

activity and development will minimize human-related sources of 
mortality, such as from collisions. Should causes of mortality be 
identified, we will work with the private landowners or agency land 
managers to try to correct the problem.
    (i) Potential for Conflict with Natural Recolonization of Falcons: 
Natural (i.e., unaided) falcon recolonization of New Mexico and Arizona 
would be dependent on dispersing falcons from Mexico, Texas, or 
possibly unknown nesting pairs within the United States. We do not 
consider the unaided recolonization of falcons in the NEP area a likely 
occurrence for a number of reasons. The half-century absence of falcons 
in Arizona and New Mexico indicates that the Chihuahua, Mexico, falcon 
population is not likely to recolonize New Mexico and Arizona with 
sufficient numbers to establish a population in the foreseeable future. 
The low fledging success in Chihuahua and lack of significant expansion 
of that population since observations first began in 1992 (Montoya et 
al. 1997; Marcas-Duarte et al. 2004; Young et al. 2004; Juergens and 
Heinrich 2005) suggest that birds from Chihuahua are not likely to 
provide enough dispersers to populate New Mexico. Furthermore, the only 
birds that are known to be currently nesting in southern Texas are 
beyond the average dispersal distance for falcons. Natal dispersal to 
eventual breeding sites may be localized (Burnham et al. 2002). The 
longest known falcon dispersal distance is 250 km (155 mi) (Burnham et 
al. 2002), whereas the straight-line distance from currently breeding 
falcons near Brownsville, Texas, to Carlsbad, New Mexico, is 
approximately 973 km (605 mi), much further than any documented 
dispersal by falcons.
    It is possible, though unlikely, that individual captive-bred 
falcons or their progeny from west Texas could disperse into the NEP 
area. The majority of falcon reintroductions in west Texas are farther 
than 193 km (120 mi) from suitable habitat in New Mexico, and tall 
mountains separating the two regions may provide an obstacle to falcon 
migration. The Guadalupe Mountains span the border between Texas and 
New Mexico and rise to heights of 8,749 feet. Falcon reintroductions in 
west Texas only began in 2002, and as expected, there has not yet been 
any documented breeding by these reintroduced falcons. Furthermore, 
there have been no detections in New Mexico of falcons that were banded 
at west Texas reintroduction sites, and all of those reintroduced 
falcons should be banded.
    We do not consider the presence of the successful breeding pair in 
2002 in Luna County to represent a population. The frequency and number 
of falcons in recent New Mexico sightings would, at that pace, be very 
unlikely to result in natural recolonization. Although there may be 
occasional falcon dispersal movements from Mexico to New Mexico, we do 
not believe this will lead to the establishment of a viable population 
within New Mexico. The population in Mexico has been known to exist 
since 1992, and likely existed prior to that; however, there has only 
been one known successful nest in the entire NEP area in over 50 years. 
Given the lack of a falcon population in the reintroduction area, and 
the low probability that falcons from Chihuahua, Mexico, can recolonize 
New Mexico, we believe that reintroductions are needed in order to 
establish a resident falcon population in the grasslands in the United 
States.
    (j) Public Awareness and Cooperation: We will inform the general 
public of the importance of this reintroduction project in the overall 
recovery of the falcon. This designation will provide greater 
flexibility in the management of reintroduced falcons. NEP designation 
is necessary to secure needed cooperation of the States, landowners, 
Federal agencies, and other interests in the NEP area. For reasons 
stated, despite the relative success of the falcon releases in Texas, 
where there is relatively little public land, we believe the Safe 
Harbor Agreements used to release falcons in Texas are not the best 
mechanism for establishing falcons in New Mexico and Arizona. Safe 
Harbor Agreements can only be developed for private land owners, and 
the reintroduction area in New Mexico includes a vast amount of public 
land.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed NEP 
and draft environmental assessment in the proposed rule published on 
February 9, 2005 (70 FR 6819). We also contacted the appropriate 
Federal, State, and local agencies, tribes, scientific organizations, 
and other interested parties and invited them to comment on the 
proposed rule. The initial comment period was open from February 9, 
2005, to April 11, 2005. A second comment period was open from 
September 16, 2005, through November 15, 2005, to solicit comments on 
the draft monitoring plan and to announce the dates, locations, and 
times of the public hearings (70 FR 54701).
    In conformance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we solicited opinions from six expert 
ornithologists who are familiar with this species to peer review the 
proposed rule. Three of the six peer reviewers submitted comments; the 
others did not. Their comments are included in the summary below.
    We reviewed all comments received from the peer reviewers, State 
agencies, and the public for substantive issues and new information 
regarding the proposed NEP. Substantive comments received during the 
comment period have either been addressed below or incorporated 
directly into this final rule. The comments are grouped below as either 
peer review, State, or public comments.

Peer Review Comments

    (1) Comment: While a small population of falcons exists in 
southeastern Chihuahua, Mexico, there is very little evidence of a 
tendency towards natural reestablishment in the United States. Despite 
arguments to the contrary, the occasional appearance of a vagrant or a 
nesting pair does not forecast reestablishment and certainly not the 
existence of a viable population.
    Our Response: We agree with the commentor that any significant 
natural re-colonization of habitats in Arizona and New Mexico would 
likely take decades, if it occurred at all, because the reproductive 
rate of the population in Mexico is low, and this population is not 
significantly expanding, possibly due to extended drought (Burnham et 
al. 2002).
    (2) Comment: Aplomado falcons are colonizing New Mexico and Arizona 
on their own, as part of a natural range expansion.
    Our Response: Aplomado falcons are not likely to naturally 
recolonize in significant numbers. Please see our response to comment 1 
and information under section 2 (``Biological'') of the Background 
section, above.
    (3) Comment: Designation of an experimental population would hinder 
policy protections for naturally colonizing birds.
    Our Response: Birds that naturally recolonize areas in New Mexico 
will have reduced protections under the NEP; however, birds are not 
likely to naturally colonize in significant numbers. Thus, the benefits 
to falcon recovery of having large numbers of birds reintroduced is 
much greater than the potential effect of reducing protection for very 
few naturally colonizing individuals. In addition, all falcons will 
still be protected from direct intentional taking (e.g., hunting of 
falcons), and we anticipate little conflict with most otherwise lawful 
activities

[[Page 42305]]

occurring in the NEP (e.g., grazing that uses best management 
practices). There has been only one reported conflict, which was 
resolved in the early 1990s, between human activities and falcons in 
Texas, where 1,142 falcons have been released over the course of 20 
years (Burnham et al. 2002; Bond 2005; Jenny 2005; Robertson 2006). The 
areas that falcons inhabit on private lands with Safe Harbor Agreements 
in Texas are more densely populated by people than the public lands in 
New Mexico. Therefore, if conflicts are occurring, they would be 
detectable in Texas, and we have had no reported conflicts after the 
one in the early 1990s.
    (4) Comment: One peer reviewer summarized the proposal as 
``biologically sound, politically tenable, but ethically 
irresponsible.'' The reviewer asserts that limited recovery funds 
should be spent on higher priority species (i.e., species with lower 
recovery priority numbers under the Service's Recovery Priority 
Guidelines).
    Our Response: As we stated in the Recovery Priority Guidelines, 
``the priority systems presented must be viewed as guides and should 
not be looked upon as inflexible frameworks for determining resource 
allocations (48 FR 43098).'' Many other factors, including landowner 
cooperation, likelihood of success of projects, public cooperation, and 
partner contributions, may play into the decision to focus on specific 
species or actions. The falcon reintroductions discussed in this rule 
are supported by all of these factors.
    (5) Comment: Restoration of the falcon should occur within the 
natural predator community of the reintroduction area. Native predators 
(e.g., great-horned owls) should not be killed to protect released 
falcons.
    Our Response: The release protocols have been modified over time 
and include carefully chosen nest sites and use of nest boxes to 
minimize conflict with natural predators. The Service has no intention 
of killing native predators to benefit falcon releases.

State Comments

    (6) Comment: In general, the States of Arizona and New Mexico 
supported the proposed rule. One State agency suggested we develop a 
10(j) population that would also allow for naturally occurring falcons 
(i.e., experimental status individuals will only be recognized outside 
areas that overlap with naturally occurring individuals) (50 CFR 
17.80). Such a rule could also include zones for incremental State-wide 
expansion of the 10(j) population based upon an annual review by the 
Service and stakeholders.
    Our Response: The incremental designation proposal would likely not 
increase recovery benefits to the falcon for two reasons. First, 
falcons have the capability to move about the landscape easily and 
there would likely be frequent movements between NEP areas and areas 
without this designation within New Mexico. Therefore, the suggested 
scenario would create a very complicated regulatory patchwork, as the 
same falcons move into and out of NEP areas, and thereby became subject 
to changed regulations under the Act. Second, we do not anticipate that 
falcons will require the protections of full endangered status in order 
to recover in New Mexico and Arizona. We believe that designating both 
States as NEP areas relieves concerns of landowners and managers 
regarding land-use restrictions, and will lead to more sites for 
reintroductions and faster recovery for the subspecies.

Public Comments

Issue 1: Procedural and Legal Compliance

    (7) Comment: The Service should designate critical habitat for the 
falcon, rather than designating a 10(j) population. If you finalize the 
proposed rule, then a critical habitat designation would be precluded 
and little to no regulatory protections would remain for occupied or 
unoccupied habitat.
    Our Response: The role that designation of critical habitat plays 
in protecting habitat of listed species, however, is often 
misunderstood. There are significant limitations on the regulatory 
effect of designation under ESA section 7(a)(2). In brief, (1) 
Designation provides additional protection to habitat only where there 
is a Federal nexus; (2) the protection is relevant only when, in the 
absence of designation, destruction or adverse modification of the 
critical habitat would in fact take place (in other words, other 
statutory or regulatory protections, policies, or other factors 
relevant to agency decision-making would not prevent the destruction or 
adverse modification); and (3) designation of critical habitat triggers 
the prohibition of destruction or adverse modification of that habitat, 
but it does not require specific actions to restore or improve habitat.
    We believe it is not likely that falcons will naturally recolonize 
areas in Arizona and New Mexico in the near future even though there is 
ample suitable habitat to support falcons. Because there is available 
habitat, but virtually no naturally occurring falcons, we believe that 
releases under a 10(j) rule are more beneficial to long-term falcon 
conservation than designation of critical habitat.
    (8) Comment: The proposed rule violates the ecosystem protection 
purposes identified in section 2(b) of the Act.
    Our Response: We believe that releasing falcons under the section 
10(j) provision of the Act is the most appropriate way to achieve 
conservation for this species, which has shown a remarkable ability to 
coexist with many human activities, and that this action is consistent 
with the intents and purposes of the Act. Falcon reintroductions are 
intended to return a missing predator to the grassland ecosystems to 
which it naturally belongs, and this should benefit ecosystem 
functioning.
    (9) Comment: Does the 10(j) rule remove all section 7 
responsibilities?
    Our Response: For the purposes of section 7 of the Act, we treat 
NEPs as threatened species when the NEP is located within a National 
Wildlife Refuge or a unit of the National Park System, and therefore 
section 7(a)(1) and the consultation requirements of section 7(a)(2) of 
the Act apply in these units. When NEPs are located outside a National 
Wildlife Refuge or unit of the National Park System, for the purposes 
of section 7 of the Act we treat the population as proposed for listing 
and only two provisions of section 7 would apply: Section 7(a)(1) and 
section 7(a)(4). In these instances, NEPs provide additional 
flexibility because Federal agencies are not required to consult with 
us under section 7(a)(2). Section 7(a)(1) requires Federal agencies to 
use their authorities to further the conservation of listed species. 
Section 7(a)(4) requires Federal agencies to confer (rather than 
consult) with the Service on actions that are likely to jeopardize the 
continued existence of a proposed species. The results of a conference 
are advisory in nature and do not restrict agencies from carrying out, 
funding, or authorizing activities.
    (10) Comment: One commenter noted that if the proposed rule is 
finalized, the falcon would be treated as a species proposed for 
listing on BLM or DOD lands. The agencies would only be required to 
confer on actions that may jeopardize the species. If the population is 
deemed nonessential, the jeopardy threshold would never be reached, 
indicating that conferences would be an administrative task with no 
protection for the falcon. The Service should recognize that the BLM 
would no longer consult on many activities previously considered to be 
significant threats to falcon habitat such as oil and gas development, 
livestock grazing, military

[[Page 42306]]

operations, or pesticide use. In fact, under the current nonessential 
experimental population proposal, the BLM could authorize a road or 
pipeline that destroys an occupied falcon nest without the need for an 
incidental take permit.
    Our Response: Consultation under section 7(a)(2) is only required 
for Federal projects that may affect listed species. It is unlikely 
that a Federal action would affect a significant number of falcons at 
the present time because the recent falcons sighted in New Mexico 
appear to be transients and there is a near absence of any falcon 
sightings in Arizona. Therefore, designating the reintroduced 
population as non-essential will not significantly change current 
practices regarding consultation under 7(a)(2), on areas outside of the 
National Wildlife Refuge and National Parks. Since the falcon will now 
be treated as a species proposed for listing, sections 7(a)(1) and 
7(a)(4) will apply to Federal actions.
    The falcon will be treated as a threatened species on BLM and DOD 
lands for purposes of section 9 of the Act. Through section 4(d) of the 
Act, we have greater discretion in developing management programs and 
special regulations for threatened species than we have for endangered 
species. Section 4(d) of the Act allows us to adopt whatever 
regulations are necessary to provide for the conservation of a 
threatened species.
    While it is true that consultation requirements are lessened, we 
believe that the incidental take associated with otherwise lawful 
activities will not pose a long-term threat to falcon conservation 
under this rule, as most activities that occur in the 10(j) area are 
compatible with falcon recovery. Furthermore, Federal agencies will 
continue to analyze the impacts of their actions under NEPA. In 
addition, birds will continue to be reintroduced into New Mexico, which 
will provide some buffer to the population against individual birds 
lost to incidental take. A special rule under section 4(d) of the Act 
is included in this final action, and it authorizes unknowing or 
incidental take of falcons (i.e., take that is incidental to an 
otherwise lawful activity). Direct take for research or educational 
purposes would require a section 10 recovery permit. Knowing take 
(e.g., shooting) or take due to negligence will not be permitted. 
Additional information about the special rule can be found under the 
Final Regulation Promulgation section below.
    (11) Comment: How will beneficial activities (e.g., prescribed 
fire, fencing, bank stabilization, storm water runoff control) be 
handled under section 7 in the 10(j) area?
    Our Response: These actions will be handled like any other projects 
subject to section 7 in the NEP area. Please see our response to 
comment 9 above.
    (12) Comment: One commenter was concerned that lessees and 
allotment holders have to remove cows from allotments during nesting 
season.
    Our Response: In our experience with reintroducing falcons in south 
Texas, livestock grazing using best management practices has been 
compatible with successful nesting by falcons. It is possible that the 
conference opinions for grazing on Federal lands would recommend 
additional grazing guidelines; however, these measures are not 
mandatory, and it would be up to the Federal agency and lessee or 
allotment holders to implement at their discretion.
    (13) Comment: The final rule should confirm that military 
operations (e.g., low-level overflight, bombing and gunnery activities, 
target placement) will not be affected by the 10(j) designation, even 
if occurring over National Park Service or National Wildlife Refuge 
lands.
    Our Response: As stated in our response to comment 9, if aplomado 
falcons are found within a National Wildlife Refuge or unit of the 
National Park System and there may be impacts from military activities, 
section 7 consultation may be required. Any military operations that 
may affect the 10(j) falcons would only involve conferencing with the 
military and recommended actions, if any, would be at the discretion of 
the military to implement.
    (14) Comment: In order to streamline future conference opinions, 
the final rule should provide authorization to Federal agencies to 
permit habitat destruction.
    Our Response: Section 10(j) of the Act explicitly states that for 
the purposes of section 7, the species designated as non-essential will 
be considered a proposed species. Federal agencies will have an 
obligation to confer (rather than consult) with the Service on proposed 
activities that are likely to jeopardize the continued existence of the 
falcon. The results of a