Endangered and Threatened Wildlife and Plants; Proposed Revision To the Nonessential Experimental Population of the Mexican Wolf, 35719-35742 [2013-13977]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 78, Number 114 (Thursday, June 13, 2013)]
[Proposed Rules]
[Pages 35719-35742]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13977]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0056; FXES11130900000C2-134-FF09E32000]
RIN 1018-AY46


Endangered and Threatened Wildlife and Plants; Proposed Revision 
To the Nonessential Experimental Population of the Mexican Wolf

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise the existing nonessential experimental population designation of 
the Mexican wolf (Canis lupus baileyi) under section 10(j) of the 
Endangered Species Act of 1973, as amended. This action is being taken 
in coordination with our proposed rule in today's Federal Register to 
list the Mexican wolf as an endangered subspecies and delist the gray 
wolf (Canis lupus). The proposal to list the Mexican wolf as an 
endangered subspecies and delist the gray wolf species necessitates 
that we revise the nonessential experimental population designation of 
Mexican wolves in order to correctly associate this designation with 
the properly listed entity. In addition, we are proposing several 
revisions to the section 10(j) rule. We are seeking comment from the 
public on the proposed revisions and on additional possible 
modifications that we may analyze and incorporate into our final 
determination.

DATES: We will accept comments received on or before September 11, 
2013. Comments submitted electronically using the Federal eRulemaking 
Portal (see ADDRESSES section) must be received by 11:59 p.m. Eastern 
Time on the closing date. We must receive requests for public hearings, 
in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
July 29, 2013. We will schedule public hearings on this proposal, if 
any are requested, and announce the dates, times, and places of those 
hearings, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before any such 
hearing.

ADDRESSES: You may submit written comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Search for FWS-R2-ES-2013-0056, which is the 
docket number for this rulemaking. You may submit a comment by clicking 
on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2013-0056; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more information). 
To increase our efficiency in downloading comments, groups providing 
mass submissions should submit their comments in an Excel file.

FOR FURTHER INFORMATION CONTACT: Mexican Wolf Recovery Program, U.S. 
Fish and Wildlife Service, New Mexico Ecological Services Field Office, 
2105 Osuna Road NE., Albuquerque, NM 87113; by telephone 505-761-4704; 
or by facsimile 505-346-2542. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION:

[[Page 35720]]

Executive Summary

    Why we need to publish a rule. This rule is being proposed for two 
reasons: (1) To ensure this nonessential experimental population of 
Mexican wolves will be associated with the Mexican wolf subspecies 
listing, if finalized, rather than with the listing of the gray wolf at 
the species level; and (2) to allow for public comment on our proposed 
revisions and modifications to the 1998 final rule that established a 
Mexican wolf nonessential experimental population (63 FR 1752, January 
12, 1998) (1998 Final Rule) (Figure 1).
    In our 1998 Final Rule, we established two recovery areas (the Blue 
Range Wolf Recovery Area [BRWRA] and the White Sands Wolf Recovery 
Area) within the Mexican Wolf Experimental Population Area [MWEPA]. We 
established primary recovery zones within each of these recovery areas 
where initial releases of Mexican wolves would occur, while dispersal 
and translocations were allowed throughout the recovery areas. We also 
established provisions to remove Mexican wolves that occupied 
territories that were wholly outside of the recovery areas, or wolves 
that depredated on livestock outside of the recovery areas. Since 1998, 
we have only released Mexican wolves into the BRWRA; we have not 
utilized the White Sands Wolf Recovery Area. On tribal lands within the 
Mexican Wolf Experimental Population Area, we established provisions 
where the Service in cooperation with tribal government would develop 
management actions, including the capture and removal of Mexican 
wolves, if requested by the tribe. In 2000, the White Mountain Apache 
Tribe agreed to allow free-ranging Mexican wolves to inhabit the Fort 
Apache Indian Reservation, in accordance with this provision of the 
Final Rule. We recognize that continued occupancy of Mexican wolves on 
the Fort Apache Indian Reservation is dependent upon tribal agreement.
[GRAPHIC] [TIFF OMITTED] TP13JN13.002

    This proposal is necessitated by a related action we are taking to 
propose the reclassification of the Mexican wolf (Canis lupus baileyi) 
as an endangered subspecies and delist the gray wolf species (Canis 
lupus). The Mexican wolf has been listed under the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.) under a species-
wide gray wolf listing since 1978; therefore, when we designated the 
Mexican wolf nonessential experimental population in 1998 (63 FR 1752, 
January 12, 1998), it corresponded to the gray wolf listing in the Code 
of Federal Regulations (CFR) even though it was specific to our Mexican 
wolf recovery effort. With the proposed removal of the gray wolf from 
the List of Threatened and Endangered Wildlife and classification of 
the Mexican wolf as an endangered subspecies, we recognize the need to 
revise 50 CFR 17.11(h) such that the nonessential population will be

[[Page 35721]]

associated with the Mexican wolf subspecies listing rather than with 
the gray wolf species.
    In order to improve implementation and conservation, we are 
proposing several changes to the section 10(j) rule and management 
regulations of the Mexican wolves.
    The basis for our action. The 1982 amendments to the Act included 
the addition of section 10(j), which allows for the designation of 
reintroduced populations of listed species as ``experimental 
populations.'' Under section 10(j) of the Act and our regulations at 50 
CFR 17.81, the Service may designate as an experimental population a 
population of endangered or threatened species that has been or will be 
released into suitable natural habitat outside the species' current 
natural range (but within its probable historical range, absent a 
finding by the Director of the Service in the extreme case that the 
primary habitat of the species has been unsuitably and irreversibly 
altered or destroyed). With the experimental population designation, 
the relevant population is treated as threatened for purposes of 
section 9 of the Act, regardless of the species' designation elsewhere 
in its range. Treating the experimental population as threatened allows 
us the discretion to devise management programs and special regulations 
for such a population. Section 4(d) of the Act allows us to adopt any 
regulations that are necessary and advisable to provide for the 
conservation of a threatened species. When designating an experimental 
population, the general regulations that extend most section 9 
prohibitions to threatened species do not apply to that species, and 
the section 10(j) rule contains the prohibitions and exemptions 
necessary and appropriate to conserve that species.
    We are preparing an environmental impact statement. We are 
preparing a draft Environmental Impact Statement (EIS) pursuant to the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). To 
ensure that we consider the environmental impacts associated with this 
proposed rule, we are preparing a draft EIS to analyze the proposed 
nonessential experimental population of Mexican wolves. From October 
through December 2007, we conducted a public scoping process under NEPA 
based on our intent to modify the 1998 Final Rule. We developed a 
scoping report in April 2008, but we did not propose or finalize any 
modifications to the 1998 Final Rule at that time. We will utilize all 
information collected since that scoping process began in the 
development of a draft EIS. We will use information from this analysis 
to inform our final decision.
    We will seek peer review. We will obtain opinions from 
knowledgeable individuals with scientific expertise on our technical 
assumptions, analysis, adherence to regulations, and whether or not we 
used the best available information. These peer reviewers will analyze 
our methods and conclusions and provide additional information, 
clarifications, and suggestions to improve the final determination. 
Because we will consider all comments and information we receive during 
the comment period, our final determinations may differ from this 
proposal.

Information Requested

    We are seeking public comments on this proposed rule. We are 
particularly interested in public comments on a number of specific 
issues we are proposing, and on other options being considered that are 
not included in today's proposed rule. We may include any of the 
modifications discussed in this proposed rule in our final 
determination. We particularly seek comments and information concerning 
the following revisions being proposed in today's action:
    (1) Expanding the area for direct initial release of captive-raised 
Mexican wolves to include the entire BRWRA, thereby eliminating the 
primary and secondary recovery zones of the BRWRA (Figure 2).

[[Page 35722]]

[GRAPHIC] [TIFF OMITTED] TP13JN13.003

    (2) Allowing Mexican wolves to disperse naturally from the BRWRA 
into the Mexican Wolf Experimental Population Area (MWEPA) and occupy 
the MWEPA without the requirement to bring them back into the BRWRA 
(Figure 2).
    (3) Removing the portion of west Texas lying north of US Highway 
62/180 to the Texas-New Mexico boundary from the MWEPA (Figure 2).
    (4) Removing reference to possible reintroduction of Mexican wolves 
to the White Sands Wolf Recovery Area (Figure 2).
    (5) Developing and implementing management actions on private land 
within the MWEPA by the Service or an authorized agency to benefit 
Mexican wolf recovery in voluntary cooperation with private landowners, 
including but not limited to initial release, proactive measures to 
prevent conflicts, and translocation of wolves if requested by the 
landowner.
    (6) Developing and implementing management actions on tribal land 
within the MWEPA by the Service or an authorized agency in voluntary 
cooperation with tribal governments including but not limited to 
initial release, translocation, proactive measures to prevent 
conflicts, capture, and removal of Mexican wolves if requested by the 
tribal government.
    (7) Identifying section 6 of the Act as authorizing language for 
take pursuant to 50 CFR 17.31 for State wildlife agencies with 
authority to manage Mexican wolves under the nonessential experimental 
population rule.
    (8) Clarifying that an individual can be authorized to take Mexican 
wolves under specific circumstances.
    (9) Clarifying allowable take for Federal agencies and authorized 
personnel.

[[Page 35723]]

    (10) Revising the conditions that determine when we would issue a 
permit to livestock owners or their agents to allow take of Mexican 
wolves that are engaged in the act of killing, wounding or biting 
livestock on public lands allotted for grazing from ``6 breeding 
pairs'' to ``100 Mexican wolves'' to be consistent with our population 
objective of establishing a population of at least 100 wolves.
    (11) Modifying the prohibitions for take such that taking a Mexican 
wolf with a trap, snare, or other type of capture device within 
occupied Mexican wolf range is prohibited and will not be considered 
unavoidable or unintentional take, unless due care was exercised to 
avoid injury or death to a Mexican wolf. Due care includes: (1) 
Following the regulations, proclamations, and/or laws within the State 
where the trapping takes place; (2) if securely fastening traps, use 
double stake traps, cable stakes (at least 18 inches (in) (46 
centimeters (cm)) deep) or otherwise securely fasten traps to immovable 
objects with aircraft cable or chain so that if captured, a Mexican 
wolf is unable to pull the trap free; (3) if using drags, use one of 
sufficient size and weight or grapples made from steel at least 0.5 in 
(1.3 cm) in diameter of cross section attached to chains or cables; (4) 
reporting the capture of a Mexican wolf (even if the wolf has pulled 
free) within 24 hours to the Service; and (5) not taking a Mexican wolf 
via neck snares.
    Trappers can call the Interagency Field Team (IFT) (1-888-459-WOLF 
[9653]) as soon as possible to arrange for radio-collaring and 
releasing of the Mexican wolf. Per State regulations for releasing 
nontarget animals, trappers may also choose to release the animal alive 
and subsequently contact the Service or IFT. Taking a Mexican wolf by 
shooting will not be considered unavoidable or unintentional take.
    (12) Establishing a new provision to conduct a one-time overall 
evaluation of the nonessential experimental population 5 years after 
our final determination on this rule. We will still conduct a status 
review of the listed species once every 5 years as required by section 
4(c)(2) of the Act.
    (13) Clarifying that the Service will consider State-owned lands 
within the boundaries of the MWEPA in the same manner as we consider 
lands owned and managed by other public land management agencies.
    We are also taking comments on the following options being 
considered for possible inclusion in the final rule, but not proposed 
in today's action:
    (14) Moving the southern boundary of the MWEPA in Arizona and New 
Mexico from Interstate Highway 10 to the United States-Mexico 
international border (Figure 3).

[[Page 35724]]

[GRAPHIC] [TIFF OMITTED] TP13JN13.004

    (15) Expanding the BRWRA to include the entire Sitgreaves National 
Forest in Arizona;
    (16) Expanding the BRWRA to include the Payson, Pleasant Valley, 
and Tonto Basin Ranger Districts of the Tonto National Forest in 
Arizona (Figure 3).
    (17) Expanding the BRWRA to include the Magdalena Ranger District 
of the Cibola National Forest in New Mexico (Figure 3).
    (18) Replacing the term ``depredation'' with the term ``depredation 
incident'' and defining it as, ``the aggregate number of livestock 
killed or mortally wounded by an individual Mexican wolf or single pack 
of Mexican wolves at a single location within one 24-hour period, 
beginning with the first confirmed kill or injury.''
    (19) Including provisions for take by pet owners of any Mexican 
wolf engaged in the act of killing, wounding, or biting pets on private 
or tribal land anywhere within the MWEPA, provided that evidence of a 
freshly wounded or killed pet by wolves is present. The take must be 
reported to the Service's Mexican Wolf Recovery Coordinator or a 
designated representative of the Service within 24 hours.

[[Page 35725]]

    (20) Including provisions for the issuance of permits on private or 
tribal land anywhere within the MWEPA to allow livestock owners or 
their agents to take (including kill or injure) any Mexican wolf that 
is present on private or tribal land and what conditions must be met 
before such a permit is issued, such as a minimum population size or 
population trend of Mexican wolves present in the MWEPA or other 
established populations based on the most recently reported population 
count; other relevant measures of population status such as genetic 
diversity; documentation by the Service or our authorized agent of 
previous loss or injury of livestock on the private or tribal land, 
caused by wolves; implementation of agency efforts to resolve the 
problem and determination that conflict is likely to continue; and 
enactment of this provision by a formal statement from the Service.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, at 
Docket No. FWS-R2-ES-2013-0056, or by appointment, during normal 
business hours, at the U.S. Fish and Wildlife Service, New Mexico 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
tribes, the scientific community, industry, or other interested parties 
concerning this proposed rule. We request that you make your comments 
as specific as possible and explain the basis for them. In addition, 
please include sufficient information with your comments to allow us to 
authenticate any scientific or commercial data you reference or 
provide.

Previous Federal Actions

    The Mexican wolf was listed under the Act as an endangered 
subspecies in 1976 (41 FR 17736, April 28, 1976). In 1978, the Service 
listed the entire gray wolf species in North America south of Canada as 
endangered, except in Minnesota where it was listed as threatened (43 
FR 9607, March 9, 1978). This 1978 listing at the species level 
subsumed the previous Mexican wolf subspecies listing. However, the 
1978 listing rule (43 FR 9607, March 9, 1978) stated that we would 
continue to recognize the Mexican wolf as a valid biological subspecies 
for purposes of research and conservation.
    After the 1978 listing, the Service initiated recovery programs for 
the gray wolf in three broad geographical regions of the country: the 
Northern Rocky Mountains, the Western Great Lakes, and the Southwest. 
In the Southwest, a recovery plan was developed specifically for the 
Mexican wolf, acknowledging and implementing the regional gray wolf 
recovery focus on the conservation of the Mexican wolf as a subspecies 
(Service 1982). The 1982 Mexican Wolf Recovery Plan did not provide 
recovery criteria, but recommended an initial two-pronged approach to 
recovery to establish a captive-breeding program and reintroduce 
captive Mexican wolves to the wild (Service 1982, p. 28).
    In 1996, we completed a final EIS, ``Reintroduction of the Mexican 
Wolf within its Historic Range in the Southwestern United States,'' 
after assessing potential locations for reintroduction of the Mexican 
wolf (Service 1996). On April 3, 1997, the Department of the Interior 
issued its Record of Decision on the final EIS (62 FR 15915), and on 
January 12, 1998, we published a final rule in the Federal Register to 
establish the MWEPA in central Arizona and New Mexico, ``Establishment 
of a Nonessential Experimental Population of the Mexican Gray Wolf in 
Arizona and New Mexico'' (63 FR 1752).
    Between 2003 and 2009, the Service published several rules revising 
the 1978 conterminous listing for the gray wolf in an attempt to 
recognize recovery progress achieved in the Northern Rocky Mountains 
and Western Great Lakes populations but leave the Mexican wolf in the 
southwestern United States and Mexico listed as endangered (except for 
the nonessential experimental population in Arizona and New Mexico) (68 
FR 15804, April 1, 2003; 72 FR 6052, February 8, 2007; 73 FR 10514, 
February 27, 2008; 74 FR 15070 and 74 FR 15123, April 2, 2009). 
However, these revisions were challenged in court, which left the 1978 
listing unchanged through 2010 (Service 2012, pp. 3-4).
    Effective January 27, 2012, the Service designated a Western Great 
Lakes Distinct Population Segment (DPS) in Minnesota, Wisconsin, 
Michigan, and portions of adjacent States, and removed this segment 
from the List of Endangered and Threatened Wildlife (76 FR 81666, 
December 28, 2011). The Service removed the Northern Rocky Mountain DPS 
(Montana, Idaho, and portions of adjacent states, not including 
Wyoming) from the List of Endangered and Threatened Wildlife pursuant 
to Section 1713 of Public Law 112-10 on May 5, 2011 (76 FR 25590), and 
subsequently removed gray wolves in Wyoming from the List of Endangered 
and Threatened Wildlife on September 10, 2012 (77 FR 55530).
    On August 4, 2010, we published a 90-day finding on two petitions 
to list the Mexican wolf as an endangered subspecies with critical 
habitat (75 FR 46894). In the 90-day finding, we determined that the 
petitions presented substantial scientific information that the Mexican 
wolf may warrant reclassification as a subspecies or DPS. As a result 
of this finding, we initiated a status review. On October 9, 2012, we 
published our 12-month finding in the Federal Register (77 FR 61375) 
stating that the listing of the Mexican wolf as a subspecies or DPS was 
not warranted at that time because Mexican wolves already receive the 
protections of the Act under the species-level gray wolf listing of 
1978.
    During 2011 and 2012, we conducted a 5-year review of the gray wolf 
finding that the entity currently described on the List of Endangered 
and Threatened Wildlife should be revised to reflect the distribution 
and status of gray wolf populations in the lower 48 States and Mexico 
by removing all areas currently included in its range, as described in 
the CFR, except where there is a valid species, subspecies, or DPS that 
is threatened or endangered (Service 2012).
    From October through December 2007, we conducted a public scoping 
process under NEPA based on our intent to modify the 1998 Final Rule. 
We developed a final scoping report in

[[Page 35726]]

April 2008, but we did not propose or finalize any modifications to the 
1998 Final Rule at that time. We will utilize the information collected 
during that scoping process in the development of a draft EIS.
    Today, we concurrently proposed a rule in the Federal Register to 
delist the gray wolf as a species and list the Mexican wolf subspecies 
as endangered. The proposal to list the Mexican wolf as an endangered 
subspecies necessitates that we propose a revision to the nonessential 
experimental population of Mexican wolves in Arizona and New Mexico in 
order to correctly document this population as an experimental 
population of the Mexican wolf subspecies rather than the gray wolf 
species found in the current CFR. We are also proposing and seeking 
comment on a number of substantive modifications and technical 
corrections to the regulation governing the Mexican wolf nonessential 
experimental population designation.

Background

    Our approach in this proposed rule is to refer to the 1998 Final 
Rule as necessary to describe the current situation and the changes we 
are proposing, and to propose new language where appropriate at this 
time.

Species Information

    The Mexican wolf is the smallest extant gray wolf subspecies in 
North America. Adults weigh 50 to 90 pounds (lb) (23 to 41 kilograms 
(kg)) with a length of 5 to 6 ft (1.5 to 1.8 m) and height at shoulder 
of 25 to 32 in (63 to 81 cm) (Brown 1988, p. 119). Mexican wolves are 
typically a patchy black, brown to cinnamon, and cream color, with 
primarily light underparts (Brown 1988, p. 118). Solid black or white 
coloration, as seen in other North American gray wolves, does not exist 
in Mexican wolves. The basic life history for the Mexican wolf is 
similar to that of other gray wolves (Mech 1970, entire; Service 1982, 
p. 11; Service 2010, pp. 32-41).
    Historically, Mexican wolves were distributed across portions of 
the southwestern United States and northern and central Mexico. In the 
United States, this range included eastern, central, and southern 
Arizona; southern New Mexico; and western Texas (Brown 1983, pp. 10-11; 
Parsons 1996, pp. 102-104). Maps of Mexican wolf historical range are 
available in the scientific literature (Young and Goldman 1944, p. 414; 
Hall and Kelson, 1959, p. 849; Hall 1981, p. 932; Bogan and Mehlhop 
1983, p. 17; Nowak 1995, p. 395; Parsons 1996, p. 106). The 
southernmost extent of the Mexican wolf's range in Mexico is 
consistently portrayed as ending near Oaxaca (Hall 1981, p. 932; Nowak 
1995, p. 395). Depiction of the northern extent of the Mexican wolf's 
pre-settlement range among the available descriptions varies depending 
on the authors' taxonomic treatment of several subspecies and their 
interpretation of where reproductive interaction between neighboring 
wolf populations occurred (see today's Federal Register publication of 
the Proposed Rule Removing the Gray Wolf (Canis lupus) from the List of 
Endangered and Threatened Wildlife and Maintaining Protections for the 
Mexican Wolf (Canis lupus baileyi) by Listing it as Endangered).
    Mexican wolves were associated with montane woodlands characterized 
by sparsely to densely forested mountainous terrain consisting of 
evergreen oaks (Quercus spp.) or pinyon (Pinus edulus) and juniper 
(Juniperus spp.) to higher elevation pine (Pinus spp.), mixed-conifer 
forests, and adjacent grasslands at elevations of 4,000 to 5,000 ft 
(1,219 to 1,524 m) where ungulate prey were abundant. Mexican wolves 
were believed to have preyed upon white-tailed deer (Odocoileus 
virginianus), mule deer (O. hemionus), elk (Cervus elaphus), collared 
peccaries (javelina) (Tayassu tajacu), pronghorn (Antilocapra 
americana), bighorn sheep (Ovis canadensis), jackrabbits (Lepus spp.), 
cottontails (Sylvilagus spp.), and small rodents (Parsons and 
Nicholopoulos 1995, pp. 141-142); white-tailed deer and mule deer were 
believed to be the primary sources of prey (Brown 1988, p. 132; Bednarz 
1988, p. 29).
    Today, Mexican wolves in Arizona and New Mexico inhabit evergreen 
pine-oak woodlands (i.e., Madrean woodlands), pinyon-juniper woodlands 
(i.e., Great Basin conifer forests), and mixed-conifer montane forests 
(i.e., Rocky Mountain, or petran, forests) that are inhabited by elk, 
mule deer, and white-tailed deer (Service 1996, pp. 3-5; AMOC and IFT 
2005, p. TC-3). Mexican wolves in the BRWRA show a strong preference 
for elk compared to other ungulates (Adaptive Management Oversight 
Committee (AMOC) and Interagency Field Team (IFT) 2005, p. TC-14, Reed 
et al. 2006, pp. 56, 61; Merkle et al. 2009, p. 482). Other documented 
sources of prey include deer and occasionally small mammals and birds 
(Reed et al. 2006, p. 55). Mexican wolves are also known to prey and 
scavenge on livestock (Merkle et al. 2009, p. 482; Breck et al. 2011, 
entire; Reed et al. 2006, p. 1129; AMOC and IFT 2005, p. TC-15)).

Recovery Efforts

    The United States and Mexico signed the Mexican Wolf Recovery Plan 
in 1982 (Service 1982). The recovery plan did not contain objective and 
measurable recovery criteria for delisting as required by section 
4(f)(1) of the Act because the status of the Mexican wolf was so dire 
that the recovery team could not foresee full recovery and eventual 
delisting (Service 1982, p. 23). Instead, the recovery plan contained a 
``prime objective'' to ensure the immediate survival of the Mexican 
wolf. The prime objective of the 1982 recovery plan was: ``To conserve 
and ensure the survival of Canis lupus baileyi by maintaining a captive 
breeding program and reestablishing a viable, self-sustaining 
population of at least 100 Mexican wolves in the middle to high 
elevations of a 5,000-square-mi area (12,950-square-km) within the 
Mexican wolf's historic range'' (Service 1982, p. 23). This objective 
has since guided the recovery effort for the Mexican wolf in the United 
States.
    A binational captive-breeding program between the United States and 
Mexico, referred to as the Mexican Wolf Species Survival Plan (SSP), 
was initiated in 1977 to 1980 with the capture of the last remaining 
Mexican wolves in the wild in Mexico and subsequent addition of wolves 
from captivity in Mexico and the United States. Through the breeding of 
the 7 founding Mexican wolves and generations of their offspring, the 
captive population has expanded to its current size of close to 258 
wolves in 52 facilities, including 34 facilities in the United States 
and 18 facilities in Mexico (as of October 12, 2012) (Siminski and 
Spevak 2012, p. 2).
    The primary purpose of the SSP is to raise Mexican wolves for the 
Service and the General del Vida Silvestre (in Mexico) for 
reintroduction into the wild. This program is an essential component of 
Mexican wolf recovery. Specifically, the purpose of the SSP is to 
reestablish the Mexican wolf in the wild through captive breeding, 
public education, and research. This captive population is the sole 
source of Mexican wolves available to reestablish the species in the 
wild and is imperative to the success of reintroduction efforts in the 
United States and Mexico.
    Reintroduction efforts to reestablish the Mexican wolf in the wild 
have taken place in both the United States and Mexico. Mexico initiated 
a reintroduction program with the release of five captive-bred Mexican 
wolves

[[Page 35727]]

into the San Luis Mountains just south of the United States-Mexico 
border in October 2011. As of February 2012, four of the five released 
animals were confirmed dead due to ingestion of illegal poison. The 
status of the fifth Mexican wolf is unknown. A sixth Mexican wolf was 
released in March 2012; its fate is unknown as only its collar was 
found in April 2012 (Service, our files). A pair of Mexican wolves was 
released in October 2012 and was alive as of March 3, 2013. Mexico 
plans to release additional Mexican wolves in this area, and possibly 
several other identified locations (including Nuevo Leon and Coahuila) 
in Mexico in 2013 and beyond; however, a schedule of releases is not 
publicly available at this time. We expect the number of Mexican wolves 
in Mexico to fluctuate from zero to several wolves or packs of wolves 
during 2013 and into the future in or around Sonora and Chihuahua or 
other Mexican States.
    In the United States, we have focused our recovery efforts on the 
reestablishment of Mexican wolves as a nonessential experimental 
population under section 10(j) of the Act in Arizona and New Mexico. We 
established the nonessential experimental population of Mexican wolves 
in 1998 to pursue the prime objective of the 1982 Mexican Wolf Recovery 
Plan (Figure 1). The reintroduction project is a collaborative effort 
conducted by the Service, Forest Service, Arizona Game and Fish 
Department, White Mountain Apache Tribe, and U.S. Department of 
Agriculture's Animal and Plant Health Inspection Service.
    In March of 1998 we released 11 Mexican wolves from the captive-
breeding program to the wild. Additional individuals and family groups 
have been initial-released or translocated into the BRWRA each year 
through 2012. Initial-released refers to Mexican wolves released to the 
wild that have only been in captivity, and translocated wolves are ones 
with previous wild experience that were removed from the wild for 
management reasons and subsequently rereleased into the wild at a later 
time.
    We expect to pursue additional recovery efforts for the Mexican 
wolf outside of the MWEPA in the future and to determine the capacity 
of the nonessential experimental population to contribute to recovery. 
We initiated the revision of the 1982 Mexican Wolf Recovery Plan in 
2010. The revised plan will provide information about suitable habitat 
and population sizes for Mexican wolf recovery in the United States and 
Mexico. A draft plan will be provided for public and peer review before 
being finalized.
    More information about the life history, decline, and current 
status of the Mexican wolf in the southwestern United States can be 
found in the ``Proposed Rule Removing the Gray Wolf (Canis lupus) from 
the List of Endangered and Threatened Wildlife and Maintaining 
Protections for the Mexican Wolf (Canis lupus baileyi) by Listing it as 
Endangered'' (published elsewhere in today's Federal Register), the 
1982 Mexican Wolf Recovery Plan (Service 1982, pp. 5-8, 11-12), the 
1996 FEIS (Service 1996, pp. 1-7), the 1998 Final Rule (63 FR 1752, 
January 12, 1998), the Mexican Gray Wolf Blue Range Reintroduction 
Project 5-Year Review (Mexican Wolf Blue Range Adaptive Management 
Oversight Committee and Interagency Field Team 2005, pp. TC-1 to TC-2), 
the Mexican Wolf Conservation Assessment (Service 2010, pp. 7-15, 20-
42), and Mexican Wolf Recovery Program Progress reports from 2001 to 
2011. These documents are available on-line at https://www.fws.gov/southwest/es/mexicanwolf.

Why We Need to Revise the 1998 Final Rule

    We are proposing to modify the MWEPA designation to improve our 
ability to establish a viable, self-sustaining population of at least 
100 Mexican wolves in the wild, which is the population objective 
provided in the 1982 Mexican Wolf Recovery Plan. Over time and through 
project reviews, annual reports, monitoring, and communication with our 
partners and the public, we recognize that elements of the 1998 Final 
Rule designation need to be revised to help us enhance the growth, 
stability, and success of the nonessential experimental population. 
Specifically, the 1998 Final Rule currently restricts initial releases 
of captive Mexican wolves to the wild to the Primary Recovery Zone, 
which constitutes only 16 percent of the BRWRA. This has constrained 
the number and location of Mexican wolves that can be released into the 
wild. Also, the 1998 Final Rule has a requirement that Mexican wolves 
stay within the BRWRA, which does not allow for natural dispersal 
movements from the BRWRA or occupation of the MWEPA. Currently, we are 
required to implement management actions that disrupt social structure 
or lead to removal of wolves from the wild when a Mexican wolf 
naturally disperses from the BRWRA into the MWEPA. In addition, we are 
proposing a number of modifications that will improve our communication 
and coordination implementing the nonessential experimental population 
designation. We intend our actions to demonstrate an adaptive 
management approach in which we utilize the lessons learned since we 
began reestablishing Mexican wolves in 1998.

Statutory and Regulatory Framework

    The Act provides that species listed as endangered are afforded 
protection primarily through the prohibitions of section 9 and the 
requirements of section 7. Section 9 of the Act, among other things, 
prohibits the take of endangered wildlife. ``Take'' is defined by the 
Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or attempt to engage in any such conduct. Section 7 of the 
Act outlines the procedures for Federal interagency cooperation to 
conserve federally listed species and protect designated critical 
habitat. It mandates that all Federal agencies use their existing 
authorities to further the purposes of the Act by carrying out programs 
for the conservation of listed species. It also states that Federal 
agencies must, in consultation with the Service, ensure that any action 
they authorize, fund, or carry out is not likely to jeopardize the 
continued existence of a listed species or result in the destruction or 
adverse modification of designated critical habitat. Section 7 of the 
Act does not affect activities undertaken on private land unless they 
are authorized, funded, or carried out by a Federal agency.
    The 1982 amendments to the Act included the addition of section 
10(j), which allows for the designation of reintroduced populations of 
listed species as ``experimental populations.'' Under section 10(j) of 
the Act and our regulations at 50 CFR 17.81, the Service may designate 
as an experimental population a population of endangered or threatened 
species that has been or will be released into suitable natural habitat 
outside the species' current natural range, but within its probable 
historical range. With the experimental population designation, the 
relevant population is treated as threatened, regardless of the 
species' designation elsewhere in its range. Threatened status allows 
us discretion in devising management programs and special regulations 
for such a population through the use of section 4(d) of the Act. 
Section 4(d) allows us to adopt any regulations that are necessary and 
advisable to provide for the conservation of a threatened species. In 
these situations, the general regulations that extend most section 9 
prohibitions to threatened species do not apply to that species, and 
the section 10(j) rule

[[Page 35728]]

contains the prohibitions and exemptions necessary and appropriate to 
conserve that species.
    Before authorizing the release as an experimental population of any 
population (including eggs, propagules, or individuals) of an 
endangered or threatened species, and before authorizing any necessary 
transportation to conduct the release, the Service must find, by 
regulation, that such release will further the conservation of the 
species. In making such a finding, the Service uses the best scientific 
and commercial data available to consider: (1) Any possible adverse 
effects on extant populations of a species as a result of removal of 
individuals, eggs, or propagules for introduction elsewhere; (2) the 
likelihood that any such experimental population will become 
established and survive in the foreseeable future; (3) the relative 
effects that establishment of an experimental population will have on 
the recovery of the species; and (4) the extent to which the introduced 
population may be affected by existing or anticipated Federal or State 
actions or private activities within or adjacent to the experimental 
population area.
    Furthermore, as set forth in 50 CFR 17.81(c), all regulations 
designating experimental populations under section 10(j) must provide: 
(1) Appropriate means to identify the experimental population, 
including, but not limited to, its actual or proposed location, actual 
or anticipated migration, number of specimens released or to be 
released, and other criteria appropriate to identify the experimental 
population(s); (2) a finding, based solely on the best scientific and 
commercial data available, and the supporting factual basis, on whether 
the experimental population is, or is not, essential to the continued 
existence of the species in the wild; (3) management restrictions, 
protective measures, or other special management concerns of that 
population, which may include but are not limited to, measures to 
isolate and contain the experimental population designated in the 
regulation from natural populations; and (4) a process for periodic 
review and evaluation of the success or failure of the release and the 
effect of the release on the conservation and recovery of the species.
    Under 50 CFR 17.81(d), the Service must consult with appropriate 
State fish and wildlife agencies, local governmental entities, affected 
Federal agencies, and affected private landowners in developing and 
implementing experimental population rules. To the maximum extent 
practicable, section 10(j) rules represent an agreement between the 
Service, the affected State and Federal agencies, and persons holding 
any interest in land that may be affected by the establishment of an 
experimental population.
    Based on the best scientific and commercial data available, we must 
determine whether the experimental population is essential or 
nonessential to the continued existence of the species. The regulations 
(50 CFR 17.80(b)) state that an experimental population is considered 
essential if its loss would be likely to appreciably reduce the 
likelihood of survival of that species in the wild. All other 
populations are considered nonessential.
    For the purposes of section 7 of the Act, we treat a nonessential 
experimental population as a threatened species when it is located 
within a National Wildlife Refuge or unit of the National Park Service, 
and Federal agency conservation requirements under section 7(a)(1) and 
the Federal agency consultation requirements of section 7(a)(2) of the 
Act apply. Section 7(a)(1) requires all Federal agencies to use their 
authorities to carry out programs for the conservation of listed 
species. Section 7(a)(2) requires that Federal agencies, in 
consultation with the Service, ensure that any action authorized, 
funded, or carried out is not likely to jeopardize the continued 
existence of a listed species or adversely modify its critical habitat. 
When a nonessential experimental population is located outside a 
National Wildlife Refuge or National Park Service unit, then, for the 
purposes of section 7, we treat the population as proposed for listing 
and only section 7(a)(1) and section 7(a)(4) apply. In these instances, 
a nonessential experimental population provides additional flexibility 
because Federal agencies are not required to consult with us under 
section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer 
(rather than consult) with the Service on actions that are likely to 
jeopardize the continued existence of a species proposed to be listed. 
The results of a conference are in the form of conservation 
recommendations that are optional as the agencies carry out, fund, or 
authorize activities. Because the nonessential experimental population 
is, by definition, not essential to the continued existence of the 
species, the effects of proposed actions affecting the nonessential 
experimental population will generally not rise to the level of 
jeopardizing the continued existence of the species. As a result, a 
formal conference will likely never be required for Mexican wolves 
established within the nonessential experimental population area. 
Nonetheless, some agencies voluntarily confer with the Service on 
actions that may affect a proposed species. Activities that are not 
carried out, funded, or authorized by Federal agencies are not subject 
to provisions or requirements in section 7.
    Section 10(j)(2)(C)(ii) of the Act states that critical habitat 
shall not be designated for any experimental population that is 
determined to be nonessential. Accordingly, we cannot designate 
critical habitat in areas where we establish a nonessential 
experimental population.

Proposed Experimental Population Area

    We are continuing our effort to establish a population of Mexican 
wolves within the subspecies' historical range in Arizona and New 
Mexico by proposing to revise the 1998 Final Rule (63 FR 1752, January 
12, 1998). The current and proposed revision to the experimental 
population area is the entirety of the species' current range in the 
United States. The purpose of the nonessential experimental population 
was, and remains, to accomplish the prime objective of the 1982 Mexican 
Wolf Recovery Plan to establish a viable, self-sustaining population of 
at least 100 Mexican wolves in the wild (Service 1982, p. 23).
    With this rule, we propose to revise the geographic boundaries of 
the MWEPA described in the 1998 Final Rule by removing the small 
portion of the MWEPA in Texas. This area is not likely to contribute 
substantially to our population objective based on habitat suitability. 
The proposed MWEPA is the geographic area lying north of Interstate 
Highway 10 and south of Interstate Highway 40 in Arizona and New Mexico 
(Figure 2).
    Also, we are proposing to maintain the geographic boundaries of the 
BRWRA as described in our 1998 Final Rule (i.e., the Apache National 
Forest in Arizona and the Gila National Forest in New Mexico), but to 
eliminate the primary and secondary recovery zones inside the BRWRA 
(Figure 2). We are proposing to modify the regulations associated with 
initial releases within the BRWRA and the regulations associated with 
natural dispersal of Mexican wolves from the BRWRA into the MWEPA; both 
of these modifications are described below in Management of the 
Reintroduced Population.
    We are not carrying forward the recommendation from the 1998 Final 
Rule to consider the White Sands Wolf Recovery Area as a possible

[[Page 35729]]

reintroduction site for Mexican wolves (Figure 2). Under the 1998 Final 
Rule, initial releases and reintroduction of Mexican wolves into the 
White Sands Wolf Recovery Area is authorized if the Service finds it 
necessary and feasible in order to achieve the recovery goal of at 
least 100 Mexican wolves occupying 5,000 square mi (12,950 square km) 
(Service 1998). While this recovery area lies within the probable 
historical range of the Mexican wolf, and could be an important 
reestablishment site if prey densities increased substantially, it is 
now considered a marginally suitable area for Mexican wolf release and 
reestablishment primarily due to the low density of prey. For these 
reasons the Mexican Wolf Blue Range Reintroduction Project 5-Year 
Review recommended that any amended or new Mexican wolf nonessential 
experimental population rule not include White Sands Missile Range as a 
Mexican Wolf Recovery Area or as a reintroduction zone (AMOC and IFT 
2005, p. ARC-3).

Additional Revisions to the Previous Experimental Population Area Under 
Consideration

    As stated above (see Information Requested section), we are also 
taking comments on the following options being considered for possible 
inclusion in the final rule, but not proposed in today's action. Thus, 
depending upon the information we receive during the public comment 
period and our own further analysis, our final rule may include these 
actions.
    We are considering expanding the MWEPA by moving the southern 
boundary from Interstate Highway 10 to the United States-Mexico 
international border across Arizona and New Mexico (Figure 3). 
Expanding the MWEPA was a recommendation in the Mexican Wolf Blue Range 
Reintroduction Project 5-Year Review (AMOC and IFT 2005, p. ARC-3). We 
are considering this modification because a larger MWEPA would provide 
additional habitat for dispersal while promoting management flexibility 
and consistency in management over a larger area (as opposed to Mexican 
wolves in this area having full endangered status).
    We are also considering the expansion of the BRWRA to include the 
entire Sitgreaves National Forest and the Payson, Pleasant Valley, and 
Tonto Basin Ranger Districts of the Tonto National Forest in Arizona 
and the Magdalena Ranger District of the Cibola National Forest in New 
Mexico (Figure 3). This expansion would include the proposed 
modification that would allow for initial releases and translocations 
throughout the expanded BRWRA. Our proposed modification to eliminate 
the primary and secondary recovery zones within the BRWRA and our 
consideration of expanding the BRWRA to include the entire Sitgreaves 
and three Ranger Districts of the Tonto National Forests in Arizona and 
one Ranger District of the Cibola National Forest in New Mexico are 
consistent with recommendations in the Mexican Wolf Blue Range 
Reintroduction Project 5-Year Review (AMOC and IFT 2005, p. ARC-4). 
These revisions would provide additional area and locations for initial 
release of Mexican wolves to the wild from captivity beyond that 
currently allowed by the 1998 Final Rule.

Reintroduction Procedures

    In our 1998 Final Rule, we stated that we would release 14 family 
groups of Mexican wolves into the BRWRA over a period of 5 years to 
achieve our goal of establishing a population of at least 100 wild 
Mexican wolves. Selection criteria for Mexican wolves that are released 
include genetics, reproductive performance, behavioral compatibility, 
response to the adaptive process, and other factors (63 FR 1754, 
January 12, 2998). Since the end of that initial 5-year period in 2003, 
we have continued to conduct initial releases of Mexican wolves from 
captivity into the BRWRA and to translocate wolves with previous wild 
experience back into the BRWRA.
    We are proposing to revise selection criteria for Mexican wolves 
that are released into the wild by including sex and age as selection 
criteria, including specifying our reasons for conducting initial 
releases, as follows in the paragraph below:
    Captive Mexican wolves are selected for release based on genetic 
contribution to the wild population, reproductive performance, 
behavioral compatibility, prior behavior, sex, age, response to the 
adaptation process, and other factors. Mexican wolves selected for 
release may be acclimated in Service-approved prerelease facilities or 
released directly into the BRWRA. Initial release of Mexican wolves 
into the BRWRA will be conducted on an as-needed basis to assist with 
population growth or maintenance, genetics management, and other 
relevant considerations.

Management of the Experimental Population Area

    The nonessential experimental designation enables the Service to 
develop measures for management of the population that are less 
restrictive than the mandatory prohibitions that protect species with 
endangered status. This includes allowing limited take of individual 
Mexican wolves under narrowly defined circumstances (50 CFR 
17.84(k)(6)). Management flexibility is needed to make reintroduction 
compatible with current and planned human activities, such as livestock 
grazing and hunting. It is also critical to obtaining needed State, 
tribal, local, and private cooperation. The Service believes this 
flexibility has and will continue to improve the likelihood of success 
of this reestablishment effort. Management of Mexican wolves in the 
BRWRA and MWEPA may include any of the provisions herein or provided 
for in Service-approved management plans, protocols, and permits.
    We are proposing to allow for initial releases of captive-raised 
Mexican wolves throughout the entire BRWRA, which would eliminate the 
primary and secondary recovery zones defined in the 1998 Final Rule. We 
previously defined a primary recovery zone to mean an area where the 
Service: (1) Will release captive-raised Mexican wolves, (2) may return 
and rerelease previously released Mexican wolves, (3) may release 
translocated wild-born Mexican wolves, and (4) will actively support 
recovery of the reintroduced population. We previously defined the 
secondary recovery zone to be an area adjacent to a primary recovery 
zone in which the Service allows released Mexican wolves to disperse, 
where wolves captured in the wild for authorized management purposes 
may be translocated and released, and where managers actively support 
recovery (63 FR 1772, January 12, 1998). If this proposed rule is 
finalized, the distinction between the primary and secondary recovery 
zones related to initial releases and other management actions will be 
eliminated, thereby eliminating the need to retain or define these 
zones. With our current proposal, we would apply a consistent 
management regime for all Mexican wolves in the BRWRA.
    The purpose of this proposed change to allow initial releases 
throughout the BRWRA is to expand the area and locations for potential 
initial release sites. This flexibility will support our efforts to 
achieve the prime objective of the 1982 Mexican Wolf Recovery Plan and 
the specified reintroduction goal of the 1998 Final Rule to establish a 
viable, self-sustaining population of at least 100 Mexican wolves in 
the wild. That is, we expect that expanding the area and locations for 
potential release sites will support population growth for several 
reasons. First, allowing initial release of captive Mexican wolves into 
the entire BRWRA will increase our opportunities to conduct initial 
releases. Because Mexican wolf packs have established home ranges in 
the primary recovery

[[Page 35730]]

zone, which encompasses only 16 percent of the BRWRA, we are 
constrained in our ability to release additional family groups from 
captivity into this occupied habitat. Only two captive-raised Mexican 
wolves have been released into the BRWRA in the last 6 years for this 
reason.
    Second, this modification will allow us to conduct initial releases 
into optimal release sites in remote locations such as the Gila and 
Aldo Leopold Wilderness Areas. These large wilderness areas provide 
roadless habitat, have very low human population density, and limited 
livestock grazing, which are characteristics that support the 
establishment of Mexican wolves while reducing the potential for wolf-
human conflict.
    Third, this modification would also allow us to improve our ability 
to support the genetic health of the population in that we would have 
more opportunities to replace genetically important Mexican wolves that 
die or are removed from the population with captive wolves with similar 
genetic makeup.
    Finally, this modification, assuming it led to a larger, more 
viable population, would result in a population more tolerant of the 
loss of individuals. Being able to lose individuals from a larger 
population would have less effect on the subspecies, as a whole, and 
support our ability to respond to Mexican wolf-livestock conflicts and 
increase our overall management flexibility.
    We are proposing to allow Mexican wolves in the BRWRA to disperse 
throughout the BRWRA and into the MWEPA, and to occupy the MWEPA 
(Figure 2). The 1998 Final Rule did not allow Mexican wolves to 
disperse from the BRWRA into the MWEPA. Management of Mexican wolves in 
the BRWRA and MWEPA may include hazing, translocations, lethal take, 
and other necessary actions, as provided for in this proposed rule and 
in Service-approved management plans and protocols. We are proposing to 
allow Mexican wolves to disperse naturally from the BRWRA into the 
MWEPA and to occupy the MWEPA because this modification will promote 
numeric and spatial expansion of the population, assisting us in 
reaching our population objective. We intend to capture and return 
Mexican wolves originating from the nonessential experimental 
population that disperse outside of the MWEPA.
    There are two situations in which a Mexican wolf could occur in the 
southwestern United States outside of the MWEPA: (1) A Mexican wolf may 
disperse outside of the MWEPA without our knowledge; or (2) Mexican 
wolves may disperse into the United States from Mexico. Any Mexican 
wolf outside of the MWEPA will have full endangered status under the 
Act. The public is encouraged to contact the Mexican Wolf Recovery 
Coordinator or a designated representative of the Service to determine 
if there is the potential for take in areas where Mexican wolves are 
listed as endangered. Any trappers concerned that they might 
incidentally take an endangered Mexican wolf can apply for a section 
10(a) permit.
    Within the MWEPA, we are proposing the development and 
implementation of management actions to benefit Mexican wolf recovery 
in cooperation with private landowners, including but not limited to 
initial release and translocation of Mexican wolves on private land if 
requested by the landowner, and on tribal land in cooperation with 
tribal governments including but not limited to initial release, 
translocation, capture, and removal of wolves if requested by the 
tribal government.
    On public land grazing allotments we will continue to offer permits 
under the Act to allow livestock owners or their agents to take a 
Mexican wolf engaged in the act of killing, wounding, or biting 
livestock, but we propose to change the condition of requiring 6 
breeding pairs in the population prior to issuance of a such a permit 
to requiring 100 Mexican wolves in the MWEPA based on the most recent 
population count. We originally established the 6 breeding pair metric 
to serve as an indication that the overall size and status of the 
population was appropriate to allow additional regulatory flexibility 
in our management. However, we have learned that the number of breeding 
pairs in the population does not necessarily serve as a surrogate for 
population size. Therefore, we are proposing a more direct method of 
deciding when to allow additional regulatory flexibility by basing our 
determination on the number of Mexican wolves in the MWEPA population. 
We will continue to track breeding pairs as a population metric, but 
will not use this number as a basis for the level of regulatory 
flexibility.

Additional Revisions to the Management of the Experimental Population 
Area Under Consideration

    As stated above (see Information Requested section), we are also 
taking comments on the following options being considered for possible 
inclusion in the final rule, but not proposed in today's action. Thus, 
depending upon the information we receive during the public comment 
period and our own further analysis, our final rule may include these 
actions.
    We are considering including provisions for take by pet owners of 
any Mexican wolf engaged in the act of killing, wounding, or biting 
pets on private or tribal land anywhere within the MWEPA, provided that 
evidence of a freshly wounded or killed pet by wolves is present. Such 
take must be reported to the Service or an authorized agent within 24 
hours. We would modify our definition of ``engaged in the act of 
killing, wounding, or biting livestock'' to also apply to pets. We are 
considering this modification in order to provide the same provisions 
for pets as we do for livestock on private and tribal land in an effort 
to reduce wolf-related conflicts for humans and their animals. We 
estimate that this may result in the take of at most two wolves per 
year.
    We are considering including provisions for the issuance of permits 
on private land anywhere within the MWEPA to allow livestock owners or 
their agents to take (including kill or injure) any Mexican wolf that 
is present on private land. We would establish conditions that must be 
met before such a permit is issued, such as a minimum population size 
of Mexican wolves present in the MWEPA or other established populations 
based on the most recently reported population count; other relevant 
measures of population status such as genetic diversity; documentation 
by the Service or our authorized agent of previous loss or injury of 
livestock on the private land, caused by Mexican wolves; completion of 
agency efforts to resolve the problem; and enactment of this provision 
by a formal statement from the Service. We are considering this 
provision to reduce wolf-livestock conflicts and provide livestock 
owners and their agents with more options for resolving such conflicts.
    Both of these considerations demonstrate a balanced approach to our 
reestablishment efforts such that as we pursue measures to expand the 
number and distribution of Mexican wolves in the experimental 
population we also increase our management flexibility, including 
identification of circumstances in which take may be appropriate. A 
larger, more widespread population would be less affected by the 
limited take under consideration than the small, restricted population 
that currently exists entirely within the BRWRA.

[[Page 35731]]

Identification and Monitoring

    Prior to release from captivity into the wild, adult-sized Mexican 
wolves will receive permanent identification marks and radio collars, 
as appropriate. Pups and uncollared adult Mexican wolves within the 
current BRWRA population are routinely captured and given permanent 
identification marks and radio collars. While not all Mexican wolves 
are radio-collared, we attempt to maintain at least two radio collars 
per pack in the wild. Radio collars allow the Service to monitor 
reproduction, dispersal, survival, pack formation, depredations, 
predation, and a variety of other important biological metrics. We do 
not foresee a scenario where we would not continue an active monitoring 
strategy for Mexican wolves. However, we also recognize that a majority 
of wild Mexican wolves may not have radio collars as the population 
grows, due to the difficulty of capturing them.
    The Service will measure the success or failure of the releases by 
monitoring, researching, and evaluating the status of released Mexican 
wolves and their offspring. Using adaptive management principles, the 
Service will continue to modify subsequent releases depending on what 
is learned. We will prepare periodic progress reports, annual reports, 
and publications, as appropriate, to evaluate release strategies.
    The 1998 Final Rule contained requirements to conduct full 
evaluations of the status of the nonessential experimental population 
after 3 and 5 years. As part of the evaluations, a recommendation would 
be made for continuation, modification, or termination of the 
reintroduction project. Both evaluations were conducted and 
recommendations were made to continue the nonessential experimental 
population with modifications. These reviews were intensive efforts 
that included Service staff, other Federal, State, and tribal agencies, 
independent experts, and public involvement. In this proposed rule, we 
propose a one-time full evaluation of the revised nonessential 
experimental population rule 5 years after any final determination has 
been made to revise the existing 10(j) regulation; the evaluation 
should focus on modifications needed to improve the efficacy of 
reestablishing Mexican wolves to the wild and the contribution the 
nonessential experimental population is making to the recovery of the 
Mexican wolf. We do not consider a 3-year review to be necessary, as we 
included this provision in the 1998 Final Rule to address the 
substantial uncertainties we had with reestablishing captive Mexican 
wolves to the wild. Therefore, a one-time program review conducted 5 
years after our final determination will provide an appropriate 
interval to assess the effectiveness of the project. This one-time 
program review is separate from the status review of the listed species 
that we will conduct once every 5 years as required by section 4(c)(2) 
of the Act.

Mexican Wolf Experimental Population Findings

    As discussed in the Statutory and Regulatory Framework section, 
several findings are required before establishing an experimental 
population. Below are our findings.

Is the experimental population wholly separate geographically from 
nonexperimental populations of the same species?

    Prior to the first release of Mexican wolves in 1998, the Service 
ensured that no population of naturally occurring wild wolves existed 
within the recovery areas under consideration (in the United States) or 
in Mexico. Currently, no populations or individuals of the Mexican wolf 
subspecies are known to exist in the United States outside of the 
BRWRA. Due to the active reestablishment effort Mexico initiated in 
2011, two confirmed Mexican wolves are known to exist in the wild 
approximately 130 mi (209 km) south of the United States-Mexico 
international border. The two Mexican wolves in Mexico are 
approximately 180 mi (290 km) straight-line distance from the southern 
boundary of the current MWEPA. Thus, the two areas are neither adjacent 
to nor overlapping each other.
    The Mexican wolves in Mexico do not meet the definition of a 
population that we have consistently used in our gray wolf experimental 
population rules, which is, at least 2 breeding pairs of gray wolves 
that each successfully raised at least two young annually for 2 
consecutive years (59 FR 60252, November 22, 1994). This definition 
represents what we have determined to be the minimum standards for a 
gray wolf population (Service 1994). The courts have supported this 
definition and thus upheld our interpretation that pairs must breed to 
have a ``population'' (Wyoming Farm Bureau Federation v. Babbitt, 199 
F.3d 1224, 1234 (10th Cir. 2000); U.S. v. McKittrick, 142 F. 3d 1170, 
1175 (9th Cir. 1998), cert. denied, 525 U.S. 1072 (1999)). Based on the 
results of Mexico's efforts in 2011 and 2012, we can only speculate 
that the number of Mexican wolves in Mexico will fluctuate over the 
next few years from zero to several wolves or packs of wolves depending 
on mortalities, future releases, and successful breeding (in the wild) 
of released wolves. Therefore, we consider it unlikely for a population 
that meets our definition to be established in northern Mexico any time 
soon and certainly no such population exists currently.
    Based on the fact that there are currently no populations of 
Mexican wolves in the United States or Mexico other than the BRWRA 
population, we find that the nonessential experimental population is 
wholly geographically separate. If a population is successfully 
established in the future due to Mexico's efforts, it is possible that 
an occasional Mexican wolf from Mexico may disperse into the United 
States. Interconnectivity between Mexican wolves in Mexico and in the 
MWEPA in the future could benefit recovery of the Mexican wolf by 
providing genetic interchange between populations.

Is the experimental population area in suitable natural habitat outside 
the species' current range, but within its probable historical range?

    The experimental population area is within suitable natural habitat 
in its probable historical range. Because Mexican wolves were 
extirpated from the wild prior to protection by the Act, there is no 
current range in the United States except that which is occupied by 
this nonessential experimental population. The MWEPA is considered to 
be probable historical range (Parsons 1996, p. 106; Bogan and Mehlhop 
1983, p. 17).

Is the experimental population essential to the continued existence of 
the species?

    Our finding of whether a population is nonessential is made with 
our understanding that Congress enacted the provisions of section 10(j) 
to mitigate fears that reestablishing populations of threatened or 
endangered species into the wild would negatively impact landowners and 
other private parties. Congress also recognized that flexible rules 
could encourage recovery partners to actively assist in the 
reestablishment and hosting of such populations on their lands (H.R. 
rep. No. 97-567, at 8 (1982)). Although Congress allowed experimental 
populations to be identified as either essential or nonessential, they 
noted that most experimental populations would be nonessential (H.R. 
Conference Report No. 835, supra at 34; Service 1984)).
    We make all determinations on essentiality prior to taking any 
action to

[[Page 35732]]

reestablish a population of endangered or threatened species. It is 
instructive that Congress did not put requirements in section 10(j) to 
reevaluate the determination of essentiality after a species has been 
reestablished in the wild. While our regulations require a ``periodic 
review and evaluation of the success or failure of the release and the 
effect of the release on the conservation and recovery of the species 
(50 CFR 17.81(c)(4))'', this has not been interpreted as requiring 
reevaluation and reconsideration of a population's nonessential 
experimental status (Service 1991, 1994, 1996b).
    Reestablishing a species is by its very nature an experiment for 
which the outcomes are uncertain. However, it is always our goal to 
successfully reestablish a species in the wild so that it can be 
recovered and removed from the endangered species list. This is 
consistent with the Act's requirements for section 10(j) experimental 
populations. Specifically, the Act requires experimental populations to 
further the conservation of the species. Conservation is defined by the 
Act as the use of all methods and procedures which are necessary to 
bring any endangered or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary. In 
short, experimental populations must further a species' recovery.
    The importance of an experimental population to a species' recovery 
does not mean the population is ``essential'' under section 10(j) of 
the Act. All efforts to reestablish a species are undertaken to move 
that species toward recovery. If importance to recovery was equated 
with essentiality, no reestablished populations of a species would 
qualify for nonessential status. This interpretation would conflict 
with Congress' expectation that ``in most cases, experimental 
populations will not be essential'' (H.R. Conference Report No. 835, 
supra at 34; Service 1984) and our 1984 implementing regulations, which 
indicated an essential population will be a special case and not the 
general rule (Service 1984).
    In addressing essentiality, the Act instructs us to determine 
whether a population is essential to the continued existence of an 
endangered or threatened species. Our regulations define essential 
experimental populations as those ``whose loss would be likely to 
appreciably reduce the likelihood of the 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 (Service and National Marine 
Fisheries Service 1998). Inherent in our regulatory definition of 
essential is the impact the potential loss of the experimental 
population would have on the species as a whole (Service 1984). All 
experimental populations not meeting this bar are considered 
nonessential (50 CFR 17.80(b)).
    The Service has previously determined that this experimental 
population of Mexican wolves was nonessential in the 1998 Final Rule. 
This proposal revalidates that conclusion. That is, even if the entire 
experimental population died, this situation would not appreciably 
reduce the prospects for future survival of the subspecies because 
Mexican wolves are still maintained in the captive-breeding program. 
Furthermore, the captive Mexican wolf population could produce enough 
wolves that future reintroductions in the wild would be feasible and we 
have a now proven capacity to successfully start a wild population from 
captive stock. All Mexican wolves selected for release are genetically 
redundant to the captive population, meaning their genes are already 
well represented. This factor minimizes any adverse effects on the 
genetic integrity of the remaining captive population in the event 
Mexican wolves released to the wild do not survive.

Does the establishment of the experimental population and release into 
the BRWRA and MWEPA further the conservation of the species?

    (1) Are there any possible adverse effects on extant populations of 
the Mexican wolf as a result of removal of individuals for introduction 
elsewhere?
    The only extant population of Mexican wolves other than those in 
the BRWRA is in the captive-breeding program. The primary purpose of 
Mexican wolves in the captive-breeding program is to supply wolves for 
reestablishing Mexican wolves into the wild. Individual Mexican wolves 
are selected from the captive-breeding program for release into the 
BRWRA. As explained in our 1998 Final Rule, the Mexican wolves selected 
for release are wolves that have genes that are well-represented in the 
captive population, thus minimizing any adverse effects on the genetic 
integrity of the remaining captive population. The Mexican Wolf SSP has 
detailed lineage information on each captive Mexican wolf and 
establishes annual breeding objectives to maintain the genetic 
diversity of the captive population (Siminski and Spevak 2012, p. 2). 
Our proposal to open the secondary recovery zone to initial releases 
will allow for more captive Mexican wolves to be released to the wild 
and can be accommodated by the captive-breeding program. We find that 
the continuation of the BRWRA population and specifically the expansion 
of the area into which initial releases can be conducted will not have 
adverse effects on the captive-breeding program. Mexican wolf dispersal 
from the BRWRA into the MWEPA will further the conservation of the 
species by allowing wolves access to additional habitat for 
reestablishment.
    (2) What is the likelihood that any such experimental population 
will become established and survive in the foreseeable future?
    In our 1998 Final Rule we stated, ``The Service finds that, under 
the Preferred Alternative, the reintroduced experimental population is 
likely to become established and survive in the wild within the Mexican 
wolf's probable historic range (63 FR 1754, January 12, 1998).'' We 
have been reestablishing Mexican wolves into the BRWRA since 1998, and 
the population has consistently demonstrated signs of establishment, 
such as wolves establishing home ranges and reproducing. The progress 
in meeting the population objective of at least 100 wild Mexican wolves 
has been slower than projected, but we anticipate that making the 
modifications proposed in this rule will support progress toward our 
objective. As of 2012, of the Mexican wolves in the wild in Arizona and 
New Mexico, 97 percent were conceived and born in the wild. Currently, 
there are fourth generation pups whose great grandparents were also 
born in the wild. We have also modified our management procedures 
related to depredation response and other recommendations from the 
Mexican Wolf Blue Range Reintroduction Project 5-Year Review to ensure 
the success of the BRWRA population (Service 2010, p. 29). To promote 
survival of the wild population we have utilized an adaptive management 
framework to modify our approach to depredation management by removing 
fewer Mexican wolves, focusing on proactive measures, and tasking an 
interdiction stakeholder council to develop a comprehensive depredation 
compensation, incentive, and proactive program.
    (3) What are the relative effects that establishment of an 
experimental population will have on the recovery of the Mexican wolf?
    Continuing the effort to reestablish the nonessential experimental 
population, and making modifications

[[Page 35733]]

to improve it, will substantially contribute to the recovery of the 
species, as it is currently extirpated in the wild except for the 
nonessential experimental population in the United States and a 
fledgling reestablishment effort in Mexico. We recognize that more than 
one population of Mexican wolves will need to be established for 
recovery (Service 2010, pp. 68-70); therefore, achieving the objective 
of at least 100 wolves for this population serves as a fundamentally 
necessary component of Mexican wolf recovery.
    (4) What is the extent to which the introduced population may be 
affected by existing or anticipated Federal or State actions or private 
activities within or adjacent to the experimental population area?
    Now, as in the 1998 Final Rule (63 FR 1752, January 12, 1998), we 
do not foresee that the introduced population would be affected by 
existing or anticipated Federal or State actions or private activities. 
Wolves are considered habitat generalists that can occupy areas where 
prey populations and human tolerance support their existence (Mech 
1970, p. 334; Mech 1995, entire; Fritts et al. 2003, pp. 300-301; 
Fuller et al. 2003, pp. 170-171; Oakleaf et al. 2006, p. 560). We 
expect Mexican wolves in the MWEPA to primarily occupy forested areas 
on public lands due to the availability of prey in these areas and 
supportive management regimes, although we recognize that wolves may 
disperse through or occasionally occupy less-suitable habitat. We also 
recognize that Mexican wolves may seek to inhabit tribal or private 
lands with suitable habitat.
    The current BRWRA as established in the 1998 Final Rule is 
comprised of the Gila and Apache National Forests that are administered 
by the Forest Service. The Forest Service manages these areas to 
sustain the health, diversity, and productivity of the Nation's forests 
and grasslands to meet the needs of present and future generations. The 
Gila and Apache National Forests within the BRWRA are responsible for 
developing and operating under a Land and Resource Management Plan, 
which outlines how each of the multiple uses on the forest will be 
managed. The Forest Service is a cooperator in the management and 
recovery of the Mexican wolf.
    The proposed revision to the MWEPA contains a mixture of many land 
types, including Federal (Forest Service, Bureau of Land Management, 
Department of Defense), State, private, and tribal lands. A variety of 
actions and activities may occur throughout the MWEPA, such as 
recreation, agriculture and ranching, development, and military 
operations. Although we expect the majority of the Mexican wolf 
population to occur within the BRWRA or other public lands in the MWEPA 
due to habitat suitability, we also anticipate that the nonessential 
experimental population may be affected by actions and activities 
occurring on private or tribal land, such as ranching operations, 
because we haze or remove wolves that depredate livestock or display 
nuisance behavior. We are proposing to establish management actions in 
cooperation with private landowners and tribal governments to support 
the recovery of the Mexican wolf on private and tribal lands and will 
continue our efforts to establish and support the Mexican Wolf 
Livestock Interdiction Fund and proactive management activities aimed 
at reducing wolf-livestock conflicts.
    Road and human densities have been identified as potential limiting 
factors for colonizing wolves in the Midwest and Northern Rocky 
Mountains due to the mortality associated with these landscape 
characteristics (Mladenoff et al. 1995, entire; Oakleaf et al. 2006, 
pp. 558-561). Vehicular collision, in particular, is not identified as 
having a significant impact on the Mexican wolf population, although it 
may contribute to the overall vulnerability of the population due to 
its small population size and the cumulative effects of multiple 
factors, including inbreeding and illegal shooting of wolves. We 
recognize that human and road densities in the BRWRA are within 
recommended levels for Mexican wolf colonization, and are expected to 
remain so in the future (see Proposed Rule Removing the Gray Wolf 
(Canis lupus) from the List of Endangered and Threatened Wildlife and 
Maintaining Protections for the Mexican Wolf (Canis lupus baileyi) by 
Listing it as Endangered), Factor E--Other Natural or Manmade Factors 
Affecting Its Continued Existence); therefore, we see the impact to the 
population from actions related to human development as minimal within 
the areas we expect Mexican wolves primarily to inhabit.
    Both Arizona and New Mexico protect the Mexican wolf under State 
law. In Arizona, Mexican wolves are managed as Wildlife of Special 
Concern (Arizona Game and Fish Commission Rules, Article 4, R12-4-401) 
and are identified as a Species of Greatest Conservation Need (Tier 1a, 
endangered) (Species of Greatest Conservation Need 2006, pending). In 
New Mexico, Mexican wolves are listed as endangered under the State's 
Wildlife Conservation Act (NMSA 1978, pp. 17-2-37 through 17-2-46). 
Based on these protective designations and regulations, we do not 
foresee that actions on State land will significantly negatively affect 
the nonessential experimental population.
    We will continue to work with other agencies, tribes, and 
landowners to ensure that their activities will not adversely affect 
the nonessential experimental population of Mexican wolves. In 
particular, we propose provisions within this rule to limit take of 
Mexican wolves (see proposed 50 CFR 17.84(k)(4)). Based on our intent 
to capture and return to the MWEPA Mexican wolves that disperse outside 
of the MWEPA, we do not expect actions and activities adjacent to the 
MWEPA to have a significant impact on the nonessential experimental 
population.

Summary of Proposed Changes From the Previous Nonessential Experimental 
Population Rule

    The nonessential experimental population rule we are currently 
proposing differs from the 1998 Final Rule in several substantive and 
technical ways. Each of these modifications is being proposed to 
improve the efficacy and clarity of our nonessential experimental 
population designation and improve our progress toward reaching our 
objective to establish a population of at least 100 wild Mexican 
wolves. These modifications will also enhance our management 
flexibility of the population. Below is a list of the proposed changes 
from the previous nonessential experimental population rule:
    (1) We are proposing to allow direct initial release of Mexican 
wolves from captivity to the wild throughout the entire BRWRA (i.e., 
both the primary and secondary recovery zones designated in the 1998 
Final Rule) rather than only in the primary recovery zone (Figure 2). 
This modification will eliminate the need to define a primary and 
secondary recovery zone within the BRWRA, as management of Mexican 
wolves will be consistent throughout the BRWRA. Therefore, we are 
discontinuing the definitions of primary and secondary recovery zones 
in this proposal. This modification will promote population growth, 
genetic diversity, and management flexibility by providing additional 
area and locations for initial release of captive Mexican wolves to the 
wild.
    (2) We are proposing to allow Mexican wolves to disperse naturally 
from the BRWRA into the MWEPA and to occupy the MWEPA (Figure 2). 
Please note that if Mexican wolves travel outside the MWEPA, we will 
capture

[[Page 35734]]

and return them to the MWEPA or put them in captivity. In the 1998 
Final Rule, Mexican wolves were not allowed to disperse outside of the 
BRWRA; we were required to capture dispersing Mexican wolves and return 
them to the BRWRA or put them into captivity. Because natural dispersal 
from the BRWRA was not allowed, population growth in the wild has been 
limited. Therefore, we are proposing to allow for natural dispersal 
outside the BRWRA so that the wild population can expand numerically 
and spatially, assisting us in reaching our population objective. We 
will manage Mexican wolves in the MWEPA by reducing conflicts with 
humans and land uses through such means as hazing, trapping, 
translocations, and removals.
    (3) We are proposing to remove the portion of Texas included in the 
1998 Final Rule (west Texas lying north of U.S. Highway 62/180 to the 
Texas-New Mexico boundary) in our new designation of the MWEPA, as we 
do not consider this area to be likely to contribute substantially to 
our population objective (Figure 2).
    (4) We are proposing to remove reference to possible reintroduction 
of Mexican wolves to the White Sands Wolf Recovery Area. The 1998 Final 
Rule included White Sands Wolf Recovery Area as a backup reintroduction 
location to be utilized if determined necessary, but prey density has 
since been determined to be too low in this area to support Mexican 
wolves (Figure 2).
    (5) We are proposing to provide for the development and 
implementation of management actions on private land throughout the 
MWEPA. The 1998 Final Rule did not contain this provision because 
Mexican wolves were not allowed to inhabit the MWEPA outside of the 
BRWRA.
    (6) We are proposing to provide for the development and 
implementation of management actions on tribal land within the MWEPA by 
the Service or an authorized agency in voluntary cooperation with 
tribal governments including but not limited to initial release, 
translocation, capture, and removal of Mexican wolves if requested by 
the tribal government.
    (7) We are proposing to identify section 6 of the Act as 
authorizing State wildlife agencies to manage Mexican wolves pursuant 
to 50 CFR 17.31 under the nonessential experimental population rule. 
Section 6 of the Act authorizes the Service to cooperate to the maximum 
extent practicable with the States on the conservation of endangered 
species, including the development of cooperative agreements and 
management agreements. This proposed modification clarifies that States 
with which we have cooperative or management agreements for the Mexican 
wolf reintroduction project can take Mexican wolves that are part of 
the nonessential experimental population during the course of normal 
management activities in accordance with 50 CFR 17.31.
    (8) We are proposing to clarify the specific circumstances under 
which individuals are authorized to take Mexican wolves that are part 
of the nonessential experimental population. In the 1998 Final Rule, we 
used the term ``personnel'' to describe those authorized to take 
Mexican wolves in the nonessential experimental population pursuant to 
a Service-approved management plan, special management measure, or a 
valid permit issued by the Service under 50 CFR 17.32. We intended this 
provision to extend to individuals, that is, not only those people who 
are associated with an agency.
    (9) We are proposing to clarify the allowable take for Federal 
agencies and authorized personnel. We added language to the provisions 
for allowable take for Federal agencies to clarify that take must be 
non-negligent and incidental to a legal activity and must be reported 
within 24 hours to the Service's Mexican Wolf Recovery Coordinator or 
to a designated representative of the Service. We added language to the 
provisions for allowable take for authorized personnel to clarify that 
Wildlife Services personnel will not be in violation of the Act or this 
rule for take of a Mexican wolf that occurs while conducting official 
duties. Such take must be non-negligent, incidental to predator control 
activities, and consistent with recommendations of a section 7(a)(4) 
conference opinion with Wildlife Services that addresses their program 
activities that may affect Mexican wolves. Wildlife Services personnel 
must report the take within 24 hours to the Service's Mexican Wolf 
Recovery Coordinator or to a designated representative of the Service. 
We are proposing these modifications to provide clarity and consistency 
in our take determinations.
    (10) We are proposing to revise the conditions that determine when 
we would issue a permit to allow take of Mexican wolves that are 
engaged in the act of killing, wounding or biting livestock. The 1998 
Final Rule included a definition of breeding pair as one of the 
conditions for take of Mexican wolves by livestock owners or agents on 
public land grazing allotments (i.e., that there must be six breeding 
pairs present in order for a permit to take wolves to be issued by the 
Service). We consider overall population size to be a better metric for 
evaluating the appropriateness of providing such permits because it 
provides a more consistent measure of the population's status. 
Therefore, we are proposing to modify the provision ``6 breeding 
pairs'' to a requirement that at least 100 Mexican wolves must be 
present in the MWEPA before such a permit can be issued. With this 
proposed modification, the definition of a breeding pair would be made 
unnecessary.
    (11) We are proposing to modify the prohibitions for take such that 
taking a Mexican wolf with a trap, snare, or other type of capture 
device within the occupied Mexican wolf range is prohibited and will 
not be considered unavoidable or unintentional take, unless due care 
was exercised to avoid injury or death to a Mexican wolf. Due care 
includes: (1) Following the regulations, proclamations, and/or laws 
within the State where the trapping takes place; (2) If securely 
fastening traps, using double-stake traps, cable stakes (at least 18 
inches (in) (46 centimeters (cm)) deep), or otherwise attaching traps 
to immovable objects with aircraft cable or chain so that, if captured, 
a Mexican wolf is unable to pull the trap free; (3) If using drags, 
using one of sufficient size and weight or grapples made from steel at 
least 0.5 in (1.3 cm) in diameter of cross section attached to chains 
or cables; (4) Reporting the capture of a Mexican wolf (even if the 
wolf has pulled free) within 24 hours to the Service; and (5) Not 
taking a Mexican wolf via neck snares. We are proposing this 
modification to provide clarity and consistency in our take 
determinations.
    (12) We are proposing to establish a new requirement to conduct a 
one-time evaluation of the status of the nonessential experimental 
population and its contribution toward recovery of the Mexican wolf 5 
years after the final rule designation. The 1998 Final Rule contained 
provisions for 3- and 5-year reviews, which were conducted in 2001 and 
2005, respectively. We do not consider a 3-year review to be necessary, 
as we included this provision in the 1998 Final Rule to address the 
substantial uncertainties we had with reestablishing captive Mexican 
wolves to the wild. Therefore, a one-time evaluation 5 years after the 
final determination is made will provide the appropriate interval to 
assess the effectiveness of the project. We will also be conducting 
status reviews of the listed species every 5 years as required

[[Page 35735]]

by section 4(c)(2) of the Act, and will continue to produce annual 
progress reports.
    (13) We are proposing to consider State-owned lands within the 
boundaries of the MWEPA in the same manner as we consider lands owned 
and managed by other public land management agencies. The 1998 Final 
Rule designated State-owned lands within the boundary of designated 
wolf recovery area as public land. All State-owned lands within the 
boundary of the MWEPA, but outside of designated wolf recovery areas 
were subject to the provisions of private lands in the 1998 Final Rule. 
We are proposing this change to allow consistent management of Mexican 
wolves throughout the MWEPA, recognizing that State and other public 
lands within the MWEPA are under control of the agency that owns those 
lands, that this regulation gives the Service no additional authority 
over those lands, and thus the Service's role is to work cooperatively 
with those land management agencies to address conservation needs of 
the Mexican wolf.

Additional Revisions to the Previous Nonessential Experimental 
Population Rule Under Consideration

    In this proposed rule, we also identify and seek comment on several 
additional issues, none of which were included in the 1998 Final Rule. 
We are not proposing these modifications at this time, but are 
considering including them in our final determination:
    (1) Moving the southern boundary of the MWEPA in Arizona and New 
Mexico from Interstate Highway 10 to the United States-Mexico 
international border (Figure 3);
    (2) Expanding the BRWRA to include the entire Sitgreaves National 
Forest in Arizona (Figure 3);
    (3) Expanding the BRWRA to include the Payson, Pleasant Valley, and 
Tonto Basin Ranger Districts of the Tonto National Forests in Arizona 
(Figure 3);
    (4) Expanding the BRWRA to include the Magdalena Ranger District of 
the Cibola National Forest in New Mexico (Figure 3);
    (5) Including provisions for take by pet owners of any Mexican wolf 
engaged in the act of killing, wounding, or biting pets on private or 
tribal land anywhere within the MWEPA, provided that evidence of a 
freshly wounded or killed pet by wolves is present. Such take must be 
reported to the Service's Mexican Wolf Recovery Coordinator or an 
authorized agent within 24 hours; and
    (6) Changing the term ``depredation'' to ``depredation incident'' 
and revising the definition to mean, ``The aggregate number of 
livestock killed or mortally wounded by an individual Mexican wolf or 
single pack of Mexican wolves at a single location within one 24-hour 
period, beginning with the first confirmed kill or injury.''
    (7) Including provisions for the issuance of permits on private or 
tribal lands anywhere within the MWEPA to allow livestock owners or 
their agents to take (including kill or injure) any Mexican wolf that 
is present on private or tribal land, including establishing conditions 
that must be met before such a permit is issued, such as a minimum 
population size of Mexican wolves present in the MWEPA or other 
established populations based on the most recently reported population 
count; other relevant measures of population status such as genetic 
diversity; documentation by the Service or our authorized agent of 
previous loss or injury of livestock on the private or tribal land, 
caused by Mexican wolves; completion of agency efforts to resolve the 
problem; and enactment of this provision by a formal statement from the 
Service.
    Our intent in considering expansion of the BRWRA would be to 
release or translocate wolves only into areas of suitable habitat, 
likely in areas above 4,000 ft above sea level.

Peer Review

    In accordance with joint policy published in the Federal Register 
on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at 
least three appropriate and independent specialists regarding this 
proposed rule. We have provided copies of this proposed rule to three 
or more appropriate and independent specialists in order to solicit 
comments on the scientific data and assumptions we utilized. The 
purpose of such review is to ensure that the final determination is 
based on scientifically sound data, assumptions, and analyses. We have 
invited these peer reviewers to comment during the public comment 
period and will consider their comments and information on the proposed 
modifications during preparation of a final determination. Accordingly, 
the final decision may differ from this proposal.

Public Hearings

    Requests for public hearings must be received within 45 days after 
the date of publication of this proposed rule in the Federal Register. 
Such requests must be sent to the address shown in the FOR FURTHER 
INFORMATION CONTACT section. If we schedule public hearings on this 
proposal, we will announce the dates, times, and places of those 
hearings, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before any such 
hearing.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will review 
all significant rules. The Office of Information and Regulatory Affairs 
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. Executive Order 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.
    According to the Small Business Administration, small entities 
include

[[Page 35736]]

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 RFA and to 
require the preparation of an initial regulatory flexibility analysis. 
If a substantial number of small entities are affected by the proposed 
rule, but the per-entity economic impact is not significant, the 
Service may certify. Likewise, if the per-entity economic impact is 
likely to be significant, but the number of affected entities is not 
substantial, the Service may also certify.
    In the 1998 Final Rule, we found that the nonessential population 
would not have significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act. The 1998 Final 
Rule set forth management directions and provided for limited allowable 
legal take of Mexican wolves within the MWEPA. 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) (63 FR 1752, January 12, 
1998).
    If this proposal is adopted, the area affected by this rule 
includes the portion of the States of Arizona and New Mexico from 
Interstate Highway 40 south to Interstate Highway 10. This rule 
proposes an activity that has, in part, already been taking place 
within the BRWRA. However, we are now proposing to allow initial 
releases into a portion of the BRWRA in which initial releases were not 
previously allowed and to allow Mexican wolves to disperse from the 
BRWRA into the entire MWEPA.
    This proposal to allow initial releases in the entire BRWRA will 
not affect small businesses, organizations, or governments, as this 
action will occur on the Gila National Forest and the Apache National 
Forest (Federal land). Although conducting initial releases on the Gila 
National Forest would be a new action (not currently allowed based on 
the 1998 Final Rule), if this proposed revision is finalized, Mexican 
wolves already inhabit the Gila National Forest.
    In addition, section 7(a)(4) of the Act requires Federal agencies 
to confer (rather than consult) with the Service 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 will likely 
never 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) requires Federal agencies to use their authorities to 
carry out programs to further the conservation of listed species, which 
would apply on any lands within the nonessential experimental 
population area. As a result, and in accordance with these regulations, 
some modifications to the proposed Federal actions within the 
nonessential 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.
    On the other hand, this proposed revision would allow Mexican 
wolves to disperse outside the BRWRA into the MWEPA, which has the 
potential to affect small entities in the area outside the BRWRA. 
Specifically, small businesses involved in animal production on private 
or tribal land, such as beef cattle and sheep ranching, may be affected 
by Mexican wolves depredating on livestock. Efforts to reduce 
depredation on livestock are additional expenses to ranching 
operations, such as employing range riders or modifying fencing or 
livestock grazing rotation schedules. However, these types of proactive 
activities may already be conducted for other predators like black 
bears (Ursus americanus), coyotes (Canis latrans), or mountain lions 
(Puma concolor). We will further assess these types of impacts to small 
entities in the area outside the BRWRA in the draft EIS.
    At this time, we lack the available economic information necessary 
to provide an adequate factual basis for the required RFA finding. 
Therefore, we defer the RFA finding until completion of the EIS. Upon 
completion of a draft EIS, we will announce availability of the draft 
EIS in the Federal Register and reopen the public comment period for 
the proposed revision. We will include with this announcement, as 
appropriate, an initial regulatory flexibility analysis or a 
certification that the rule will not have a significant economic impact 
on a substantial number of small entities accompanied by the factual 
basis for the determination. We have concluded that deferring the RFA 
finding until completion of the EIS is necessary to meet the purposes 
and requirements of the RFA. Deferring the RFA finding in this manner 
will ensure that we make a sufficiently informed determination based on 
adequate economic information and provide the necessary opportunity for 
public comment.

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.), we make the following findings:
    (1) Because we lack the available economic information necessary to 
provide an adequate factual basis for the required RFA finding, we 
defer our finding on whether this rule will ``significantly or 
uniquely'' affect small governments until completion of the EIS. At 
that time, we will determine and certify pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., whether or not this 
rulemaking will impose a cost of $100 million or more in any given year 
on local or State governments or private entities. A Small Government 
Agency Plan is not required. As explained above, we do not expect that 
small governments will be affected because the nonessential 
experimental population designation will not place additional 
requirements on any city, county, or other local municipalities. 
However, we will analyze this further in the final rule.
    (2) We do not expect that this rule will produce a Federal mandate 
of $100 million or greater in any year (i.e., it is not a ``significant 
regulatory action''

[[Page 35737]]

under the Unfunded Mandates Reform Act). Also, we do not expect that 
this nonessential experimental population designation for Mexican 
wolves will impose any additional management or protection requirements 
on the States or other entities. However, we will analyze this further 
in the final rule.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
this rule does not have significant takings implications. When 
reestablished populations of federally listed species are designated as 
nonessential experimental populations, the Act's regulatory 
requirements regarding the reestablished listed species within the 
nonessential experimental population are significantly reduced. In the 
1998 Final Rule, 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 nonessential designation 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. This rule 
substantially advances a legitimate government interest (conservation 
and recovery of a listed species) and does not present a barrier to all 
reasonable and expected beneficial use of private property.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism assessment is not required. This rule will not have 
substantial direct effects on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the various levels of government. In keeping 
with Department of the Interior policy, we requested information from 
and coordinated development of this rule with the affected resource 
agencies in New Mexico and Arizona. Achieving the recovery goals for 
this species will contribute to its eventual delisting and its return 
to State management. No intrusion on State policy or administration is 
expected, roles or responsibilities of Federal or State governments 
will not change, and fiscal capacity will not be substantially or 
directly affected. The special rule operates to maintain the existing 
relationship between the State and the Federal Government. Therefore, 
this rule does not have significant Federalism effects or implications 
to warrant the preparation of a Federalism Assessment under the 
provisions of Executive Order 13132.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (February 7, 1996; 61 FR 
4729), the Office of the Solicitor has determined that this rule will 
not unduly burden the judicial system and will meet the requirements of 
sections (3)(a) and (3)(b)(2) of the Order.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations 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 intend to notify the Native American 
tribes within and adjacent to the nonessential experimental population 
area about the proposed rule. They will be advised through written 
contact, including informational mailings from the Service, and will be 
provided an opportunity to comment on the draft EIS and proposed rule. 
If future activities resulting from this rule may affect tribal 
resources, the Service will communicate and consult on a Government-to-
Government basis with any affected Native American tribes in order to 
find a mutually agreeable solution.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR part 
1320, which implement provisions of the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.), require that Federal agencies obtain approval 
from OMB before collecting information from the public. This rule does 
not contain any new collections of information that require approval by 
the Office of Management and Budget under the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.). This rule would not impose 
recordkeeping or reporting requirements on state or local governments, 
individuals, businesses, or organizations. The OMB has approved our 
collection of information associated with reporting the taking of 
experimental populations (50 CFR 17.84) and assigned control number 
1018-0095, which expires May 31, 2014. 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 Office of Management 
and Budget control number.

National Environmental Policy Act

    We are preparing a draft EIS pursuant to the National Environmental 
Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with the 
proposed revision to the nonessential experimental population of the 
Mexican wolf section 10(j) rule. As part of this process, we will 
analyze a range of alternatives for implementation of a nonessential 
experimental population pursuant to NEPA.
    From October through December 2007, we conducted a public scoping 
process under NEPA based on our intent to modify the 1998 Final Rule. 
We developed a final scoping report in April 2008, but we did not 
propose or finalize any modifications to the 1998 Final Rule at that 
time. We will utilize the information collected during that scoping 
process in the development of a draft EIS for this proposed revision to 
the nonessential experimental population of the Mexican wolf. 
Information about additional scoping opportunities is available on our 
Web site, at https://www.fws.gov/southwest/es/mexicanwolf/NEPA.cfm. When 
the draft EIS is complete, we will announce its availability for public 
review, and we will reopen the public comment period on this proposed 
rule for additional review and comment. After full consideration of all 
information and comments received on this proposed rule and the draft 
EIS, our final determination will be made based on the best available 
information and may include any of the modifications discussed in this 
proposed rule.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. This rule is not expected to significantly affect 
energy supplies, distribution, and use. Because this action is not a 
significant energy action, no Statement of Energy Effects is required.

[[Page 35738]]

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

References Cited

    A complete list of all references cited in this proposed rule is 
available at https://www.regulations.gov at Docket No. FWS-R2-ES-2013-
0056, or upon request from the U.S. Fish and Wildlife Service, New 
Mexico Ecological Services Field Office (see ADDRESSES section).

Authors

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

Authority

    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.) and the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.).

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.

0
2. Amend Sec.  17.11(h) in the List of Endangered and Threatened 
Wildlife under Mammals by:
0
a. Removing both entries for ``Wolf, gray (Canis lupus)''; and
0
b. Adding two entries for ``Wolf, Mexican (Canis lupus baileyi)'' in 
alphabetic order to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Wolf, Mexican....................  Canis lupus baileyi.  Southwestern United  Entire, except       E               ...........           NA           NA
                                                          States and Mexico.   where included in
                                                                               an experimental
                                                                               population as set
                                                                               forth in 17.84(k).
Wolf, Mexican....................  Canis lupus baileyi.  Southwestern United  U.S.A. (portions of  XN              ...........           NA     17.84(k)
                                                          States and Mexico.   AZ and NM)--see
                                                                               17.84(k).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.84 by revising paragraph (k) to read as follows:


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (k) Mexican wolf (Canis lupus baileyi). This paragraph (k) sets 
forth the provisions of a rule to establish an experimental population 
of Mexican wolves.
    (1) Purpose of the rule: The Service finds that reestablishment of 
an experimental population of Mexican wolves into the subspecies' 
probable historical range will further the conservation of the Mexican 
wolf subspecies. The Service also finds that the experimental 
population is not essential under Sec.  17.81(c)(2).
    (2) Determinations: The Mexican wolf population reestablished in 
the Mexican Wolf Experimental Population Area, including the Blue Range 
Wolf Recovery Area, identified in paragraph (k)(4) of this section, is 
one nonessential experimental population. This nonessential 
experimental population will be managed according to the provisions of 
this rule. The Service does not intend to change the nonessential 
experimental designation to essential experimental, threatened, or 
endangered. Critical habitat cannot be designated under the 
nonessential experimental classification, 16 U.S.C. 1539(j)(2)(C)(ii).
    (3) Definitions--Key terms used in this rule have the following 
definitions:
    Affect game populations in ways that may inhibit further Mexican 
wolf recovery means affect a particular species of ungulate in a game 
management unit or distinct herd segment by cumulatively decreasing 
population or hunter harvest estimates by 35 percent during 2 
consecutive years compared to the herd's 5-year average prior to 
Mexican wolf occupancy (the unit or herd must contain an average of 
greater than 100 animals). This definition does not apply to Service-
approved State and tribal Mexican wolf management plans that define 
unacceptable impacts from wolf predation on game populations.
    Blue Range Wolf Recovery Area means the entirety of the Gila 
National Forest in New Mexico and the Apache National Forest in Arizona 
in which Mexican wolves may be initially released from captivity, 
translocated, and managed to reduce conflicts with humans and other 
land uses to achieve recovery.
    Depredation means the confirmed killing or wounding of lawfully 
present domestic livestock by one or more wolves. The Service, Wildlife 
Services, or other Service-authorized agencies will confirm cases of 
wolf depredation on domestic livestock.
    Disturbance-causing land-use activity means any land-use activity 
that the Service determines could adversely

[[Page 35739]]

affect reproductive success, natural behavior, or survival of Mexican 
wolves. Such activities may include, but are not limited to--timber or 
wood harvesting, prescribed fire, mining or mine development, camping 
outside designated campgrounds, livestock drives, off-road vehicle use, 
hunting, and any other use or activity with the potential to disturb 
wolves. The following activities are specifically excluded from this 
definition:
    (i) Legally permitted livestock grazing and use of water sources by 
livestock;
    (ii) Livestock drives if no reasonable alternative route or timing 
exists;
    (iii) Vehicle access over established roads to private property and 
to areas on public land where legally permitted activities are ongoing 
if no reasonable alternative route exists;
    (iv) Use of lands within the national park or national wildlife 
refuge systems as safety buffer zones for military activities;
    (v) Fire-fighting activities associated with wildfires; and
    (vi) Any authorized, specific land use that was active and ongoing 
at the time Mexican wolves chose to locate a den or rendezvous site 
nearby.
    Engaged in the act of killing, wounding, or biting livestock means 
in the pursuit of and grasping, biting, attacking, or wounding, or 
feeding upon, livestock that are alive. The term does not include 
Mexican wolves feeding on a livestock carcass.
    Harass means intentional or negligent actions or omissions that 
create the likelihood of injury to wildlife by annoying it to such an 
extent as to significantly disrupt normal behavioral patterns, which 
include, but are not limited to, breeding, feeding, or sheltering.
    Livestock means cattle, sheep, horses, mules, burros, llamas, and 
alpacas, or other domestic animals defined as livestock in Service-
approved State and tribal Mexican wolf management plans.
    Mexican Wolf Experimental Population Area (MWEPA) means an area in 
Arizona and New Mexico that lies south of Interstate Highway 40 to 
Interstate Highway 10 into which Mexican wolves are allowed to disperse 
from the Blue Range Wolf Recovery Area and establish, but are managed 
by reducing conflicts with humans and land uses through such means as 
hazing, trapping, translocations, and removals.
    Occupied Mexican wolf range means an area of confirmed presence, 
based on the most recent annual report, of resident breeding packs or 
pairs of Mexican wolves or an area consistently used by at least one 
resident Mexican wolf over a period of at least 1 month in the MWEPA, 
described as:
    (i) A radius of 5 mi (8 km) around all locations of Mexican wolves 
and wolf sign confirmed as described above (non-radio-monitored);
    (ii) A radius of 5 mi (8 km) around radio locations of resident 
Mexican wolves when fewer than 20 radio locations are available (for 
radio-monitored wolves only); or
    (iii) A radius of 3 mi (4.8 km) around a scientifically developed 
home range (fixed kernel or other appropriate method) from more than 20 
radio locations of a pack, pair, or single Mexican wolf acquired over a 
period of at least 6 months (for radio-monitored wolves).
    Opportunistic, noninjurious harassment means scaring a Mexican wolf 
observed on private land or near livestock from the immediate area by 
taking actions such as discharging firearms or other projectile-
launching devices in proximity to but not in the direction of the wolf, 
throwing objects at it, or making loud noise in proximity to it, 
without causing bodily injury or death to the wolf.
    Problem wolves means Mexican wolves that--
    (i) Are members of a group or pack (including adults and yearlings) 
that were directly involved in livestock depredation on lawfully 
present domestic livestock on Federal land;
    (ii) Have depredated domestic animals other than livestock on 
private or tribal lands, two times in an area within 1 year; or
    (iii) Are habituated to humans, human residences, or other 
facilities.
    Public land means land owned, managed, or under the administration 
of a State or aFederal agency, including, but not limited to, the 
Service, National Park Service, Bureau of Land Management, U.S. Forest 
Service, Department of Energy, or Department of Defense
    Rendezvous site means a gathering and activity area regularly used 
by a litter of young Mexican wolf pups after they have emerged from the 
den. Typically, the site is used from about 1 week to 1 month during 
the period from June 1 to September 30. Several sites may be used in 
succession.
    Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to engage in any such conduct (16 
U.S.C. 1532(19)).
    Unavoidable and unintentional take means take that occurs despite 
the use of due care, is incidental to an otherwise lawful activity, and 
is not done on purpose. Taking a Mexican wolf by shooting will not be 
considered unavoidable and unintentional take.
    (4) Designated area: The designated experimental population area 
for Mexican wolves classified as a nonessential experimental population 
by this rule is described in this paragraph (k)(4). The designated 
experimental population area is within the subspecies' probable 
historical range and is wholly separate geographically from the current 
range of any known Mexican wolves or other gray wolves.
    (i) The Blue Range Wolf Recovery Area includes all of the Apache 
National Forest and all of the Gila National Forest in east-central 
Arizona and west-central New Mexico. Mexican wolves may be initially 
released from captivity into the Blue Range Wolf Recovery Area, 
translocated, and managed to reduce conflicts with humans and other 
land uses. Mexican wolves will be allowed to disperse from this area 
into the MWEPA and to occupy the MWEPA.
    (ii) A map of the MWEPA follows:

[[Page 35740]]

[GRAPHIC] [TIFF OMITTED] TP13JN13.005

    (5) Prohibitions: Take of any Mexican wolf in the wild within the 
MWEPA is prohibited, except as provided in paragraph (k)(6) of this 
section. In addition, the following actions are prohibited by this 
rule:
    (i) No person may possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any Mexican wolf or wolf 
part from the experimental population except as authorized in this rule 
or by a valid permit issued by the Service under Sec.  17.32. If a 
person kills or injures a Mexican wolf or finds a dead or injured wolf 
or wolf parts, the person must not disturb them (unless instructed to 
do so by an authorized agent of the Service), must minimize disturbance 
of the area around them, and must report the incident to the Service's 
Mexican Wolf Recovery Coordinator or a designated representative of the 
Service within 24 hours.
    (ii) No person may attempt to commit, solicit another to commit, or 
cause to be committed, any offense defined in this rule.
    (iii) Taking a wolf with a trap, snare, or other type of capture 
device within occupied Mexican wolf range is prohibited (except as 
authorized in paragraph (k)(6)(iv) of this section) and will not be 
considered unavoidable and unintentional take, unless due care was 
exercised to avoid injury or death to a wolf. Due care includes:
    (A) Following the regulations, proclamations, and/or laws within 
the State where the trapping takes place;
    (B) If securely fastening traps, using double-stake traps, cable 
stakes (at least 18 inches (in) (46 centimeters (cm)) deep), or 
otherwise attaching traps to immovable objects with aircraft cable or 
chain so that, if captured, a Mexican wolf is unable to pull the trap 
free;
    (C) If using drags, using one of sufficient size and weight or 
grapples made from steel at least 0.5 in (1.3 cm) in diameter of cross 
section attached to chains or cables;
    (D) Reporting the capture of a Mexican wolf (even if the wolf has 
pulled free) within 24 hours to the Service; and
    (E) Not taking a Mexican wolf via neck snares.
    (6) Allowable take: Take of Mexican wolves in the MWEPA is allowed 
as follows:
    (i) Any person or other entity: (A) Throughout the MWEPA, 
unavoidable and unintentional take of a Mexican wolf is not a violation 
of the Act or this rule. Such take must be reported within 24 hours to 
the Service's Mexican Wolf Recovery Coordinator or to a designated 
representative of the Service.
    (B) Throughout the MWEPA, any person may use opportunistic, 
noninjurious harassment at any time for Mexican wolves that are within 
500 yards of people, buildings, facilities, pets, livestock, or other 
domestic animals, and no permit is required--provided that wolves are 
not purposefully attracted, tracked, searched out, or chased and then 
harassed. Such harassment of Mexican wolves must be reported within 7 
days to the Service's Mexican Wolf Recovery Coordinator or to a 
designated representative of the Service.
    (C) A person may take (which includes killing as well as nonlethal 
actions such as harassing, harming, and wounding) a Mexican wolf in 
self-defense or defense of the lives of others, provided that the take 
is reported within 24 hours to the Service's Mexican Wolf Recovery 
Coordinator or a designated representative of the Service. If the 
Service or an authorized agency determines that a Mexican wolf presents 
a threat to human life or safety, the Service or the authorized agency 
may kill the wolf or place it in captivity.
    (ii) Federal agencies: (A) Throughout the MWEPA, excluding areas 
within the National Park System and National Wildlife Refuge System, no 
Federal agency or their contractors will be in violation of the Act or 
this rule for

[[Page 35741]]

unavoidable and unintentional take of a Mexican wolf resulting from any 
action authorized by that Federal agency or by the Service, including, 
but not limited to, military training and testing. Such take must be 
nonnegligent and incidental to a legal activity and must be reported 
within 24 hours to the Service's Mexican Wolf Recovery Coordinator or 
to a designated representative of the Service. This provision does not 
exempt agencies and their contractors from complying with sections 
7(a)(1) and 7(a)(4) of the Act, the latter of which requires a 
conference with the Service if they propose an action that is likely to 
jeopardize the continued existence of the Mexican wolf.
    (B) In areas within the National Park System and National Wildlife 
Refuge System, Federal agencies must treat Mexican wolves as a 
threatened species for purposes of complying with section 7 of the Act.
    (iii) Livestock owners or their agents: (A) On private land 
anywhere within the MWEPA, livestock owners or their agents may take 
(including kill or injure) any Mexican wolf actually engaged in the act 
of killing, wounding, or biting livestock--provided that evidence of 
livestock freshly wounded or killed by Mexican wolves is present. The 
take must be reported to the Service's Mexican Wolf Recovery 
Coordinator or a designated representative of the Service within 24 
hours.
    (B) On tribal lands anywhere within the MWEPA, livestock owners or 
their agents may take (including kill or injure) any Mexican wolf 
actually engaged in the act of killing, wounding, or biting livestock--
provided that evidence of livestock freshly wounded or killed by wolves 
is present. The take must be reported to the Service's Mexican Wolf 
Recovery Coordinator or a designated representative of the Service 
within 24 hours.
    (C) On public lands allotted for livestock grazing anywhere within 
the MWEPA, including the Blue Range Wolf Recovery Area, livestock 
owners or their agents may be issued a permit under the Act to take 
Mexican wolves actually engaged in the act of killing, wounding, or 
biting livestock. Before such a permit is issued, the following 
conditions must be met: Livestock must be legally present on the 
grazing allotment; at least 100 Mexican wolves must be present in the 
MWEPA based on the most recently reported population count; previous 
loss or injury of livestock on the grazing allotment, caused by Mexican 
wolves, must be documented by the Service or our authorized agent; and 
agency efforts to resolve the problem must be completed. Permits issued 
under this provision will be valid for 45 days or less and will specify 
the maximum number of Mexican wolves for which take is allowed. If a 
livestock owner or his or her agent takes a Mexican wolf under this 
provision, evidence of livestock freshly wounded or killed by Mexican 
wolves must be present. Livestock owners or their agents must report 
this take to the Service's Mexican Wolf Recovery Coordinator or a 
designated representative of the Service within 24 hours.
    (D) Throughout the MWEPA, take of Mexican wolves by livestock 
guarding dogs, when used in the traditional manner to protect livestock 
on public, tribal, and private lands, is permitted. If such take by a 
guard dog occurs, it must be reported to the Service's Mexican Wolf 
Recovery Coordinator or a designated representative of the Service 
within 24 hours.
    (iv) Authorized personnel: Individuals or personnel authorized by 
the Service may take any Mexican wolf in the nonessential experimental 
population in a manner consistent with a Service-approved management 
plan, special management measure, conference opinion pursuant to 
section 7(a)(4) of the Act, section 6 of the Act as authorized pursuant 
to Sec.  17.31 for State wildlife agencies with authority to manage 
Mexican wolves, or a valid permit issued by the Service under Sec.  
17.32.
    (A) This take may include, but is not limited to, capture and 
translocation of Mexican wolves that: Prey on livestock; attack pets or 
domestic animals other than livestock on private or tribal land; affect 
game populations in ways that may inhibit further Mexican wolf 
recovery; are considered problem wolves; endanger themselves by their 
presence in a military impact area; need aid or veterinary care; or 
must be taken for authorized scientific, research, or management 
purposes. If Mexican wolf predation is shown to be a primary cause of 
ungulate population declines (greater than 50 percent of documented 
adult or young mortality), then wolves may be moved to reduce ungulate 
mortality rates and assist in herd recovery, but only in conjunction 
with application of other common, professionally acceptable, wildlife 
management techniques.
    (B) The Service encourages those authorized to take wolves to use 
nonlethal means when practicable and appropriate prior to any lethal 
take of a Mexican wolf. Lethal methods of take may be used when 
reasonable attempts to capture wolves alive have failed and when the 
Service determines that immediate removal of a particular Mexican wolf 
or wolves from the wild is necessary.
    (C) Authorized personnel may use leghold traps and any other 
effective device or method for capturing or controlling Mexican wolves 
to carry out any measure that is a part of a Service-approved 
management plan, notwithstanding any conflicts with State law. Trappers 
can call the Interagency Field Team (IFT) (1-888-459-WOLF [9653]) as 
soon as possible to arrange for radio-collaring and releasing of the 
wolf. Per State regulations for releasing nontarget animals, trappers 
may also choose to release the animal alive and subsequently contact 
the Service or IFT. The disposition of all Mexican wolves (live or 
dead) or their parts taken as part of a Service-authorized management 
activity must follow provisions in Service-approved management plans or 
interagency agreements or procedures approved by the Service on a case-
by-case basis.
    (D) As determined by the Service to be appropriate, the Service or 
any agent authorized by the Service may capture, kill, subject to 
genetic testing, place in captivity, or euthanize any feral wolflike 
animal, feral wolf hybrid, or feral dog found within the MWEPA that 
shows physical or behavioral evidence of: Hybridization with other 
canids, such as domestic dogs or coyotes; being an animal raised in 
captivity, other than as part of a Service-approved wolf recovery 
program; or being socialized or habituated to humans. If determined to 
be a pure Mexican wolf, the wolf may be returned to the wild.
    (E) The Wildlife Services division will discontinue use of M-44's 
and choking-type snares in occupied Mexican wolf range. Wildlife 
Services may restrict or modify other predator control activities 
pursuant to a cooperative management agreement or a conference opinion 
between that division and the Service. Wildlife Services personnel will 
not be in violation of the Act or this rule for take of a Mexican wolf 
that occurs while conducting official duties. Such take must be 
nonnegligent, incidental to predator control activities, and consistent 
with a section 7(a)(4) conference opinion addressing Wildlife Services 
program activities that may affect Mexican wolves. Wildlife Services 
personnel must report the take within 24 hours to the Service's Mexican 
Wolf Recovery Coordinator or to a designated representative of the 
Service.
    (7) Land-use restrictions: (i) No land-use restrictions will be 
imposed on private lands pursuant to this rule or for

[[Page 35742]]

Mexican wolf recovery without the concurrence of the landowner.
    (ii) No land-use restrictions will be imposed on tribal lands 
pursuant to this rule or for Mexican wolf recovery without the 
concurrence of the tribal government.
    (iii) On public lands, the Service will work with cooperating 
public land management agencies to use their authorities to temporarily 
restrict human access and disturbance-causing land-use activities 
within a 1-mi (1.6-km) radius around release pens when Mexican wolves 
are in them, around active dens between March 1 and June 30, and around 
active Mexican wolf rendezvous sites between June 1 and September 30, 
as necessary.
    (8) Management: (i) On private land within the MWEPA, the Service 
or an authorized agency will develop and implement management actions 
to benefit Mexican wolf recovery in cooperation with willing private 
landowners, including initial release and translocation of wolves on 
private land if requested by the landowner.
    (ii) On tribal land within the MWEPA, the Service or an authorized 
agency will develop and implement management actions in cooperation 
with willing tribal governments, including initial release, 
translocation, capture, and removal of Mexican wolves on tribal land if 
requested by the tribal government.
    (9) Evaluation: The Service will evaluate Mexican wolf 
reestablishment progress and prepare periodic progress reports and 
detailed annual reports. In addition, the Service will prepare a one-
time overall evaluation of the nonessential experimental population 
program 5 years after [EFFECTIVE DATE OF THE FINAL RULE] that focuses 
on modifications needed to improve the efficacy of this rule, 
reestablishment of Mexican wolves to the wild, and the contribution the 
nonessential population is making to the recovery of the Mexican wolf.
* * * * *

    Dated: May 29, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-13977 Filed 6-12-13; 8:45 am]
BILLING CODE 4310-55-P