Endangered and Threatened Wildlife and Plants; Revision to the Nonessential Experimental Population of the Mexican Wolf, 59953-59975 [2021-23627]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 86, Number 207 (Friday, October 29, 2021)]
[Proposed Rules]
[Pages 59953-59975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23627]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2021-0103; FXES111302WOLF0-212-FF02ENEH00]
RIN 1018-BE52


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft supplemental environmental 
impact statement; announcement of public information sessions and 
public hearings.

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SUMMARY: We, the U.S. Fish and Wildlife Service (USFWS), propose new 
revisions to the existing experimental population designation of the 
Mexican wolf (Canis lupus baileyi) in the Mexican Wolf Experimental 
Population Area (MWEPA) in Arizona and New Mexico under section 10(j) 
of the Endangered Species Act of 1973, as amended (ESA). We are taking 
this action in response to a court-ordered remand of our January 16, 
2015, final rule revising the regulations for the nonessential 
experimental population of the Mexican wolf. This document proposes to 
modify the population objective, establish a genetic objective, and 
temporarily restrict three of the forms of take of Mexican wolves in 
the MWEPA that we adopted in the January 16, 2015, final rule. We are 
proposing these revisions to ensure the long-term conservation and 
recovery of the Mexican wolf. In addition, this document proposes to 
maintain the nonessential designation for the experimental population. 
We are not proposing to revise the geographic boundaries of the MWEPA. 
We are seeking comment from the public on the proposed regulatory 
revisions and on a draft supplemental environmental impact statement 
for the proposed revisions. We also announce public information 
sessions and public hearings on this proposed rule and the associated 
draft supplemental environmental impact statement.

DATES: 
    Written comments: We will accept public comments received or 
postmarked on or before January 27, 2022. Comments submitted 
electronically using the Federal eRulemaking Portal (see ADDRESSES) 
must be received by 11:59 p.m. Eastern Time on the closing date. Due to 
a court-ordered deadline, we will not extend the date for public review 
and comment on these documents.
    Public information sessions and public hearings: We are holding 
three public information session and two public hearings, as follows:
     On November 18, 2021, we will hold a public information 
session from 5:30 p.m. to 7:30 p.m., Mountain Time.
     On December 8, 2021, we will hold a public information 
session from 5:30 p.m. to 7 p.m., Mountain Time, followed by a public 
hearing from 7 p.m. to 9 p.m., Mountain Time.
     On January 11, 2022, we will hold a public information 
session from 5:30 p.m. to 7 p.m., Mountain Time, followed by a public 
hearing from 7 p.m. to 9 p.m., Mountain Time.

ADDRESSES: 
    Written comments: You may submit written comments on this proposed 
rule and the associated draft supplemental environmental impact 
statement by one of the following methods:
    (1) Electronically: Go to the Federal Rulemaking Portal: https://www.regulations.gov. In the Search box, enter the docket number or RIN 
for this rulemaking (presented above in the document headings). For 
best results, do not copy and paste either number; instead, type the 
docket number or RIN into the Search box using hyphens. Then, click on 
the Search button. On the resulting page, in the Search panel on the 
left side of the screen, under the Document Type heading, check the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment.''
    (2) By hard copy: Submit comments by U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-R2-ES-2021-0103, U.S. Fish and 
Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 
22041-3803.
    We request that you send written 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 Information Requested, below, 
for more information).
    Public information sessions and public hearings: The public 
information sessions and public hearings will be held virtually via the 
Zoom online video platform and via teleconference so that participants 
can attend remotely. See Public Information Sessions and Public 
Hearings, below, for more information.

FOR FURTHER INFORMATION CONTACT: Brady McGee, Mexican Wolf Recovery 
Coordinator, U.S. Fish and Wildlife Service, New Mexico Ecological 
Services Field Office, 2105 Osuna Road NE, Albuquerque, NM 87113; by 
telephone at 505-761-4704; or by facsimile 505-761-2542. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service at 800-877-8339. You may visit the Mexican Wolf Recovery 
Program's website at https://www.fws.gov/southwest/es/mexicanwolf/ for 
additional information about the Mexican wolf recovery effort, and 
https://www.fws.gov/southwest/es/mexicanwolf/10j-revision for 
information about our proposed revision.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why We Need To Publish a Rule

    Under section 10(j) of the ESA, the USFWS may designate a 
population of an endangered or threatened species as an experimental 
population prior to its reintroduction. Experimental populations can 
only be designated by issuing a rule.
    On January 12, 1998, we published a final rule (63 FR 1752) 
adopting regulations that designate a nonessential experimental 
population of the Mexican wolf. On January 16, 2015, we published a 
final rule (80 FR 2512; the ``2015 10(j) rule'') revising those 
experimental population regulations based on two decades of 
implementing Mexican wolf reintroduction in the Mexican Wolf 
Experimental Population Area (MWEPA) in portions of Arizona and New 
Mexico. The 2015 10(j) rule expanded the geographic boundaries of

[[Page 59954]]

the MWEPA, established new management zones with provisions for initial 
release and translocation of Mexican wolves, revised and added 
allowable forms of take, and clarified definitions. On March 31, 2018, 
the District Court of Arizona remanded the 2015 10(j) rule to the USFWS 
to redress specific components of the rule in a new revised 
experimental population rule (Center for Biological Diversity v. 
Jewell, No. 4:15-cv-00019-JGZ (D. Ariz.) (March 31, 2018) (``March 31, 
2018, Order'')). The 2015 10(j) rule has remained, and will remain, in 
effect while we address the remand.

What This Document Does

    This document proposes revisions to the experimental population 
designation of Mexican wolves in the MWEPA in response to the March 31, 
2018, Order. We propose to modify the population objective, establish a 
genetic objective, and temporarily restrict three of the forms of take 
of Mexican wolves in the MWEPA that we adopted in the 2015 10(j) rule. 
Proposed revisions also include a new essentiality determination. We 
are not proposing or analyzing any changes to the 2015 10(j) rule 
beyond the scope of the March 31, 2018, Order. Finally, we have also 
updated the 2015 10(j) rule determinations with current data and 
information. If adopted as proposed, this rule will designate Mexican 
wolves in the MWEPA as a nonessential experimental population on the 
List of Endangered and Threatened Wildlife in title 50 of the Code of 
Federal Regulations (CFR) at 50 CFR 17.11(h) with a revised rule issued 
under section 10(j) of the ESA at 50 CFR 17.84(k).

The Basis for Our Action

    Based on the best scientific and commercial data available (in 
accordance with 50 CFR 17.81), we find that releasing Mexican wolves 
into the MWEPA, with the proposed revised regulatory provisions 
described in this document, will further the long-term conservation and 
recovery of the species. The proposed nonessential experimental 
population status is appropriate for the reintroduced population 
because we have determined that it is not essential to the continued 
existence of the species in the wild.
    In making our finding that this rule would further the conservation 
and recovery of the species, we evaluate any possible adverse effects 
on extant Mexican wolf populations, the likelihood that the 
experimental population would become established and survive in the 
foreseeable future, the relative effects that establishment of the 
experimental population would have on the recovery of the species, and 
the extent to which the reintroduced population could be affected by 
existing or anticipated Federal, State, or Tribal actions or private 
activities within or adjacent to the experimental population area. We 
specifically evaluate how our proposed revisions to the population 
objective, establishment of a genetic objective, and revisions to the 
take provisions further the conservation of the species by aligning the 
designation and management of the experimental population with USFWS's 
long-term conservation and recovery goals for the Mexican wolf. In 
addition, we identify the geographic boundaries of the MWEPA as defined 
in the 2015 10(j) rule and note that we are not proposing geographic 
revisions to the boundaries of the MWEPA, the management zones, or the 
phasing of the Arizona portion of the MWEPA. We also explain our 
rationale for why the population is not essential to the continued 
existence of the species in the wild, and we describe management 
restrictions, protective measures, or other special management concerns 
for Mexican wolves. Last, we explain a proposed process for periodic 
review and evaluation of the success or failure of the experimental 
population and its effect on the conservation and recovery of the 
species.

Supplemental Environmental Impact Statement

    To ensure that we consider the environmental impacts associated 
with this proposed rule, we have prepared a draft supplemental 
environmental impact statement (DSEIS) pursuant to the National 
Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321 et 
seq.). On April 15, 2020, we published our notice of intent to prepare 
the DSEIS (85 FR 20967); that document opened the public scoping 
process under NEPA from April 15, 2020, to June 15, 2020, to seek 
public input on the issues under remand by the March 31, 2018, Order. 
We used the information gathered during scoping to inform our DSEIS and 
used the analyses in the DSEIS to inform this proposed rule. The 
comments we received are available online at https://www.regulations.gov 
in Docket No. FWS-R2-ES-2020-0007.

Information Requested

    We are seeking comments from the public on the proposed revisions 
to the 2015 10(j) rule described in this document and our associated 
DSEIS. We want to ensure that any final rule is as effective as 
possible. Therefore, we request comments or information from other 
concerned governmental agencies, Native American Tribes, the scientific 
community, industry, and any other interested parties concerning this 
proposed rule. Your comments should be as specific as possible.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If you provide 
personal identifying information in your comment, 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. The 
comments we receive and any supporting documentation we used in 
preparing this proposal will be available for public inspection at 
https://www.regulations.gov. All comments, including commenters' names 
and addresses, if provided to us, will become part of the supporting 
record.
    We will consider comments and information we receive during the 
public comment period on the proposed rule as we prepare our final rule 
and final SEIS. Accordingly, the final rule and final SEIS may differ 
from this proposal and the DSEIS. Please note that submissions merely 
stating support for, or opposition to, the actions under consideration, 
without providing supporting information, although noted, do not 
provide substantial information necessary to support a determination. 
Section 10(j)(2)(B) of the ESA (16 U.S.C. 1531 et seq.) and our 
regulations at 50 CFR 17.81 direct that our determinations and findings 
regarding designation of experimental populations be made utilizing the 
best scientific and commercial data available.
    We are specifically seeking comments on the proposed revisions to 
the 2015 10(j) rule described in this document and the associated 
DSEIS, including:
     The effect of the proposed revised population objective on 
the recovery of the Mexican wolf, including the extent to which the 
proposed revision supports the MWEPA population in contributing to 
recovery;
     The effect of the proposed genetic objective on the 
recovery of the Mexican wolf, including the extent to which the 
proposed revision supports the MWEPA population in contributing to 
recovery;
     The effects of the proposed temporary restriction of three 
of the take provisions on the recovery of the Mexican wolf;
     The effects of the proposed revisions (population 
objective, genetic objective, and take provisions) on public, Tribal, 
and private lands with management activities such as ranching

[[Page 59955]]

and livestock production, hunting, guiding, and other land uses; and
     Scientific information pertinent to our proposed 
determination to (re)designate the experimental population for the 
Mexican wolf in the MWEPA as nonessential.

Public Information Sessions and Public Hearings

    We have scheduled three public information sessions and two public 
hearings on this proposed rule. We will hold the public information 
meetings and public hearings on the dates and at the times listed above 
under Public information sessions and public hearings in DATES. We are 
holding the public information sessions and the public hearings via the 
Zoom online video platform and via teleconference so that participants 
can attend remotely. Options for participation include: (1) Listen to 
and view one of the information sessions and one of the hearings via 
Zoom, or (2) listen to the information sessions and hearings by 
telephone. For security purposes and to ensure as many members of the 
public can participate as possible within the capacity of our Zoom and 
telephone lines, registration for the information sessions and hearings 
is required. To listen and view the information sessions or hearings 
via Zoom, listen to the information sessions or hearings by telephone, 
or provide oral public comments at the public hearing by Zoom or 
telephone, you must register. We ask that individuals register for only 
one public information session and one public hearing. For information 
on how to register, visit https://www.fws.gov/southwest/es/mexicanwolf/10j-revision. If applicable, interested members of the public not 
familiar with the Zoom platform should view the Zoom video tutorials 
(https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials) prior to the public information sessions and public 
hearings.
    The public hearings will provide interested parties an opportunity 
to present verbal testimony (formal, oral comments) regarding this 
proposed rule and the DSEIS. While the public information sessions will 
be an opportunity for dialogue with the USFWS, the public hearings are 
not: They are a forum for accepting formal verbal testimony. In the 
event there is a large attendance, the time allotted for oral 
statements may be limited. Therefore, anyone wishing to make an oral 
statement during the public hearings for the record is encouraged to 
provide a prepared written copy of their statement to us through the 
Federal eRulemaking Portal, or U.S. mail (see ADDRESSES, above); 
providing an oral comment is not required for submission of a written 
comment. There is no limit on the length of written comments submitted 
to us. Anyone wishing to make an oral statement at a public hearing 
must register before the hearing (https://www.fws.gov/southwest/es/mexicanwolf/10j-revision). The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).
    The USFWS is committed to providing access to the public 
information sessions and public hearing for all participants. Live 
audio via telephone or computer speakers and closed captioning via Zoom 
will be available during public information sessions and public 
hearings. We will post a full audio and video recording and transcript 
of the public hearings online at https://www.fws.gov/southwest/es/mexicanwolf/10j-revision after the hearings. Persons with disabilities 
requiring reasonable accommodations to participate in a public 
information session and/or hearing should contact the person listed 
under FOR FURTHER INFORMATION CONTACT at least 5 business days prior to 
the date of the information session and/or hearing to help ensure 
availability. We will post an accessible version of the USFWS public 
information session presentation online at https://www.fws.gov/southwest/es/mexicanwolf/10j-revision prior to the date of the first 
public information session (see DATES, above).

Background

Statutory and Regulatory Framework

    The 1982 amendments to the ESA (16 U.S.C. 1531 et seq.) included 
the addition of section 10(j), which allows for the designation of 
populations of listed species planned to be reintroduced as 
``experimental populations.'' Under section 10(j) of the ESA and our 
regulations at 50 CFR 17.81, the USFWS may designate a population of 
endangered or threatened species that will be released into suitable 
habitat outside the species' current range (but within its probable 
historical range, absent a finding by the Director of the USFWS in the 
extreme case that the primary habitat of the species has been 
unsuitably and irreversibly altered or destroyed) as an experimental 
population.
    In accordance with 50 CFR 17.81(b), before authorizing the release 
as an experimental population (including eggs, propagules, or 
individuals) of an endangered or threatened species, and before 
authorizing any necessary transportation to conduct the release, the 
USFWS must find by regulation that such release will further the 
conservation of the species. In making such a finding, the USFWS 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 (see Possible Adverse Effects on Wild and 
Captive Breeding Populations, below);
    (2) The likelihood that any such experimental population will 
become established and survive in the foreseeable future (see 
Likelihood of Population Establishment and Survival, below);
    (3) The relative effects that establishment of an experimental 
population will have on the recovery of the species (see How Does the 
Experimental Population Contribute to the Conservation of the Species?, 
below); and
    (4) The extent to which the introduced population may be affected 
by existing or anticipated Federal, State, or Tribal actions or private 
activities within or adjacent to the experimental population area (see 
Actions and Activities that May Affect the Introduced Population, 
below).
    Furthermore, under 50 CFR 17.81(c), all regulations designating 
experimental populations under section 10(j) shall 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) (see Location and Boundaries of the Proposed Experimental 
Population, below);
    (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 (see Is the Experimental 
Population Essential to the Continued Existence of the Species in the 
Wild?, below);
    (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/or contain the experimental 
population designated in the regulation from natural populations (see 
Management

[[Page 59956]]

Restrictions, Protective Measures, and Other Special Management, 
below); 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 (see Review and Evaluation of 
the MWEPA Population, below).
    Under 50 CFR 17.81(d), the USFWS shall consult with appropriate 
State game and fish agencies, local governmental entities, Tribal 
governments, 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 USFWS, the affected State and Federal agencies, and persons 
holding any interest in land that may be affected by the establishment 
of an experimental population.
    Under 50 CFR 17.81(f), the Secretary of the Interior (Secretary) 
may designate critical habitat as defined in section 3(5)(A) of the ESA 
for an essential experimental population. No designation of critical 
habitat will be made for nonessential experimental populations. In 
those situations where a portion or all of an essential experimental 
population overlaps with a natural population of the species during 
certain periods of the year, we will not designate critical habitat for 
the area of overlap unless implemented as a revision to critical 
habitat of the natural population for reasons unrelated to the overlap 
itself.
    Under 50 CFR 17.82, any population determined by the Secretary to 
be an experimental population will be treated as if it were listed as a 
threatened species for purposes of establishing protective regulations 
with respect to that population. The protective regulations adopted for 
an experimental population will contain applicable prohibitions, as 
appropriate, and exceptions for that population.
    Under 50 CFR 17.83(a), any experimental population designated for a 
listed species (1) determined not to be essential to the survival of 
that species and (2) not occurring within the National Park System or 
the National Wildlife Refuge System will be treated for purposes of 
section 7 (other than paragraph (a)(1)) of the ESA as a species 
proposed to be listed under the ESA as a threatened species.
    Under 50 CFR 17.83(b), any experimental population designated for a 
listed species that either (1) has been determined to be essential to 
the survival of that species or (2) occurs within the National Park 
System or the National Wildlife Refuge System as now or hereafter 
constituted will be treated for purposes of section 7 of the ESA as a 
threatened species. Any biological opinion prepared pursuant to section 
7(b) of the ESA and any agency determination made pursuant to section 
7(a) of the ESA will consider any experimental and nonexperimental 
populations to constitute a single listed species for the purposes of 
conducting the analyses under such sections.

Legal Status

    On January 16, 2015, we published a final rule (80 FR 2488) listing 
the Mexican wolf as endangered. Previously, on January 12, 1998, we 
published a final rule (63 FR 1752) adopting regulations that designate 
a nonessential experimental population of the Mexican wolf in Arizona 
and New Mexico as the Mexican Wolf Experimental Population Area 
(MWEPA). The Mexican wolf is treated as endangered wherever it is found 
except where included in the MWEPA.
    The Mexican wolf is also protected by State laws in the United 
States and by federal law in Mexico. In Arizona, the gray wolf, 
including the Mexican wolf subspecies, is identified as a Species of 
Greatest Conservation Need (Arizona Game and Fish Department 2012). The 
gray wolf, including the Mexican wolf subspecies, is listed as 
endangered in New Mexico (Wildlife Conservation Act, 17-2-37 through 
17-2-46 New Mexico Statutes (NMSA) 1978; List of Threatened and 
Endangered Species, 19.33.6 New Mexico Administrative Code (NMAC) 1978) 
and Texas (Texas Parks and Wildlife Code, chapter 68). In Mexico, the 
status of the Mexican wolf was updated from ``probably extinct in the 
wild'' to ``endangered'' in November 2019, via federal regulations 
(Norma Oficial Mexicana NOM-059-SEMARNAT-2010) (Secretar[iacute]a de 
Medio Ambiente y Recursos Naturales [SEMARNAT; Federal Ministry of the 
Environment and Natural Resources] 2010).

Previous Federal Actions

    On April 28, 1976, we published a final rule (41 FR 17736) listing 
the Mexican wolf as endangered under the ESA. On March 9, 1978, we 
published a final rule (43 FR 9607) reclassifying the entire gray wolf 
species in North America south of Canada as endangered, except in 
Minnesota where we listed it as threatened. The March 9, 1978, gray 
wolf listing rule subsumed the Mexican wolf subspecies listing but 
stated that we would continue to recognize the Mexican wolf as a valid 
biological subspecies for purposes of research and conservation.
    On April 1, 2003, we published a final rule (68 FR 15804) revising 
the classification of gray wolves by establishing three gray wolf 
distinct population segments (DPSs), including the Mexican wolf in the 
Southwestern DPS. Subsequently, in 2008, two federal district courts 
overturned this rule, and the USFWS considered the gray wolf to have 
reverted to its listing status prior to the April 1, 2003, rule (see 73 
FR 75356; December 11, 2008).
    On January 16, 2015, we published a final rule (80 FR 2488) listing 
the Mexican wolf as endangered. This final rule created a separate 
entry for the Mexican wolf on the List of Endangered and Threatened 
Wildlife so that the subspecies was no longer subsumed in the gray wolf 
listing. In effect, the Mexican wolf has been protected as endangered 
since 1976.
    On January 12, 1998, we published a final rule (63 FR 1752) 
designating a nonessential experimental population of the Mexican wolf 
in portions of Arizona and New Mexico. We began releasing captive 
wolves into the wild in the MWEPA later that year. On January 16, 2015, 
we published a final rule (80 FR 2512; the ``2015 10(j) rule'') 
revising the January 12, 1998, experimental population designation to 
improve the conservation and management of the Mexican wolf in the 
MWEPA.
    Our designation of the MWEPA in 1998, and our 2015 revisions to 
that MWEPA designation, necessitated analysis of our proposed actions 
under NEPA. On December 20, 1996, we released the final environmental 
impact statement titled, ``Reintroduction of the Mexican Wolf within 
its Historic Range in the Southwestern United States,'' and on November 
25, 2014, we released our subsequent ``Environmental Impact Statement 
for the Proposed Revision to the Regulations for the Nonessential 
Experimental Population of the Mexican Wolf.''
    On March 31, 2018, the District Court of Arizona remanded the 2015 
10(j) rule to the USFWS (Center for Biological Diversity v. Jewell, No. 
4:15-cv-00019-JGZ (D. Ariz.) (March 31, 2018) (``March 31, 2018, 
Order'')). In response to the remand, we began the process to revise 
the 2015 10(j) rule and develop the DSEIS. On April 15, 2020, we 
published our notice of intent to prepare the DSEIS (85 FR 20967); that 
document opened the public scoping process under NEPA to seek public 
input on the issues under remand.
    In addition to our rulemaking actions, the USFWS has developed two 
recovery plans for the Mexican wolf: The 1982 Mexican Wolf Recovery 
Plan (USFWS 1982), and the 2017 Mexican Wolf

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Recovery Plan, First Revision (USFWS 2017a) (revised recovery plan). 
The revised recovery plan supersedes the original plan and provides a 
comprehensive strategy and long-term conservation and recovery goals 
for the USFWS Mexican wolf recovery program. Following completion of 
the revised recovery plan, we conducted a 5-year status review for the 
Mexican wolf under section 4(c)(2)(A) of the ESA in 2018 (see 83 FR 
25034; May 31, 2018).
    For more detailed information on previous Federal actions 
concerning the Mexican wolf through 2015, including petition findings 
and other 5-year reviews, refer to the final rule to list the Mexican 
wolf as endangered (80 FR 2488; January 16, 2015) and the 2015 10(j) 
rule (80 FR 2512; January 16, 2015). We note that on November 3, 2020, 
the USFWS published a final rule (85 FR 69778) removing the gray wolf 
from the List of Endangered and Threatened Wildlife (i.e., 
``delisting'' the gray wolf). That rule provides additional information 
on previous Federal actions for the gray wolf. The subspecies listing 
for the Mexican wolf and the Mexican wolf experimental population 
designation are not affected by the USFWS November 3, 2020, final rule 
to delist the gray wolf. All previous actions for the Mexican wolf and 
gray wolf are also available on the Environmental Conservation Online 
System at https://ecos.fws.gov/ecp; type ``gray wolf'' and ``Mexican 
wolf'' into the Search Tool.
    In addition to the information sources identified above, questions 
about previous Federal actions can be directed to the Mexican Wolf 
Recovery Program, U.S. Fish and Wildlife Service, New Mexico Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Recovery Efforts

    The United States and Mexico have collaborated on Mexican wolf 
recovery since the mid-1970s. The early focus of the binational 
recovery effort was to save the Mexican wolf from extinction through 
the establishment of a captive breeding population (USFWS 1982, p. 28). 
The captive population held 369 Mexican wolves in approximately 55 
facilities in the United States and Mexico as of June 30, 2020 (Scott 
et al. 2020, p. 7). Although housed in numerous facilities, captive 
Mexican wolves are managed as a single population through the routine 
transfer of wolves among institutions for breeding events or other 
management needs. The captive population is maintained in accordance 
with stringent genetic and population objectives established by the 
Species Survival Program (SSP). Reintroduction of the Mexican wolf to 
the wild began in 1998 and 2011 for the United States and Mexico, 
respectively (see USFWS 2017a, pp. 5-8 for additional information on 
both reintroductions).
    The USFWS revised recovery plan (see Previous Federal Actions, 
above) provides the binational long-term recovery strategy for the 
Mexican wolf, including recovery criteria and recovery actions (USFWS 
2017a). The revised recovery plan strategy recommends establishing and 
maintaining a minimum of two resilient, genetically diverse Mexican 
wolf populations distributed across ecologically and geographically 
diverse areas in the subspecies' range in the United States and Mexico 
(USFWS 2017a, p. 10). Recovery criteria for downlisting and delisting 
the Mexican wolf address threats related to the extinction risk 
associated with small population size, loss of gene diversity and 
related genetic issues, and human-caused mortality (USFWS 2017a, pp. 
18-25). Criteria will need to be met in both countries for threats 
across the range of the Mexican wolf to be lessened and alleviated 
sufficiently to consider delisting the Mexican wolf. The revised 
recovery plan provides for evaluations at 5 and 10 years after plan 
implementation to ensure progress toward recovery (USFWS 2017a, pp. 26-
27). Site-specific actions to alleviate threats, as well as other 
actions necessary to manage Mexican wolves across their range, are 
provided (USFWS 2017a, pp. 28-34). A separate recovery implementation 
strategy provides detailed activities for the USFWS and our partners to 
contribute to the recovery actions (online at https://www.fws.gov/southwest/es/mexicanwolf/). We intend for the MWEPA population to serve 
as the population to meet recovery criteria in the United States, and 
Mexico is pursuing recovery in the Sierra Madre Occidental in northern 
Mexico. (See Current Range in the United States and Mexico, below, for 
additional information.)
    The revised recovery plan provides an important foundation for our 
proposed revisions to the 2015 10(j) rule. While we intended for the 
2015 10(j) rule to improve the efficacy of reintroduction and 
contribute to the conservation of the Mexican wolf, we were 
simultaneously aware that at that time (2015) we did not have a full 
vision of recovery with which to align the revised experimental 
population designation. The USFWS recognized this shortcoming in the 
2015 10(j) rule (80 FR 2512, January 16, 2015, pp. 2514-2515). We are 
proposing revisions to the 2015 10(j) rule that address the March 31, 
2018, Order by aligning the MWEPA designation with the long-term 
conservation and recovery strategy and criteria in the revised recovery 
plan.
    In addition to publishing the 2015 10(j) rule and finalizing the 
revised recovery plan in 2017, we have taken a number of steps to 
advance the recovery of the Mexican wolf:
    First, we have strengthened our collaborative management framework 
with Federal, State, county, and Tribal partners. We initiated a new 
Memorandum of Understanding for Mexican Wolf Recovery and Management 
(June 24, 2019) (USFWS 2019; 2019 MOU). Signatories to the 2019 MOU as 
of August 12, 2021, include: White Mountain Apache Tribe; Arizona Game 
and Fish Department; New Mexico Department of Game and Fish; U.S. 
Department of Agriculture Wildlife Services and U.S. Department of 
Agriculture Forest Service; Bureau of Land Management--Arizona and 
Bureau of Land Management--New Mexico; National Park Service; Catron 
County, New Mexico; and Graham, Greenlee, Gila, and Navajo Counties in 
Arizona, as well as the Eastern Arizona Counties Organization. The 2019 
MOU establishes a framework for a long-term, scientific approach to 
reintroducing and managing Mexican wolves in Arizona and New Mexico to 
contribute to the recovery of the Mexican wolf pursuant to the revised 
recovery plan. The 2019 MOU includes signature by agencies and counties 
that were not signatories of the previous version at the time of the 
2015 10(j) rule, representing a broadened base of expertise and 
logistical support to manage Mexican wolves in the MWEPA and engage 
with local communities and the public.
    The USFWS and our domestic partners have also strengthened our 
binational recovery collaboration with Mexico. Since the completion of 
the revised recovery plan in 2017, the USFWS and our partners have 
increased the extent of our technical support and communication at 
staff, management, and leadership levels. We have collectively engaged 
in coordination with the captive breeding facilities to ensure wolves 
are available for release in both countries in support of achieving 
recovery criteria. The USFWS and our partners have also provided wild 
wolves from the MWEPA to Mexico for release (see Possible Adverse 
Effects on Wild and Captive Breeding Populations, below, for additional 
information on releases in Mexico). In April 2019, the USFWS, Arizona 
Game and Fish Department, New Mexico Department of Game and Fish, the

[[Page 59958]]

federal government of Mexico (Direcci[oacute]n General de Vida 
Silvestre and the Direcci[oacute]n de Especies Prioritarias para la 
Conservaci[oacute]n), and other partners requested endorsement by the 
Executive Table of the Canada/Mexico/U.S. Trilateral Committee for 
Wildlife and Ecosystem Conservation and Management for strengthened 
collaboration to implement recovery actions on both sides of the 
border. In 2019, the Arizona Game and Fish Department was awarded 
$75,000 through the USFWS Recovery Challenge grant program to assist 
Mexico's Mexican wolf reintroduction. The Arizona Game and Fish 
Department is also awarded funds of approximately $250,000 annually for 
Mexican wolf recovery implementation through the USFWS Cooperative 
Endangered Species Conservation Fund Traditional Section 6 grant 
program.
    The USFWS and our partners continue to intensively manage and 
monitor the status of Mexican wolves in the MWEPA and now specifically 
track progress toward achieving the recovery criteria in the revised 
recovery plan for the United States. Numerous field staff from multiple 
agencies, including law enforcement, conduct daily management 
activities throughout the MWEPA. These activities include: Monitoring 
and data collection of wolf locations and activity; conducting or 
assisting with proactive or responsive management measures to address 
wolf-livestock or wolf-human conflicts; releasing wolves; providing 
vaccinations or other medical care; coordinating Mexican wolf transfers 
between SSP facilities or with Mexico; investigating wolf mortalities; 
and education and outreach in local communities and with the media. We 
summarize these activities in quarterly and annual reports and in our 
annual initial release and translocation plans available on our website 
at https://www.fws.gov/southwest/es/mexicanwolf/. We use the data and 
information we collect to adapt our management to ensure continued 
progress toward recovery.
    The USFWS and our partners have also tested the technique of cross-
fostering (placing captive-born pups into wild dens to be raised with 
the wild litter) as a release method to increase gene diversity in the 
MWEPA since 2014. Between 2014 and 2021, we have cross-fostered 78 
pups, including placing 72 pups from captive dens into wild dens, and 6 
pups from one wild den to another wild den. We have increased the 
number of pups we cross-foster, from 2 pups in 2014 to 22 pups in 2021 
based on our success with the management technique, the number of 
captive litters that align with the birth of wild litters, and the 
staffing capacity of our program and partner agencies (USFWS files).
    The USFWS and our partners have also increased efforts to address 
wolf-livestock conflict, which is one of the primary sources of concern 
in local communities. The USFWS, our partners, and livestock owners and 
operators implement a number of proactive management techniques to 
reduce wolf-livestock conflict, including increasing the number and 
geographic coverage of range riders, using fladry (strips of fabric 
mounted along fencelines to deter wolves) in calving areas, harassing 
or hazing Mexican wolves using scare devices and noise, manipulating 
Mexican wolf pack movements using food caches, moving cattle away from 
dens, and other activities (USFWS 2018, pp. 25-27). The USFWS provides 
depredation compensation and funding for proactive management to 
eligible States and Tribes through its Wolf Livestock Demonstration 
Project grants. The Arizona Livestock Loss Board provides depredation 
compensation for Arizona operators. Several nongovernmental 
organizations also contribute substantial financial and logistical 
resources to address and reduce livestock conflict. (See our annual 
reports for information on funding related to livestock depredations 
and proactive management, as well as additional information about the 
Mexican Wolf/Livestock Council, online at: https://www.fws.gov/southwest/es/mexicanwolf/.)
    Our efforts across the recovery program are showing success in the 
MWEPA. The minimum population count in 2020 of 186 wolves, including 20 
breeding pairs (defined as a pair that produced pups, at least one of 
which survived to the end of the year), continues a trend of steady 
population growth, nearly doubling in size over the last 5 years (see 
our online population estimate at https://www.fws.gov/southwest/es/mexicanwolf/). This growth lessens the severity of demographic threats 
to the population, as described in Summary and Rationale for Proposed 
Changes to the Experimental Population Designation in Relation to 
Recovery, below. Mexican wolves have expanded their range significantly 
under the 2015 10(j) rule, from a range of 7,255 square miles (mi\2\) 
(18,790 square kilometers (km\2\)) in 2014, the year prior to our 
expansion of the MWEPA, to 19,495 mi\2\ (50,492 km\2\) in 2020 (USFWS 
files). This demonstrates progress in our recovery strategy to expand 
the geographic distribution of the Mexican wolf (USFWS 2017a, pp. 11, 
24). We also recorded a minor increase in gene diversity and decrease 
in population mean kinship (a measure of the relatedness of an 
individual to the population) from 2020 to 2021 (USFWS files). These 
measures of the genetic status of the MWEPA population document the 
positive impact that recent cross-fostering events are having, and we 
expect to document continued progress as we continue our efforts to 
decrease genetic threats to the Mexican wolf, as described in Summary 
and Rationale for Proposed Changes to the Experimental Population 
Designation in Relation to Recovery, below.

Biological Information

Species Description

    The Mexican wolf (Canis lupus baileyi) is a subspecies of gray wolf 
that historically occurred in portions of the southwestern United 
States and central and northern Mexico. Mexican wolves are the smallest 
extant gray wolf in North America, weighing between 50 to 90 pounds. 
They are typically a patchy black, brown to cinnamon, and cream color, 
with primarily light underparts (80 FR 2488, January 16, 2015, p. 
2490).
    Mexican wolves are social predators that live in packs ranging in 
size from two wolves to more than a dozen wolves. Mexican wolf packs 
establish a territory, or area, within which pack members hunt and find 
shelter. Mexican wolves predominantly prey on elk, but other sources of 
prey include deer, small mammals, and birds. Mexican wolves are also 
known to prey and scavenge on livestock (USFWS 2017b, pp. 12-19).

Historical Range

    The historical range of the Mexican wolf has been the subject of 
scientific inquiry and debate for several decades, primarily related to 
the northern and possibly western extent of the range. The USFWS 
recognizes concordance in the scientific literature depicting the 
Sierra Madre of Mexico and southern Arizona and New Mexico as Mexican 
wolf core historical range, and continues to recognize the expanded 
historical range per Parsons (1996, p. 106) that extends into central 
New Mexico and Arizona (see our summary in USFWS 2017b, pp. 10-12, and 
in our final rule to list the Mexican wolf as an endangered subspecies 
(80 FR 2488, January 16, 2015)). We continue to monitor the scientific 
literature for ongoing exploration of this topic.

[[Page 59959]]

Current Range in the United States and Mexico

    The current range of the Mexican wolf in the wild includes only 
those areas where they have been reintroduced from captivity and the 
surrounding areas to which they have naturally expanded: The MWEPA in 
the United States and a portion of the Sierra Madre Occidental mountain 
range in northern Mexico. Mexican wolves inhabit approximately 19,495 
mi\2\ (50,492 km\2\) of the MWEPA as of the end of 2020 (USFWS files). 
The MWEPA is 153,871 mi\2\ (398,524 km\2\), with approximately 32,244 
mi\2\ (83,512 km\2\) of suitable habitat that occurs on various land 
ownership types, but primarily U.S. Forest Service (USFS) land (USFWS 
2014, chapter 3, p. 11). The MWEPA is within the probable historical 
range of the Mexican wolf (see Historical Range, above).
    Mexican wolves in the northern Sierra Madre Occidental in the 
states of Sonora and Chihuahua in Mexico are approximately 130 miles 
(mi) (209 kilometers (km)) south of the U.S.-Mexico border. The Sierra 
Madre Occidental is the longest mountain range in Mexico, extending 
from northern Mexico south to the State of Jalisco. In the northern 
portion of the mountain range, there are approximately 7,305 mi\2\ 
(18,922 km\2\) of suitable Mexican wolf habitat, with limited habitat 
connectivity to a second area to the south containing approximately 
9,728 mi\2\ (25,196 km\2\) of suitable habitat. Suitable Mexican wolf 
habitat in the Sierra Madre Oriental, a mountain range to the east, has 
also been identified (Mart[iacute]nez-Meyer et al. 2020, entire), but 
releases have not taken place in this area as of February 2021. The 
MWEPA designation stops at the U.S.-Mexico border; the wolves in Mexico 
are not part of the experimental population.

Habitat Use and Movement Ecology in the MWEPA

    Wolves are considered habitat generalists that can occupy areas 
where prey populations and human tolerance support their existence 
(Fritts et al. 2003, pp. 300-301). Accordingly, we consider suitable 
habitat for Mexican wolves to be forested areas with adequate wild 
ungulate prey and low levels of human development and livestock 
density. In the MWEPA, Mexican wolves 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 (USFWS 2017b, p. 14). Mexican wolves in the 
MWEPA move within their territories daily to hunt and find shelter. 
Pack home range size can vary significantly. For example, in 2018, we 
documented a home range of approximately 57 mi\2\ (148 km\2\) for the 
Dark Canyon pack and 552 mi\2\ (1,352 km\2\) for the Tsay O Ah pack, 
with an average home range size of approximately 210 mi\2\ (544 km\2\) 
across 24 packs or pairs (USFWS 2018, p. 22; also see USFWS 2017b, p. 
13). Individual juvenile Mexican wolves sometimes disperse beyond their 
pack's territory to find a mate and establish a new territory. We track 
Mexican wolves' movements via radio telemetry and global positioning 
system radio collars to document pack home ranges, occupied range, and 
dispersal events.

Lifecycle

    Mexican wolf life history is similar to that of other gray wolves 
(see USFWS 2010, pp. 32-41). In the wild, Mexican wolves live on 
average 4 to 5 years, although we have documented wolves living to 14 
years (USFWS files). Mexican wolves reach sexual maturity around 2 
years of age and have one reproductive cycle per year. Typically only 
one female and one male (the main breeding pair) breed in a pack and 
produce pups; however, there have been instances in the wild of a 
secondary female being bred and having pups within the same pack. 
Mexican wolves in the wild are generally born between early April and 
early May, with an average litter size of 4.65 pups (USFWS files).
    For a detailed description of the Mexican wolf, see our discussion 
under Subspecies Information in our final rule to list the Mexican wolf 
as endangered (80 FR 2488, January 16, 2015, pp. 2489-2492) or the 
biological report for the Mexican Wolf (USFWS 2017b).

Threats/Causes of Decline

    The Mexican wolf is listed as endangered due to the individual and 
cumulative effects of excessive human-caused mortality, including 
illegal killing; genetic issues including inbreeding, loss of 
heterozygosity, and loss of adaptive potential; and demographic 
stochasticity (decreases in survival or reproduction) associated with 
small population size (80 FR 2488, January 16, 2015; see also USFWS 
2017a, p. 9, and USFWS 2017b, pp. 23-34, for additional discussion of 
these threats). We have established a comprehensive strategy and suite 
of actions in our revised recovery plan to diminish these threats 
sufficiently such that the Mexican wolf can be considered for delisting 
when rangewide recovery criteria are met. Under the guidance of the 
recovery plan, the 2015 10(j) rule, and other program documents, the 
USFWS and our partners manage the MWEPA to lessen and alleviate threats 
to the experimental population. Our proposed revisions to the 2015 
10(j) rule will also lessen and alleviate threats to the Mexican wolf, 
as explained in the following discussion.

Summary and Rationale for Proposed Changes to the Experimental 
Population Designation in Relation to Recovery

    We are proposing revisions to the MWEPA designation to ensure that 
it contributes to the long-term conservation and recovery of the 
Mexican wolf. We are using the revised recovery plan as the foundation 
of our proposed revisions because it provides our strategy and criteria 
for Mexican wolf recovery. We are proposing to modify the population 
objective, establish a genetic objective, and temporarily restrict 
three take provisions from the 2015 10(j) rule as follows, and for the 
following reasons:

Modification of the Population Objective

    We propose to revise the population objective for the MWEPA at 50 
CFR 17.84(k)(9)(iii) by deleting the following three sentences: Based 
on end-of-year counts, we will manage for a population objective of 300 
to 325 Mexican wolves in the MWEPA in Arizona and New Mexico. So as not 
to exceed this population objective, we will exercise all management 
options with preference for translocation to other Mexican wolf 
populations to further the conservation of the subspecies. The USFWS 
may change this provision as necessary to accommodate a new recovery 
plan.
    We propose to replace the deleted language with the following two 
sentences: Based on end-of-year counts, we will manage to achieve and 
sustain a population average greater than or equal to 320 wolves in 
Arizona and New Mexico. In order to achieve the current demographic 
recovery criteria for the United States, this average must be achieved 
over an 8-year period, the population must exceed 320 Mexican wolves 
each of the last 3 years of the 8-year period, and the annual 
population growth rate averaged over the 8-year period must be stable 
or increasing.
    Under this proposed population objective, we would continue to 
manage Mexican wolves in the MWEPA to maintain a population average 
greater than or equal to 320 wolves until delisting occurs. After 
delisting, the States of Arizona and New Mexico and

[[Page 59960]]

the Tribes in Arizona and New Mexico would obtain management authority 
and responsibility to maintain the Mexican wolf at or above recovered 
levels.
    When we established the population objective in the 2015 10(j) 
rule, we explained that the USFWS may change this provision as 
necessary to accommodate a new recovery plan (80 FR 2512, January 16, 
2015, p. 2563; 50 CFR 17.84(k)(9)(iii)). Now, our proposed revised 
population objective for the MWEPA is based on the recovery criteria in 
the revised recovery plan, which was developed subsequent to the 2015 
10(j) rule. During the development of the revised recovery plan, we 
gathered data on the Mexican wolf population in the MWEPA for the 
purpose of conducting population viability analysis modeling. Several 
previous population and habitat viability analysis models served as 
springboards for our effort (Carroll et al. 2006; Carroll et al. 2014). 
We updated or replaced data sets used in previous studies to ensure 
model parameterization reflected our current knowledge of Mexican 
wolves in the MWEPA (as opposed to gray wolf populations in other 
geographic areas, as used in previous studies). For example, we updated 
datasets on mortality rates, the frequency and effects of disease, 
female pairing, and the effect of inbreeding on the likelihood of 
producing pups, all of which are important factors in projecting future 
population abundance and persistence. We incorporated more than 15 
years of wild Mexican wolf data in the modeling effort and made 
conservative choices in parameterization to ensure model results would 
not overestimate the growth or probability of persistence of simulated 
populations (Miller 2017, entire).
    During the recovery planning process, we used the population 
viability analysis model to explore management scenarios that would 
achieve at least a 90 percent likelihood of persistence of the MWEPA 
population over a 100-year period to alleviate the threat of 
demographic stochasticity (USFWS 2017a, pp. 20-22). The threat of 
demographic stochasticity due to small population size means that at 
smaller population sizes, a population is more susceptible to uncertain 
demographic events such as changes in birth or death rates that could 
lead toward extirpation of the population. As a population grows, this 
threat diminishes and the likelihood of population persistence 
increases (see our discussion at USFWS 2017a, pp. 13, 20-22; USFWS 
2017b, pp. 35-36; Miller 2017, entire; USFWS 2019, pp. 63-68). The 
combined elements of the demographic recovery criteria for the United 
States that our proposed population objective is based upon--that the 
population must maintain an average greater than or equal to 320 wolves 
over an 8-year period, that the population must exceed 320 wolves in 
each of the last 3 years of the 8-year period, and that the annual 
growth rate averaged over the 8-year period must be stable or 
increasing--provides for a 90 percent likelihood of persistence of the 
MWEPA population over a 100-year period (USFWS 2017a, p. 19).
    The data and analyses we used as the basis of the demographic 
recovery criteria in the revised recovery plan were not available when 
we established the population objective in the 2015 10(j) rule (see 
discussion of available scientific studies at 80 FR 2512, January 16, 
2015, p. 2517). We established the upper limit of the population 
objective in the 2015 10(j) rule because we did not have an up-to-date 
recovery plan to provide context for the contribution of the MWEPA to 
recovery; in other words, we did not know how many wolves may be needed 
for recovery or how those wolves should be distributed geographically 
between different populations. The revised recovery plan now provides 
clear direction for the MWEPA population's contribution to recovery, 
and we recognize that an upper limit of 325 in the MWEPA is not 
consistent with being able to adequately alleviate the threat of 
demographic stochasticity to the Mexican wolf. Although ``300 to 325'' 
and ``an average of 320'' sound very similar, a range of 300 to 325 
with an upper limit of 325 does not ensure at least a 90 percent 
likelihood of persistence over 100 years, because the upper limit 
combined with the absence of additional specifications of the 
population's behavior (exceeding 320 wolves in each of the last 3 years 
of the 8-year period, and that the annual growth rate averaged over the 
8-year period must be stable or increasing) result in a population with 
an extinction risk of more than 10 percent over 100 years.
    As we continue to manage for an average population size greater 
than or equal to 320 Mexican wolves in the MWEPA after the proposed 
population objective is reached, we would expect the population to 
fluctuate between the mid-300s to low 400s. Although a larger (more 
than low 400s) population size may be possible due to natural 
population growth, we would expect that population growth would slow 
down or stabilize in the mid-300s to low 400s in response to our future 
management actions such as reduced food caching, translocation of 
wolves to Mexico in support of their recovery goals, or removals for 
various management purposes.
    We continue to collect and analyze data on the experimental 
population and to survey the scientific literature for additional 
information pertinent to managing the MWEPA population in a manner 
consistent with recovering the Mexican wolf. Since the completion of 
the revised recovery plan, we have not observed life-history events or 
population trends in Mexican wolves in the MWEPA (such as changes in 
reproductive or mortality rates, for example) that cause us to 
reconsider the validity of the data used or the results of the 
population viability analysis that provided the foundation for our 
development of recovery criteria in the revised recovery plan. One 
published study critiqued the recovery criteria in the revised recovery 
plan, including the population viability analysis modeling used to 
develop the criteria (Carroll et al. 2019). The study explored how the 
modeling for the revised recovery plan differed from previous modeling 
and criteria-setting efforts for the Mexican wolf. The study identified 
six parameterization differences that varied across modeling efforts, 
grouping those parameters as biological (for example, the effects of 
disease), management-related (for example, the number of releases from 
captivity), or both biological and management-related (for example, the 
proportion of packs receiving supplemental feeding). The study examined 
how normative (values-based) and scientific decisions related to 
setting the values for and function of these parameters in a population 
viability analysis model affect model results, including the degree to 
which uncertainty surrounding specific parameters can influence 
scenario projections. The study recommended establishing a recovery 
strategy and recovery criteria that buffer against uncertainty and 
claimed that our approach did not do so. For example, the paper 
recommended inclusion of an independent human-caused mortality 
criterion to buffer against uncertainty in the parameterization of wolf 
mortality rates, in addition to a demographic recovery criterion based 
on extinction risk, as opposed to our approach of tying our human-
caused mortality criterion to our demographic criterion (USFWS 2017a, 
p. 20). The study also critiqued the level of risk tolerance considered 
acceptable by the USFWS for the recovery of the Mexican wolf as

[[Page 59961]]

too high, and ultimately claimed that political influence led to 
increased risk tolerance in establishing recovery criteria.
    We acknowledge the authors' characterization that some decisions in 
population viability analysis modeling and the establishment of 
recovery criteria contain a normative element, such as what level of 
extinction risk is acceptable for recovery or the degree to which 
supplemental feeding is an appropriate management intervention during 
species recovery. We also acknowledge that recovery criteria could be 
formulated differently than those contained in the revised recovery 
plan to articulate when threats have been alleviated sufficiently to 
delist the Mexican wolf. However, these acknowledgements do not alter 
our position that the population viability analysis modeling conducted 
for the revised recovery plan constitutes the best available 
information upon which to base a revised population objective for the 
Mexican wolf in the MWEPA, because it is based on up-to-date Mexican 
wolf data and reflects realistic management scenarios (such as 
incorporating supplemental feeding). Our proposed population objective 
would remove the upper limit of 325 wolves; lead to a more robust 
population of wolves in the MWEPA; allow for annual population 
fluctuations while ensuring stable population performance; and 
alleviate the threat of demographic stochasticity consistent with the 
recovery needs of the Mexican wolf.

Establishment of a Genetic Objective

    We propose to establish a genetic objective for the MWEPA to 
address genetic threats to the experimental population. We did not 
include a genetic objective in the 2015 10(j) rule; rather, we provided 
a recommendation in the preamble of the rule for the release of Mexican 
wolves from captivity at a level that would achieve a minimum of 1 to 2 
effective migrants per generation entering the population, depending on 
its size, over the long term. The rule went on to say that in the more 
immediate future, we may conduct additional releases in excess of 1 to 
2 effective migrants per generation to address the high degree of 
relatedness of wolves in the current Blue Range Wolf Recovery Area (80 
FR 2512, January 16, 2015, p. 2517). We are now proposing to modify our 
approach in the 2015 10(j) rule in two ways:
    First, we propose to revise the language to state that the USFWS 
and designated agencies will conduct a sufficient number of releases 
into the MWEPA from captivity to result in at least 22 released Mexican 
wolves surviving to breeding age. Second, we propose to codify this 
release statement at 50 CFR 17.84(k)(9)(v). We expect to achieve this 
proposed objective by 2030, as described below in Modification of Three 
Allowable Forms of Take of Mexican Wolves.
    Similar to the discussion above of the population objective, our 
proposed establishment of a genetic objective is based on information 
and analyses conducted subsequent to the 2015 10(j) rule that are 
included in the revised recovery plan. When we developed our genetic 
criterion in the revised recovery plan, we determined that wild 
populations contributing to recovery should represent approximately 90 
percent of the genetic diversity available in the captive population to 
consider genetic threats sufficiently abated (USFWS 2017a, p. 13). The 
reason for this is that the gene diversity in the captive population is 
higher than either wild population in the United States or Mexico; 
therefore, releasing captive wolves will add beneficial gene diversity 
to the experimental population as some of the released wolves breed and 
produce offspring in the MWEPA. Increasing gene diversity in the MWEPA 
to approximately 90 percent of the gene diversity available in the 
captive population will reduce the incidence of inbreeding depression, 
and over a longer timeframe, it will aid Mexican wolves' ability to 
respond and adapt to various and changing environmental conditions 
(USFWS 2017a, p. 22). In addition, releasing captive wolves makes room 
in captive facilities for additional captive breeding events, which 
enables the captive population to maintain, or slow the loss of, 
genetic diversity in captivity and continue supporting the wild 
populations in the United States and Mexico during the recovery process 
(Scott et al. 2020, p. 9).
    As we explored model scenarios during the recovery planning process 
to alleviate genetic threats to the Mexican wolf by releasing captive 
wolves to the wild, we recognized that not all wolves released from 
captivity would survive to breeding age, and due to wolves' social 
structure, not all wolves that survive to breeding age would breed 
(Miller 2017, pp. 9-10). Based on survival and mortality data of 
different age classes of Mexican wolves (pups, subadults, adults), we 
determined that at least 22 released Mexican wolves surviving to 
breeding age by 2035 would result in a sufficient portion of those 
wolves breeding to result in approximately 90 percent of the genetic 
diversity of the captive population being represented in the wild 
(USFWS 2017 a, pp. 22-24). Our proposal to revise the release 
recommendation in the 2015 10(j) rule by establishing a genetic 
objective would contribute to the recovery of the Mexican wolf because 
our proposal aligns with the genetic recovery criterion in the revised 
recovery plan and would therefore alleviate genetic threats consistent 
with the recovery needs of the Mexican wolf (see Recovery Efforts, 
above, and USFWS 2017a, pp. 5, 7, 9, 13-14, 22-23; USFWS 2017b, pp. 26-
29).
    Our proposed revision would result in a larger number of released 
wolves entering the MWEPA in a shorter time period than the release 
recommendation in the 2015 10(j) rule, which reflects our improved 
understanding of the number and timing of releases needed to adequately 
reduce genetic threats. Under our 2015 10(j) rule, we intended to 
release 35 to 50 captive wolves by 2035 (see USFWS 2014, Appendix D, 
pp. 3, 12); however, in our revised recovery plan, we estimated we 
would need to release at least 70 wolves to achieve our genetic 
criterion in the revised recovery plan. Because we are conducting 
releases via cross-fostering, a method for which we are uncertain of 
the number of releases needed to achieve at least 22 released wolves 
surviving to breeding age, we have aggressively pursued releases in the 
last few years. We expect that the survival of cross-fostered pups in 
their first years is similar to wild-born pups (approximately 50 
percent). As of the spring of 2021, we have released 72 Mexican wolves 
from captivity to the wild via cross-fostering, and we have documented 
a minimum of 7 out of 30 released pups surviving to breeding age. Pups 
released in 2020 (20 pups) and 2021 (22 pups) had not yet reached 
breeding age in the spring of 2021, and are therefore not eligible to 
be included in the total number of released pups that could have 
survived to breeding age in 2021 (30 pups). We will continue to 
document our progress annually toward at least 22 released wolves 
surviving to breeding age and will adjust our ongoing release plans 
accordingly.
    We note that our proposed genetic objective shifts our previous 
language in the 2015 10(j) rule from tracking ``effective migrants,'' 
which means an animal that comes from outside the population and 
successfully reproduces within the population, to instead tracking 
captive animals released to the MWEPA that ``survive to breeding age'' 
and have the opportunity to contribute genetically to the population. 
This proposed revision in language tracks our population viability 
analysis modeling

[[Page 59962]]

approach in the revised recovery plan directly, and it appropriately 
addresses the need to increase gene diversity in the MWEPA population 
because it results in the representation of approximately 90 percent of 
the gene diversity available in the captive population entering the 
MWEPA (USFWS 2017a, pp. 22-24).
    As stated earlier, we propose to codify this release statement at 
50 CFR 17.84(k)(9)(v) and refer to it as a genetic objective. 
Establishment of a genetic objective strengthens this feature of our 
management because the genetic objective becomes part of the MWEPA 
regulations. In addition, we propose annual benchmarks for achieving 
the number of released wolves that survive to breeding age by 2030 in 
Modification of Three Allowable Forms of Take of Mexican Wolves, below, 
which will drive expedient progress toward recovery and ensure that 
progress toward releasing captive wolves keeps pace with expected 
population growth.

Modification of Three Allowable Forms of Take of Mexican Wolves

    We propose to modify three allowable forms of take of Mexican 
wolves at 50 CFR 17.84(k)(7) by temporarily restricting their use while 
we make progress toward increasing Mexican wolf gene diversity in the 
MWEPA. The three forms of allowable take from the 2015 10(j) rule we 
propose to modify are: Take on non-Federal land in conjunction with a 
removal action (Sec.  17.84(k)(7)(iv)(C)), take on Federal land (Sec.  
17.84(k)(7)(v)(A)), and take in response to an unacceptable impact to a 
wild ungulate herd (Sec.  17.84(k)(7)(vi)). We are proposing to 
temporarily restrict these forms of take because they can result in the 
loss of released Mexican wolves whose gene diversity could have 
contributed to alleviating genetic threats had they survived and 
reproduced during the timeframe of the genetic recovery criterion in 
the United States (see Establishment of a Genetic Objective, above). 
Temporarily restricting these potential sources of take will support 
the success of these wolves during a critical period in the recovery 
effort (that is, as we focus our management on alleviating threats and 
achieving recovery criteria). Therefore, we propose to add the 
following language to Sec.  17.84(k)(7)(iv)(C) and Sec.  
17.84(k)(7)(v)(A):
    (1) Until the USFWS has achieved the genetic objective for the 
MWEPA set forth at paragraph (k)(9)(v) of this section by documenting 
that at least 22 released wolves have survived to breeding age in the 
MWEPA, the USFWS or a designated agency may issue permits only on a 
conditional, annual basis according to the following provisions: Either
    (i) Annual release benchmarks (here, the term ``benchmark'' means 
the minimum cumulative number of released wolves surviving to breeding 
age since January 1, 2016, as documented annually in March) have been 
achieved based on the following schedule:

------------------------------------------------------------------------
                          Year                               Benchmark
------------------------------------------------------------------------
2021....................................................               7
2022....................................................               9
2023....................................................              11
2024....................................................              13
2025....................................................              14
2026....................................................              15
2027....................................................              16
2028....................................................              18
2029....................................................              20
2030....................................................              22
------------------------------------------------------------------------

; or
    (ii) Permitted take on non-Federal land [under Sec.  
17.84(k)(7)(iv)], or on Federal land [under Sec.  17.84(k)(7)(v)], 
during the previous year (April 1 to March 31) did not include the 
lethal take of any released wolf or wolves that were or would have 
counted toward the genetic objective set forth at paragraph (k)(9)(v) 
of this section.
    (2) After the USFWS has achieved the genetic objective set forth at 
paragraph (k)(9)(v) of this section, the conditional annual basis for 
issuing permits will no longer be in effect.
    In addition, we propose to add the following language to Sec.  
17.84(k)(7)(vi):
    (E) No requests for take in response to unacceptable impacts to a 
wild ungulate herd may be made by the State game and fish agency or 
accepted by the USFWS until the genetic objective at paragraph 
(k)(9)(v) of this section has been met.
    Once we reach the proposed genetic objective at Sec.  
17.84(k)(9)(v), gene diversity of released wolves will have integrated 
into the population through breeding events between released and wild 
wolves such that released wolves will no longer represent a pool of 
unique gene diversity; in other words, as more released wolves survive 
and breed in the wild, the contribution of released wolves to the 
overall gene diversity of the MWEPA diminishes. Therefore, our approach 
to the temporary restriction of these take provisions is to ensure we 
are protective of released wolves during the time we are achieving the 
proposed genetic objective. Once we have reached the proposed genetic 
objective, we would remove these temporary restrictions in recognition 
that take (including removal) of released wolves would not have the 
potential to hinder the recovery of the Mexican wolf. In the near term, 
restricting these take provisions contingent upon achieving the 
proposed genetic objective would provide synergistic support toward the 
recovery of the Mexican wolf. The benchmarks we are proposing reflect 
the targets established in the revised recovery plan for 9 released 
wolves to be surviving to breeding age in 2022 and 16 released wolves 
to be surviving to breeding age in 2027 (USFWS 2017a, pp. 26-27), and 
would result in 22 released wolves surviving to breeding age 5 years 
prior to the scenarios we explored in the population viability analysis 
modeling for the revised recovery plan. This schedule will ensure that 
strong progress to alleviate genetic threats is occurring.
    Simultaneous with our intention to increase and protect the gene 
diversity of the MWEPA population and alleviate genetic threats to the 
Mexican wolf, we continue to recognize that these three allowable forms 
of take can provide the USFWS, State fish and game agencies, domestic 
animal owners and their agents, and livestock owners and their agents 
with a management tool for resolving wolf conflict situations. We 
expect that over time, and especially as the experimental population 
grows numerically, multiple conflict situations may occur 
simultaneously in different locations within the MWEPA. The USFWS 
considers the issuance of take permits on Federal and non-Federal land 
to serve as a management tool because the permits may provide for 
conflicts to be resolved without the participation of the USFWS or a 
designated agency's personnel, allowing for limited agency resources to 
be used in the most efficient manner. We have, therefore, integrated 
flexibility into the temporary restrictions we are proposing for 
permitted take on Federal and non-Federal land by recognizing that if 
an annual release benchmark toward the genetic objective is not 
achieved, and permitted take in the previous year did not result in the 
take of any released wolf or wolves, the permits are not the reason for 
missing the benchmark, nor are they negatively impacting gene 
diversity. (For example, the USFWS could miss the benchmark because we 
had not conducted adequate releases during a prior year due to 
logistical constraints.) In this context, we do not want to 
unnecessarily restrict a management tool that can be used to address 
conflicts if its use is not exacerbating a threat or hindering our 
progress toward recovery.

[[Page 59963]]

    Our proposed revision to the provision for take in response to an 
unacceptable impact to a wild ungulate herd (Sec.  17.84(k)(7)(vi)) 
does not include a conditional approach such as we have incorporated 
into our proposed revisions for take on Federal and non-Federal land 
due to our uncertainty surrounding the extent of take that could occur 
under this provision. We are uncertain as to the number or frequency of 
future authorizations the USFWS may issue to a State or designated 
agency to remove wolves due to an unacceptable impact to a wild 
ungulate herd because we do not know when (e.g., at what number of 
wolves or wolf density) wolf predation on a localized herd could result 
in an ungulate decline that is deemed unacceptable based on State 
management goals. Further, the level of removal (i.e., number of 
wolves, timing, and duration) that could be requested by the State 
agency would depend on the level of ungulate decline occurring within 
the context of the State's management goals for that herd, as well as 
other pertinent factors, but would more likely result in authorized 
removal of one or more packs of wolves rather than an individual wolf. 
Removal of an entire pack or packs could result in removing multiple 
released Mexican wolves at once that could count toward our genetic 
objective. Therefore, we recognize that the likelihood of take of a 
released wolf or wolves may be higher under this take provision than 
the other two take provisions we are proposing to revise. On the other 
hand, take under this provision could result in the translocation of 
Mexican wolves rather than permanent removal or lethal take, and, in 
those cases, no loss of gene diversity in the MWEPA would occur. Due to 
these uncertainties, our proposed revision to this take provision does 
not include any contingencies to use this provision during the 
temporary restriction period (that is, from now until the proposed 
genetic objective at Sec.  17.84 (k)(9)(v) is met).
    Our final consideration as we evaluate our proposed restriction of 
these three take provisions is our recognition that this rule needs to 
serve the conservation and recovery of the Mexican wolf prior to, but 
also potentially after, the recovery criteria for the United States in 
the revised recovery plan have been met. Recovery of the Mexican wolf 
as envisioned by the revised recovery plan is contingent upon achieving 
recovery criteria for the population in the United States and the 
population in Mexico in order to adequately alleviate threats 
rangewide. Therefore, ongoing management of Mexican wolves in the 
United States under the ESA may occur after the MWEPA achieves the 
criteria for the United States if Mexico has not yet achieved its set 
of recovery criteria. These three take provisions will contribute to 
efficient, flexible management of a recovered population in the MWEPA 
until delisting occurs. We expect to remove the proposed temporary 
restrictions on these three take provisions after the genetic objective 
has been met. At that time, gene diversity will have been sufficiently 
improved to alleviate genetic threats, and the USFWS and our partners 
will be managing to achieve or maintain the demographic criteria. (We 
do not expect the MWEPA population to reach the demographic and genetic 
criteria simultaneously.) After the genetic objective has been met, we 
would expect to use these allowable forms of take in a manner 
consistent with achieving all recovery criteria in the United States 
and maintaining the experimental population at recovered levels until 
rangewide delisting is appropriate.

Proposed Experimental Population

Location and Boundaries of the Proposed Experimental Population

    The Mexican wolf experimental population is located in the MWEPA, 
as designated in the 2015 10(j) rule (80 FR 2512, January 16, 2015, p. 
2558). The boundaries of the MWEPA are the portions of Arizona and New 
Mexico that are south of Interstate Highway 40 (I-40) to the 
international border with Mexico (see map at 50 CFR 17.84(k)(4)). The 
boundaries of the MWEPA are consistent with the recovery strategy 
established in the revised recovery plan, which states that we will 
continue to focus on one large Mexican wolf population south of I-40 in 
Arizona and New Mexico in the United States (USFWS 2017a, p. 11).
    We consider the experimental population in the MWEPA to be wholly 
separate geographically from any nonexperimental populations of the 
same (sub)species. Based on the USFWS definition of a gray wolf 
population (see 59 FR 60252, November 22, 1994), which we have used for 
the Mexican wolf, there is a population of Mexican wolves in the 
northern Sierra Madre Occidental, Mexico, approximately 130 miles (209 
km) south of the U.S.-Mexico international border. At the end of 2020, 
Mexico reported 30 to 35 Mexican wolves in the wild, including two 
breeding pairs that each successfully raised at least two young 
annually for 2 consecutive years (Carlos Lopez 2020, pers. comm.). 
While we acknowledge that the populations are geographically located 
within dispersal range of one another, interconnectivity between the 
MWEPA and the Mexico population is currently low, and future 
connectivity is expected to be similarly low as explained below. For 
the MWEPA to not be considered wholly geographically separate, regular 
dispersal from one population to the other population would need to 
occur (e.g., semifrequent dispersal events throughout the year), 
potentially including interbreeding between populations. Since 2015, 
four wolves dispersed from Mexico into the United States. Of those 
wolves, one was removed from the MWEPA due to depredation behavior, two 
dispersed back across the border into Mexico naturally, and one died of 
unknown causes (USFWS files). Based on radio-collar data, none of these 
dispersing wolves encountered other wild wolves during the dispersal 
event, nor have breeding events between Mexican wolves from the two 
populations occurred since the reintroduction in Mexico began. We are 
not aware of any Mexican wolves from the MWEPA that have dispersed into 
Mexico. One wolf in the MWEPA dispersed very close to the U.S.-Mexico 
border before turning around and moving back towards its territory in 
the MWEPA (USFWS files).
    In the revised recovery plan and accompanying population viability 
analysis model, we hypothesized that successful dispersal (a dispersal 
event that does not end in mortality during dispersal) between the 
MWEPA and the current reintroduction area in northern Mexico would be 
infrequent (about one wolf every 12 to 16 years) (USFWS 2017a, p. 14; 
Miller 2017, pp. 47-49). The low level of estimated connectivity is 
based on potentially high levels of mortality associated with wolf 
dispersal events (Miller 2017, p. 9), low habitat quality across the 
borderlands (USFWS 2017a, pp. 12, 14; also see Mart[iacute]nez-Meyer 
2017, p. 59), and the construction of the border wall, which includes a 
variety of deterrents and structures, some of which are impermeable to 
Mexican wolves (USCBP 2020). The demographic and genetic recovery 
criteria we developed were robust in the face of low expected 
connectivity across the border (Miller 2017, pp. 47-49), meaning that 
independent populations would be able to achieve the standards for 
threat alleviation we consider necessary for recovery either through 
dispersal between populations or through releases from captivity or 
translocations across the border, as described in Summary and Rationale 
for

[[Page 59964]]

Proposed Changes to the Experimental Population Designation in Relation 
to Recovery, above. Since the publication of the revised recovery plan, 
we have not observed a frequency of dispersal events suggesting that 
interconnectivity will be higher than what we previously estimated in 
our revised recovery plan and accompanying population viability 
analysis models.
    In the 2015 10(j) rule, we stated that the experimental population 
in the MWEPA was wholly separate geographically from any 
nonexperimental population of Mexican wolves because the Mexican wolves 
in Mexico did not yet meet the definition of a population (80 FR 2512, 
January 16, 2015, p. 2549). We stated that if a population was 
successfully established in Mexico, an occasional dispersal event 
between the populations could occur. We also stated that 
interconnectivity between the two population could benefit recovery by 
providing genetic interchange between populations (80 FR 2512, January 
16, 2015, p. 2550), which we subsequently restated in the revised 
recovery plan (USFWS 2017a, pp. 14-15). Although a second population of 
Mexican wolves does now exist in the wild in Mexico, we maintain our 
finding that the MWEPA population is wholly separate geographically 
from any nonexperimental population of Mexican wolves due to the lack 
of functional (regular or semi-frequent, or resulting in interbreeding) 
interconnectivity between the populations now or likely in the future.

Overview of the Proposed Experimental Population

    The MWEPA is a large area in Arizona and New Mexico that includes 
Federal, State, Tribal, and private land. The MWEPA consists of three 
management zones that define areas for initial releases (the release of 
wolves from captivity to the wild) and translocations, and that allow 
wolf dispersal and occupancy (see definitions of Zone 1, Zone 2, and 
Zone 3 at 50 CFR 17.84(k)(3) and the map of the MWEPA designated area 
at 50 CFR 17.84(k)(4)). The MWEPA also includes a phased approach to 
translocations, initial releases, and occupancy of Mexican wolves west 
of Highway 87 in Arizona (see 50 CFR 17.84(k)(9)(iv)). We are not 
proposing to modify the management zones or phased approach, including 
the phasing evaluation periods, in this proposed rule. Regarding the 
phasing, we note that the minimum annual population count in 2019 (the 
year of the first phasing evaluation) was 163 Mexican wolves, which 
exceeded the 5-year phasing benchmark of reaching a population size 
greater than 150 Mexican wolves five years after February 17, 2015. We 
have not moved into Phase 2 at this time but may do so prior to the 8-
year evaluation if agreed upon between the USFWS and participating 
State game and fish agencies.

Release Procedures

    The USFWS and our partners release Mexican wolves into the MWEPA 
using several different management strategies, including the cross-
fostering of captive pups into wild dens as a form of initial release; 
the initial release of adult or sub-adults individually, as pairs with 
and without pups, or as multigenerational packs; and translocations of 
wild wolves from one location to another. All methods of release can 
serve as useful strategies to manage the experimental population, and 
each has benefits and challenges within the context of our management 
needs at any point in time. In recent years, we have used cross-
fostering as our primary release strategy because our initial attempts 
at cross-fostering have proven to be a successful method. Importantly, 
it is a more accepted technique among the local public, our 
stakeholders, and our State partners than releases of adult wolves or a 
family group into an unoccupied area, although some members of the 
public continue to strongly support the release of adult pairs or 
packs. We may still release adult wolves or family groups under certain 
conditions, but we expect to use cross-fostering as the primary release 
strategy to address the genetic needs of the experimental population.
    Each year, we develop an initial release and translocation plan 
(available online at https://www.fws.gov/southwest/es/mexicanwolf/) 
with our partners that provides our objectives related to initial 
releases, translocations, and any targeted or potential removals (e.g., 
to prevent the breeding of highly related wolves) for the upcoming 
year. We base our near-term plans on the existing conditions in the 
MWEPA, the status of the captive population and availability of 
suitable adult wolves and/or pups for release, logistical 
considerations such as staffing for the USFWS and our partners, and our 
current and anticipated progress toward recovery.
    We intend to continue releasing Mexican wolves from captivity into 
the MWEPA primarily to increase the gene diversity of the experimental 
population (see Summary and Rationale for Proposed Changes to the 
Experimental Population Designation in Relation to Recovery, above). In 
addition, we may release or translocate wolves for other management 
purposes such as replacing a mate for a breeding pair due to a wolf 
mortality. As explained above in Overview of the Proposed Experimental 
Population, we release Mexican wolves in the MWEPA in accordance with 
our management zones and phasing provisions. We intend to release a 
sufficient number of captive Mexican wolves to the MWEPA to ensure that 
at least 22 released wolves survive to breeding age, although we do not 
know the exact number of releases this will require, because it is 
dependent on the survival of released wolves. Based on the data we used 
in the revised recovery plan on first year mortality of wolves released 
from captivity into the MWEPA, we explained in the revised recovery 
plan that we will need to release at least 70 wolves, beginning with 
wolves released after December 31, 2015, in order for at least 22 to 
survive to breeding age and meet the genetic recovery criterion for the 
United States (USFWS 2017a, p. 23). We stated that, ``The number of 
releases required may increase or decrease if the survival of released 
wolves changes'' (USFWS 2017a, p. 23). At the time of the revised 
recovery plan, we had little experience with the cross-foster release 
technique (2014-2016); therefore, our estimate of first-year release 
survival and the number of releases needed to achieve the criterion was 
not derived from cross-foster data.
    If we continue to primarily use cross-fostering as a release 
technique to improve gene diversity in the MWEPA, the number of pups 
surviving to breeding age in a given year will reflect the cross-
fostered pups placed in dens 2 years prior, or earlier, that have 
reached breeding age. This is because it takes 2 years from placement 
of the pup into a den for it to reach breeding age. Comparatively, 
adult or sub-adult releases have a lag of 1 year, as they would count 
as surviving to breeding age the year after their release. Therefore, 
our annual tally of released wolves surviving to breeding age will have 
a lag that reflects the age of the animals we have released. Currently, 
we estimate that cross-fostered Mexican wolf pups have similar survival 
to wild-born Mexican wolf pups (approximately 50 percent); however, 
more data are needed to enable us to predict the number of cross-
fostered pups we will need to release in order to reach our genetic 
criterion in the revised recovery plan, which is also our proposed 
genetic objective in this proposed rule (see discussion under 
Establishment of a Genetic Objective, above). We note that

[[Page 59965]]

any pups that have been cross-fostered from one wild den to another 
wild den (four pups as of spring of 2021) that reach breeding age will 
not count toward our genetic objective because they do not increase 
gene diversity in the MWEPA.
    Prior to release from captivity into the wild, Mexican wolves 
receive permanent identification marks and radio collars (if 
appropriate for the age and size of the wolf), and their DNA profile is 
recorded to assist with ongoing pedigree analyses of the population. 
While not all Mexican wolves are radio-collared, we currently attempt 
to maintain at least two radio collars per pack in the wild. Radio 
collars allow the USFWS to monitor reproduction, dispersal, survival, 
pack formation, depredations, predation, and other important biological 
metrics. We will continue monitoring Mexican wolves while they are 
listed under the ESA and for at least five years after delisting. A 
majority of wild Mexican wolves may not have radio collars as the 
population grows.
    Any Mexican wolf found outside of the MWEPA would have either 
dispersed out of the MWEPA or across the border from Mexico. A 
combination of identification mechanisms, such as identification marks, 
radio collars, DNA analysis, and ongoing monitoring will make 
identification of the population of origin probable. It is possible 
that gray wolves could disperse from other regions such as the northern 
Rocky Mountains into Arizona and New Mexico. These gray wolves are 
typically larger in size and may have distinctive coats, such as all 
black or white, that make them distinguishable from Mexican wolves, in 
addition to any identification mechanisms from the management areas 
from which they dispersed.

How does the experimental population contribute to the conservation of 
the species?

    The MWEPA has been the cornerstone of Mexican wolf recovery in the 
United States since its designation in 1998. Then, as now, the MWEPA is 
the only place in the United States where a population of Mexican 
wolves exists in the wild. The experimental population remains the 
focus of our recovery efforts in the United States and plays a 
significant role in the long-term conservation and recovery of the 
Mexican wolf. Specifically, the USFWS intends for the MWEPA population 
to achieve the recovery criteria for the United States population 
provided in the revised recovery plan (USFWS 2017a, pp. 18-25) (see 
Recovery Efforts, above). As such, we are proposing population and 
genetic objectives for the MWEPA that would reduce threats consistent 
with the recovery needs of the Mexican wolf. Also, we are proposing to 
temporarily restrict the use of three take provisions in support of 
achieving the genetic objective and furthering Mexican wolf 
conservation and recovery.

Possible Adverse Effects on Wild and Captive Breeding Populations

    Adverse effects on extant populations of the Mexican wolf, 
including the captive population and the wild population in Mexico, as 
a result of removal of individuals for introduction into the MWEPA will 
not occur for the following reasons:
    The Mexican wolf reintroduction in the MWEPA was established 
beginning in 1998 using Mexican wolves bred and housed in captivity 
because no wild Mexican wolves existed for translocation into the 
MWEPA. We continue to use captive animals for release into the MWEPA 
today. As of June 30, 2020, 369 captive Mexican wolves were managed as 
a single captive population across 55 participating facilities (Scott 
et al. 2020, p. 7). The primary purpose of the captive-breeding program 
is to supply wolves for reestablishing Mexican wolves into the wild. 
Mexican wolves selected for release from the captive-breeding program 
are genetically well-represented in the captive population, thus 
minimizing any adverse effects on the genetic integrity of the 
remaining captive population. The Mexican Wolf SSP maintains detailed 
lineage information on each captive Mexican wolf and establishes annual 
breeding objectives to maintain the genetic diversity of the captive 
population (Scott et al. 2020, entire). The Mexican Wolf SSP meets with 
the agencies responsible for Mexican wolf reintroduction in the United 
States and Mexico annually to discuss release objectives for the year 
ahead.
    The captive population remains capable of supporting both the U.S. 
and Mexico populations of wild Mexican wolves. Over the course of the 
reintroduction from 1998 to December 31, 2020, we have released 146 
captive wolves to the MWEPA, including the release of 51 wolves (1 
adult, 50 pups) between January 1, 2015, and December 31, 2020, to 
improve gene diversity (USFWS files). For clarity, only releases 
subsequent to December 2015 count toward the genetic criterion in the 
revised recovery plan (USFWS 2017a, p. 23). Mexico has released 49 
captive wolves between 2011 and February 24, 2021 (USFWS files). This 
proposed rule recommends a higher number of releases to the wild than 
the 2015 10(j) rule (see Release Procedures, above) but that is well 
within the current capacity of the captive program (Miller 2017, p. 
42). Releases from the SSP facilities can benefit the captive-breeding 
program by freeing up space for additional breeding of Mexican wolves 
in captivity, which can slow the loss of genetic diversity (Scott et 
al. 2020, p. 9; also see Mechak et al. 2016, pp. 1-15). Based on our 
proposed revisions described in this document, we will release a 
sufficient number of captive Mexican wolves to the MWEPA such that at 
least 22 survive to breeding age and the gene diversity in the MWEPA 
represents approximately 90 percent of the gene diversity available in 
captivity.
    No wolves have been removed from the wild in Mexico for 
translocation (i.e., release) into the MWEPA since Mexico began 
releasing wolves to the wild in 2011. We do not need to translocate 
wolves from the wild Mexico population into the United States to assist 
the growth or stability of the MWEPA population due to the growth 
already occurring in the MWEPA population. We recognize that Mexico is 
still in the early phases of establishing a population, and at its 
current small size, it could not support occasional or frequent removal 
of wolves for translocation to the United States. In the biological 
report that accompanies the revised recovery plan, we investigated 
release scenarios with various levels of translocation of Mexican 
wolves from the United States to Mexico, but not the reverse, for this 
reason (Miller 2017, pp. 16-38). We recognize the importance of 
supporting Mexico in achieving the recovery criteria in Mexico, and we 
would not request removal of wolves from Mexico for translocation to 
the United States unless it were beneficial for both populations. If we 
requested translocation of Mexican wolves from Mexico, it would be on a 
very limited basis for a specific reason, such as to improve gene 
diversity in the recipient population and reduce mean kinship in the 
donor population. Therefore, any translocations from Mexico to the 
United States would be sufficiently rare and assessed for mutual 
benefit so as to have no adverse impacts on the wild population in 
Mexico. We will continue to rely on the captive population for our 
release needs in the MWEPA.

Likelihood of Population Establishment and Survival

    As we stated in the 2015 10(j) rule, the experimental population 
has

[[Page 59966]]

consistently demonstrated signs of establishment, such as wolves 
establishing home ranges and reproducing (80 FR 2512, January 16, 2015, 
p. 2551). Since the publication of the 2015 10(j) rule, the population 
has continued to exhibit these signs. 2020 marked the 19th year in 
which wild-born Mexican wolves bred and raised pups in the wild (USFWS 
files), demonstrating sustained natural reproduction. The population 
has exhibited steady growth under the 2015 10(j) rule, from a minimum 
of 112 to 186 wolves from the end of 2014 through 2020. During the same 
time period, the number of breeding pairs increased from 9 to 20, and 
the population expanded geographically from 7,255 mi\2\ (18,790 km\2\) 
to 19,495 mi\2\ (50,492 km\2\) (USFWS 2014; USFWS files). Substantial 
areas of high-quality habitat remain unoccupied in the MWEPA, allowing 
for continued geographic expansion of the population as it increases 
numerically.
    As discussed in Threats/Causes of Decline, above, we actively 
manage to lessen or alleviate threats to the Mexican wolf throughout 
the MWEPA. Also, as discussed in Recovery Efforts, above, we continue 
to demonstrate our commitment to the recovery of the Mexican wolf 
through our use of regulatory tools, evolving field techniques, law 
enforcement, and partnerships and outreach. Based on the biological 
characteristics of the population, including its demonstrated growth 
and expansion, coupled with the ongoing intensive management and 
monitoring efforts of the USFWS and our partners, and our demonstrated 
adaptive and collaborative management approach, the population in the 
MWEPA is established and the likelihood of survival is extremely high.

Effects of the MWEPA Population on Recovery Efforts

    Continuing the effort to reestablish the experimental population 
will have significant, direct, immediate, and long-term measurable 
benefit to the recovery of the Mexican wolf. As discussed above in 
Recovery Efforts, the revised recovery plan states that recovery of the 
Mexican wolf will be achieved when two self-sustaining populations--one 
in the United States and one in Mexico--have been established and 
safeguarded from threats as provided for by the recovery criteria and 
actions in the plan. The USFWS intends for the experimental population 
in the MWEPA to serve as the population that will achieve the recovery 
criteria for the United States. Our proposed population objective, 
genetic objective, and temporary restriction of three take provisions 
are intended to ensure that the experimental population in the MWEPA 
supports our efforts to achieve the long-term conservation and recovery 
of the Mexican wolf.

Actions and Activities That May Affect the Introduced Population

    Consistent with our findings in the past (63 FR 1752, January 12, 
1998, p. 1755; 80 FR 2512, January 16, 2015, p. 2551), we do not 
foresee that the introduced population will be adversely affected by 
existing or anticipated Federal or State actions or private activities. 
We expect that anticipated Federal, State, or Tribal actions or private 
activities will not negatively affect the experimental population's 
ability to increase numerically or continue to expand into suitable 
habitat in the MWEPA, but some activities could affect individual 
wolves.
    We expect Mexican wolves in the MWEPA to primarily occupy forested 
areas on Federal lands due to the availability of prey in these areas 
and supportive management regimes. We expect the majority of the 
Mexican wolf population to occur on Federal lands within Zones 1 and 2 
of the MWEPA, but we also recognize that Mexican wolves may seek to 
inhabit suitable habitat on Tribal or private lands or may disperse 
through or occasionally occupy less-suitable habitat of various land 
ownership types in Zones 2 and 3.
    Zone 1, the area where Mexican wolves may be initially released 
from captivity or translocated, is comprised of the Apache, Gila, and 
Sitgreaves National Forests; the Payson, Pleasant Valley, and Tonto 
Basin Ranger Districts of the Tonto National Forest; and the Magdalena 
Ranger District of the Cibola National Forest. The USFS 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 National Forests 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 USFS is a 
signatory to the 2019 MOU and actively participates in daily management 
of the experimental population (see Is the Experimental Population 
Essential to the Continued Existence of the Species in the Wild? below, 
for additional discussion of the USFS's role and contributions to the 
management and recovery of the Mexican wolf in the MWEPA). We 
anticipate that individual Mexican wolves or wolf packs may be affected 
by actions and activities associated with ranching activities on public 
land, because wolves that depredate livestock or display nuisance 
behavior may be hazed or removed.
    Zone 2 of the MWEPA contains a matrix of land ownerships, including 
Federal (e.g., USFS, Bureau of Land Management, Department of Defense), 
State, private, and Tribal lands. A variety of actions and activities 
may occur throughout this zone, such as recreation, agriculture and 
ranching, urban and suburban development, and military operations. 
Similar to Zone 1, we anticipate that individual Mexican wolves or wolf 
packs may be affected by actions and activities occurring on private or 
Tribal land in Zone 2, such as ranching operations, because wolves that 
depredate livestock or display nuisance behavior may be hazed or 
removed. We will continue 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 we 
will continue our efforts to support programs that fund depredation 
compensation and preventative/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 cumulative effects of multiple factors, 
including inbreeding and illegal shooting of wolves (80 FR 2488, 
January 16, 2015, p. 2503). We recognize that human and road densities 
in the MWEPA are within the recommended levels for Mexican wolf 
colonization, and are expected to remain so in the future; therefore, 
we see the impact to the population from actions related to human 
development as minimal within the areas we expect Mexican wolves to 
primarily inhabit in Zones 1 and 2. More information about vehicular 
collisions can be found in the final rule determining endangered status 
for the Mexican wolf (80 FR 2488, January 16, 2015).
    The border wall along the southern boundary of the MWEPA in Zones 2 
and 3 may affect Mexican wolves that try to disperse southward from the 
MWEPA or northward from Mexico. We expect these dispersal occurrences 
to be fairly

[[Page 59967]]

rare, as discussed in Location and Boundaries of the Proposed 
Experimental Population, above. Such occurrences will only be affected 
if dispersal activity is blocked or altered by the border wall.

Experimental Population Regulation Requirements

Appropriate Means To Identify the Experimental Population

    The location of the experimental population is the MWEPA, as 
defined at 50 CFR 17.84(k). Mexican wolves will move throughout the 
MWEPA in their daily feeding and sheltering activities. We can identify 
Mexican wolves based on the permanent identification marks we give them 
prior to release, or by radio collar, DNA analysis, or visual 
observation.

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

    The ESA instructs us to determine whether a population is essential 
to the continued existence of an endangered or threatened species. Our 
regulations define ``essential experimental population'' as an 
experimental population whose loss would be likely to appreciably 
reduce the likelihood of survival of the species in the wild (50 CFR 
17.80(b)). The USFWS defines ``survival'' as the condition in which a 
species continues to exist in the future while retaining the potential 
for recovery (USFWS and National Marine Fisheries Service 1998). 
Inherent in our regulatory definition of ``essential experimental 
population'' is the impact the potential loss of the experimental 
population would have on the species as a whole (49 FR 33885; August 
27, 1984). All experimental populations not meeting this bar are 
considered ``nonessential'' (50 CFR 17.80(b)).
    We designated the Mexican wolf experimental population in the MWEPA 
as nonessential in 1998 (63 FR 1752; January 12, 1998). The March 31, 
2018, Order instructs us to make a new essentiality designation because 
our geographic expansion of the MWEPA in the 2015 10(j) rule would 
result in Mexican wolf occupancy outside of areas previously considered 
when we made our 1998 essentiality determination. We now propose to 
maintain the designation of the experimental population in the MWEPA as 
nonessential based on the following information and considerations:
    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 the species can 
be recovered and removed from the Federal List of Endangered and 
Threatened Wildlife. This is consistent with the ESA's requirements for 
section 10(j) experimental populations. Specifically, the ESA requires 
experimental populations to further the conservation of the species. At 
16 U.S.C. 1532(3), the ESA defines conservation 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 ESA are no longer necessary. In short, experimental populations 
serve the 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 ESA. 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; 49 FR 33885, August 27, 1984). Therefore, although we have 
indicated that we will manage the MWEPA population to achieve the 
recovery criteria for the U.S. population of Mexican wolves, the MWEPA 
population's importance to recovery does not equate with the MWEPA 
being designated as essential.
    In the final rule published on January 12, 1998 (63 FR 1752), we 
determined that the experimental population was not essential to the 
survival of the species in the wild based on the current and expected 
future availability of Mexican wolves in captivity that would be 
available for release to the wild. Just prior to the 1998 designation, 
the captive program included 148 animals in 44 facilities in the United 
States and Mexico. We stated in the 1998 designation that the captive 
population had doubled in size over the previous 3 years, demonstrating 
its reproductive potential to replace reintroduced wolves that died (63 
FR 1752, January 12, 1998, p. 1753). While we expected that some wolves 
would die after removal from the captive population, we also expected 
that the captive population had the capacity to support another 
reintroduction attempt in the extreme event that the entire population 
died. We established an expectation from the earliest days of the 
reintroduction that wolves released to the wild would be genetically 
redundant to wolves in captivity, such that no unique genes would be 
lost if released wolves did not survive. This approach ensured the 
genetic integrity of the captive population and the survival of the 
subspecies. We stated that the genetic management of the captive 
population would be conducted by the American Zoo and Aquarium 
Association's SSP program, using state-of-the-art technology and being 
guided by an expert advisor specializing in small population 
management.
    Now, taking into consideration our expansion of the MWEPA in the 
2015 10(j) rule and the growth of the MWEPA population since the 
reintroduction began, we maintain our position that the captive 
population serves as a safeguard for the survival of the Mexican wolf 
in the wild. Although the revised geography of the MWEPA results in 
Mexican wolves occupying new areas south of I-40 in Arizona and New 
Mexico south to the international border with Mexico, wolves that may 
occupy any area within the revised MWEPA are part of the same 
experimental population we initiated in 1998. Our previous rationale 
stands for this now enlarged area: Even if the entire population in the 
MWEPA died, which is extremely unlikely (see Likelihood of Population 
Establishment and Survival, above), animals from captivity would be 
available to reintroduce to the wild to reestablish the population. In 
fact, the captive population is more capable of producing genetically 
redundant wolves for release than it was in 1998, due to its increased 
size. As of June 30, 2020, the captive population housed 369 wolves in 
55 facilities (Scott et al. 2020, p. 7). Many of the facilities that 
house and breed wolves in captivity have been doing so for two to three 
decades, demonstrating a firm commitment as a partner in this effort 
and gaining considerable experience in husbandry and rearing 
techniques. The SSP continues to annually meet or exceed its goal to 
maintain a captive population of 300 wolves. The captive population 
could be expanded beyond its current size with the addition of more 
participating facilities that would enable more wolves to be placed 
into breeding situations (Scott et al. 2020, p. 7).
    In addition to the capacity of the captive population to produce 
the number of wolves that would be necessary to reinitiate a 
reintroduction, the SSP continues to demonstrate rigorous management of 
the genetic integrity of the captive population. The SSP prioritizes 
the breeding of select individuals, and multiple facilities and 
institutions within the SSP invest in gamete collection and 
preservation for

[[Page 59968]]

use in promising assisted reproductive technologies that allow 
individual wolves to contribute genetically to the population after 
their death (Scott et al. 2020, pp. 82-83). The rigorous management of 
the captive facilities combined with the increasing exploration of and 
potential to use reproductive technologies further strengthen our 
position that the captive population has the current capacity and 
demonstrated record of accomplishment to produce Mexican wolves for 
release to ensure the survival and recovery of the Mexican wolf in the 
wild.
    We propose our designation in recognition that the gene diversity 
of the captive population will slowly decline over time. The 2020 SSP 
masterplan for the Mexican wolf states, ``Currently this population 
could maintain only 75% gene diversity for 59 years and would be 
expected to maintain 72.3% after 100 years (Scott et al. 2020, p. 9).'' 
We acknowledge that the captive population is based on a small number 
of founders with no possibility of new Mexican wolf founders that could 
add gene diversity, which limits the gene diversity of the captive 
Mexican wolf population and any wild population initiated with captive 
wolves. We also acknowledge that limited breeding capacity due to the 
number of captive facilities available for breeding coupled with the 
social structure of the species (not all wolves are breeders) will 
affect the rate of loss of gene diversity in the captive population 
over time (Scott et al. 2020, p. 9). However, these factors do not make 
the captive population unfit to serve as a source for additional 
reintroductions because the breeding of underrepresented founders, the 
addition of facilities for breeding events, and the use of reproductive 
technologies can be increased in order to slow the loss of gene 
diversity in the captive population. That is, the rate of gene loss can 
be controlled to a large degree by the management of the captive 
population. Loss of gene diversity in the captive population would 
limit future reintroduction potential if it occurred to such an extent 
that inbreeding effects were observed and resulted in wolves unfit for 
release. At the current time there is no indication of this, nor is 
there a specific degree of gene loss at which we have certainty this 
would occur. Therefore, while we recognize that gene diversity 
limitations have and will continue to persist, they are not occurring 
to a degree that curtails our ability to consider a future 
reintroduction of Mexican wolves to the wild or for those wolves to 
retain the potential for recovery.
    We also note the reintroduction of Mexican wolves in Mexico 
beginning in 2011, which has resulted in the establishment of a second 
population of wild Mexican wolves. This effort is a central part of the 
recovery effort for the Mexican wolf and is not dependent 
demographically on dispersal of wolves from the MWEPA for its 
establishment, although translocations from the United States may be 
undertaken for various management purposes. A loss of wolves in the 
MWEPA would not disable Mexico's ability to achieve recovery; 
meanwhile, the MWEPA population could be re-established.
    We note that when the MWEPA was designated in 1998 (see 63 FR 1752; 
January 12, 1998), the Mexican wolf was protected as endangered through 
the gray wolf listing (see 43 FR 9607; March 9, 1978). We indicated our 
intent in that rule to conserve subspecies such as the Mexican wolf (43 
FR 9607, March 9, 1978, pp. 9609-9610). As such, our designation of an 
experimental population of the Mexican wolf was in relation to the 
Mexican wolf subspecies, not the gray wolf species. Therefore, our 
rationale for designating the MWEPA as nonessential was also in 
relation to the Mexican wolf subspecies only and did not take into 
consideration other gray wolf populations (63 FR 1752; January 12, 
1998). In 2015, we published a final rule (80 FR 2488; January 16, 
2015) listing the Mexican wolf as an endangered subspecies to make its 
listing independent of the gray wolf species listing. This change in 
listing, from being part of a species-level listing to a subspecies 
listing, does not alter our above rationale related to the role of the 
captive population in our essentiality determination because, 
consistent with our original designation, we continue to consider the 
designation of the MWEPA in relation to the Mexican wolf subspecies.
    As described in this proposed rule, the USFWS and our partners have 
over two decades of management experience that support our position 
that we could successfully reinitiate a reintroduction. In 1998, we 
stated that in the event of the loss of the entire population, future 
reintroductions would be possible if the reasons for initial failure 
were understood (63 FR 1752, January 12, 1998, p. 1754). Not only have 
we not experienced any such initial failure, we have demonstrated 
success in growing the population to a minimum of 186 wild wolves. 
Along the way, we have engaged in adaptive management to hone effective 
release techniques and identify successful release locations and 
timing; we have developed and implemented depredation avoidance 
techniques; we have expanded our partnership network to bring 
additional expertise and capacity to bear; we have solidified our 
recovery goals and revised our management regulations; and we continue 
to integrate new technologies as they become available to track and 
monitor wolves and collect data. We are better informed and equipped 
now, and will be in the future, to initiate and manage a reintroduction 
than we were in 1998.
    In addition to considering our logistical potential to conduct a 
new reintroduction and the degree to which the recovery potential of 
the Mexican wolf would be retained in such circumstances based on the 
status of the captive population, our finding of whether a population 
is essential is also made with our understanding that Congress enacted 
the provisions of the ESA's section 10(j) to mitigate fears that 
reestablishing populations of endangered or threatened species into the 
wild would negatively impact landowners and other private parties. 
Congress recognized that flexible rules could encourage recovery 
partners to actively assist in the reestablishment and hosting of such 
population on their lands (H.R. Conference Report. 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; see 49 FR 33885, August 27, 1984). Mexican 
wolves, due to their status as a top predator, have created significant 
dissension and concern in local communities. In this regard, we note 
that we are in a unique position in making this finding as an extension 
of an existing experimental population, as opposed to a new population 
designation in another geographic area. Because of this, we consider it 
even more important to maintain the existing partnerships and 
management arrangements that we have built over the last two decades of 
the reintroduction because they enhance our ability to address local 
concerns and contribute to the recovery progress of the Mexican wolf. 
Our intent to establish a collaborative management scheme for the 
reintroduction has been evident since 1998, when we discussed the role 
of cooperating agencies in the management, identification, and 
monitoring of the reintroduced population (63 FR 1752, January 12, 
1998, p. 1754). Currently, we manage the reintroduction pursuant to the 
2019 MOU with a host of Federal and State agencies, a Tribe, and 
several counties

[[Page 59969]]

and local governments, each of which plays a unique and important role. 
We recognize that changing course to an essential designation could 
result in challenges in maintaining these partnerships.
    Section 7 of the ESA, titled Interagency Cooperation, outlines the 
procedures for Federal interagency cooperation to conserve Federally 
listed species and designated critical habitats. Section 7(a)(1) 
directs the Secretaries of the Interior and Commerce to review other 
programs administered by them and utilize such programs to further the 
purposes of the ESA. It also directs all other Federal agencies to 
utilize their authorities in furtherance of the purposes of the ESA by 
carrying out programs for the conservation of species listed pursuant 
to the ESA. This section of the ESA makes it clear that all Federal 
agencies should participate in the conservation and recovery of listed 
endangered and threatened species. Under this provision, Federal 
agencies often enter into partnerships and memoranda of understanding 
with the USFWS to implement and fund conservation agreements, 
management plans, and recovery plans for listed species.
    The primary land management agency within the MWEPA is the USFS, 
which manages land under a multiple use mandate. The USFS is a 
signatory to the 2019 MOU for Mexican Wolf Recovery and Management. 
According to the 2019 MOU, the USFS will provide a liaison to the 
Interagency Field Team (IFT) to: (1) Serve as the primary liaison 
between the IFT and USFS on all Mexican wolf issues that pertain to 
USFS-managed lands, USFS permittees, and other users; (2) provide 
coordination between the various USFS district rangers/wildlife staff/
regional office and the IFT on wolf-related activities and issues; (3) 
provide assistance and input on IFT issues and priorities; and (4) 
facilitate obtaining necessary USFS authorizations, permits, 
environmental analyses, and closure orders.
    The USFS has implemented proactive conservation efforts for the 
Mexican wolf on a multiple use landscape. The USFS districts work 
closely with the IFT and meet at least four times per year to 
coordinate the following:
     Review locations of current wolf territories and den/
rendezvous sites to coordinate with planned land management actions 
(including range, fire, timber, recreation) and mitigate potential 
impacts;
     Coordinate with each district in developing a district-
specific livestock carcass removal strategy so that carcasses can be 
removed from grazing allotments when appropriate to reduce potential 
wolf/livestock conflict;
     Attend annual operating instructions meetings with range 
conservationists and individual livestock permittees to review 
allotment-specific wolf information and develop conflict reduction 
strategies;
     Update the district range conservationist when 
depredations occur and explore strategies to reduce conflicts;
     Update livestock permittees approximately every 2 weeks on 
new wolf locations on their allotments with the intent of reducing 
wolf/livestock conflicts, encouraging proactive measures, and improving 
information exchange with the wolf biologist(s) assigned to that area;
     Coordinate with nongovernmental organizations for funding 
of proactive measures in areas with high depredation rates; and
     Coordinate to help ensure successful implementation of 
cross-fostering efforts on USFS lands to reach genetic recovery goals.
    For the ESA's section 7 consultation purposes, section 10(j) 
requires the following:
     Any nonessential experimental population located outside a 
National Park or National Wildlife Refuge System unit is treated as a 
proposed species for the purposes of section 7 (conference may be 
conducted);
     Any essential population is treated as a threatened 
species for purposes of section 7 consultation (standard consultations 
are conducted);
     Critical habitat may be designated for essential 
experimental populations (standard consultations are conducted), but 
not for nonessential experimental populations; and
     All populations of the species (including populations 
designated as experimental) are considered to be a single listed entity 
when making jeopardy determinations or other analyses in a section 7 
consultation.
    By definition, a ``nonessential experimental population'' is not 
essential to the continued existence of the species. Therefore, no 
proposed action impacting a population so designated could lead to a 
jeopardy determination for the entire species. Because the USFS is 
implementing their section 7(a)(1) responsibilities, is a signatory to 
the 2019 MOU along with 13 other agencies and entities, and is 
implementing conservation measures, it is appropriate for the Mexican 
wolf to be treated as a proposed species for the purposes of section 7 
under the nonessential designation.

Management Restrictions, Protective Measures, and Other Special 
Management

    For Mexican wolves that occur outside the MWEPA due to dispersal 
activity, the ESA prohibits activities that ``take'' endangered and 
threatened species unless a Federal permit allows such ``take.'' Along 
with our implementing regulations at 50 CFR part 17, the ESA provides 
for ``take'' permits and requires that we invite public comment before 
issuing these permits. A permit issued by us under section 10(a)(1)(A) 
of the ESA authorizes activities otherwise prohibited by section 9 for 
scientific purposes or to enhance the propagation or survival of the 
affected species, including acts necessary for the establishment and 
maintenance of experimental populations. Our regulations regarding 
implementation of section 10(a)(1)(A) permits are found at 50 CFR 17.22 
for endangered species.
    We have developed a section 10(a)(1)(A) permit to allow for certain 
activities with Mexican wolves that occur both inside and outside the 
MWEPA. If Mexican wolves travel outside the MWEPA, we intend to capture 
and return them to the MWEPA or place them in captivity.

Review and Evaluation of the MWEPA Population

    The USFWS will measure the success, failure, and effects of 
releases, translocations, proactive management, removals, and other 
management actions by monitoring, researching, and evaluating the 
status of Mexican wolves and their offspring in the MWEPA. Using 
adaptive management principles, the USFWS will continue to modify 
subsequent management actions and strategies depending on what we learn 
and the status of the population. We will prepare periodic progress 
reports, annual reports, and publications, as appropriate, to evaluate 
our progress. The reviews and progress reports we foresee completing in 
the future include: Quarterly updates and annual reports; five-year 
status evaluations pursuant to section 4(c)(2) of the ESA, with the 
next evaluations occurring in 2023 and 2028; 5- and 10-year recovery 
progress evaluations pursuant to the revised recovery plan, during 
which we will assess progress toward recovery based on data through 
2022 and 2027 for the 5- and 10-year evaluations, respectively, and 
which will result in the publication of our evaluations in 2023 and 
2028; the phasing evaluations for western Arizona as established in the 
2015 10(j) rule, which occurred in

[[Page 59970]]

2020 and will occur in 2023; and an evaluation of this revised rule 
approximately 5 years after implementation begins, which would be based 
on data through the annual population count in 2027 and which we will 
synchronize with our 2027 recovery plan evaluation to ensure we conduct 
a wholistic review of the experimental population within the context of 
recovery, for publication in 2028.

Consultation With State Game and Fish Agencies, Local Governments, 
Tribes, Federal Agencies, and Private Landowners in Developing and 
Implementing This Proposed Rule

    In accordance with 50 CFR 17.81(d), to the maximum extent 
practicable, this proposed rule represents an agreement between the 
USFWS, the affected State and Federal agencies, and persons holding any 
interest in land that may be affected by the establishment of this 
experimental population. We invited 60 Federal and State agencies, 
local governments, and Tribes to participate as cooperating agencies in 
the development of the DSEIS, 24 of which signed a memorandum of 
understanding (MOU). The purpose of this MOU was for the signatory 
entities to contribute to the preparation of the DSEIS that analyzes 
the proposed revisions to the regulations for the MWEPA. The revisions 
proposed in this rule directly reflect the input of State game and fish 
agencies, local governmental entities, and affected Federal agencies.
    In April 2020, we notified the Tribal governments of all the Native 
American Tribes in Arizona and New Mexico of our intent to prepare a 
proposed revised 10(j) rule and DSEIS. We held several Tribal working 
group meetings to provide opportunity for input, discuss the current 
status of the DSEIS development, and address issues raised by the 
Tribes. We also provided updates and opportunities for Tribal input to 
our process during Tribal coordination meetings convened by the Arizona 
Ecological Services Field Office in Phoenix, Arizona, and the New 
Mexico Ecological Services Field Office in Albuquerque, New Mexico.
    Due to the difficulty of conducting in-person meetings during the 
COVID-19 pandemic, we conducted most meetings related to this process 
via virtual video or telephone meetings. We met with affected Federal 
and State agencies, representatives from local and Tribal governments, 
and stakeholder groups representing interested parties to discuss the 
proposed rule and DSEIS. We met with the Arizona Game and Fish 
Department and New Mexico Department of Game and Fish to collect data 
for the biological resources and economics analyses and to discuss 
proposed revisions. We coordinated regularly to discuss their issues 
and recommendations.
    In addition to the coordination provided specific to the 
development of the proposed rule and DSEIS, we note that we also 
conduct the management and recovery of the Mexican wolf within an 
interagency framework that is defined by our 2019 MOU (see Recovery 
Efforts, above).
    Numerous other entities and individuals provided comments during 
scoping or at other times during our process that did not reflect the 
best available scientific and commercial information or contribute to 
the conservation and recovery of the species. It is not practicable for 
this proposed rule to represent an agreement between the USFWS and all 
persons holding any interest in land that may be affected by the 
revision to the designation of this experimental population. We 
reviewed approximately 87,000 public scoping comments to develop this 
proposed rule and the DSEIS. We will hold virtual public meetings and 
hearings during the public comment period for this proposed rule and 
the DSEIS (see DATES and ADDRESSES, above), and we will consider all 
comments we receive during the open public comment period in the 
development of our final rule and final SEIS.

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 used. The purpose of 
such review is to ensure that the final determination is based on 
scientifically sound data, assumptions, and analyses. As directed by 
the USFWS Peer Review Policy dated July 1, 1994 (59 FR 34270), and a 
recent memo updating the peer review policy for listing and recovery 
actions (August 22, 2016), we will invite peer reviewers to comment on 
our methods and conclusions, and provide additional information, 
clarifications, and suggestions to improve the final determination. We 
will consider their comments and information on proposed modifications 
during preparation of a final rule. Accordingly, the final decision may 
differ from this proposal.

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 proposed rule in a 
manner consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
801 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. We certify that this proposed rule would not have a 
significant economic effect on a substantial number of small entities. 
The following discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations such as

[[Page 59971]]

independent nonprofit organizations; small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents; and small businesses (13 CFR 121.201). Small 
businesses include such businesses as manufacturing and mining concerns 
with fewer than 500 employees, wholesale trade entities with fewer than 
100 employees, retail and service businesses with less than $5 million 
in annual sales, general and heavy construction businesses with less 
than $27.5 million in annual business, special trade contractors doing 
less than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
considered the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the impacts of a rule must be both significant and 
substantial to prevent certification of the rule under the Regulatory 
Flexibility Act and to require the preparation of 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 USFWS may certify. Likewise, if the per-entity 
economic impact is likely to be significant, but the number of affected 
entities is not substantial, the USFWS may also certify.
    In our 2015 10(j) rule, we found that the experimental population 
would not have significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act. The 2015 10(j) 
rule expanded the geographic boundaries of the MWEPA, established new 
management zones with provisions for initial release and translocation 
of Mexican wolves, revised and added allowable forms of take, and 
clarified definitions. We concluded that the rule would not 
significantly change costs to industry or governments. Furthermore, the 
rule produced no adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S. 
enterprises to compete with foreign-based enterprises in domestic or 
export markets. We further concluded that no significant direct costs, 
information collection, or recordkeeping requirements were imposed on 
small entities by the action and that the rule was not a major rule as 
defined by 5 U.S.C. 804(2) (80 FR 2512, January 16, 2015, pp. 2553-
2556).
    Under this proposal, we would modify the population objective, 
establish a genetic objective, and temporarily restrict three of the 
forms of take of Mexican wolves in the MWEPA that we adopted in the 
January 16, 2015, final rule. We are proposing these revisions to 
ensure the long-term conservation and recovery of the Mexican wolf. In 
addition, we are proposing to maintain the nonessential designation for 
the experimental population. We are not proposing to revise the 
geographic boundaries of the MWEPA.
    Because of the regulatory flexibility for Federal agency actions 
provided by the MWEPA's 10(j) designation, we continue to expect this 
rule not to have significant effects on any activities within Federal, 
State, or private lands within the experimental population. In regard 
to section 7(a)(2) of the ESA, except on National Park Service and 
National Wildlife Refuge System lands, the population is treated as 
proposed for listing, and Federal action agencies are not required to 
consult on their activities. Section 7(a)(4) of the ESA requires 
Federal agencies to confer (rather than consult) with the USFWS on 
actions that are likely to jeopardize the continued existence of a 
species. However, because a nonessential experimental population is, by 
definition, not essential to the survival of the species, conferencing 
is unlikely to be required within the MWEPA. Furthermore, the results 
of a conference are strictly advisory in nature and do not restrict 
agencies from carrying out, funding, or authorizing activities. In 
addition, section 7(a)(1) of the ESA requires Federal agencies to use 
their authorities to carry out programs to further the conservation of 
listed species, which would apply on any lands within the experimental 
population area. As a result, and in accordance with these regulations, 
if we adopt this rule as proposed, some modifications to the Federal 
actions within the experimental population area may occur to benefit 
the Mexican wolf, but we do not expect projects on Federal lands to be 
halted or substantially modified as a result of these regulations.
    However, this proposed rule would allow a larger population of 
Mexican wolves to occupy the MWEPA, which has the potential to affect a 
greater number of small entities involved in ranching and livestock 
production, particularly beef cattle ranching (business activity code 
North American Industry Classification System (NAICS) 112111), sheep 
farming (business activity code NAICS 112410), and outfitters and 
guides (business activity code NAICS 114210). Small entities in these 
sectors may be affected by Mexican wolves depredating on, or causing 
weight loss of, domestic animals (particularly beef cattle), or preying 
on wild native ungulates, respectively. We have updated our assessment 
to small entities in the DSEIS.
    Small businesses involved in ranching and livestock production may 
be affected by Mexican wolves depredating on domestic animals, 
particularly beef cattle. Direct effects to small businesses could 
include foregone calf or cow sales at auctions due to depredations. 
Indirect effects could include impacts such as increased ranch 
operation costs for surveillance and oversight of the herd, and weight 
loss of livestock when wolves are present. Ranchers have also expressed 
concern that a persistent presence of wolves may negatively impact 
their property and business values. We do not foresee a significant 
economic impact to a substantial number of small entities in the 
ranching and livestock production sector based on the following 
information:
    The small size standard for beef cattle ranching entities and sheep 
farms as defined by the Small Business Administration are those 
entities with less than $1.0 million in average annual receipts (https://www.sba.gov/content/summary-size-standards-industry-sector). We 
consider close to 100 percent of the cattle ranches and sheep farms in 
Arizona and New Mexico to be small entities. The 2017 Census of 
Agriculture reports that there were 7,057 cattle and calf operations 
and 7,509 sheep farms in Arizona, and 10,880 cattle and calf operations 
and 4,047 sheep farms in New Mexico.
    Of the approximately 18,000 cattle ranches in Arizona and New 
Mexico, 12,334 occur in counties in the MWEPA (2017 Census of 
Agriculture data by county). These operations account for approximately 
69 percent of the total for both States. The actual number of ranches 
within the project area is far less than this estimate because several 
counties extend beyond the borders of the project area or the ranches 
occur in areas where we do not expect wolf occupancy due to low habitat 
suitability. The Agricultural Census does not report sub-county farms 
or inventory, so relying on the county numbers is the best available 
data for estimating the number of potentially affected small ranching 
operations.

[[Page 59972]]

    Cattle ranches vary significantly in herd size, with 
classifications ranging from a herd of 1 to 9 animals, to those with 
more than 2,500 animals (2017 Census of Agriculture). Over 80 percent 
of these ranches have fewer than 50 head of cattle.
    We assessed whether a substantial number of entities would be 
impacted by this proposed rule by estimating the annual number of 
depredations we expect to occur within the project area when the 
Mexican wolf population will be at its largest. Between 1998 and 2019, 
on average, there were 151 total depredations (confirmed and 
unconfirmed) by Mexican wolves in any given year, which equates to 1.7 
cow/calves killed for every Mexican wolf. Based on this, we estimate 
the average number of cattle killed (both confirmed and unconfirmed) in 
any given year for 320 wolves will be 544 individuals. We expect the 
experimental population to grow from its current minimum population 
estimate of 186 wolves to an 8-year average population of 320. Assuming 
that one cow is depredated per ranch, we expect the number of affected 
ranches to increase from 151 ranches to 544 ranches when the wolf 
population reaches 320 individuals. At this point, if each expected 
depredation affects a unique ranch, then a total of approximately four 
percent of ranches in the area would be impacted.
    To the extent that some cattle ranches will most likely not be 
impacted by wolf recovery because they are not located in suitable 
habitat but are included in the total estimate of potentially affected 
ranches because the Agricultural Census does not provide data at a sub-
county level, this estimate could understate the percentage of ranches 
potentially affected. However, for other reasons, this estimate could 
very well overstate the percentage of cattle ranches affected as we 
recognize that annual depredation events have not been, and may not be, 
uniformly distributed across the ranches operating in occupied wolf 
range. Rather, wolves seem to concentrate in particular areas, and to 
the extent that livestock are targeted by the pack for depredations, 
some ranch operations will be disproportionately affected. Therefore, 
it is more likely that fewer than 544 ranches may experience more than 
one depredation, rather than each of 544 ranches experiencing one 
depredation.
    Compared to the 2017 total inventory of estimated ranch cattle 
(259,192) for the project area of the Blue Range Wolf Recovery Area 
(BRWRA), both confirmed and unconfirmed depredations per 100 Mexican 
wolves account for 0.2 percent of the herd size. The economic cost of 
Mexican wolf depredations in this time period has been a small 
percentage of the total value of the livestock operations. With a 
population objective of an average of 320 Mexican wolves in the MWEPA, 
the expected value of 544 cattle (174.3 cattle killed per 100 Mexican 
wolves on average for any year) at auction based on a weighted average 
market value for a depredated cow/calf of $1,094.72 ($2020), the total 
annual impact would be $595,500. If depredations uniquely affect a 
separate operation, then a total of 544 operations would incur an 
expected corresponding loss of $1,095.
    Small businesses involved in ranching and livestock production 
could also be indirectly affected by weight loss of livestock due to 
the presence of Mexican wolves. For example, livestock may lose weight 
because wolves force them off suitable grazing habitat or away from 
water sources. Livestock may try to protect themselves by staying close 
together in protected areas where they are more easily able to see 
approaching wolves and defend themselves and their calves. A 
consequence of such a behavioral change would likely be weight loss, 
especially if the wolves are allowed to persist in the area for a 
significant amount of time because the cattle would be afraid to spread 
out to find more lucrative forage areas. Weight loss could also occur 
if the presence of wolves causes the herd to move around more rapidly 
as they try to keep away from wolves. Based on Ramler et al. 2014, 
weight loss of cattle is associated with the ranches that have suffered 
depredations. Therefore, we would expect the same ranches--that is, 544 
ranches or fewer--that are impacted by depredations to potentially be 
impacted by weight loss of their cattle. Because wolves' tendency to 
prey on cattle is localized, we would not expect all 544 ranches and 
their associated herds to be impacted.
    Using a mid-point estimate of 6 percent weight loss for calves at 
the time of auction, we calculated the impact on 2019 model ranches 
assuming that wolf presence pressures were allowed to persist 
throughout the foraging year. Based on mean market prices, a 6 percent 
weight loss for the herd at the time of sale could result in a profit 
loss of $3,079 to $16,613 depending on the size of the ranch. Under 
such a scenario, an affected ranch could incur a 20 percent loss in 
profit using the model ranch assumptions discussed in the report. This, 
however, is likely an overestimate of impacts that would occur, as once 
wolves are detected in an area, a variety of proactive and reactive 
management tools are available to the landowner or the USFWS and our 
designated agencies such that wolf presence would not persist 
throughout a foraging year.
    This proposed rule is based on alternative one in our DSEIS. Under 
this alternative, the experimental population regulations would 
continue to offer several forms of harassment and take of Mexican 
wolves on Federal and non-Federal land to address conflict situations 
between wolves and livestock, although we are also proposing to 
temporarily restrict two of these until we reach the proposed genetic 
objective of 22 released wolves surviving to breeding age. The 
regulations would also continue to provide for initial release of 
captive wolves into suitable habitat in Zones 1 and 2, and we have 
demonstrated our intention to reduce nuisance behavior associated with 
adult releases by using the cross-fostering technique. Further, 
depredation compensation programs are available to offset some of the 
economic impacts of livestock depredations (see Recovery Efforts, 
above); these payments fully offset the impacts of confirmed 
depredations for some operators but do not fully offset impacts for all 
operators, such as those who experience unconfirmed losses for which 
payment is not provided.
    Based on the preceding information, we find that the impact of 
direct and indirect effects of Mexican wolf depredations on livestock 
is not significant and substantial. That is, if impacts are evenly 
spread, less than 5 percent of small ranches in the MWEPA will be 
impacted, which we do not consider to be a substantial number. If 
impacts are disproportionately felt (several ranchers bear the burden 
of the depredations), the number of affected ranches will be even less 
(not substantial), but the impact to those affected may be significant 
depending on the number of cattle on the ranch and other 
characteristics.
    Our proposed revision of the experimental designation may also 
impact small business entities associated with big game hunting, due to 
wolves' predation on wild ungulates, specifically elk, in the MWEPA. 
Effects to small businesses in this sector could occur from impacts to 
big game populations, loss of hunter visitation, or a decline in hunter 
success, leading to lost income or increased costs to guides and 
outfitters. We would expect impacts to big game hunting to potentially 
occur from the increased number of wolves in the MWEPA under our 
proposed population objective or from the temporary restriction of the 
provision

[[Page 59973]]

for take in response to an unacceptable impact to a wild ungulate herd. 
Negative impacts to the big game hunting economic sector would be most 
likely to occur during the period that this take provision is 
restricted because State agencies would not be able to request the 
removal of wolves if they are causing ungulate herds to fall below 
management goals (i.e., an unacceptable impact).
    As we describe in the DSEIS, we do not have a high degree of 
certainty as to when impacts to ungulates may occur, but we speculate 
based on information from gray wolves in other geographic areas that 
impacts will not occur prior to the wolf-to-1,000-elk ratio reaching 
above 4 wolves to 1,000 elk (potentially around 2024). We expect to 
meet our proposed genetic objective by 2030, resulting in the temporary 
restriction of this take provision for not more than 6 years. After the 
proposed genetic objective is reached and the restriction on this take 
provision would be lifted, the States could request the removal of 
wolves causing unacceptable impacts, which would result in mitigation 
of any reduction in hunting revenue occurring in that area. Currently, 
we do not have information suggesting that impacts have occurred. No 
observable impact on wild ungulates due to wolves has been documented, 
nor reductions in big game hunting. In Arizona, total harvest of elk 
and percent success of hunters increased from 2012 to 2017 (the most 
recent year for which we have data) (Hunt Arizona 2011 and 2017, 
Survey, Harvest and Hunt Data for Big and Small Game), and stayed 
stable or increased slightly in New Mexico from 2012 to 2019 (NMDGF 
files).
    For the above reasons and based on currently available information, 
we certify that, if adopted as proposed, the proposed revision to the 
existing nonessential experimental population designation of the 
Mexican wolf would not have a significant economic impact on a 
substantial number of small business entities. Therefore, an initial 
regulatory flexibility analysis is not required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (1) This proposed rule would not ``significantly or uniquely'' 
affect small governments. We have determined and certify pursuant to 
the Unfunded Mandates Reform Act that, if adopted, this rulemaking 
would not impose a cost of $100 million or more in any given year on 
local or State governments or private entities. A Small Government 
Agency Plan is not required. Small governments would not be affected 
because the experimental designation would not place additional 
requirements on any city, county, or other local municipalities.
    (2) This proposed rule would not produce a Federal mandate of $100 
million or greater in any year (i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act). The 
proposed revisions to the MWEPA would not impose any additional 
management or protection requirements on the States or other entities.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
this proposed rule does not have significant takings implications. When 
reestablished populations of federally listed species are designated as 
nonessential experimental populations, the ESA's regulatory 
requirements regarding the reestablished listed species within the 
experimental population are significantly reduced. In the 1998 final 
rule (63 FR 1752; January 12, 1998), we stated that one issue of 
concern is the depredation of livestock by reintroduced Mexican wolves, 
but such depredation by a wild animal would not be a taking under the 
5th Amendment. One of the reasons for the experimental population is to 
allow the agency and private entities flexibility in managing Mexican 
wolves, including the elimination of a wolf when there is a confirmed 
kill of livestock.
    A takings implication assessment is not required because this 
proposed rule would not effectively compel a property owner to suffer a 
physical invasion of property and would not deny all economically 
beneficial or productive use of the land or aquatic resources. Damage 
to private property caused by protected wildlife does not constitute a 
taking of that property by a government agency that protects or 
reintroduces that wildlife. This proposed rule would substantially 
advance a legitimate government interest (conservation and recovery of 
a listed species) and would 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), we have 
considered whether this proposed rule has significant federalism 
effects and have determined that a federalism summary impact statement 
is not required. This proposed rule would 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 proposed rule with the affected 
resource agencies in New Mexico and Arizona. Achieving the population 
objective for the MWEPA, which serves as one of the recovery criteria 
for the Mexican wolf, will contribute to the rangewide recovery of the 
species, which will contribute to its eventual delisting and its return 
to State management. No intrusion on State policy or administration is 
expected, roles or responsibilities of Federal or State governments 
will not change, and fiscal capacity will not be substantially or 
directly affected. This proposed rule would operate to maintain the 
existing relationship between the State and the Federal Government. 
Therefore, this proposed rule does not have significant federalism 
effects or implications to warrant the preparation of a federalism 
summary impact statement 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), we have determined that this proposed 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 Relatives with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we have notified the Native American 
Tribes within and adjacent to the nonessential experimental population 
area about the proposed rule and DSEIS. They have been advised through 
written contact, including informational mailings from the USFWS and 
email notifications to attend video and teleconference informational 
sessions, and will be provided an opportunity to comment on the DSEIS 
and proposed rule. If future activities resulting from this proposed 
rule may affect Tribal

[[Page 59974]]

resources, the USFWS will communicate and consult on a government-to-
government basis with any affected Native American Tribes in order to 
find a mutually agreeable solution.

Paperwork Reduction Act

    This proposed rule does not contain any new collection of 
information that requires approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). OMB has previously approved the information collection 
requirements associated with permitting and reporting requirements 
associated with native endangered and threatened species, and 
experimental populations, and assigned the following OMB control 
numbers:
     1018-0094, ``Federal Fish and Wildlife Permit Applications 
and Reports--Native Endangered and Threatened Species; 50 CFR 10, 13, 
and 17'' (expires 01/31/2024), and
     1018-0095, ``Endangered and Threatened Wildlife, 
Experimental Populations, 50 CFR 17.84'' (expires 9/30/2023).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.

National Environmental Policy Act

    We have prepared a draft supplemental environmental impact 
statement (DSEIS) pursuant to the National Environmental Policy Act 
(NEPA; 42 U.S.C. 4321 et seq.) in connection with this proposed rule to 
revise the Mexican wolf experimental population designation. The 
purpose of the DSEIS is to identify and disclose the environmental 
consequences resulting from the proposed action of revising the 
existing experimental population designation of the Mexican wolf. On 
April 15, 2020, we published a notice of intent (85 FR 20967) to 
prepare the DSEIS, which opened a public scoping period from April 15, 
2020, to June 15, 2020. We used the information gathered during scoping 
to inform the DSEIS and 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 proposed rule is not expected to significantly 
affect energy supplies, distribution, or use because the actions 
contemplated in this proposed rule involve the reintroduction of 
Mexican wolves. Mexican wolves reintroduced in the MWEPA do not change 
where, when, or how energy resources are produced or distributed. 
Because this action is not a significant energy action, no statement of 
energy effects is required.

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 ADDRESSES. 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, or other 
appropriate recommendations.

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-2021-
0103, or upon request from the Mexican Wolf Recovery Program, U.S. Fish 
and Wildlife Service, New Mexico Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this document are the staff members of the 
Mexican Wolf Recovery Program (see FOR FURTHER INFORMATION CONTACT).

Authority

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

List of Subjects in 50 CFR Part 17

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

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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.84, in paragraph (k), by:
0
a. Revising paragraph (k)(1);
0
b. Adding paragraphs (k)(7)(iv)(C)(1) and (2), (k)(7)(v)(A)(1) and (2), 
and (k)(7)(vi)(E);
0
c. Revising paragraph (k)(9)(iii);
0
d. Adding paragraph (k)(9)(v); and
0
e. Revising paragraph (k)(10).
    The revisions and additions read as follows:


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (k) * * *
    (1) Purpose of the rule. The U.S. Fish and Wildlife Service (USFWS) 
finds that reestablishment of an experimental population of Mexican 
wolves into the subspecies' probable historical range will further the 
conservation and recovery of the Mexican wolf subspecies. The USFWS 
also finds that the experimental population is not essential under 
Sec.  17.81(c)(2).
* * * * *
    (7) * * *
    (iv) * * *
    (C) * * *
    (1) Until the USFWS has achieved the genetic objective for the 
MWEPA set forth at paragraph (k)(9)(v) of this section by documenting 
that at least 22 released wolves have survived to breeding age in the 
MWEPA, the USFWS or a designated agency may issue permits only on a 
conditional, annual basis according to the following provisions: Either
    (i) Annual release benchmarks (for the purposes of this paragraph, 
the term ``benchmark'' means the minimum cumulative number of released 
wolves surviving to breeding age since January 1, 2016, as documented 
annually in March) have been achieved based on the following schedule:

                Table 1 to Paragraph (k)(7)(iv)(C)(1)(i)
------------------------------------------------------------------------
                            Year                              Benchmark
------------------------------------------------------------------------
2021.......................................................            7

[[Page 59975]]

 
2022.......................................................            9
2023.......................................................           11
2024.......................................................           13
2025.......................................................           14
2026.......................................................           15
2027.......................................................           16
2028.......................................................           18
2029.......................................................           20
2030.......................................................           22
------------------------------------------------------------------------


; or
    (ii) Permitted take on non-Federal land, or on Federal land under 
paragraph (k)(7)(v) of this section, during the previous year (April 1 
to March 31) did not include the lethal take of any released wolf or 
wolves that were or would have counted toward the genetic objective set 
forth at paragraph (k)(9)(v) of this section.
    (2) After the USFWS has achieved the genetic objective set forth at 
paragraph (k)(9)(v) of this section, the conditional annual basis for 
issuing permits will no longer be in effect.
    (v) * * *
    (A) * * *
    (1) Until the USFWS has achieved the genetic objective for the 
MWEPA set forth at paragraph (k)(9)(v) of this section by documenting 
that at least 22 released wolves have survived to breeding age, the 
USFWS or a designated agency may issue permits only on a conditional, 
annual basis according to the following provisions: Either
    (i) Annual release benchmarks (for the purposes of this paragraph, 
the term ``benchmark'' means the minimum cumulative number of released 
wolves surviving to breeding age since January 1, 2016, as documented 
annually in March) have been achieved based on the following schedule:

                 Table 2 to Paragraph (k)(7)(v)(A)(1)(i)
------------------------------------------------------------------------
                            Year                              Benchmark
------------------------------------------------------------------------
2021.......................................................            7
2022.......................................................            9
2023.......................................................           11
2024.......................................................           13
2025.......................................................           14
2026.......................................................           15
2027.......................................................           16
2028.......................................................           18
2029.......................................................           20
2030.......................................................           22
------------------------------------------------------------------------


; or
    (ii) Permitted take on Federal land, or on non-Federal land under 
paragraph (k)(7)(iv) of this section, during the previous year (April 1 
to March 31) did not include the lethal take of any released wolf or 
wolves that were or would have counted toward the genetic objective set 
forth at paragraph (k)(9)(v) of this section.
    (2) After the USFWS has achieved the genetic objective set forth at 
paragraph (k)(9)(v) of this section, the conditional annual basis for 
issuing permits will no longer be in effect.
* * * * *
    (vi) * * *
    (E) No requests for take in response to unacceptable impacts to a 
wild ungulate herd may be made by the State game and fish agency or 
accepted by the USFWS until the genetic objective at paragraph 
(k)(9)(v) of this section has been met.
* * * * *
    (9) * * *
    (iii) Based on end-of-year counts, we will manage to achieve and 
sustain a population average greater than or equal to 320 wolves in 
Arizona and New Mexico. In order to achieve the current demographic 
recovery criteria for the United States, this average must be achieved 
over an 8-year period, the population must exceed 320 Mexican wolves 
each of the last 3 years of the 8-year period, and the annual 
population growth rate averaged over the 8-year period must be stable 
or increasing.
* * * * *
    (v) The USFWS and designated agencies will conduct a sufficient 
number of releases into the MWEPA from captivity to result in at least 
22 released Mexican wolves surviving to breeding age.
    (10) Evaluation. The USFWS will continue to evaluate Mexican wolf 
reestablishment progress and prepare periodic progress reports and 
detailed annual reports. In addition, approximately 5 years after 
[EFFECTIVE DATE OF FINAL RULE], the USFWS will prepare a one-time 
overall evaluation of the experimental population program that focuses 
on modifications needed to improve the efficacy of this rule and the 
progress the experimental population is making to the recovery of the 
Mexican wolf.
* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-23627 Filed 10-28-21; 8:45 am]
BILLING CODE 4333-15-P