We, the U.S. Fish and Wildlife Service (Service) propose regulations for the nonessential experimental populations of the western distinct population segment (DPS) of the gray wolf (Canis lupus). In addition, we propose regulations so that States with wolf management plans approved by the Service can apply for additional authorities to manage wolves consistent with those approved plans. These proposed regulations would only have effect in States that have an approved State management plan for gray wolves. Within the western DPS of the gray wolf, only the States of Idaho and Montana have approved State management plans for gray wolves; the State of Wyoming has prepared a wolf management plan which was not approved by the Service; therefore, if finalized, these regulatory changes would not affect existing wolf management in Wyoming. As we discussed in our advance notice of proposed rulemaking regarding delisting the western DPS of the gray wolf, once all the States have approved wolf management plans, we intend to propose removing the western DPS from the List of Endangered and Threatened Vertebrates. This proposed rule would also not affect the eastern DPS or the southwestern DPS of the gray wolf.

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT61

Endangered and Threatened Wildlife and Plants; Regulations for Nonessential Experimental Populations of the Western Distinct Population Segment of the Gray Wolf

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service) propose

regulations for the nonessential experimental populations of the

western distinct population segment (DPS) of the gray wolf (Canis

lupus). In addition, we propose regulations so that States with wolf

management plans approved by the Service can apply for additional

authorities to manage wolves consistent with those approved plans.

These proposed regulations would only have effect in States that have

an approved State management plan for gray wolves. Within the western

DPS of the gray wolf, only the States of Idaho and Montana have

approved State management plans for gray wolves; the State of Wyoming

has prepared a wolf management plan which was not approved by the

Service; therefore, if finalized, these regulatory changes would not

affect existing wolf management in Wyoming. As we discussed in our

advance notice of proposed rulemaking regarding delisting the western

DPS of the gray wolf, once all the States have approved wolf management

plans, we intend to propose removing the western DPS from the List of

Endangered and Threatened Vertebrates. This proposed rule would also

not affect the eastern DPS or the southwestern DPS of the gray wolf.

DATES: Comments on this proposed rule must be received by May 10, 2004.

Public hearings will be scheduled for Boise, ID, and Helena, MT, during

the comment period (see ``Public Hearings'' in the SUPPLEMENTARY

INFORMATION section). Requests for additional public hearings must be

received by April 8, 2004.

ADDRESSES: U.S. Fish and Wildlife Service, Western Gray Wolf Recovery

Coordinator, 100 N. Park, 320, Helena, MT 59601. Comments on

this proposed rule may be sent to this address, or by electronic mail

to WesternGrayWolf@fws.gov. If you submit comments by e-mail, please

submit them as an ASCII file and avoid the use of special characters

and any form of encryption. Please also include ``Attn: RIN 1018-AT61''

and your name and return address in your e-mail message. If you do not

receive a confirmation from the system that we have received your e-

mail message, contact us directly by calling our Helena office at

telephone number 406-449-5225.

FOR FURTHER INFORMATION CONTACT: Ed Bangs, Western Gray Wolf Recovery

Coordinator, at telephone number 406-449-5225, ext. 204.

SUPPLEMENTARY INFORMATION:

Background

    On April 1, 2003, we published in the Federal Register (69 FR

15879) an advance notice of proposed rulemaking that announced our

intention to propose rulemaking under the Endangered

[[Page 10957]]

Species Act of 1973, as amended (Act), to remove the western distinct

population segment (DPS) of the gray wolf (Canis lupus) from the List

of Endangered and Threatened Wildlife in the near future. At the time,

we indicated that the numbers of wolves in the western DPS had exceeded

our recovery goals; we reported that, at the end of 2001, 563 wolves

could be found in 34 packs in the northern U.S. Rockies. We also

emphasized the importance of State and tribal wolf management plans to

our delisting decision; we believe these plans will be the major

determinants of wolf protection and prey availability, and will set and

enforce limits on human utilization and other forms of taking, once the

wolf is delisted. In short, these State and tribal management plans

will determine the overall regulatory framework for the future

conservation of gray wolves after delisting. For reasons we discuss in

more detail below, we are not yet prepared to propose delisting the

western DPS of gray wolves; here, we propose new regulations for the

nonessential experimental populations of the western DPS of gray wolves

that are found in States with Service-approved State wolf management

plans.

    Gray wolf (Canis lupus) populations were eliminated from Montana,

Idaho, and Wyoming, as well as adjacent southwestern Canada, by the

1930s (Young and Goldman 1944). After human-caused mortality of wolves

in southwestern Canada was regulated in the 1960s, populations expanded

southward (Carbyn 1983). Dispersing individuals occasionally reached

the northern Rocky Mountains of the United States (Ream and Mattson

1982, Nowak 1983), but lacked legal protection there until 1974 when

they were listed as endangered.

    Section 10(j) of the Act gives the Secretary of the Interior the

authority to designate populations of listed species that are

reintroduced outside their current range, but within their probable

historical range, as ``experimental populations'' for the purposes of

promoting the recovery of those species by establishing additional wild

populations. Such a designation increases our flexibility in managing

reintroduced populations, because experimental populations are

generally treated as threatened species under the Act. Threatened

status, in comparison to endangered status, allows the promulgation of

special regulations to further promote the conservation of the species.

    Furthermore, the Secretary is authorized to designate experimental

populations as ``nonessential'' if they are determined to be not

essential to the continued existence of the species. For the purposes

of section 7(a)(2) of the Act (Interagency Cooperation), nonessential

experimental populations, except where they occur within areas of the

National Wildlife Refuge System or the National Park System, are

treated as species proposed to be listed as threatened or endangered

species, rather than as a listed species.

    In 1994, we promulgated special regulations under Section 10(j) of

the Act for the purposes of wolf reintroduction. Those regulations,

codified at 50 CFR 17.84(i), established two non-essential experimental

populations, the central Idaho non-essential experimental population

area and the Yellowstone non-essential experimental population area,

and were meant to address the potential negative impacts or concerns

regarding wolf reintroduction.

    Since reintroduction began in 1994, wolf populations in both

experimental areas have exceeded expectations. This success has

prompted the Service to upgrade the current status of gray wolves,

outside of the experimental populations, to threatened; we also

published an advance notice of proposed rule making indicating our

intention to delist the western DPS of gray wolves in the near future

(68 FR 15879). However, this reclassification had no effect on the

status of the experimental populations in Idaho or Yellowstone, which

were already treated as threatened.

    In the preamble to the 1994 regulations where we established the

nonessential experimental populations, we also identified protective

measures and management practices necessary for the populations'

conservation and recovery. As wolves in the nonessential experimental

populations are treated as a threatened species, these regulations

provided additional flexibility in managing wolf populations within the

experimental population areas compared to outside, where wolves were

listed as endangered. In 2003, however, when we reclassified wolves in

the western DPS as threatened, we also published special regulations

(found in 50 CFR 17.40(n)) that provided more flexible management for

the species outside the experimental population areas.

    The rule we adopted in 2003, however, did not apply within the

experimental population areas; as a result, State wolf management is

currently more flexible outside the experimental population areas. We

now propose, under this rule, regulations at 50 CFR 17.84, for States

with Service-approved State wolf management plans only, that would

adopt similar provisions which expand allowable management for the

experimental population areas, providing more consistent management

rules both inside and outside experimental population areas. In

addition, these proposed regulations also provide for the transition

from the provisions of this rule to those provisions of Service-

approved State wolf management plans consistent with federal

regulations for nonessential experimental wolves within the boundaries

of the State, with the exception of lands managed by the National Park

Service and the Fish and Wildlife Service. This change would provide

States with much of the flexibility in wolf management now limited to

the Service, but only where the Secretary has already determined that

the State's wolf management would be consistent with the protections

already provided to wolves under the Act. For States without approved

management plans the existing regulations are retained.

Previous Federal Actions

    The northern Rocky Mountain wolf (Canis lupus irremotus) was listed

as endangered in Montana and Wyoming in the first list of species that

were protected under the 1973 Act, published in May 1974 (USDI 1974).

To eliminate problems with listing separate subspecies of the gray wolf

and identifying relatively narrow geographic areas in which those

subspecies are protected, on March 9, 1978, we published a rule (43 FR

9607) relisting the gray wolf at the species level (Canus lupus) as

endangered throughout the conterminous 48 States and Mexico, except

Minnesota, where the gray wolf was reclassified to threatened. In

addition, critical habitat was designated in that rulemaking.

    On November 22, 1994, we designated areas in Idaho, Montana, and

Wyoming as nonessential experimental populations in order to initiate

gray wolf reintroduction projects in central Idaho and the Greater

Yellowstone area (59 FR 60252, 59 FR 60266). These experimental

population designations also contain special regulations that govern

the take of wolves within the geographical areas (codified at 50 CFR

17.84(i)). The rules governing these experimental populations allowed

for incremental increases in the authority of States to manage the

wolves under a State management plan approved by the Service.

Specifically, the rules allowed States to define livestock for purposes

of managing conflicts between wolves and livestock, and the rule also

allowed

[[Page 10958]]

States to document adverse effects of wolves on ungulates for the

purposes of managing conflicts in this regard.

    In January 1995, fifteen young adult wolves captured in Alberta,

Canada, were released in central Idaho. During January 1996, an

additional twenty wolves from British Columbia were released into the

central Idaho experimental population area. In March 1995, fourteen

wolves from Alberta, representing three family groups were released in

Yellowstone National Park. In April 1996, this procedure was repeated

with seventeen wolves from British Columbia.

    On January 12, 1998, we established a third nonessential

experimental population area to reintroduce the Mexican gray wolf into

its historical habitat in the southwestern States (63 FR 1752).

    We received several petitions during the past decade requesting

consideration to delist the gray wolf in all or part of the 48

conterminous States. We subsequently published findings that these

petitions did not present substantial information that delisting gray

wolves in all or part of the conterminous 48 States may be warranted

(54 FR 16380, April 24, 1989; 55 CFR 48656, November 30, 1990; 63 FR

55839, October 19, 1998).

    On July 13, 2000, we published a proposal (65 FR 43450) to revise

the current listing of the gray wolf across most of the conterminous

United States. On April 1, 2003, we published a final rule establishing

three DPSs (Western, Eastern, and Southwestern) and reclassifying the

gray wolf from endangered to threatened in the Western and Eastern DPSs

except where nonessential experimental populations existed (68 FR

15804). We also established special regulations under section 4(d) of

the Act for the reclassified DPSs. Also on April 1, 2003, we published

two Advance Notices of Proposed Rulemaking announcing our intent to

delist the gray wolf in the Eastern (68 FR 15876) and Western (68 FR

15879) DPSs at some point in the future.

Recovery Goals

    Current population figures from the Service indicate that the

experimental populations within central Idaho and Yellowstone have

exceeded current recovery goals (30 packs well-distributed in recovery

areas). In 2002, the Service published population figures for the gray

wolf, which indicate there were between 650 to 700 wolves in about 41

breeding pairs equitably distributed throughout Montana (about 120

wolves in 13 breeding packs), Idaho (about 285 wolves in 10 breeding

packs), and Greater Yellowstone (270 wolves in 18 breeding packs). 2002

was the third year that the wolf population in the northern Rocky

Mountains has had thirty or more breeding pairs.

Currently Designated Nonessential Experimental Populations of Gray

Wolves

    The Secretary has designated three nonessential experimental

population areas for the gray wolf, and wolves have subsequently been

reintroduced into these areas. These nonessential experimental

population areas are the Yellowstone Nonessential Experimental

Population Area, the Central Idaho Nonessential Experimental Population

Area, and the Mexican Wolf Nonessential Experimental Population Area.

The first two of these are intended to further the recovery of gray

wolves in the northern U.S. Rocky Mountains, and the third is part of

our Mexican wolf recovery program, as described in their respective

recovery plans (Service 1982, 1987).

    The Yellowstone Experimental Population Area consists of that

portion of Idaho east of Interstate Highway 15; that portion of Montana

that is east of Interstate Highway 15 and south of the Missouri River

from Great Falls, Montana, to the eastern Montana border; and all of

Wyoming (59 FR 60252; November 22, 1994). However, as explained below,

the new regulations proposed here will not apply in Wyoming.

    The Central Idaho Experimental Population Area consists of that

portion of Idaho that is south of Interstate Highway 90 and west of

Interstate 15; and that portion of Montana south of Interstate 90, west

of Interstate 15, and south of Highway 12 west of Missoula (59 FR

60266; November 22, 1994).

    A third similar nonessential experimental population area was

established to reintroduce the Mexican gray wolf into its historical

habitat in the southwestern States. The Mexican Gray Wolf Nonessential

Experimental Population Area consists of that portion of Arizona lying

south of Interstate Highway 40 and north of Interstate Highway 10; that

portion of New Mexico lying south of Interstate Highway 40 and north of

Interstate Highway 10 in the west and north of the Texas-New Mexico

border in the east; and that part of Texas lying north of U.S. Highway

62/180 (63 FR 1752; January 12, 1998).

    This proposed rule will not affect the Mexican Gray Wolf

Nonessential Experimental Population, nor will it affect the existing

special regulations that apply to it.

Current Special Regulations for the Western DPS

    Two different special regulations currently apply to the Western

DPS.

    In 1994, the Service established special regulations found at

17.48(i) for these two experimental populations allow flexible

management of wolves, including authorization for private citizens to

take wolves in the act of attacking livestock on private land. These

rules also provide a permit process that similarly allows the taking,

under certain circumstances, of wolves in the act of attacking

livestock grazing on public land. In addition, they allow opportunistic

noninjurious harassment of wolves by livestock producers on private and

public grazing lands, and designated government employees may perform

lethal and nonlethal control efforts to remove problem wolves under

specified circumstances.

    As mentioned above, we promulgated a special rule under 4(d) for

the Western DPS outside of the nonessential experimental population

areas (the Central Idaho and Yellowstone nonessential experimental

population areas) found at 17.40(n) (Western DPS 4(d) rule). The

Western DPS 4(d) rule allows landowners and permittees on Federal

grazing allotments to harass wolves in a noninjurious manner at any

time. As discussed in the rule, this type of harassment will not affect

the wolf population other than by making some individual wolves more

wary of people. Wolves are adept social learners. Harassing wolves that

have begun to be comfortable around people will cause those wolves to

become more wary. Wolves that are wary of people and places that are

frequented by people may be less likely to be involved in livestock and

pet depredations. Wolves that are not wary of people are more

vulnerable to being illegally killed or being hit by cars and, in rare

and the most extreme circumstances, wolves can become habituated to

human foods and can become a potential threat to human safety.

    In some situations the Western DPS 4(d) rule also allows the

injurious harassment (for example, by rubber bullets) of wolves under a

permit from us. This type of harassment will permit management of

situations (for example, loitering around vulnerable livestock,

approaching humans, trying to attack pets) before they have escalated

into a situation that calls for more drastic measures such as lethal

control. To prevent abuse, this type of activity would be limited by

case-by-case

[[Page 10959]]

evaluation and controlled by a permit. In the experimental population

areas, this type of management has been used in a few situations, and

no wolves have been permanently injured.

State Management Plans

    In order to delist the Western DPS wolf population due to recovery

the demographic criteria (a minimum of 30 breeding pairs of wolves [an

adult male and a female wolf] that raise at least 2 pups until December

31 or the biological equivalent of that definition that are equitably

distributed through Montana, Idaho, and Wyoming) must be met, and the

Service must determine, based on the best scientific and commercial

data available, that the species is no longer in danger of extinction

and is not likely to be in danger of extinction in the foreseeable

future throughout all or a significant portion of its range. The basis

for the determination is a review of the status of the species in

relation to five factors: (A) the present or threatened destruction,

modification, or curtailment of its habitat or range; (B)

overutilization for commercial, recreational, scientific or educational

purposes; (C) disease or predation; (D) the inadequacy of existing

regulatory mechanisms; and (E) other natural or manmade factors

affecting its continued existence.

    State management plans have been determined by the Service as the

most appropriate means of maintaining a recovered wolf population and

demonstrating adequacy of regulatory mechanisms (i.e. addressing factor

D) because the primary responsibility for management of the species

will rest with the States upon delisting (and subsequent removal of the

protections of the ESA). Based on the demographic criteria mentioned

above, each State, therefore, needs to maintain at least 10 breeding

pairs, so the wolf population will not fall below 30 breeding pairs

overall and so that an equitable distribution of wolf breeding pairs is

maintained among the three States. All three States submitted wolf

management plans to the Service for review. The Service developed an

independent review process for these three plans. Twelve recognized

authorities in wolf management or research were asked their individual

professional review and opinion of whether the State plans of Montana,

Idaho, and Wyoming would achieve the stated objectives of each plan,

and if collectively the plans will maintain, as a minimum, the Western

DPS wolf population at recovery levels into the foreseeable future.

    Based on our review of the State management plans, the independent

reviewers' comments, and the States' responses to those comments, the

Service approved the Montana and Idaho wolf management plans as they

were determined to be adequate to maintain their share of the tri-state

wolf population above recovery levels. Neither Montana nor Idaho is

required to take any additional action in order for the Service to

proceed with a delisting proposal.

    Wyoming's wolf management plan, however, was not approved by the

Service. Consequently, the proposed regulatory changes, which define

the expanded authorities, would not affect the portion of the

Yellowstone nonessential experimental population area in Wyoming. We

intend to continue working with the State of Wyoming as they develop a

State wolf management plan that we can approve; once we have approved

wolf management plans for all three States, and barring the

identification of any new threats to the species, we expect to propose

rulemaking to remove the western DPS of the gray wolf from the List of

Endangered and Threatened Vertebrates (for additional discussion, see

our ANPR at 68 FR 15879).

Idaho

    In preparation for delisting, the Idaho Legislature chartered the

Legislative Wolf Oversight Committee to prepare an Idaho post-delisting

Wolf Management Plan to facilitate the transfer of management authority

to the State following delisting. In March 2002 the Legislature adopted

the Idaho Wolf Conservation and Management Plan.

    The Idaho Department of Fish and Game (IDFG) is charged by statute

with the management of Idaho's wildlife (Idaho Code 36-103(a)). Tribes

in Idaho, however, manage wildlife with authorities that are similar

to, but separate from, the State of Idaho. In managing for wolves, IDFG

will consult with Tribes. The Idaho Wolf Conservation and Management

Plan is summarized below.

Wolf Classification in Idaho

    In order to protect wolf populations by enforcing regulations and

issuing citations for illegal take and by limiting and regulating legal

take, wolves will be classified as either a big game animal, furbearer,

or special classification predator that provides for controlled take

after delisting, at the discretion of the Idaho Fish and Game

Commission (IC 36-201). This classification will enable IDFG to provide

protection for wolves as well as consider the impacts of wolves on

other big game species, those sectors of the economy dependent upon

sport hunting, livestock, domestic animals and humans.

Idaho Wolf Management Goals

    The goal of Idaho's conservation and management plan is to ensure

the long-term survival of wolves in Idaho while minimizing wolf-human

conflicts that result when wolves and people live in the same vicinity.

Management for wolves means ensuring adequate number for long-term

persistence of the species as well as ensuring that landowners, land

managers, other citizens, and their property are protected. IDFG will

manage wolves within the State according to the following table.

------------------------------------------------------------------------

           Less than 15 packs                   More than 15 packs

------------------------------------------------------------------------

               Management                           Management

------------------------------------------------------------------------

                Control                              Control

Depredation control becomes              Depredation control is treated

 increasingly stringent until at <10      like all other large mammalian

 packs it reverts to the control plan     predators.

 specified in the final rule (50 CFR

 17.40(n)). In the unlikely event the

 number of packs in Idaho falls below

 10, depredations will be addressed

 with nonlethal control unless unusual

 circumstances absolutely necessitate

 the use of lethal control to end the

 depredation problem.

----------------------------------------

               Monitoring                           Monitoring

Monitoring becomes increasingly          Monitoring is done primarily by

 intensive to the point that each pack    indicators such as wolf

 contains some radio-collared             depredation complaints, autumn

 individuals and reproduction and         scent station surveys,

 survival in each pack is monitored on    telemetry, winter tracking

 a regular basis.                         surveys, and other

                                          observations of field

                                          personnel.

----------------------------------------

[[Page 10960]]

           Listing Under ESA

Listing remains a possibility for

 wolves if they are likely to become

 endangered as determined by Section 4

 of the ESA (16 U.S.C. 1533).

------------------------------------------------------------------------

    Moreover, the Idaho plan provides:

    (1) The wolf populations will be managed at recovery levels that

will ensure viable, self-sustaining populations until it can be

established that wolves in increasing numbers will not adversely affect

big game populations, the economic viability of IDFG, outfitters and

guides, and others who depend on a viable population of big game

animals. If the population falls below 15 packs, institute remedial

management measures.

    (2) Assurances that resident wolf populations are able to

interchange with wolves in adjacent States and provinces, thereby

making Idaho's wolves part of a larger metapopulation. It is expected

that adjacent States and provinces will also encourage this

interchange.

    (3) Management of wolves as part of the native resident wildlife

resource. This species will be managed similar to other large mammalian

carnivores resident in Idaho.

    (4) Minimize wolf-human conflicts by coordinating with USDA

Wildlife Services to achieve prompt response to notifications of wolf

depredation and prompt resolution of conflicts.

    (5) Establish a strong public education program that emphasizes

wolf biology, management, and conservation and presents a balanced view

of the societal impacts and costs of wolf reintroduction. Outreach

should address all issues concerning conservation and management and

present a balanced view of the impacts of wolves on big game species,

those sectors of the economy dependent upon sport hunting, livestock,

domestic animals, and humans. It is expected that Idaho Fish & Game

will solicit cooperation and advice from all vested interests in

developing educational materials.

Wolf Population Objectives

    Wolf management programs will influence the size and distribution

of the population, although it will fluctuate with the availability and

vulnerability of native prey. Where wolves are causing depredations,

their distribution and numbers will have to be altered.

    When circumstances cause declines in the natural prey that are

demonstrated as being attributable to wolf predation, management may be

needed to temporarily reduce populations. In most instances, wolves can

be managed similarly to how other large native mammalian predators are

traditionally managed. However, sport hunting has not proven effective

in the past to effectively manage wolf populations. After delisting,

IDFG is authorized to evaluate and use sport hunting or any other means

necessary to maintain wolf populations at recovery levels that will

ensure a viable, self-sustaining population until such time as all

impacts are known.

    In the unlikely event the population falls below 10 packs,

depredations will be addressed with nonlethal control unless unusual

circumstances absolutely necessitate the use of lethal control to end

the depredation problem. Except for the lethal control measures, wolf

management will revert to the same provisions that were in effect to

recover the wolf population prior to delisting.

Incidental Take

    Human-related accidental deaths of wolves (capture myopathy,

automobile accidents, etc.) are expected to occur occasionally, and

inadvertent take of wolves by hunters and trappers during the course of

otherwise legal actions is not expected to adversely affect wolf

population objectives. In an effort to minimize such accidental take of

wolves, IDFG will include a section on wolf identification, and a brief

history of the reintroduction and conflict created thereby, as part of

all required hunter education classes and provide similar information

to all trapping license buyers.

    Hunters are responsible for accurately identifying their target

before pulling the trigger. Cases of incidental take due to ``mistaken

identity'' of the intended quarry will be subject to the same penalties

applicable to other illegally/accidentally taken big game species.

Incidents of illegal take deemed deliberate shall be punishable under

the rules of illegal take of wildlife (Idaho Code 36-1402 and 36-1404).

If convicted of a flagrant violation involving the killing, illegal

possession, or illegal waste of a trophy big game animal as defined in

Idaho Code 36-202(h), restitution must also be paid to the State for

each wolf so killed, possessed, or wasted at the cost specified in

Idaho Code 36-1404.

    Although wolves may occasionally be captured inadvertently in traps

legally set for other furbearer species, relatively few people

participate in trapping in Idaho (608 Idaho trapping licenses were sold

in 2000). However, in the event that the frequency of nontarget capture

is deemed unacceptable (exceeding the lethal capture of 4

wolves per year), IDFG may consider implementing trap-size restrictions

on land sets and set a minimum 36-hour check requirement for trappers

using traps of that maximum size on land-based sets in the core area.

    IDFG may further consider implementing restrictions on the use of

snares in occupied wolf areas to require all neck snares set in these

areas to be equipped with break-away snare locks designed to hold

coyotes or similar sized furbearers (e.g., bobcat) but release large

nontarget species such as wolves or ungulates accidentally captured by

a leg. After adoption by the Idaho Fish and Game Commission, specific

rules and restrictions will be published in the furbearer trapping

regulations section of the Upland Game Seasons brochure.

    Mandatory trapper education classes would be considered for all new

trappers, including first-time nonresident trapping applicants, and

education could be provided to all trapping license buyers on protocol

for releasing an inadvertently captured wolf and/or contacting IDFG for

assistance. Any incidental capture must be reported to IDFG within 5

days of the incident. The complete carcass of any wolf lethally injured

as a result of a nontarget capture must be salvaged and turned over to

IDFG. The hide and skull will remain the property of IDFG.

Wolf Management

    Wolves, when delisted, will become a component of the native

resident wildlife in Idaho. The designation of the wolf as a big game

species, furbearer, or special classification of predator that provides

for controlled take provides legal authorization for Idaho Department

of Fish and Game to manage the species. Management includes inventory;

predator-prey research; harvest monitoring; cooperation with agencies,

individuals, tribes, other

[[Page 10961]]

States, and Canada; control to reduce depredations; and dissemination

to the public of current, accurate information. In Idaho, hunting and

trapping may be considered in the future when populations are at levels

that justify public taking. If this is proposed by IDFG, there will be

opportunity for full public comment and decisions will be based on

sound biological data. Hunting of wolves may be authorized when

necessary to meet big game harvest objectives and eliminate conflicts,

while at the same time maintaining wolves at recovery levels that will

ensure viable, self-sustaining populations.

    If management zones, similar to game management units, become

helpful to IDFG as experience with wolf management dictates, then such

zones may be established. Distribution patterns of the wolf population

range from monitoring the movements of individually marked individuals

representing study packs to see how their home ranges change, to

documentation of the presence of packs using observations of field

personnel and the public. Scent station and winter track surveys will

also provide information on wolf distribution. The distributions of

study packs that persist in a given area are expected to become

predictable relative to prey movements and other factors as experience

in monitoring grows. Continual monitoring will be needed to determine

the pattern, but when it can be predicted with some degree of

reliability, changes in that pattern will need to be explained and will

provide additional insight into their management.

    The major mortality factor accruing to wolves throughout their

range is humans (Fuller 1989). Thus, the human dimension is ultimately

the most important component in management of this species. Rigorous

enforcement of laws and regulations in order to minimize illegal take,

and to reduce adverse public perception of management will be needed.

When legal harvest is planned, harvest monitoring will be based on a

requirement to report the location and sex of animals taken, similar to

requirements for mountain lions and bears.

Wolf Monitoring and Prey Base Monitoring

    Monitoring wolf populations is the cornerstone of a management

program. Wolf numbers, distribution, and breeding success will be

estimated and compared with management goals. The monitoring program

should focus on selected packs from representative areas across the

State as support dictates. Annual, long term monitoring of selected

packs allows for assessment of changes, an understanding of factors

affecting pack size, and eventually, prediction of pack size relative

to major influencing factors. Monitoring of prey populations,

especially the deer species and elk, will need to be continued. Similar

to the predator, annual census of selected, important prey populations

should be conducted by IDFG and compared with data collected prior to

wolf reintroduction.

    In the future, wolf management will have to evaluate the effects of

predation on native prey, specifically other big game (National

Research Council 1997). When adverse weather patterns representing

combinations of drought and severe winter depress native ungulates,

predation in combination with harvest may inhibit big game population

recovery. Annual census of selected, important prey populations within

the range of study packs should be conducted. It is extremely important

that annual census of these populations is conducted in order to detect

trends and eventually to aid in developing predictions of population

size and trend. Factors that affect prey numbers, including weather,

habitat conditions, predation, and hunter harvest, need to be fully

assessed for these selected populations.

    Some study packs will inevitably range into neighboring States and

British Columbia. Coordination in their monitoring with those

jurisdictions, including the wildlife agencies, associated tribes and

land management agencies will be needed. Eventually a wolf population

size range will be reached that appears to be compatible with other

uses of the prey base and is at levels that are tolerable as far as

livestock depredations are concerned. This level will be ascertained

with the population indices that may be used to estimate minimum

numbers present, and will consider the distribution of wolves as well.

Depredation management considerations will be involved in ascertaining

the distribution and numbers of wolves within the State.

Idaho Indian Tribes

    Tribes with reservations or reserved rights in Idaho manage fish

and wildlife species with authorities that are similar to, but separate

from, the State of Idaho. The Nez Perce Tribe has done a commendable

job, in conjunction with the Service, of managing wolf recovery efforts

in Idaho since 1995. During wolf recovery, under contract with the

Service, the Nez Perce Tribe has, in a very professional and successful

way, provided such services as wolf monitoring, communications with

affected and interested parties, and research. Upon delisting, IDFG

shall clearly delineate roles and responsibilities of the several

participating agencies and shall do so in consultation with the Nez

Perce Tribe.

Coordination With Other Entities

    Natural resource land management agencies such as the USDA Forest

Service (USFS) and the Bureau of Land Management (BLM) are responsible

for managing lands for various goods and services, including providing

the habitat necessary to maintain fish and wildlife species. Close

coordination is necessary between IDFG and the land management agencies

to meet the objectives of each agency. Through a Memorandum of

Understanding with the Idaho State Animal Damage Control Board, USDA

APHIS Wildlife Services is responsible for dealing with a wide variety

of wildlife damage problems including predation on livestock. After

delisting, including during the first five years, the Wildlife Services

Agency of the U.S. Department of Agriculture, in cooperation with the

Idaho Department of Fish and Game, will be responsible for depredation

management necessary for the protection of private property.

    Upon delisting, IDFG will coordinate monitoring of wolves and their

impact on other wildlife populations. IDFG will coordinate among the

federal and State land management agencies, USDA Wildlife Services, the

Governor's Office of Species Conservation, the FWS, and the Nez Perce

Tribe in their respective roles in wolf monitoring during the 5-year

post-delisting monitoring period as required by the ESA. IDFG will

coordinate monitoring of wolves that border or range into neighboring

States with wildlife staffs of those States.

    This plan must be flexible enough to be compatible with the

dynamics of society and wildlife management. The plan must satisfy the

needs of the State of Idaho in its efforts to minimize the impact of

wolves on the Idaho outfitting industry, Idaho sportsmen, a diverse

public and all others affected by wolf introduction. IDFG will update

this plan periodically and submit any changes to the Idaho Legislature

as if it were a new plan submitted for approval, amendment or rejection

under Section 36-2405, Idaho Code.

Montana

    To provide the assurance to the Service that the State of Montana

has adequate regulatory mechanisms in place to manage the wolf after

the protections of the ESA are removed, the Governor of Montana

appointed a 12-member Wolf Management Advisory

[[Page 10962]]

Council to provide recommendations to the Governor on an approach for

wolf management once the wolf is delisted. In response to the Council's

recommendations, Montana Department of Fish, Wildlife & Parks (FWP)

undertook the development of the Montana Gray Wolf Conservation and

Management Plan EIS, under the Montana Environmental Policy Act, to

consider alternative approaches to conserve and manage a recovered gray

wolf population in Montana. In September 2003, FWP adopted a

conservation and management plan for managing wolves in Montana.

    Under Montana statute, FWP is the agency charged with conservation

and management of resident wildlife. FWP recognizes the gray wolf as a

native species and is committed to recovery of the species within

Montana. The purpose of the Montana Gray Wolf Conservation and

Management Plan is to manage wolves consistent with Montana's own State

laws, policies, rules and regulations, except where management

authority is otherwise explicitly reserved to other jurisdictions, such

as Montana's Indian tribes. Ultimately, the management and conservation

plan will be implemented through combined decisions and actions of FWP,

the FWP Commission, the Montana Department of Livestock (MDOL), USDA

Wildlife Services (WS), local law enforcement or county authorities,

and other cooperators.

    The gray wolf remains listed as endangered under the Montana

Nongame and Endangered Species Conservation Act of 1973 (87-5-131 MCA).

Upon federal delisting, provisions of Montana's SB163 take effect and

wolves would automatically be reclassified under State law from

``endangered'' to a ``species in need of management.'' This statutory

classification offers full legal protection under State law.

Implementation of SB 163 requires FWP to develop and adopt final

administrative rules and regulations under the ``species in need of

management'' designation. In addition SB 163 deletes gray wolf from the

list of species designated as ``predatory in nature'' which are

systematically controlled by MDOL. State laws and administrative rules

become the regulatory and legal mechanisms guiding management. FWP and

the FWP Commission will establish the regulatory framework to manage

the species. FWP is responsible for implementing monitoring, research,

law enforcement, public outreach, and other functions.

    In general Montana's Gray Wolf Conservation and Management Plan

provides:

Wolf Management and Population Objectives

    FWP would recognize the gray wolf as a native species and would

integrate wolves as a valuable part of Montana's wildlife heritage.

Wolves will be integrated and sustained in suitable habitats within

complex management settings. The wolf program will be based on

principles of adaptive management. Management strategies and conflict

resolution tools will be more conservative as the number of breeding

pairs according to the federal recovery definition decreases,

approaching the legal minimum. In contrast, management strategies

become more liberal as the number of breeding pairs increases.

    Ultimately, the status of the wolf population itself identifies the

appropriate management strategies. Fifteen breeding pairs will be used

as the signal to change management strategies. An adaptive approach

will help FWP implement its wolf program over the wide range of social

acceptance values. Sensitivity towards and prompt resolution of

conflict where and when it develops is an important condition of not

administratively capping wolf numbers or defining distribution. By

applying the federal recovery definition of breeding pair, FWP would

incorporate an added measure of security and margin for error in the

face of unforeseen future events, as well as greater flexibility for

management decisions on a day-to-day basis. Successful reproduction

would be documented as well. Because not every pack (or social group)

of wolves would meet the federal recovery definition as a breeding

pair, more groups of wolves would also exist on the landscape in

assurance that Montana's minimum contribution towards the tri-state

total is achieved.

    As the Montana wolf population becomes more established, through

the monitoring program, FWP will evaluate a more general definition of

a social group (four or more wolves traveling in winter) as a potential

proxy for a breeding pair. Wolf distribution in Montana, just as for

all wildlife, will ultimately be defined by the interaction of the

species ecological requirements and public acceptance, not through

artificial delineations. Wolves will be encouraged on large contiguous

blocks of public land, managed primarily as back country areas or

National Parks where there is the least potential for conflict,

particularly with livestock. Wolf packs in areas of interspersed public

and private lands will be managed like other free-ranging wildlife in

Montana and within the constraints of the biological and social

characteristics, the physical attributes of the environment, land

ownership, and land uses. Some agency discretion and flexibility will

be exercised to accommodate the unique attributes of each pack, its

history, the site-specific characteristics of its home range, landowner

preferences, or other factors that cannot be reasonably predicted at

this time.

    Management flexibility will be crucial to address all of the public

interests that surround wolves. Wolf population management will include

the full range of tools from non-lethal to lethal and will incorporate

public outreach, conservation education, law enforcement, and landowner

relations. An effective management program should match the management

strategies to the environments or setting in which each wolf pack

occurs, recognizing that wolves interact with and respond to the

environment in which they live, too.

Wolf Monitoring

    FWP has the primary responsibility to monitor the wolf population,

although collaborative efforts with other agencies and universities

will be important. FWP will estimate wolf numbers, pack distribution,

as well as document reproduction and tabulate mortality. FWP will also

tabulate the number of breeding pairs meeting the federal recovery

definition.

    Concurrently, FWP would also tabulate packs according to a more

general definition of social group, meaning four or more wolves

traveling in winter. While there is no guarantee that a group of four

wolves traveling in winter would include young of the year, it is

indicative of a socially cohesive group holding a territory and capable

of reproduction. Four or more wolves traveling together will likely

contain a male and female as an alpha pair and that has or will produce

young in the spring. Determining pack counts in winter would follow the

peak of human-caused mortality on adult wolves associated with summer/

fall livestock grazing seasons, potential illegal mortality during the

fall big game hunting seasons, and the harvest expected through

regulated hunting and trapping seasons.

    The monitoring program also will help confirm reproduction. FWP

will use the monitoring program to verify that the more general

definition is adequate to document that the population is reproducing

and secure.

[[Page 10963]]

Once FWP becomes more confident that the more general definition is

adequate, it will be applied within the adaptive management framework

and FWP would not monitor packs using the more rigorous federal

recovery definition.

    Maintaining the federal recovery definition as the monitoring

metric under adaptive management over the long term may be too

stringent for a recovered population, especially in light of the

difficulty in distinguishing pups from similar sized adults in December

and the expense of radio telemetry. FWS data indicate that there is a

significant correlation between the number of packs meeting the federal

recovery definition as a breeding pair and the number of social groups

according to the more general definition of four or more wolves

traveling in winter (Maier et al. in prep), lending greater confidence

that the more general definition will prove adequate for the purposes

of the monitoring program as well as the basis for decision-making

within an adaptive management framework. When the wolf population no

longer fits the definition of a species in need of management, or when

wolf numbers have increased and population regulation is needed, the

FWP Commission may reclassify the wolf as a big game animal or a

furbearer.

Regulated Harvest

    Regulated public harvest of wolves by hunting and trapping during

designated seasons will help FWP manage wolf numbers, fine tune

distribution, and would take place within a comprehensive management

program. Regulated wolf harvest would take place within the larger

context of multi-species management programs, would be biologically

sustainable, and would not compromise the investments made to recover

the gray wolf. Within the context of a comprehensive program, regulated

harvest should advance overall conservation goals by building social

tolerance, interest in, and value for the species among those who would

otherwise view wolf recovery as detrimental to their ungulate hunting

experiences. Harvest management would proceed adaptively, but all

hunting and trapping is precluded if there are fewer than 15 breeding

pairs in Montana. The Montana Legislature would establish the license,

fees, and penalties for illegal activities. The FWP Commission could

then establish season structure and regulations to implement a public

harvest program for wolves as it does for other hunting, trapping or

fishing seasons. Initiating a public harvest program is a separate

administrative process from this EIS. The FWP Commission follows a

process that requires public notification of the proposal, public

meetings, and a comment period of at least 30 days. The FWP Commission

would initiate this process at a later date when a harvest program

becomes biologically sustainable.

    The Montana Legislature would establish license fees and penalties.

FWP would seek State legislation to make the unlawful taking of a gray

wolf a misdemeanor under MCA 87-1-102. This statute makes it a

misdemeanor to purposely, knowingly, or negligently violate State laws

pertaining to taking, killing, possessing, or transporting certain

species of wildlife. Including the gray wolf under this statute would

be consistent with the inclusion of other legally classified wildlife

species, such as deer, elk, moose, mountain lion, or black bear. FWP

would also seek legislation to include the gray wolf under the

restitution sections of MCA 87-1-111 that require a person convicted of

illegally taking, killing, possessing certain wildlife species to

reimburse the State for each animal or fish. Restitution values could

also defined in MCA 87-1-115 for illegally killing or possessing trophy

wildlife.

Wolf and Prey Base Integration

    FWP would seek to maintain the public's opportunity to hunt a wide

variety of species under a variety of circumstances, and to do so in a

sustainable, responsible manner. Wolf presence within the year-long

range of a specific ungulate herd adds a new factor that FWP biologists

must consider among all environmental and human-related factors. FWP

will integrate management of predators and prey in an ecological,

proactive fashion to prevent wide fluctuations in both predator and

prey populations. To that end, FWP may increase or decrease hunter

opportunity for either predators or prey species, depending on the

circumstances. If reliable data indicate that a local prey population

is significantly impacted by wolf predation in conjunction with other

environmental factors, FWP would consider reducing wolf pack size. Wolf

management actions would be paired with other corrective management

actions to reduce ungulate mortality or enhance recruitment. Concurrent

management efforts for wolves and ungulates would continue until the

prey population rebounded, recognizing that by the time prey

populations begin to respond they may be influenced by a new set of

environmental factors.

    Prey species are managed according to the policy and direction

established by the programmatic review of the wildlife program (FWP

1999) and by species plans. Even though plans are written for

individual species, the underlying foundation of those plans is based

on an ecosystem perspective and recognizes the inherent variation in

wildlife populations in response to the environment and human

activities, including hunting. These plans typically describe a

management philosophy that protects the long-term sustainability of the

resource, with management objectives based on biological and social

considerations. Furthermore, populations will be managed to keep them

at or near FWP objectives--rather than significantly above or below

objectives. As recommended by the council, the gray wolf will be

incorporated into ungulate management and future planning efforts.

Livestock producers and other landowners provide many benefits to the

long-term conservation of gray wolves, not the least of which is the

maintenance of open space and habitats that support a wide variety of

wildlife, including deer and elk. At the same time, they can suffer

financial losses due to wolves. These losses tend to be sheep and young

cattle, although occasionally llamas, guarding dogs, or other livestock

are lost. Some losses can be documented reliably but others cannot.

Wolf Conflicts

    Addressing wolf-livestock conflicts will entail two separate, but

parallel elements. One element will be management activities by WS and

FWP to minimize the potential for wolf-livestock conflicts and to

resolve the conflicts where and when they occur. This would be funded,

administered, and implemented by the cooperating agencies. Livestock

producers should report any suspected wolf depredations (injuries or

death) or the disruption of livestock or guarding animals to WS

directly. If the investigating WS agent determines that a wolf or

wolves were responsible, management response will be guided by the

specific recommendations of the investigator, the provisions of this

plan and by the multi-agency MOU. WS will take an incremental approach

to address wolf depredations, guided by wolf numbers, depredation

history, and the location of the incident.

    When wolf numbers are low and incidents take place on remote public

lands, WS would use more conservative management tools. WS could apply

progressively more liberal methods as wolf numbers increase and for

incidents on private lands. Conflict history of the

[[Page 10964]]

pack, time of year, attributes of the pack (e.g., size or reproductive

status), or the physical setting will all be considered before a

management response is selected. FWP will determine the disposition of

wolves involved in livestock depredations. FWP may also approve lethal

removal of the offending animal by livestock owners or their agents by

issuing a special kill permit. A special kill permit is required for

lethal action against any legally classified wildlife in Montana,

outside the defense of life/property provision or FWP Commission

approved regulations. FWP will not issue special kill permits to

livestock producers to remove wolves on public lands when wolf numbers

are low. If Montana has at least 15 packs, FWP may issue a special kill

permit to livestock producers that would be valid for public and

private lands. FWP will be more liberal in the number of special kill

permits granted as wolf numbers increase and for depredations in mixed

land ownership patterns.

    In a proactive manner, WS and FWP will also work cooperatively with

livestock producers and non-governmental organizations with an

increased emphasis on proactive efforts to reduce the risk of wolf-

livestock conflicts developing in the first place. Landowners could

contact a management specialist (FWP or WS) for help with assessing

risk from wolves or other predators and identifying ways to minimize

those risks while still acknowledging that the risk of livestock

depredation by wolves will never be zero. Incentives may even be

provided to participating producers.

    Beyond technical assistance from WS or FWP and other collaborative

efforts, livestock producers (or their agents) may non-lethally harass

wolves when they are close to livestock on public or private lands.

Private citizens may also non-lethally harass wolves that come close to

homes, domestic pets, or people. Upon delisting, private citizens could

kill a wolf if it is threatening human life or domestic dogs. Livestock

producers or their agents could also kill a wolf if it is attacking,

killing, or threatening to kill livestock. This is consistent with

Montana statutes that permit private citizens to defend life or

property from imminent danger caused by wildlife. The definition of

``livestock'' is clarified to mean cattle, sheep, horses, mules, pigs,

goats, emu, ostrich, poultry, and herding or guarding animals (llama,

donkeys, and certain special-use breeds of dogs commonly used for

guarding or herding of livestock) for the purposes of addressing wolf-

livestock conflicts.

    Dogs used for other purposes such as hunting or as pets are not

covered under this definition. FWP also clarifies the use of non-lethal

harassment to refer to situations in which a wolf is discovered testing

or chasing livestock and the owner attempts to scare or discourage the

wolf in a non-injurious manner and without prior attempts to search

out, track, attract or wait for the wolf. A special permit would be

required to actually injure or kill the wolf or if a person

purposefully attracted, tracked, or searched for the wolf. The second

element addresses the economic losses of individual livestock producers

through a compensation program when livestock are injured or killed by

wolves.

Montana Indian Tribes

    Montana's Indian Tribes have jurisdictional authority for wildlife

conservation and management programs within reservations boundaries.

FWP coordinates with tribal authorities on issues of mutual concern.

Tribal coordination already takes place for other wildlife species

through annual interagency meetings, working agreements and informal

contacts at the field level.

Coordination With Other Entities

    An MOU will be signed by FWP, MDOL, and WS to address wolf-

livestock conflicts. The ongoing interagency, tribal, and interstate

coordination activities are important cornerstones of program

implementation and administration. The U.S. Forest Service (USFS), the

National Park Service (NPS), the Bureau of Land Management (BLM), the

Service, or other federal jurisdictions administer federally owned

lands. These agencies manage these lands according to their enabling

legislation and relevant federal laws, rules and regulations. FWP

coordinates with federal agencies on wildlife and habitat issues of

mutual concern, but has no jurisdiction over how those lands are

managed.

    FWP would coordinate with other agencies and responsible parties to

resolve any concerns about how cross boundary packs would be managed or

how conflicts would be resolved to make sure all entities goals are

being met or addressed.

Proposed Special Regulations Under 17.84--Nonessential Experimental

Population Established Under Section 10(j) of the ESA (Vertebrates)

    The new special regulations proposed in this rule are intended to

expand authorities under section 10(j) for States with approved wolf

management plans in the experimental population areas. The special

regulations are intended to provide that wolves near livestock could be

harassed in a noninjurious manner at any time on private land or on

public land by the livestock permittee. Intentional or potentially

injurious harassment could occur by permit on private land and public

land. Wolves attacking not only livestock, but also dogs, on private

land could be taken without a permit if they are in the act of

attacking such animals; on public land a permit will be required for

such take. Permits could be issued by the Service to take wolves on

private land if they are a risk to livestock or dogs.

    The new special regulations proposed in this rule will allow for

take of wolves determined to be causing unacceptable impacts to wild

ungulate populations. In addition, the new special regulations define

livestock to include herding and guard animals. Finally, the new

special regulations do not apply in the portion of the Yellowstone

Management Area within the State of Wyoming.

    The special regulations also provide for States with wolf

management plans approved by the Service to implement a transition from

the provisions of this rule to the those provisions of the State wolf

management plan consistent with federal regulations for nonessential

experimental wolves within the boundaries of the State with the

cooperation of the Service. Specifically we intend to provide any State

in which the gray wolf is resident and which has a wolf management plan

approved by the Service with the discretion to petition the Service to

assume management responsibility of nonessential experimental gray

wolves within the boundaries of that State.

Public Comments Solicited

    We intend that any final action resulting from this proposal will

be as accurate and as effective as possible. Therefore, we are

soliciting comments or suggestions from the public, other concerned

governmental agencies, the scientific community, industry, or any other

interested party concerning this proposed rule.

    If you submit comments by e-mail, please submit them as an ASCII

file and avoid the use of special characters and any form of

encryption. Please also include ``Attn: RIN AT61''' and your name and

return address in your e-mail message. If you do not receive a

confirmation from the system that we have received your e-mail message,

contact us directly by calling our Helena Office at telephone number

406-449-5225.

[[Page 10965]]

    Our practice is to make comments, including names and home

addresses of respondents, available for public review during regular

business hours. Individual respondents may request that we withhold

their home address from the rulemaking record, which we will honor to

the extent allowable by law. There also may be circumstances in which

we would withhold from the rulemaking record a respondent's identity,

as allowable by law. If you wish us to withhold your name and/or

address, you must state this prominently at the beginning of your

comment. However, we will not consider anonymous comments. We will make

all submissions from organizations or businesses, and from individuals

identifying themselves as representatives or officials of organizations

or businesses, available for public inspection in their entirety.

Comments and materials received will be available for public

inspection, by appointment, during normal business hours at our Helena

office (see ADDRESSES).

    In making any final decision on this proposal, we will take into

consideration the comments and any additional information we receive,

and such communications may lead to a final regulation that differs

from this proposal.

Public Hearings

    In anticipation of public interest in this issue, we will schedule

public hearings in Boise, ID, and Helena, MT. Anyone wishing to make

oral comments for the record at a public hearing is encouraged to

provide a written copy of their statement and present it to us at the

hearing. In the event there is a large attendance, the time allotted

for oral statements may be limited. Oral and written statements receive

equal consideration. We will announce the date, time, and location of

the public hearings through a notice in the Federal Register and in

local media.

Required Determinations

Regulatory Planning and Review

    This proposed rule has not been reviewed by the Office of

Management and Budget under Executive Order 12866.

    (a) This proposed rule would not have an annual economic effect of

$100 million, or adversely affect an economic sector, productivity,

jobs, the environment, or other units of government. This regulation

would result in only minor positive economic effects for a small

percentage of livestock producers.

    (b) This regulation will not create inconsistencies with other

agencies' actions. This regulation reflects continuing success in

recovering the gray wolf through long-standing cooperative and

complementary programs by a number of Federal, State, and tribal

agencies.

    (c) This regulation will not materially affect entitlements,

grants, user fees, loan programs, or the rights and obligations of

their recipients.

    (d) This regulation does not raise any novel legal or policy

issues.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as

amended by the Small Business Regulatory Enforcement Fairness Act

(SBREFA) of 1996), whenever an 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 effects 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

the agency certifies the rule will not have a significant economic

impact on a substantial number of small entities. SBREFA amended the

Regulatory Flexibility Act to require Federal agencies to provide a

statement of the factual basis for certifying that a rule will not have

a significant economic impact on a substantial number of small

entities. SBREFA also amended the Regulatory Flexibility Act to require

a certification statement. Based on the information that is available

to us at this time, we are certifying that this proposed rule would not

have a significant economic impact on a substantial number of small

entities. The following discussion explains our rationale.

    The majority of wolves in the West are currently protected under

nonessential experimental population designations that cover Wyoming,

most of Idaho, and southwestern Montana and that treat wolves as a

threatened species. Special regulations exist for these experimental

populations that currently allow government employees and designated

agents, as well as livestock producers, to take problem wolves. An

additional, naturally occurring population of wolves is found in

northwestern Montana. This proposed rule does not change the

nonessential experimental designation, but does propose additional

special regulations so that States with wolf management plans approved

by the Service can petition the Service to manage nonessential

experimental wolves under those approved State management plans. These

proposed changes would only have effect in States that have an approved

State management plan for gray wolves. Within the Western DPS of the

gray wolf, only the States of Idaho and Montana have approved plans.

Therefore, the proposed regulation is expected to result in a small

economic gain to some livestock producers in States with approved wolf

management plans (i.e., Idaho and Montana) within the boundary of the

nonessential experimental populations of gray wolves in the Western DPS

(Central Idaho nonessential experimental population area and

Yellowstone nonessential experimental population area); it will have no

economic impact on livestock producers in Wyoming as their plan has not

been approved.

    We propose special regulations that would adopt certain provisions

of the 2003 special rule (under section 4(d)), which covered the area

outside of the two nonessential experimental population areas mentioned

above, providing for more consistent management both inside and outside

of the nonessential experimental population areas, unless identified

otherwise. Additionally new regulations were added that expand or

clarify current prohibitions. Secondly, we propose to identify a

process for transferring authorities within the experimental population

boundaries to States with approved plans. Finally, the new special

regulations identify the allowable forms of take in the portion of the

Yellowstone Management Area within the State of Wyoming.

    Expanded or clarified prohibitions proposed in this rule include

the following. Intentional or potentially injurious harassment could

occur by permit on private land and public land. Wolves attacking not

only livestock, but also dogs, on private land could be taken without a

permit if they are in the act of attacking such animals; on public land

a permit will be required for such take. Permits could be issued by the

Service to take wolves on private land if they are a risk to livestock

or dogs.

    The new special regulations proposed in this rule clarify take of

wolves determined to be causing unacceptable impacts to wild ungulate

populations. In addition, the new special regulations define livestock

to include herding and guard animals.

    The new special regulations proposed in this rule provide for

States with wolf management plans approved by and in cooperation with

the Service to

[[Page 10966]]

implement a transition from the provisions of this rule to the

provisions of the State wolf management plan for wolves that are

consistent with federal regulations within the boundaries of the

nonessential experimental population areas. States may, at their

discretion, administer this transition through new or existing

cooperative agreements or programs with the Service.

    In anticipation of delisting the Western DPS of the gray wolf, we

have been working very closely with States to insure that their plans

provide the protection and flexibility necessary to manage wolves at or

above recovery levels. Approved plans are those plans that have passed

peer review scrutiny and Service review aimed at insuring that these

recovery levels are maintained. It is appropriate to have States which

have met this approval standard begin managing wolves according to

their approved plans for several reasons. The States already assume an

important role in the management of this species, the goals for

recovery have been exceeded, and a gradual transfer of responsibilities

while the wolves are protected under the ESA will provide an

opportunity for both the State wildlife agencies, federal agencies

(FWS, USDA), and Tribes an adjustment period. The adjustment period

will allow time to work out any unforeseen issues that may arise.

    The reduction of the restrictions on taking problem wolves proposed

in this rule will make their control easier and more effective, thus

reducing the economic losses that result from wolf depredation on

livestock and guard animals and dogs. Furthermore, a private program

compensates livestock producers if they suffer confirmed livestock

losses by wolves. Since 1996, average compensation for livestock losses

has been slightly over $10,000 in each recovery area per year. The

potential effect on livestock producers in western States is small, but

more flexible wolf management will be entirely beneficial to their

operation.

Small Business Regulatory Enforcement Fairness Act

    This regulation will not be a major rule under 5 U.S.C. 801 et

seq., the Small Business Regulatory Enforcement Fairness Act.

    (a) This regulation would not produce an annual economic effect of

$100 million. The majority of livestock producers within the range of

the wolf are small family-owned dairies or ranches and the total number

of livestock producers that may be affected by wolves is small. The

finalized take regulations will further reduce the effect that wolves

will have on individual livestock producers by eliminating permit

requirements. Compensation programs are also in place to offset losses

to individual livestock producers. Thus, even if livestock producers

affected are small businesses, their combined economic effects will be

minimal and the effects are a benefit to small business.

    (b) This regulation would not cause a major increase in costs or

prices for consumers, individual industries, Federal, State, or local

government agencies, or geographic regions.

    (c) This regulation would not have a significant adverse effect on

competition, employment, investment, productivity, innovation, or the

ability of U.S.-based enterprises to compete with foreign-based

enterprises.

Unfunded Mandates Reform Act

    The States within the Western DPS for which wolf management plans

need approval in order to proceed with delisting of the species are

Montana, Idaho, and Wyoming. The proposed regulations define a process

for voluntary and cooperative transfer of management responsibilities

back to the States. Therefore, in accordance with the Unfunded Mandates

Reform Act (2 U.S.C. 1501, et seq.):

    (a) The Service has determined and certifies pursuant to the

Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this

rulemaking will not impose a cost of $100 million or more in any given

year on local or State governments or private entities. As stated

above, this regulation will result in only minor positive economic

effects for a very small percentage of livestock producers.

    (b) This regulation will not produce a Federal mandate of $100

million or greater in any year; that is, it is not a ``significant

regulatory action'' under the Unfunded Mandates Reform Act. This

regulation will not impose any additional wolf management or protection

requirements on the States or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this regulation will not

have significant implications concerning taking of private property by

the Federal Government. This regulation will reduce regulatory

restrictions on private lands and, as stated above, will result in

minor positive economic effects for a small percentage of livestock

producers.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, this regulation will not

have significant Federalism effects. This regulation will not have a

substantial direct effect on the States, on the relationship between

the States and the Federal Government, or on the distribution of power

and responsibilities among the various levels of government.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Department of the

Interior has determined that this rule does not unduly burden the

judicial system and meets the applicable standards provided in sections

3(a) and 3(b)(2) of the order.

Paperwork Reduction Act

    This regulation does not contain any new collections of information

other than those permit application forms already approved under the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of

Management and Budget clearance number 1018-0094.

National Environmental Policy Act

    In 1994, the Service issued an Environmental Impact Statement (EIS)

(Service 1994) that addressed the impacts of introducing gray wolves to

Yellowstone National Park and central Idaho and the nonessential

experimental population rule for these reintroductions. The 1994 EIS

addressed cooperative agreements whereby the States of Wyoming,

Montana, and Idaho could assume the lead for implementing wolf recovery

and anticipated that the States and tribes would be the primary

agencies implementing the experimental population rule outside National

Parks and National Wildlife Refuges. We intend to evaluate whether any

revisions to the EIS are required prior to finalizing this proposed

regulation.

Government-to-Government Relationship with Tribes (E.O. 13175)

    In accordance with the President=s memorandum of April 29, 1994,

``Government-to-Government Relations with Native American Tribal

Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we

will closely coordinate this proposed rule with the affected tribes

within the Western DPS. We intend to fully consider all of their

comments on the proposed special regulations submitted during the

public comment period.

Energy Supply, Distribution or Use (E.O. 13211)

    On May 18, 2001, the President issued Executive Order 13211 on

regulations that significantly affect energy supply, distribution, and

use. Executive Order 13211 requires agencies to prepare

[[Page 10967]]

Statements of Energy Effects when undertaking certain actions. This

proposed rule is not expected to significantly affect energy supplies,

distribution, and use. Therefore, this action is not a significant

energy action and no Statement of Energy Effects is required.

Clarity of the Rule

    Executive Order 12866 requires agencies to write regulations that

are easy to understand. We invite your comments on how to make this

proposal easier to understand including answers to questions such as

the following: Are the requirements in the document clearly stated?

Does the proposed rule contain technical language or jargon that

interferes with the clarity? Does the format of the proposed rule

(grouping and order of sections, use of headings, paragraphing, etc.)

aid or reduce its clarity? And is the description of the proposed rule

in the SUPPLEMENTARY INFORMATION section of the preamble helpful in

understanding the proposed rule? What else could we do to make the

proposed rule easier to understand?

    Send a copy of any written comments about how we could make this

rule easier to understand to: Office of Regulatory Affairs, Department

of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.

You also may e-mail comments to: Exsec@ios.doi.gov.

References Cited

    A complete list of all references cited in this rulemaking is

available upon request from our Helena office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, the Service proposes to amend part 17, subchapter I,

title 50 of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Section 17.84 is amended as follows:

    a. Redesignate paragraphs (j) through (m) as paragraphs (k) through

(n), respectively; and

    b. Add a new paragraph (j) to read as set forth below:

Sec.  17.84  Special rules--vertebrates

* * * * *

    (j) Gray wolf (Canis lupus). (1) The gray wolves (wolf) identified

in paragraph (j)(11) of this section are nonessential experimental.

These wolves will be managed in accordance with the respective

provisions of this section in the boundaries of the nonessential

experimental population area within any State that has a wolf

management plan approved by the Service, as further provided in this

paragraph (Sec.  17.84(j)).

    (2) The Service finds that reintroduction of nonessential

experimental gray wolves, as defined in this section, will further the

conservation of the species.

    (3) Definitions of terms used in paragraph (j) of this section

follow:

    Active den site. A den or a specific aboveground site that is being

used on a daily basis by wolves to raise newborn pups during the period

April 1 to June 30.

    Breeding pair. An adult male and an adult female wolf that, during

the previous breeding season, have produced at least two pups that

survived until December 31 of the year of their birth.

    Designated agent. Includes Federal agencies as directed by the

Secretary, and States or Tribes with a management plan approved by the

Secretary, cooperatively managing under the provisions of this section.

    Domestic animals. Animals that have been selectively bred over many

generations to enhance specific traits for their use by humans,

including use as pets. This includes livestock (as defined below) and

dogs.

    In the act. The actual biting, wounding, grasping, molesting,

harassing or killing or reasonable belief that such biting, wounding,

grasping, molesting, harassing or killing is imminent.

    Livestock. Cattle, sheep, horses, mules, goats and herding or guard

animals (llamas, donkeys, and certain special-use breeds of dogs

commonly used for guarding or herding livestock) or as otherwise

defined in any State or tribal wolf management plans as approved by the

Service. This excludes dogs that are not being used for livestock

guarding or herding.

    Noninjurious. Does not cause either temporary or permanent physical

damage or death.

    Opportunistic harassment. Harassment without the conduct of prior

purposeful actions to attract, track, wait for, or search out the wolf.

    Problem wolves. Wolves that attack livestock, or wolves that once

in a calendar year attack domestic animals other than livestock.

    Public land. Federal land and any other public land designated in

State and tribal wolf management plans as approved by the Service.

    Remove. Place in captivity or kill or release in another location.

    Unacceptable impact. Any decline in an ungulate population so that

population is not meeting established State population management

goals, with recruitment that does not allow the population to recover.

    Wounded. Exhibiting torn flesh and bleeding or other evidence of

physical damage caused by a wolf bite.

    (4) Allowable forms of take of gray wolves. The following

activities, only in the specific circumstances described under this

section, are allowed: opportunistic harassment; intentional harassment;

taking on private land; taking on public land; taking in response to

impacts on wild ungulates; taking in defense of human life; taking to

protect human safety; taking by government agents to remove problem

wolves; incidental take; taking under permits; and taking per

authorizations for agency employees. Other than as expressly provided

in this rule, all other take activities are considered a violation of

section 9 of the Act. Any wolf, or wolf part, taken legally must be

turned over to the Service unless otherwise specified in paragraph (j)

of this section. Any taking of wolves must be reported as outlined in

paragraph (j)(7) of this section.

    (i) Opportunistic harassment. Landowners on their own land and

livestock producers or permittees who are legally using public land

under valid livestock grazing allotments may conduct opportunistic

harassment of any gray wolf in a noninjurious manner at any time.

Opportunistic harassment must be reported to the Service within 7 days

as outlined in paragraph (j)(7) of this section.

    (ii) Intentional harassment. After we or our designated agent have

confirmed persistent wolf activity on privately owned land or on a

public land grazing allotment, we or the State fish and game agency may

issue a permit valid for not longer than 1 year, with appropriate

conditions, to any landowner to harass wolves in a potentially

injurious manner (such as by projectiles designed to be nonlethal to

larger mammals). The harassment must occur as specifically identified

in the permit.

    (iii) Taking by landowners on private land. Landowners may take

wolves on privately owned land in the following two additional

circumstances:

[[Page 10968]]

    (A) Any landowner may take a gray wolf that is in the act of

biting, wounding, grasping, molesting, harassing, or killing livestock,

livestock-guarding animals, or domestic animals, provided that the

landowner provides evidence of animal(s) freshly (less than 24 hours)

wounded, harassed, molested, or killed by wolves, and we or our

designated agent are able to confirm that the animal(s) were wounded,

harassed, molested, or killed by wolves. The taking of any wolf without

such evidence may be referred to the appropriate authorities for

prosecution.

    (B) A private landowner may be issued a limited duration permit by

us or the State fish and game agency to take a gray wolf on the

landowner's private land if:

    (1) This private property or an adjacent private property has had

at least one depredation by wolves on livestock, livestock-guarding

animals, or domestic animals that has been confirmed by us or our

designated agent; or

    (2) We or our designated agent have determined that wolves are

routinely present on that private property and present a significant

risk to the health and safety of livestock, livestock-guarding animals,

or domestic animals. The landowner must conduct the take in compliance

with the permit issued by the Service or a State with an approved

management plan.

    (iv) Take on public land. We or the State fish and game agency may

issue permits to take gray wolves under certain circumstances to

livestock producers or permittees who are legally using public land

under valid livestock grazing allotments. The permits, which may be

valid for not more than 1 year, can allow the take of a gray wolf if:

    (A) Public land or adjacent public land has had at least one

depredation by wolves on livestock, livestock-guarding animals, or

domestic animals that has been confirmed by us or our designated agent;

or

    (B) We or our designated agent have determined that wolves are

routinely present on public land and present a significant risk to the

health and safety of livestock, livestock-guarding animals, or domestic

animals. We or our designated agent will investigate and determine if

the previously wounded or killed livestock were wounded or killed by

wolves. The taking of any wolf without such evidence may be referred to

the appropriate authorities for prosecution.

    (v) Take in response to wild ungulate impacts. If wolves are

causing unacceptable impacts to wild ungulate populations, a State or

tribe may remove the wolves. In order for this provision to apply, the

States or tribes must consult with the Service and identify possible

mitigation measures. Before wolves can be removed we must, in

cooperation with the States or tribes, determine that such actions will

not inhibit wolf recovery levels.

    (vi) Take in defense of human life. Any person may take a gray wolf

in defense of the individual's life or the life of another person. The

unauthorized taking of a wolf without an immediate and direct threat to

human life may be referred to the appropriate authorities for

prosecution.

    (vii) Take to protect human safety. We or a Federal land management

agency or a State or tribal conservation agency may promptly remove any

wolf that we or our designated agent determines to be a demonstrable

but nonimmediate threat to human life or safety.

    (viii) Take of problem wolves by Service personnel or our

designated agent. We or our designated agent may carry out aversive

conditioning, nonlethal measures, relocation, permanent placement in

captivity, or lethal control of problem wolves. If nonlethal

depredation measures occurring on public lands result in the capture,

prior to October 1, of a female wolf showing signs that she is still

raising pups of the year (e.g., evidence of lactation, recent sightings

with pups), whether or not she is captured with her pups, then she and

her pups may be released at or near the site of capture. Female wolves

with pups may be removed if continued depredation occurs. Problem

wolves that depredate on domestic animals more than once in a calendar

year, including female wolves with pups regardless of whether on public

or private lands, may be removed from the wild. To determine the

presence of problem wolves, we or our designated agents will consider

all of the following:

    (A) Evidence of wounded livestock or other domestic animals or

remains of a carcass that shows that the injury or death was caused by

wolves;

    (B) The likelihood that additional losses may occur if no control

action is taken;

    (C) Any evidence of unusual attractants or artificial or

intentional feeding of wolves; and

    (D) Evidence that, on public lands, if animal husbandry practices

were previously identified in existing approved allotment plans and

annual operating plans for allotments, they were followed.

    (ix) Incidental take. Take of a gray wolf is allowed if the take

was accidental and incidental to an otherwise lawful activity and if

reasonable due care was practiced to avoid such taking. Incidental take

is not allowed if the take is not accidental or if reasonable due care

was not practiced to avoid such taking; we may refer such taking to the

appropriate authorities for prosecution. Shooters have the

responsibility to identify their target before shooting. Shooting a

wolf as a result of mistaking it for another species is not considered

accidental and may be referred to the appropriate authorities for

prosecution.

    (x) Take under permits. Any person with a valid permit issued by

the Service under Sec.  17.32, or our designated agent, may take wolves

in the wild, pursuant to terms of the permit.

    (xi) Additional taking authorizations for agency employees. When

acting in the course of official duties, any employee of the Service or

appropriate Federal, State, or tribal agency, who is designated as an

agent in writing for such purposes by the Service, may take a wolf or

wolf-like canid for the following purposes; such take must be reported

to the Service within 15 days as outlined in paragraph (j)(7) of this

section and specimens may be retained or disposed of only in accordance

with directions from the Service:

    (A) Scientific purposes;

    (B) Avoiding conflict with human activities;

    (C) Improving wolf survival and recovery prospects;

    (D) Aiding or euthanizing sick, injured, or orphaned wolves;

    (E) Disposing of a dead specimen;

    (F) Salvaging a dead specimen that may be used for scientific

study;

    (G) Aiding in law enforcement investigations involving wolves; or

    (H) Preventing wolves with abnormal physical or behavioral

characteristics, as determined by the Service, from passing on those

traits to other wolves.

    (5) Federal land use. Restrictions on the use of any Federal lands

may be put in place to prevent the take of wolves at active den sites

between April 1 and June 30. Otherwise, no additional land-use

restrictions on Federal lands, except for National Parks or National

Wildlife Refuges, may be necessary to reduce or prevent take of wolves

solely to benefit gray wolf recovery under the Act. This prohibition

does not preclude restricting land use when necessary to reduce

negative impacts of wolf restoration efforts on other endangered or

threatened species.

    (6) Reporting requirements. Except as otherwise specified in

paragraph (j) of this section or in a permit, any taking of a gray wolf

must be reported to the Service within 24 hours. We will allow

[[Page 10969]]

additional reasonable time if access to the site is limited. Report

wolf takings, including opportunistic harassment, to U.S. Fish and

Wildlife Service, Western Gray Wolf Recovery Coordinator, or a Service-

designated representative of another Federal, State, or tribal agency.

Unless otherwise specified in paragraph (j) of this section, any wolf

or wolf part, taken legally must be turned over to the Service, which

will determine the disposition of any live or dead wolves.

    (7) No person shall possess, sell, deliver, carry, transport, ship,

import, or export by any means whatsoever, any wolf or part thereof

from the experimental populations taken in violation of the regulations

in paragraph (j) of this section or in violation of applicable State or

tribal fish and wildlife laws or regulations or the Endangered Species

Act.

    (8) It is unlawful for any person to attempt to commit, solicit

another to commit, or cause to be committed any offense defined in this

section.

    (9) The site for reintroduction is within the historic range of the

species:

    (i) The central Idaho area is shown on the following map. The

boundaries of the nonessential experimental population area will be

those portions of Idaho that are south of Interstate Highway 90 and

west of Interstate 15, and those portions of Montana south of

Interstate 90, Highway 93 and 12 from Missoula, Montana, west of

Interstate 15.

BILLING CODE 4310-55-P

[GRAPHIC] [TIFF OMITTED] TP09MR04.020

    (ii) The Yellowstone Management Area is shown on the following map.

The boundaries of the nonessential experimental population area will be

that portion of Idaho that is east of Interstate Highway 15; that

portion of Montana that is east of Interstate Highway 15 and south of

the Missouri River from Great Falls, Montana, to the eastern Montana

border; and all of Wyoming.

[[Page 10970]]

[GRAPHIC] [TIFF OMITTED] TP09MR04.021

    (iii) All wolves found in the wild within the boundaries of this

section after the first releases will be considered nonessential

experimental animals. In the conterminous United States, a wolf that is

outside an experimental area would be considered as threatened unless

it is marked or otherwise known to be an experimental animal; such a

wolf may be captured for examination and genetic testing by the Service

or Service-designated agency. Disposition of the captured animal may

take any of the following courses:

    (A) If the animal was not involved in conflicts with humans and is

determined likely to be an experimental wolf, it may be returned to the

reintroduction area.

    (B) If the animal is determined likely to be an experimental wolf

and was involved in conflicts with humans as identified in the

management plan for the closest experimental area, it may be relocated,

placed in captivity, or killed.

    (C) If the animal is determined not likely to be an experimental

animal, it will be managed according to any Service-approved plans for

that area or will be marked and released near its point of capture.

    (D) If the animal is determined not to be a wild gray wolf or if

the Service or agencies designated by the Service determine the animal

shows physical or behavioral evidence of hybridization with other

canids, such as domestic dogs or coyotes, or of being an animal raised

in captivity, it may be returned to captivity or killed.

    (10) The reintroduced wolves will be monitored during the life of

the project, including by the use of radio telemetry and other remote

sensing devices as appropriate. All released animals will be vaccinated

against diseases and parasites prevalent in canids, as appropriate,

prior to release and during subsequent handling. Any animal that is

sick, injured, or otherwise in need of special care may be captured by

authorized personnel of the Service or Service-designated agencies and

given appropriate care. Such an animal will be released back into its

respective reintroduction area as soon as possible, unless physical or

behavioral problems make it necessary to return the animal to captivity

or euthanize it.

    (11) Once recovery goals are met for the species, a rule will be

proposed to address delisting, as appropriate.

    (12) Any State in which the gray wolf resides and is subject to the

terms of Sec.  17.84(j) may petition the Secretary for management

responsibility of nonessential experimental gray wolves in that State

provided that the State has a wolf management plan approved by the

Secretary.

    (i) A State petition for wolf management must show:

    (A) That authority resides in the State to conserve the gray wolf

throughout the geographical range of all experimental populations

within the State;

    (B) That the State is authorized to conduct investigations to

determine the status and requirements for the conservation of the gray

wolf throughout the State; and

    (C) That the State has an acceptable conservation program for the

gray wolf, throughout all of the nonessential experimental population

areas within the State, including the requisite

[[Page 10971]]

authority and capacity to carry out that conservation program.

    (ii) The Secretary shall approve such a petition within 30 days of

receipt upon a finding that the applicable criteria are met and the

completion of a consultation under section 7 of the Act that concludes

that approval is not likely to jeopardize the continued existence of

the gray wolf in the Western Distinct Population Segment (DPS), as

defined in Sec.  17.11(h).

    (iii) If the Secretary approves the petition, the Secretary shall

immediately enter into a Memorandum of Agreement (MOA) with the

Governor of that State.

    (iv) An MOA for State management as provided in this section may

allow a State to manage nonessential experimental gray wolf populations

within its borders in accordance with the State's management plan

approved by the Service, except that:

    (A) The MOA may not provide for any form of management that would

be inconsistent with the protection provided to the species under the

Act, and shall specify those portions of the State's post-delisting

management plan for wolves that shall be implemented at this time;

    (B) The MOA cannot vest the State with any authority over matters

concerning section 4 of the Act; and

    (C) It may not provide for sport hunting absent a finding by the

Secretary of an extraordinary case where population pressures within a

given ecosystem cannot be otherwise relieved.

    (v) An MOA for State management must provide for co-law enforcement

responsibilities to ensure that the Service has the authority to also

enforce the State management program prohibitions on take.

    (vi) Upon execution, an MOA, consistent with its terms, may augment

the prohibitions on take contained in the experimental population rule

applicable to the nonessential experimental gray wolf populations

throughout the State, and any other specific section 9 or section 4(d)

restrictions that may now apply or that could be applicable in the

future, until delisting, so long as the MOA remains in legal effect.

    (vii) The MOA will expressly provide that the agreement may be the

basis upon which State regulatory measures will be judged for delisting

purposes. The authority for the MOA will be the Endangered Species Act,

the Fish and Wildlife Act of 1956 and the Fish and Wildlife Cooperation

Act.

    (viii) In order for the MOA to remain in effect, the Secretary must

find, on an annual basis, that the management under the MOA is not

jeopardizing the continued existence of the gray wolf in the Western

DPS. The Secretary may terminate the MOA upon 90 days notice to the

State if:

    (A) Management under the MOA is likely to jeopardize the continued

existence of the gray wolf in the Western DPS; or

    (B) The State has failed materially to comply with the MOA or any

relevant provision of the State management plan; or

    (C) Biological circumstances within the range of the gray wolf

indicate that delisting the species would not be warranted.

* * * * *

    Dated: March 3, 2004.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 04-5248 Filed 3-4-04; 2:52 pm]

BILLING CODE 4310-55-C