RULES and REGULATIONS
DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

AGENCY: Fish and Wildlife Service, Interior.

*1286 ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service) establish a rule for the nonessential experimental populations (NEPs) of the Western Distinct Population Segment (DPS) of the gray wolf (Canis lupus), so that in States and on Tribal reservations with Service-approved wolf management plans, we can better address the concerns of affected landowners and the impacts of a biologically recovered wolf population. In addition, States and Tribes with Service accepted wolf management plans can petition the Service for lead management authority for experimental wolves consistent with this rule. Within the Yellowstone and central Idaho experimental population areas, only the States of Idaho and Montana currently have approved management plans for gray wolves. The State of Wyoming has prepared a wolf management plan that was not approved by the Service. No Tribes have approved management plans. Therefore, at this point in time these regulatory changes only affect wolf management within the experimental population areas in Montana and Idaho. As we discussed in our advance notice of proposed rulemaking regarding delisting the Western DPS of the gray wolf (68 FR 15879; April 1, 2003), once Wyoming has an approved wolf management plan, we intend to propose removing the gray wolf in the Western DPS from the List of Endangered and Threatened Wildlife. This rule does not affect gray wolves in the Eastern DPS, the Southwestern DPS, or the non- experimental wolves in the Western DPS.

DATES: The effective date of this rule is February 7, 2005.

ADDRESSES: The complete file for this rule is available for inspection, by appointment, during normal business hours at U.S. Fish and Wildlife Service, Office of the Western Gray Wolf Recovery Coordinator, 100 North Park, Suite 320, Helena, Montana 59601. Call 406-449-5225 to make arrangements.

FOR FURTHER INFORMATION CONTACT: Ed Bangs, Western Gray Wolf Recovery Coordinator, at the above address or telephone 406-449-5225, ext. 204 or at ed--bangs@fws.gov or on our Web site at http://westerngraywolf.fws.gov/.

SUPPLEMENTARY INFORMATION:

Background

In 1994, we promulgated special rules under section 10(j) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), for the purpose of wolf reintroduction. The rules, codified at 50 CFR 17.84(i), established two nonessential experimental populations (NEPs), one for the central Idaho area and the other for the Yellowstone area, that provided management flexibility to address the potential negative impacts and concerns regarding wolf reintroduction.

On April 1, 2003, we published in the Federal Register (69 FR 15879) an Advance Notice of Proposed Rulemaking under the Act, announcing our intent to remove the Western 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 number of wolves in the Yellowstone and central Idaho NEP areas had exceeded our numerical recovery goals. We also emphasized the importance of State wolf management plans to any delisting decision; we believed these plans would be the major determinants of wolf protection and prey availability, and would set and enforce limits on human use and other forms of take, once the wolf is delisted. These State management plans will determine the overall regulatory framework for the future conservation of gray wolves, outside of Tribal reservations, after delisting. For reasons we discuss in more detail below, we are not yet prepared to propose delisting the Western DPS of gray wolves; however, we are issuing a new regulation for the NEPs in the Western DPS for States or Tribal reservations with Service-approved wolf management plans.

Gray wolf 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 under the Act.

In 1982, Congress made significant changes to the Act with the addition of section 10(j), which provides for the designation of specific reintroduced populations of listed species as "experimental populations." Previously, we had authority to reintroduce populations into unoccupied portions of a listed species' historical range when doing so would foster the species' conservation and recovery. However, local citizens often opposed these reintroductions because they were concerned about the placement of restrictions and prohibitions on Federal and private activities. Under section 10(j) of the Act, the Secretary of the Department of the Interior can designate reintroduced populations established outside the species' current range, but within its historical range, as "experimental." Based on the best scientific and commercial data available, we must determine whether experimental populations are "essential," or "nonessential," to the continued existence of the species. Regulatory restrictions are considerably reduced under a Nonessential Experimental Population (NEP) designation.

Without the "nonessential experimental population" designation, the Act provides that species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act prohibits the take of an endangered species. "Take" is defined by the Act as harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct. Service regulations (50 CFR 17.31) generally extend the prohibitions of take to threatened wildlife. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitat. It mandates all Federal agencies to determine how to use their existing authorities to further the purposes of the Act to aid in recovering listed species. It also states that Federal agencies will, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency.

For purposes of section 9 of the Act, a population designated as experimental is treated as threatened regardless of the species' designation elsewhere in its *1287 range. Through section 4(d) of the Act, threatened designation allows us greater discretion in devising management programs and special regulations for such a population. Section 4(d) of the Act allows us to adopt regulations that are necessary to provide for the conservation of a threatened species. In these situations, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the special 4(d) rule contains the prohibitions and exemptions necessary and appropriate to conserve that species. Regulations issued under section 4(d) for NEPs are usually more compatible with routine human activities in the reintroduction area.

For the purposes of section 7 of the Act, we treat NEPs as a threatened species when the NEP is located within a National Wildlife Refuge or National Park, and section 7(a)(1) and the consultation requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) requires all Federal agencies to use their authorities to conserve listed species. Section 7(a)(2) requires that Federal agencies, in consultation with the Service, ensure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. When NEPs are located outside a National Wildlife Refuge or National Park, we treat the population as proposed for listing and only two provisions of section 7 would apply--section 7(a)(1) and section 7(a)(4). In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities.

In 1994, we promulgated special rules under section 10(j) of the Act for the purpose of wolf reintroduction. The rules, codified at 50 CFR 17.84(i), established two NEPs, one for the central Idaho area and the other for the Yellowstone area. We also identified protective measures and management practices necessary for the populations' conservation and recovery. As wolves in the NEPs are generally treated as a threatened species, these rules provided additional flexibility in managing wolf populations within the experimental population areas compared to outside these areas, where wolves were listed as endangered.

Since their reintroduction in 1994, wolf populations in both experimental areas have exceeded expectations (Service 2004). This success prompted the Service to reclassify the status of gray wolves in the Western DPS, outside of the experimental population areas, to threatened (68 FR 15804) and publish a special 4(d) rule for the WDPS (found in 50 CFR 17.40(n)) that provides more flexible management for wolves outside the experimental population areas. We also published an advance notice of proposed rulemaking, indicating our intent to delist the Western DPS of gray wolves in the future (68 FR 15879).

However, the 2003 4(d) rule did not apply within the experimental population areas in Idaho or Yellowstone; as a result, management of threatened wolves in the western DPS outside of the experimental population areas became more flexible than management of wolves inside the experimental population areas. We now issue a rule for States or Tribal reservations with Service-approved wolf management plans that provides for additional flexibility within the experimental population areas in recognition of the fact that wolves are numerous in the experimental population areas. In addition, the rule provides for transition to a State and Tribal lead for wolf management in those States or reservations with Service-approved wolf management plans, with the exception of lands managed by the National Park Service or the Service. The 1994 NEP rules found at 50 CFR 17.84(i) are retained in Wyoming and on Tribal reservations within Wyoming without approved management plans.

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 (U.S. Department of the Interior 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 (Canis 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 Minnesota and Michigan in that rulemaking.

On November 22, 1994, we designated areas in Idaho, Montana, and Wyoming as NEPs in order to initiate gray wolf reintroduction in central Idaho and the Greater Yellowstone area (59 FR 60252, 59 FR 60266). These experimental population designations contain special rules that govern the take of wolves within the geographical areas. The 1994 rules governing those experimental populations allowed for increases in the authority of States and Tribes to manage the wolves under a State or Tribal management plan approved by the Service. Specifically, the 1994 rules allowed States or Tribes to expand the definition of "livestock" for purposes of managing conflicts between wolves and livestock, and the rules also allowed States and Tribes to document adverse effects of wolves on ungulates for the purposes of managing those conflicts.

In January 1995, 15 wolves captured in Alberta, Canada, were released in central Idaho. In January 1996, an additional 20 wolves from British Columbia were released into the central Idaho experimental population area. In March 1995, 14 wolves from Alberta were released from holding pens in Yellowstone National Park. In April 1996, this procedure was repeated with 17 wolves from British Columbia (Bangs and Fritts 1996, Fritts et al. 1997, see Service 2004 for additional references).

On December 11, 1997, we published a proposal to revise the NEP rules in central Idaho and the Yellowstone area (62 FR 65237). This proposal attempted to clarify ambiguous language regarding wolf control options of suspected captive wolves and wolf-dog hybrids found in the wild within the experimental population areas. Due to litigation over wolf reintroduction, in which the Service ultimately prevailed, and other priorities, that proposal was never finalized. This rule resolves that ambiguous language (see (xi)(H) in this rule).

On July 13, 2000, we published a proposal (65 FR 43450) to revise the listing of the gray wolf across most of the conterminous United States. On April 1, 2003, we published a 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 NEPs existed (68 FR 15804). We established special rules under section 4(d) of the Act for the Western and Eastern 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 in the future.

*1288 We received several petitions during the past decade requesting delisting of 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 was warranted (54 FR 16380, April 24, 1989; 55 CFR 48656, November 30, 1990; 63 FR 55839, October 19, 1998).

Recovery Goals

The demographic recovery goal for the WDPS is a minimum of 30 breeding pairs, each consisting of an adult male and an adult female that successfully produced at least 2 pups that survived until December 31, that are equitably distributed among 3 recovery areas/States for 3 successive years (68 FR 15804). Our current estimates indicate wolf populations in northwestern Montana where they are designated threatened, and in central Idaho and Yellowstone where they are designated experimental, have exceeded this recovery goal. In late 2002 there were about 663 wolves and 43 breeding pairs equitably distributed throughout Montana (about 183 wolves and 16 breeding pairs), Idaho (about 263 wolves and 9 breeding pairs), and Wyoming (217 wolves and 18 breeding pairs) (Service et al. 2003). The year 2002 was the third successive year that the wolf population in Montana, Idaho, and Wyoming had 30 or more breeding pairs. The wolf population continues to expand in the NEP areas. At the end of 2003, the wolf population was estimated at 761 wolves and 51 breeding pairs. Montana had an estimated 182 wolves and 10 breeding pairs, Idaho had 345 wolves and 25 breeding pairs, and Wyoming had 234 wolves and 16 breeding pairs (Service et al. 2004). Preliminary monitoring in 2004 indicates the wolf population continues to increase, again primarily in the NEP areas (Service 2004b).

Currently Designated Nonessential Experimental Populations of Gray Wolves

The Secretary designated two NEP areas for gray wolves in the Northern Rockies. Wolves were reintroduced into the Yellowstone NEP Area and the Central Idaho NEP Area in 1995 and 1996. The reintroductions as experimental populations were intended to further the recovery of gray wolves in the northern United States Rocky Mountains, as described in the recovery plan (Service 1987), and provide more management flexibility to address local and State concerns about wolf-related conflicts.
The Central Idaho Experimental Population Area consists of the portion of Idaho south of Interstate Highway 90 and west of Interstate 15; and the 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).
The Yellowstone Experimental Population Area consists of the portion of Idaho east of Interstate Highway 15; the portion of Montana 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 regulation proposed here will not apply in Wyoming or within any Tribal reservation in Wyoming at this time.

Current Special Regulations for the Western Distinct Population Segment

Three special rules currently apply to wolves in Montana, Idaho, and Wyoming. The two 1994 10(j) experimental population rules allow flexibility in the management of wolves, including authorization for private citizens to non-injuriously harass wolves and take wolves that are in the act of attacking livestock on private land, without a permit. These rules also provide a permit process that similarly allows the take, under certain circumstances, of wolves in the act of attacking livestock on public land. In addition, they allow opportunistic non-injurious harassment of wolves by livestock producers on private and public grazing lands, and also allow designated government employees or Service-designated agents under specified circumstances to perform non-lethal and lethal control to remove problem wolves. The 1994 rules allow States and Tribes to define unacceptable impacts on native ungulate herds and relocate wolves to reduce wolf predation. They also provide a mechanism for increased State and Tribal participation in wolf management, if cooperative agreements are developed to make them designated agents of the Service.

The 2003 4(d) rule for the Western DPS outside of the Central Idaho and Yellowstone NEP areas allows landowners and permittees on Federal grazing allotments to harass wolves in a non-injurious manner at any time. Like the 1994 10(j) rules, the 4(d) rule allows flexibility in the management of wolves, including authorization for private citizens on private land to non-injuriously harass wolves and take wolves that are in the act of attacking livestock, livestock herding or guarding animals, or dogs without a permit. The 4(d) rule also provides a written authorization process that allows the taking, under certain circumstances, of wolves on public land in the act of attacking livestock or livestock herding or guarding animals. In addition, it allows designated government employees or Service-designated agents to perform non-lethal and lethal control to remove problem wolves under specified circumstances. The 4(d) rule allows take of wolves under written authorization in a few more circumstances than the 1994 10(j) rules. Like the 1994 10(j) rules, the 4(d) rule allows the State and Tribes to define unacceptable impacts on native ungulate herds and relocate wolves to reduce wolf predation. The 4(d) rule, like the 1994 10(j) rules, also provides a mechanism for increased State and Tribal participation in wolf management, if cooperative agreements are developed to make them designated agents of the Service. A table comparing the parameters of wolf management in this final 10(j) rule with those in the 1994 10(j) rules, and with the 4(d) rules, is included as part of this rule.

State and Tribal Wolf 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 female wolf that raise at least 2 pups until December 31] that are equitably distributed throughout Montana, Idaho, and Wyoming for a minimum of 3 successive years) 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 identified in section 4(a)(1) of the Act--(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. These factors are not analyzed in detail as part of this rule because there was no proposed change in the WDPS listing status. Rather, this rule focuses on management of NEP wolves in the WDPS as we await delisting and transfer of management for *1289 wolves in the WDPS to the States and Tribes.

State management plans have been determined by the Service to be the most appropriate means of maintaining a recovered wolf population and of providing adequate regulatory mechanisms post-delisting (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 Act. Therefore, based on the demographic criteria mentioned above, each State needs to commit to maintain at least 10 or more 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. The northern Rocky Mountain wolf population is a three-part metapopulation and requires adequate management by all three States to ensure sufficient connectivity and distribution to remain recovered. Because the population inhabits parts of Montana, Idaho, and Wyoming, all three States must have adequate regulatory mechanisms to reasonably ensure their share of the population will remain recovered before the Service can propose it be delisted.

The Service determined that Wyoming's current State law and its wolf management plan do not suffice as an adequate regulatory mechanism for the purposes of delisting (letter from Service Director Steven Williams to Montana, Idaho, and Wyoming, January 13, 2004). Consequently, this rule, which defines the expanded authorities for States or Tribes with Service-approved plans, does not affect the portion of the Yellowstone NEP area in Wyoming. Wyoming has initiated legal action challenging our decision to not approve their wolf management plan. As the case works its way through the court system, we will attempt to continue to work with Tribes in Wyoming and the State of Wyoming to develop a Wyoming State law and State or Tribal wolf management plans that we can approve. Once we have approved a wolf management plan for the State of Wyoming, 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 Wildlife (for additional discussion, see our Advance Notice of Proposed Rulemaking at 68 FR 15879).

At this time there are few, if any, wolf breeding pairs or packs that significantly use Tribal reservation lands in the NEPs in Montana, Idaho, or Wyoming, and the recovery and subsequent maintenance of a recovered wolf population does not depend upon Tribal reservations or Tribal wolf management. The Service has not requested wolf management plans from any Tribe within the Western DPS, and any future delisting action is unlikely to be dependent on wolf management on Tribal lands. We do not believe any Tribal treaty rights to hunt and gather on ceded lands are adversely affected by this rule.
To provide as much flexibility as possible for Tribal members who are landowners, this rule treats Tribal members' lands on reservations as private property. Therefore, on Tribal lands within Montana and Idaho, individuals may take wolves on reservation lands as allowed on other private lands under this rule, if such take is allowed by Tribal wildlife regulations. A Tribal government may not assume designated agent status and lead for wolf management until it has a Tribal wolf management plan that has been approved by the Service. Tribes in Wyoming may develop their own wolf management plan for their reservation, and once accepted by the Service, may assume designated agent status. In the absence of a Service-approved Tribal wolf management plan or cooperative agreement, the Service will issue any written authorization for wolf take on Tribal lands.

Summary of Comments and Recommendations

A. Soliciting Public Comment

In our March 9, 2004, proposed rule and associated notifications, we requested that all interested parties submit comments, data, or other information that might aid in our decisions or otherwise contribute to the development of this final rule. The comment period for the proposed rule was open from March 9, 2004, through May 10, 2004. During that period we publicized and conducted two public hearings, one in Helena, Montana, on April 19, 2004, and another in Boise, Idaho, on April 20, 2004. We did not receive any requests for additional hearings and none were held. We also provided additional information at several general public meetings in order to explain the proposal, respond to questions concerning gray wolf protection and recovery, and receive input from interested parties. We contacted appropriate Federal, State, and Tribal agencies, scientific organizations, agricultural organizations, outdoor user groups, environmental organizations, animal rights groups, and other interested parties and requested that they comment on the proposal. We conducted numerous press interviews to promote wide coverage of our proposed rule in the media. We published legal notices in many newspapers announcing the proposal and hearings, and invited comment. We posted the proposal and numerous background documents on our Web site, and we provided copies upon request by mail or E-mail and at our hearings and informational meetings. We established several methods for interested parties to provide comments and other materials, including verbally or in writing at public hearings, by letter, E-mail, facsimile, or on our Web site.

During the 60-day comment period and at our two public hearings, we received nearly 23,000 separate comments, including comments from 39 individuals or agency representatives who spoke at public hearings. These comments included form letters and petitions with multiple signatures. Comments originated from nearly all States and several countries. We revised and updated the proposed rule in order to address comments and information we received during the comment period. In the following paragraphs we address the substantive comments we received concerning various aspects of the proposed rule. Comments of a similar nature are grouped together under subject headings (referred to as "Issues" for the purpose of this summary) below, along with our response to each. In addition to the following discussion, refer to the "Changes from the Proposed Rule" section (also below) for more details.

B. Technical and Editorial Comments

Issue 1: Numerous technical and editorial comments and corrections were provided by respondents.

Response 1-1: We corrected and updated numbers and other data wherever appropriate. We edited the rule to make its purpose and wolf management strategies clearer.

Response 1-2: We eliminated or condensed several sections in the proposed rule because they were either no longer relevant or to improve the clarity and intent of this rule. These changes include dropping most references to wolf management and regulations outside of the Western DPS and the central Idaho and Yellowstone NEP areas; dropping detailed descriptions of the Montana and Idaho wolf management plans; and dropping or condensing sections that are no longer relevant because they applied *1290 more to the past active wolf reintroduction program rather than the current program that maintains and manages an established recovered wolf population.

Response 1-3: We include a table that compares the parameters of wolf management in this final 10(j) rule with those in the 1994 10(j) rules and with the 4(d) rule.

Issue 2: Changes were suggested for our definitions of terms such as "reasonable belief," "problem wolf," "in the act," "landowner," "livestock," and "active den site." Most of the changes were recommended to improve consistency with State or other Federal rules, to improve law enforcement capabilities, or to clarify this rule.

Response 2-1: Allowing wolf take because of an individual's "reasonable belief" the wolf may attack livestock appeared to invite abuse of wolf take. The Service and State law enforcement officials indicated that the term "reasonable belief" is largely unenforceable in the context of its use in the proposed rule, because it could be read to require proof of an individual's state of mind. It could allow more liberal take of wolves than current State regulations and standards allow for defense of private property from other large carnivores managed by the States. The standards for taking wolves to protect property on private and public land were changed to make them more enforceable and also more consistent with State regulations and enforcement standards. Take will be allowed if wolves are physically attacking or "in the act of" attacking--i.e., molesting, harassing, chasing--livestock, livestock guarding and herding animals, and dogs), and if an agency investigation can confirm such take based on physical evidence of an attack or threat of attack likely to occur at any moment.

Response 2-2: The definition of take of problem wolves "in the act" has been changed to a definition of "in the act of attacking," meaning " the actual biting, wounding, grasping, or killing of livestock or dogs, or chasing, molesting, or harassing by wolves that would indicate to a reasonable person that such biting, wounding, grasping, or killing is likely to occur at any moment." Evidence of an attack must be available upon investigation. If no actual biting, wounding, grasping or killing has occurred, evidence must be available that a reasonable person would have believed that it was likely to occur at any moment. This standard does not require proof of an individual's state of mind. Instead, the standard requires evidence that an attack was likely to occur. Such evidence may include photographs of livestock or of the physical scene immediately following the wolf taking; indications that livestock were chased, molested or harassed, such as livestock and wolf tracks, trampled ground, broken fences, brush or vegetation, or muddied, lathered, bunched or trampled livestock; or dead or wounded livestock. This change will make take of wolves in defense of private property more enforceable and more consistent with State regulations. This standard will still allow the take of wolves that are physically attacking livestock or dogs on private lands, and livestock on public lands. We believe that by expanding the definition of "in the act" to include wolves preparing to attack livestock or dogs, we will more effectively remove problem wolves, enhance the ability of landowners and public land permittees to protect their private property, reduce the agency workload, and reduce the potential for abuse of this regulation that could result in the take of non-problem wolves, while not resulting in adverse impacts to wolf populations.

Response 2-3: We agree that the definition of a "problem wolf" should not include a wolf attacking any domestic animal, such as a cat, but should be more specific to the types of animals that have been attacked in the past such as horses, cattle, sheep, mules, goats, domestic bison, llamas, and dogs. The definition of a problem wolf has been changed to a wolf that attacks livestock (defined as cattle, sheep, horses, mules, goats, domestic bison, certain types of livestock herding or guarding animals) and dogs on private lands, and livestock on public lands. The Service or our designated agent(s) can designate and control a problem wolf, if it has attacked domestic animals other than livestock or dogs, two or more times in a calendar year.

Response 2-4: Wolves should not be labeled "problem wolves" when they are attracted, artificially fed, or baited, or when livestock are not reasonably protected. The conditions required for take of a problem wolf are--(A) Evidence of dead or wounded livestock or dogs caused by wolves or evidence that an attack on livestock or dogs by wolves is likely to occur at any moment; (B) A likelihood that additional losses will occur if no control is taken; (C) No unusual attractants or artificial or intentional feeding of wolves; and (D) On public lands, animal husbandry practices specified in approved allotment plans and annual operating plans are being followed.

Response 2-5: Definitions of "routinely present" and "demonstrable but non-immediate threat to human safety" need clarification. We dropped these two phrases from the final rule. Issues regarding potential threat to private property or human safety will be reworded "as determined by the Service or our designated agent(s)."

Response 2-6: Some suggested that the definition for "active den site" begin earlier than April 1 or go later than June 30. From 1987 through 2004, we have monitored over 329 breeding pairs of wolves in Montana, Idaho, and Wyoming (USFWS 2004) and none were documented to have produced pups before April 1. By June 30 wolf pups are mobile and many begin moving to rendezvous sites, so we did not expand the time frame within that definition. Land-use restrictions, even around active den sites, have rarely been required to protect wolves in the past and we do not believe they will be necessary in the future (Bangs et al. in press).

Response 2-7: Some comments suggested certain sex and age classes of wolves, i.e., breeding females or their pups, should be more protected than others. We dropped language from the final rule regarding more restrictive control options for females with pups or their pups. Our data indicate that after 4-6 weeks other pack members can successfully raise wolf pups, and removal of the breeding female does not mean the pups will not survive (Boyd and Jimenez 1994). Most pups are born by mid-April, and by early summer when most livestock come onto public grazing allotments, pups are mobile and can be raised by other pack members. Wolf packs are resilient to change and losing pack members, including alphas, as this happens frequently in nature even when humans are not impacting wolf pack social dynamics (Mech and Boitani 2003). We also recognize that, at times, the presence of wolf pups and their extra food requirement contribute to livestock depredation. Therefore, we have left the case-by-case decisions about wolf removal to our and our designated agent(s)' field personnel. We believe leaving such decisions to professional personnel in the field increases management flexibility and will not affect wolf recovery or the overall level of agency-caused wolf mortality.

Response 2-8: Some commenters recommended a more restrictive definition for "landowner" or restricting the use of take authorization by private individuals to remove problem wolves. Under this rule "landowner" applies only to private landowners or public land permittees who actually experience confirmed wolf depredations.

*1291 C. Legal Compliance With Laws, Regulations, and Policy

Issue 3: There was some confusion as to where and when the rule applies. Some believed it would immediately apply to all parts of any State with an approved management plan and others believed it would immediately apply throughout all experimental population areas. Some perceived that the new rule only applied after States with acceptable plans sign Memorandum of Agreements (MOAs) with the Secretary.

Response 3-1: This rule applies only to experimental areas within States or Tribal reservations with approved management plans, which at this time means only within the States of Montana and Idaho (letter from Service Director Steven Williams to Montana, Idaho, and Wyoming, January 13, 2004). Until a management plan from the State of Wyoming or a Wyoming Tribe is approved by the Service, no part of this rule applies in Wyoming or on a Tribal reservation in Wyoming. All wolf management in Wyoming remains under the aegis of the 1994 10(j) rules. When the Service approves a Wyoming or Tribal wolf management plan in that State, then this rule also will apply in Wyoming or that Tribal reservation in Wyoming. Furthermore, no Tribe in Montana or Idaho can lead wolf management on their reservation until the Tribe has a wolf management plan approved by the Service. Neither the 1994 rules nor this rule apply outside of the experimental population areas, except it provides some management options to the Service and our designated agent(s) for wolves from the experimental population area that disperse beyond the experimental population boundaries. Maps are provided to show the established experimental population areas in which this rule may apply.

Response 3-2: This rule becomes effective within 30 days in the experimental population areas in Montana and Idaho, as they have wolf management plans that have been approved by the Service. As soon as Wyoming or a Tribal reservation in Wyoming has a wolf management plan that is approved by the Service, this rule will become immediately effective in that respective area. While Tribal reservations in Montana and Idaho are considered as private land for individuals under the provisions of this rule, Tribal governments may not become designated agents and lead wolf management on reservations until they have a Tribal wolf management plan approved by the Service.

Response 3-3: The completion of an MOA with the Secretary of the DOI which is consistent with this rule allows a State or Tribe to take the lead in wolf management, to become "designated agent(s)," and to implement all parts of its approved wolf management plan that are consistent with this rule. This includes issuing written authorization for take, and making all decisions regarding implementation of the State or Tribal plan consistent with this rule. Under the MOA process, the Service will annually review the States' and Tribes' implementation of their plans to ensure compliance with this rule and to ensure the wolf population remains above recovery levels. States and Tribes also can become "designated agent(s)" and implement all or selected portions of this rule by entering into a cooperative agreement with the Service.

Issue 4: Some commenters believed the new 10(j) rule calls for a new Environmental Impact Statement (EIS) or additional section 7 consultation.

Response 4-1: We have carefully reviewed the requirements of the National Environmental Policy Act (NEPA) and its regulations (Council on Environmental Quality 40 CFR Section 1502.9). We believe this final rule, as well as the process by which it was developed and finalized, comply with all provisions of the Act, NEPA, and applicable regulations. The possible impacts resulting from this rule do not differ or extend beyond the scope of those examined in the 1994 EIS (Service 1994) or the 1994 10(j) rules. We do not believe the additions in this new 10(j) rule constitute substantial changes that create new environmental concerns. We present the following evidence:

In the 1994 EIS and 10(j) rules we predicted that 100 wolves in each of the 2 experimental areas would kill an annual average of 10-19 cattle and 57-68 sheep. Confirmed losses have been below predicted levels, even though wolf population levels are higher than predicted. From 1995 through 2003, wolves were confirmed to have killed 8.4-13.2 cattle, 33.6-46.3 sheep, and 2.5-2.7 dogs annually per experimental area. As predicted in the EIS, from 1987 through 2004 a cumulative total of approximately $440,000 in private compensation has been paid to livestock producers who have had confirmed or probable livestock losses caused by wolves, including areas both inside and outside the experimental population areas. The EIS also predicted that in each of the two experimental population areas annual livestock losses would range from $1,888 to $30,470 annually; and in reality, annual compensation for wolf-caused losses has averaged about $17,000 per area since 1995. The EIS predicted economic losses (in the range of $207,000-$857,000), primarily due to decreases in hunting for female elk; some decreases in winter control hunts for female elk have occurred, all within predicted levels. The EIS predicted that visitation to Yellowstone National Park would increase and generate $23,000,000 of economic activity in Montana, Idaho, and Wyoming. The popularity of wolf viewing in Yellowstone surpassed our predictions, although the economic impact is largely unknown.

The EIS predicted that the wolf population (defined by the distribution of breeding pairs) would likely remain within the EIS primary analysis area (Forest Service lands and adjacent private lands in central Idaho, and public land in and around Yellowstone National Park and private land in adjacent counties). As predicted, although individual lone wolves have dispersed widely, judging from the distribution of breeding pairs, the wolf population is contained within the EIS's primary analysis area.

In the EIS and 1994 10(j) rules, we also anticipated that legal control of wolves to minimize livestock depredations would annually remove an average 10 percent of the experimental population. Since 1995 lethal wolf removal has annually removed an average of less than 5 percent of the experimental wolf population. We predicted that the numerical and temporal goals for wolf population recovery would be reached in late 2002, with about 129 wolves counted in late winter in each of the 2 areas. These recovery criteria were reached in late 2002, but with an estimated 271-284 wolves per recovery area, about twice the predicted levels.

We anticipate that this rule will result in some additional wolf mortality by the public over current levels. However, the combination of agency control and legal control by the public will still likely effect on average 10 percent or less of the wolf population annually and we believe will not increase human-caused mortality to a level that could reduce the wolf population below recovery levels. Thus this rule does not create impacts that were not already analyzed or anticipated in the 1994 EIS and 1994 10(j) rules. This rule also provides safeguards that we believe will maintain the wolf population above numerical recovery goals in the experimental population areas. These safeguards are discussed throughout the body and discussion of the rule, including but not limited to the conditions under which the take provisions of the rule may be *1292 implemented. In conclusion, we are adopting the prior EIS for this rulemaking because the analysis is still applicable, i.e., the conditions have not changed and the action has not changed significantly.

Response 4-2: We have conducted an intra-Service section 7 consultation on this rulemaking. We have determined that the original consultation (contained in Appendix 7 of the 1994 EIS) remains adequate in its analysis of the gray wolf, woodland caribou, black-footed ferret, bald eagle, whooping crane, piping plover, least tern, pallid sturgeon, sockeye salmon, chinook salmon, Kendall Warm Springs dace, Wyoming toad, five species of Snake River mollusks, and MacFarlene's four-o'clock. No impacts to these species beyond those predicted in 1994 have occurred and this rule will cause no additional impacts beyond those envisioned in 1994. Since 1994, Canada lynx, bull trout, water howellia, white sturgeon, northern Idaho ground squirrel, Spalding's catchfly, and steelhead have been listed under the Act within the experimental population areas. In our original consultation, we determined wolf recovery would not affect any of those species but did not provide justification. We have updated the consultation to include a rationale of why the proposed action would not affect these species. Finally, because three grizzly bear cubs have been killed by wolves within the action area since the original consultation, we formally consulted on the effects of the proposed action on the grizzly bear. In this consultation, we determined that the project was not likely to jeopardize the continued existence of the grizzly bear (a copy of this consultation is available; see FOR FURTHER INFORMATION CONTACT section, above).