[Federal Register: February 4, 2010 (Volume 75, Number 23)]
[Proposed Rules]
[Page 5732-5745]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04fe10-21]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R2-ES-2009-0077; 92220-1113-0000; ABC Code: C3]
RIN 1018-AW63
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of Sonoran Pronghorn in
Southwestern Arizona
AGENCY: Fish and Wildlife Service, Interior.
[[Page 5733]]
ACTION: Proposed rule; public hearing, and availability of draft
environmental assessment.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
reestablish the Sonoran pronghorn, a federally listed endangered
mammal, into its historical habitat in King Valley, Kofa National
Wildlife Refuge (Kofa NWR), in Yuma County, and to the Barry M.
Goldwater Range--East (BMGR-E), in Maricopa County, in southwestern
Arizona. We propose to reestablish the Sonoran pronghorn under section
10(j) of the Endangered Species Act of 1973, as amended (Act), and to
classify that reestablished population as a nonessential experimental
population (NEP). This proposed rule provides a plan for establishing
the NEP and provides for allowable legal incidental taking of Sonoran
pronghorn within the defined NEP area. We have prepared a draft
environmental assessment (EA) on this proposed action.
DATES: We request that you send us comments on this proposal by the
close of business on April 5, 2010, or at the public hearing. We will
hold a public information session from 4:30 p.m. to 5:30 p.m., followed
by a public hearing from 7 p.m. to 8:30 p.m., on February 23, 2010.
ADDRESSES: Written Comments: You may submit information by one of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for docket FWS-R2-ES-2009-0077 and then follow the instructions
for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R2-ES-2009-0077; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all information we receive on http://
www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Information Requested
section below for more details).
Copies of Documents: The proposed rule and draft EA are on http://
www.regulations.gov and available from our Web site at http://
www.fws.gov/southwest/es/Library/. In addition, the supporting file for
this proposed rule will be available for public inspection, by
appointment, during normal business hours, at the Arizona Ecological
Services Office, 201 North Bonita Avenue, Suite 141, Tucson, AZ 85745,
telephone 520-670-6144. Persons who use a telecommunications device for
the deaf (TDD) may call the Federal Information Relay Services (FIRS)
at 800-877-8339.
Public Hearing: We will hold our public hearing at Logan
Auditorium, Gila Bend High School, 308 North Martin Avenue, Gila Bend,
AZ 85337. For information requesting reasonable accommodations to
attend the information session or hearing, see the Public Comments
section.
FOR FURTHER INFORMATION CONTACT: Curtis McCasland, Refuge Manager,
Cabeza Prieta National Wildlife Refuge, 1611 North Second Avenue, Ajo,
AZ 85321; by telephone (520-387-6483) or by facsimile (520-387-5359).
SUPPLEMENTARY INFORMATION:
Public Comments
We want the final rule to be as effective as possible and the final
EA on the proposed action to evaluate all potential issues associated
with this action. Therefore, we invite tribal and governmental
agencies, the scientific community, industry, and other interested
parties to submit comments or recommendations concerning any aspect of
this proposed rule and the draft EA. Comments should be as specific as
possible.
To issue a final rule to implement this proposed action and to
determine whether to prepare a finding of no significant impact or an
environmental impact statement, we will take into consideration all
comments and any additional information we receive. Such communications
may lead to a final rule that differs from this proposal. All comments,
including commenters' names and addresses, if provided to us, will
become part of the supporting record.
You may submit your comments and materials concerning the proposed
rule and draft EA by one of the methods listed in the ADDRESSES
section. We will not accept comments sent by e-mail or fax or to an
address not listed in the ADDRESSES section. Finally, we will not
consider hand-delivered comments that we do not receive, or mailed
comments that are not postmarked, by the date specified in the DATES
section. Comments must be submitted to http://www.regulations.gov
before midnight (Eastern Time) on the date specified in the DATES
section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If your written
comment includes your street address, phone number, or e-mail address,
you may request at the top of your document that we withhold this
information from public review. However, we cannot guarantee that we
will be able to do so. Comments and materials we receive, as well as
supporting documentation we used in preparing this proposed rule, will
be available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the Cabeza Prieta NWR or
the Arizona Ecological Services Office (see ADDRESSES and FOR FURTHER
INFORMATION CONTACT).
Public Hearing
Persons needing reasonable accommodations in order to attend and
participate in a public hearing should contact the Refuge Manager,
Cabeza Prieta NWR, at the address or phone number listed in the FOR
FURTHER INFORMATION CONTACT section as soon as possible. In order to
allow sufficient time to process requests, please call no later than
one week before the hearing. Information regarding this proposal is
available in alternative formats upon request.
Background
Regulatory
We listed the Sonoran pronghorn subspecies (Antilocapra americana
sonoriensis) as endangered throughout its range on March 11, 1967 (32
FR 4001), under the Endangered Species Preservation Act of October 15,
1966, without critical habitat. This subspecies was included as an
endangered species when the Act was signed into law in 1973. The Act
provides that species listed as endangered are afforded protection
primarily through the prohibitions of section 9 and the requirements of
section 7. Section 9 of the Act, among other things, prohibits the take
of endangered wildlife. ``Take'' is defined by the Act as harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt
to engage in any such conduct. 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 that all Federal agencies use their
existing authorities to further the purposes of the Act by carrying out
programs for the conservation of listed species. It also states that
Federal agencies 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
[[Page 5734]]
affect activities undertaken on private land unless they are
authorized, funded, or carried out by a Federal agency.
Under section 10(j) of the Act, the Secretary of the Department of
the Interior can designate reestablished populations outside the
species' current range as ``experimental.'' With the experimental
population designation, the relevant population is treated as
threatened for purposes of section 9 of the Act, regardless of the
species' designation elsewhere in its range. Threatened designation
allows us discretion in devising management programs and special
regulations for such a population. Section 4(d) of the Act allows us to
adopt whatever regulations are necessary and advisable to provide for
the conservation of a threatened species. In these situations, the
general regulations that extend most section 9 prohibitions to
threatened species do not apply to that species, and the 10(j) rule
contains the prohibitions and exemptions necessary and appropriate to
conserve that species.
Based on the best scientific and commercial data available, we must
determine whether the experimental population is essential or
nonessential to the continued existence of the species. The regulations
(50 CFR 17.80(b)) state that an experimental population is considered
essential if its loss would be likely to appreciably reduce the
likelihood of survival of that species in the wild. All other
populations are considered nonessential. We have determined that this
experimental population would not be essential to the continued
existence of the species in the wild (see Status of Proposed Population
section below). Therefore, the Service is proposing to designate a
nonessential experimental population (NEP) for the species in this
area.
For the purposes of section 7 of the Act, we treat an NEP as a
threatened species when the NEP is located within a National Wildlife
Refuge or unit of the National Park Service, 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 carry out programs for the conservation of listed species. Section
7(a)(2) requires that Federal agencies, in consultation with the
Service, ensure that any action authorized, funded, or carried out is
not likely to jeopardize the continued existence of a listed species or
adversely modify its critical habitat. When NEPs are located outside a
National Wildlife Refuge or National Park Service unit, then for the
purposes of section 7, we treat the population as proposed for listing
and only two provisions of section 7 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 in the form of conservation
recommendations that are optional as the agencies carry out, fund, or
authorize activities. Because the NEP is, by definition, not essential
to the continued existence of the species, then the effects of proposed
actions affecting the NEP will generally not rise to the level of
jeopardizing the continued existence of the species. Section
10(j)(2)(c)(ii) precludes the designation of critical habitat for non-
essential populations. As a result, a formal conference will likely
never be required for Sonoran pronghorn established within the NEP
area. Nonetheless, some agencies (e.g., Bureau of Land Management
(BLM)) voluntarily confer with the Service on actions that may affect a
proposed species. Activities that are not carried out, funded, or
authorized by Federal agencies are not subject to provisions or
requirements in section 7.
Sonoran pronghorn used to establish an experimental population
would come from a captive-rearing pen on Cabeza Prieta NWR, provided
appropriate permits are issued in accordance with our regulations (50
CFR 17.22) prior to their removal. The donor population is a captive-
bred population derived primarily from wild stock at Cabeza Prieta NWR
and from a wild Sonoran pronghorn population in northwestern Sonora,
Mexico. The purpose of the captive population is to provide stock for
augmenting existing U.S. and Mexican populations of Sonoran pronghorn,
as well as supplying founder animals for establishment of an additional
U.S. herd(s), in accordance with recovery actions 2.1-2.4 of the
Sonoran Pronghorn Recovery Plan (USFWS 2002). The proposed population
establishment would involve two phases: (1) Construction and operation
of a captive-breeding pen at Kofa NWR, with subsequent releases to
establish a second herd; and (2) relocation of excess Sonoran pronghorn
from the existing breeding pen at Cabeza Prieta NWR to the eastern
portion of the BMGR-E, east of Highway 85 and south of Interstate 8,
with the intent of establishing a separate herd in that area, as well.
We have not designated critical habitat for the Sonoran pronghorn.
Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall
not be designated for any experimental population that is determined to
be nonessential. Accordingly, we cannot designate critical habitat in
areas where we establish an NEP.
Biological
The Sonoran subspecies of pronghorn (Antilocapra americana
sonoriensis) was first described by Goldman (1945) and is small in
terms of cranial measurements compared to other subspecies of pronghorn
(Nowak and Paradiso 1983, p. 857). Historically, the Sonoran pronghorn
ranged in the United States from approximately the Santa Cruz River,
Arizona, in the east, to the Gila Bend and Kofa Mountains, Arizona, to
the north, and to Imperial Valley, California, to the west. In
northwestern Sonora, Mexico, the subspecies is thought to have occurred
historically as far south as Bahia Kino and east to Santa Ana and
Nogales. In Baja California, Mexico, the subspecies occurred in the
northeast from the U.S. Border south to the vicinity of Punta Estrella
(Phelps and Webb 1981, pp. 20-21; Service 2002, Fig. 2). Currently,
three populations of the Sonoran pronghorn are extant: (1) A U.S.
population in southwestern Arizona, south of Interstate 8, west of
Highway 85, and east of the Copper and Cabeza Prieta mountains (76 wild
pronghorn), (2) a population in the El Pinacate Region of northwestern
Sonora (50 pronghorn), and (3) a population south and east of Mexico
Highway 8 and west and north of Caborca, Sonora (354 pronghorn). The
three populations are geographically isolated due to barriers such as
roads and fences (Service 2002, pp. 4-10, Fig. 1). The `current range'
as used at 10(j)(2)(A)--``The Secretary may authorize the release (and
the related transportation) of any population (including eggs,
propagules, or individuals) of an endangered species or a threatened
species outside the current range of such species * * *'' is defined by
the boundaries described in part (1). Consistent with years of survey
data, we are confident that no Sonoran pronghorn population occurs
outside of the current range as defined in part (1) (Phelps 1981, pp.
23-24; Service 2002, pp. 16 and 47).
Threats to the Sonoran pronghorn include (1) highways, fences,
railroads, developed areas, and irrigation canals that block access to
essential forage or water resources; (2) a variety of human
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activities that disturb pronghorn or degrade habitat, including
livestock grazing in the United States and Mexico; military activities;
recreation; poaching and hunting; clearing of desert scrub and planting
of buffelgrass (Pennisetum ciliare) in Sonora; gold mining southeast of
Sonoyta, Sonora; dewatering and development along the Gila River and
R[iacute]o Sonoyta; and high levels of undocumented immigration and
drug trafficking across the international border and associated law
enforcement response; (3) wildfire fueled by nonnative perennial and
ephemeral plants that have increased fine fuels and allowed fire to
become a much more frequent event in the Sonoran Desert; (4) drought
and associated limited food and water; and (5) small population size
and random changes in demographics. Populations at low levels may
experience random variations in sex ratios, age distributions, and
birth and death rates among individuals, which can cause fluctuations
in population size and possibly extinction (Service 2002, pp. 14-35;
Roughgarden 1998, pp. 84-86). In very sparse populations, males may
have trouble finding females, reducing productivity (Brewer 1988, p.
138). In 2002, a severe drought was the primary cause in a major die
off of Sonoran pronghorn. The U.S. population declined in 2002 by 83
percent to 21 animals (Bright and Hervert 2005, p. 46). The Mexican
populations declined at the same time, but not to the same degree. The
population southeast of Highway 8 declined by 18 percent, while the El
Pinacate population declined by 26 percent. The differences between the
rates of decline north and south of the border may be due to high
levels of human disturbance on the U.S. side due primarily to
heightened levels of illegal immigration, smuggling, and law
enforcement response (Service 2008, p. 55).
Recovery Efforts
Restoring an endangered or threatened species to the point where it
is recovered is a primary goal of our endangered species program. Thus,
in 1982 we published the Sonoran Pronghorn Recovery Plan (Plan)
(Service 1982), which was produced by a Recovery Team comprised of
representatives from the Arizona Game and Fish Department (AGFD),
Cabeza Prieta NWR, BLM, Organ Pipe Cactus National Monument (OPCNM),
Commission of Ecology and Sustainable Development for the State of
Sonora (CEDES), and National Commission for Protected Natural Areas
(CONANP). The Plan was subsequently revised in 1994, 1998, and 2002.
Major recovery actions include: (1) Enhance present populations of
Sonoran pronghorn by providing supplemental forage and/or water, (2)
determine habitat needs and protect present range; (3) investigate and
address potential barriers to expansion of presently used range, and
investigate, evaluate, and prioritize present and potential future
reintroduction sites within the historical range; (4) establish and
monitor a new, separate herd(s) to guard against catastrophes
decimating the core population; (5) continue monitoring populations and
maintain a protocol for a repeatable and comparable survey technique;
and (6) examine additional specimen evidence to assist in verification
of taxonomic status (Service 1998, pp. iii-iv). The 2002 Supplement did
not include delisting criteria; however, eight short-term recovery
actions were identified as necessary to downlist the species to
threatened. The supplement goes on to say that accomplishing these
actions would provide the information necessary to determine delisting
criteria. One of the short-term recovery actions was ``evaluating
potential transplant locations, establishing methodology and protocols,
developing interagency agreements (including with Mexico as required),
acquiring funding, and initiating reestablishment projects'' (Service
2002, p. 38).
After the catastrophic die off of Sonoran pronghorn in 2002, the
Service and its partners embarked on a number of aggressive recovery
actions to ensure the species' continued existence and to begin to
rebuild populations. The cornerstone of these actions was a semi-
captive breeding facility, constructed in Childs Valley, Cabeza Prieta
NWR, in 2003, and stocked with wild Sonoran pronghorn in 2004. As of
March 2009, 63 Sonoran pronghorn reside in the pen. Limited releases
from the pen to the U.S. herd occurred in 2007 and 2008; however, the
objective is to produce 10 to 25 fawns each year for release to the
current U.S. population, to newly established population(s) in the
United States, and to augment Mexican populations. This target number
of fawn production will likely be met in 2009. A number of other
projects are underway to increase availability of green forage and
water during dry periods and seasons, offsetting to some extent the
effects of drought and barriers that prevent Sonoran pronghorn from
accessing greenbelts and water, such as the Gila River and R[iacute]o
Sonoyta. Nine emergency water sources (six on Cabeza Prieta NWR, one on
OPCNM, and two on BMGR-West) have been constructed in recent years
throughout the range of the U.S. population. Four forage enhancement
plots, each consisting of a well, pump, pipelines, and irrigation
lines, have been developed to irrigate the desert and produce forage
for pronghorn. Another plot is nearing completion, and two additional
plots will be installed over the next 5 years. These crucial projects,
intended to pull the U.S. population back from the brink of extinction,
have been cooperative efforts among the Service, AGFD, Marine Corps Air
Station--Yuma, Luke Air Force Base, BLM, and OPCNM, with volunteer
efforts from the Arizona Desert Bighorn Sheep Society, Arizona Antelope
Foundation, and the Yuma Rod and Gun Club.
The U.S. wild population of Sonoran pronghorn has rebounded from 21
in 2002 to 76 in 2008; this increase has been facilitated by the
collaborative recovery efforts for this species. However, at 76 animals
currently, the U.S. population is far from being secure. We have begun
to work with our Mexican partners on recovery of the Sonoran pronghorn
in Sonora; although the number of pronghorn in Sonora (404 animals) is
significantly greater than in the United States, the safety net of
waters and forage plots are not in place there, and a severe drought
could decimate those populations.
Reestablishment Areas
O'Brien et al. (2005) used landscape-level classification and
regression tree and logistic regression models to assess potential
Sonoran pronghorn habitat in southwestern Arizona, including current
and historical range, as a means of beginning the process of
identifying potential locations for establishing a second U.S. Sonoran
pronghorn herd. Both models identified greater than 4,632 square miles
(sq mi) (greater than 12,000 square kilometers (sq km)) of potential
habitat (O'Brien et al. 2005, pp. 28-30). The largest blocks of
potential habitat outside of the current range, which were identified
by both models, were the Ranegras and Harquahala plains, King Valley at
Kofa NWR north of Interstate 8; Sentinel Plain and other areas to the
west between Interstate 8 and the Gila River; and areas not currently
occupied south of Interstate 8 and immediately west of Highway 85. The
models also identified a large habitat block east of Highway 85 and
south of Interstate 8 as potential habitat. The authors did not
evaluate potential habitats in the far eastern portions of the
historical range of the pronghorn in Arizona (O'Brien et al. 2005,
Figs. 3 and 4). O'Brien et al. (2005, p. 32) further explained that
their
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models were an initial step towards identifying and evaluating
potential translocation sites. They recommended soliciting public
input, reviewing predator presence and density, fencing, and the
presence of preferred forage and water as additional steps in the
evaluation process (O'Brien et al. 2005, p. 32).
An Interdisciplinary Team (IDT), comprised of members of the
Sonoran Pronghorn Recovery Team, as well as representatives from land
management agencies located in southwestern Arizona, was convened in
2008 to address these and other issues and considerations, and to
recommend specific areas for establishing an additional U.S. herd or
herds. Development of alternatives for population establishment
entailed consideration of three key variables: (1) Geographical areas
for establishing populations outside of the current range; (2)
potential establishment techniques; and (3) legal status of established
populations under the Act. Each of these three key variables had a
range of options. The IDT evaluated the three key variables to arrive
at the most effective combinations of geographical areas, establishment
techniques, and legal status options. The IDT conducted a mapping
exercise, to identify areas within the historical range of Sonoran
pronghorn in the United States that were under Federal or State
ownership and that contained suitable habitat for the species. The
result of this exercise was identification of seven potential
reestablishment areas, designated Areas A through G. The seven areas
were then ranked by the IDT, using seven selection criteria, to
determine the best areas for translocation. Area A (King Valley at Kofa
NWR, and adjacent portions of primarily Yuma Proving Grounds and BLM
lands) and Area D (primarily portions of the BMGR-E, BLM lands, and a
portion of the Tohono O'odham Nation, all east of Highway 85) were
ranked 1 and 2, respectively. Public scoping for the Sonoran pronghorn
population establishment project included three open houses held on
successive evenings at Yuma, Tucson, and Phoenix, AZ, and was conducted
in November 2008. After consideration of public input, two alternatives
were carried forward in the National Environmental Policy Act (NEPA)
(42 U.S.C. 4321 et seq.) process, including establishment of Sonoran
pronghorn in Areas A and D, which is what we are proposing in this
document. Specific population establishment techniques are described
for both areas (see Release Procedures, below), and we propose to
establish Sonoran pronghorn as a nonessential experimental population
in these areas under section 10(j) of the Act.
The NEP encompasses Areas A and D, as well as all areas into which
Sonoran pronghorn are likely to disperse. The NEP is defined as
follows: In Arizona, an area north of Interstate 8 and south of
Interstate 10, bounded by the Colorado River on the west and Interstate
10 on the east; and an area south of Interstate 8, bounded by Highway
85 on the west, Interstates 10 and 19 on the east, and the United
States-Mexico border on the south.
Section 10(j) of the Act requires that an experimental population
be wholly separate geographically from other wild populations of the
same species. The Colorado River; Interstates 8, 10, and 19; and
Highway 85, which form the boundaries of the NEP, are barriers to
movement. Interstate 8 separates Area A from the current U.S.
population, and Highway 85 forms a boundary between Area D and the
current U.S. population. We do not expect Sonoran pronghorn to cross
these barriers. Brown and Ockenfels (2007, pg. 29) found that high-
speed highways with right-of-way fences, such as these, were virtually
Sonoran pronghorn-proof due to stringent fencing and high volume
traffic and that interstate highways are nothing short of impassable
for the species. Only once has a pronghorn been known to cross
Interstate 8 (1973, Phelps 1981, p. 27) and only once has a pronghorn
been known to cross Highway 85 and its associated right-of-way fences
into BMGR-E (2008; Howard 2008, p. 1).
Nonetheless, in the unlikely event that a pronghorn moves outside
the NEP, the individual, lone pronghorn does not constitute a
population. The Department defines ``population'' as a potentially
self-sustaining group ``in common spatial arrangement,'' (50 CFR 17.3)
and thus determined a ``geographic separation'' is any area outside the
area in which a particular population sustains itself. See Wyoming Farm
Bureau Fed'n, 987 F. Supp. at 1373; 59 FR at 60256. These definitions
preclude the possibility of population overlap as a result of the
presence of individual dispersing pronghorn--by definition lone
dispersers do not constitute a population or even part of a population,
since they are not in ``common spatial arrangement'' sufficient to
interbreed with other members of a population. The evidence suggests
that the likelihood of a lone pronghorn crossing the NEP boundary is
very low, so it follows that the probability of that lone disperser
encountering another pronghorn of the opposite sex and reproducing is
even more remote.
The status, as endangered or a member of the NEP, of any dispersing
pronghorn that manages to cross Highway 85 or other barriers between
the NEP and the current range would be defined geographically. Any
Sonoran pronghorn within the NEP area would be considered a member of
the nonessential experimental population (including any dispersing
animals from within the current range that cross into the NEP area),
whereas any Sonoran pronghorn outside of the NEP would be fully
protected under the Act as an endangered species.
The geographical extent that we are proposing for NEP designation
is larger than needed, as only portions of this proposed NEP area
contain suitable habitat. Within the NEP, Sonoran pronghorn habitat is
limited to valleys. Mountainous areas, such as the Kofa, Castle Dome,
Palomas, and Gila Bend mountains, do not provide habitat for this
species; nor do developed areas within the valleys, such as
agricultural areas and towns and cities. However, the NEP area
represents what we believe to be the maximum geographical extent to
which Sonoran pronghorn could move if released in Areas A and D. Once
released into these areas, we expect the Sonoran pronghorn
population(s) to grow and expand into adjacent suitable habitats,
potentially moving to the boundaries of the NEP. However, mountainous
areas and developed agriculture and urban areas in the NEP would not be
occupied because these areas are not considered habitat for Sonoran
pronghorn. In the unlikely event that any of the released Sonoran
pronghorn, or their offspring, move across interstate highways or other
barriers (e.g., river or mountainous areas, developed agriculture
areas, or urban areas) to outside the designated NEP area (but not into
the area occupied by the wild population), then the Service would
evaluate the need, in the context of the 10(j) requirements, to amend
the 10(j) rule to enlarge the boundaries of the NEP area to include the
area of the expanded population. As discussed above, the likelihood of
pronghorn moving from the NEP area into the current range is very low.
Release Procedures
The IDT developed the methods of release of Sonoran pronghorn into
Areas A and D with the objective of maximizing the likelihood of
success in establishing herds, while minimizing the impact to the
source population (the animals in the captive breeding pen at Cabeza
Prieta NWR) and limiting
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mortality or injury to translocated Sonoran pronghorn to the maximum
extent possible. In King Valley, Kofa NWR (Area A), a rectangular-
shaped, 0.5 sq mi (1.29 sq km) captive-breeding pen would be
constructed, beginning in spring 2010. The pen would include water
sources and irrigated areas to enhance forage production, as well as
two observation towers from which the animals would be monitored. In
December 2010 and January 2011, 11 pronghorn (10 females and 1 male)
would be moved to the pen from the captive-rearing pen at Cabeza Prieta
NWR. These animals would be individually tranquilized using a dart gun
and moved one or two at a time by helicopter. Biennial rotation of the
breeding male and death of any Sonoran pronghorn in the breeding pen at
Kofa NWR would require additional flights to bring new animals from
Cabeza Prieta NWR. Methods perfected at Cabeza Prieta NWR will be
employed in these activities, which have been used successfully with
minimal mortality of pronghorn. Assuming successful captive-breeding at
the Kofa NWR pen, up to 20 Sonoran pronghorn would be released annually
into suitable habitats outside of but adjacent to the pen site at Kofa
NWR, beginning as early as the winter of 2012 or 2013 and recurring
each winter until 2020. Sonoran pronghorn in the pen, as well as
animals released, would be closely monitored to determine success or
need for adaptive management. Success criteria will be developed by the
recovery team prior to the release of any animals. Concurrently, if
excess animals are available from the captive breeding pen at Cabeza
Prieta NWR (not needed to augment existing herds or for the pen at Kofa
NWR), these animals would be captured from the pen, transported to a
holding pen in Area D, held temporarily, and then released as a group.
The holding pen in Area D is located in the Hat Mountain area (locally
known as BMGR-East ``Area B'') in Maricopa County, Arizona. Ideally,
the Sonoran pronghorn would be captured together and moved quickly to a
holding pen, allowed to recover for a brief period, and released
together. Released animals in Area D would be monitored via aircraft
and on-the-ground personnel to determine survival, reproduction, and
other measures of success. Release techniques will be revised as needed
to ensure success. You can find additional description of the release
procedures and monitoring protocols in the draft EA (find under docket
FWS-R2-2009-0077 at http://www.regulations.gov or contact CPNWR--see
contact information above--for copies of this document).
Status of Proposed Population
We have determined that these proposed populations are
nonessential. This determination has been made for the following
reasons:
(a) Wild populations of the Sonoran pronghorn, totaling about 470
animals, currently exist at: (1) Cabeza Prieta NWR, OPCNM, BMGR, and
adjacent BLM lands, (2) in the El Pinacate region of Sonora, and (3)
south and east of Highway 8 in Sonora.
(b) A captive-breeding pen at Cabeza Prieta NWR maintains a captive
population and provides stock to augment the wild populations in
Arizona and Sonora. The pen has been highly successful. First stocked
with pronghorn in 2004, the original group of 11 animals has grown to
71 as of this writing (October 2009), and another 21 pronghorn have
been released from the pen into the wild.
(c) The first priority for use of animals in the captive-breeding
pen at Cabeza Prieta NWR is to augment herds within the boundaries of
the current range of the species; hence, relocation of Sonoran
pronghorn from the captive breeding pen to Kofa NWR would not inhibit
the augmentation efforts for the herds within the boundaries of the
current range of the species. Sonoran pronghorn produced at the Cabeza
Prieta pen that are not needed to augment herds within the current
range or to populate the Kofa NWR pen would be used to establish a
population in Area D.
(d) The possible failure of this proposed action would not
appreciably reduce the likelihood of survival of the species in the
wild because (1) the first priority for use of pronghorn from the
captive-breeding pen at Cabeza Prieta NWR is to augment the wild herd,
and (2) recovery actions have been implemented in the United States to
ameliorate the effects of drought on the species (U.S. Fish and
Wildlife Service 2009, p. 9, 18-19).
(e) Through programs of work endorsed by the Canada/Mexico/U.S.
Trilateral Committee for Wildlife and Ecosystem Conservation and
Management, the U.S. Fish and Wildlife Service and AGFD coordinate with
Mexican partners on recovery of the Sonoran pronghorn in Mexico.
If this proposal is adopted, we would ensure, through our section
10 permitting authority and the section 7 consultation process, that
the use of Sonoran pronghorn from the donor population at Cabeza Prieta
NWR for releases in Areas A or D is not likely to jeopardize the
continued existence of the species in the wild. Establishment of
additional Sonoran pronghorn populations within the species' historical
range is a necessary step in recovery (Service 2002, p. 38).
The special rule that accompanies this 10(j) rule is designed to
broadly exempt from the section 9 take prohibitions any take of Sonoran
pronghorn that is incidental to otherwise lawful activities. We provide
this exemption because we believe that such incidental take of members
of the NEP associated with otherwise lawful activities is necessary and
advisable for the conservation of the species, as activities that
currently occur or are anticipated in the NEP area are generally
compatible with Sonoran pronghorn recovery. For example, in Area A,
there are vast expanses of open valleys without major barriers to
pronghorn movement that provide suitable habitat. These valleys include
King Valley at Kofa NWR, Palomas Plain, the southern end of the
Ranegras Plain, and portions of the Yuma Proving Grounds. The La Posa
Plain and Castle Dome Plain also provide habitat. Highway 95 runs
north-south through those plains, and although it may somewhat inhibit
movement to the west side of those plains, it is not a substantial
barrier because it lacks right-of-way fences. In Area D, there is
considerable habitat in the valleys among the Sauceda, Sand Tank,
Batamote, and other mountains in that region. There are existing
military activities at Yuma Proving Grounds in Area A and BMGR-E in
Area D, but pronghorn have coexisted with military activities for many
years at the BMGR (deVos 1989, pp. 15-16; Krausman et al. 2001, pp. 2,
80-90; Krausman et al. 2005, pp. 20-22); as a result, we believe they
would persist with the similar activities conducted at Yuma Proving
Grounds and in Area D. Although some forms of military activities could
potentially result in incidental death or injury of individual
pronghorn, no incidental take has ever been documented due to military
activities. There would be some likelihood of Sonoran pronghorn
drownings in canals in Area A. Canals are present in agricultural areas
on the southern, eastern, and northeastern portions of Area A; Sonoran
pronghorn are known to drown in such canals (Rautenstrauch and
Krauseman 1986, p. 9). However, the major canal on the southern border
of Area A, the Wellton-Mohawk Canal, is equipped with ramps and steps
designed to prevent ungulate drownings, and a series of wildlife waters
exist to the north of the canal as
[[Page 5738]]
alternative water sources. Most of the canals elsewhere in Area A are
too small to result in Sonoran pronghorn entrapment. Other activities,
such as recreational hunting and camping, vehicle use, livestock
grazing, and small-scale rural or agricultural development, are
anticipated to either have minimal effects on Sonoran pronghorn or
would be limited in extent (e.g., rural and agricultural development).
Under section 7(a)(1) of the Act, all Federal agencies are mandated
to use their authorities to conserve listed species. In addition, the
BLM has a written policy of conferring with the Service, under section
7(a)(4), on their actions that may affect proposed species. Some
activities would have greater potential to compromise the success of
the Sonoran pronghorn reestablishment than those described above. For
instance, construction of new highways or new canals in the NEP could
create barriers to movement and bisect important pronghorn habitats.
There is also the potential for BLM to permit large-scale solar power
plants, which would be constructed in the valleys and could eliminate
up to tens of thousands of acres of habitat. Other BLM-authorized
projects, such as agricultural leases, could also potentially remove
large blocks of habitat and perhaps compromise the success of this
project. The potential for these projects to impact the reestablishment
is probably greatest on BLM lands in the valleys to the east of Kofa
NWR. The Service may have the opportunity through the section 7(a)(4)
conferring process to work with the BLM to minimize the potential
adverse effects of solar plants, agricultural leases, highways, or
other projects that may compromise Sonoran pronghorn recovery.
Management
The lands within the NEP area are managed and listed in descending
order of acreage within areas A and D as follows: Area A--the Service
(Kofa NWR), Department of the Army (Yuma Proving Grounds), BLM, Arizona
State Lands Department, private landowners, and Colorado River Indian
Tribes; Area D: Tohono O'odham Nation, BLM, Department of the Air Force
(BMGR-E), private owners, and Arizona State Land Department. Outside of
Areas A and D, but within the NEP, land ownership is similar, but also
includes lands within the Gila River Indian Reservation, Ak-Chin Indian
Reservation, Pascua Yaqui Indian Reservation, San Xavier Reservation,
Buenos Aires NWR, Saguaro National Park, OPCNM, Tucson Mountain Park,
and Coronado National Forest. Due to the management flexibility
provided by the NEP designation and the special rule, we do not
anticipate that establishment of Sonoran pronghorn in Areas A or D and
subsequent dispersal of Sonoran pronghorn from the release sites will
affect management on Tribal, BLM, National Forest, Department of
Defense, State, or private lands. Through section 7 consultations on
NWR lands and National Park Service lands, some changes in management
may occur to reduce adverse effects to pronghorn, including minimizing
the likelihood of incidental take. However, we believe few changes
would be needed, because management of these lands already is broadly
compatible with Sonoran pronghorn recovery. Other Federal agencies that
propose actions on Kofa NWR or National Park Service lands would also
be required to consult with us under section 7, if such activities may
affect Sonoran pronghorn. For instance, some activities conducted by
Yuma Proving Grounds (e.g., overflights of Kofa NWR) would be subject
to the consultation requirements. Some Federal agencies, such as BLM,
that propose actions outside of Kofa NWR or National Park Service lands
may elect to work with the Service voluntarily through the section
7(a)(4) conferring process to ensure that adverse effects of their
actions on Sonoran pronghorn in the NEP area are minimized.
The Service (Cabeza Prieta NWR, Kofa NWR, and Ecological Services),
AGFD, OPCNM, Luke Air Force Base, BLM, and other partners, in close
coordination with the Sonoran Pronghorn Recovery Team, would plan and
manage the establishment of new populations of Sonoran pronghorn. This
group would closely coordinate on releases, monitoring, and
coordination with landowners and land managers, among other tasks
necessary to ensure successful population establishment. Management
issues related to the Sonoran pronghorn NEP that have been considered
include:
(a) Mortality: The regulations implementing the Act define
``incidental take'' as take that is incidental to, and not the purpose
of, the carrying out of an otherwise lawful activity (50 CFR 17.3),
such as agricultural activities and other rural development, ranching,
military training and testing, camping, hiking, hunting, vehicle use of
roads and highways, and other activities that are in accordance with
Federal, Tribal, State, and local laws and regulations. If this 10(j)
rule is finalized, incidental take of Sonoran pronghorn within the NEP
area would not be prohibited, provided that the take is unintentional,
not due to negligent conduct, and is in accordance with the special
rule that is a part of this 10(j) rule. However, if there is evidence
of intentional take of a Sonoran pronghorn within the NEP that is not
authorized by the special rule, we would refer the matter to the
appropriate law enforcement entities for investigation. We expect
levels of incidental take to be low because, as discussed in part (d)
of Status of Newly Established Population above, the establishment of
new populations is compatible with most existing human use activities
and practices for the area. In the current range of the pronghorn in
the U.S., no incidental take has been documented from military
activities, recreation, use of highways, and most other activities that
occur both in the current range and in the NEP; the exception being
canals, in which Sonoran pronghorn have drowned on several occasions.
More specific information regarding take can be found in the Proposed
Regulation Promulgation section of this proposed rule.
(b) Special handling: In accordance with 50 CFR 17.21(c)(3), any
employee or agent of the Service, any other Federal land management
agency, or State personnel, designated for such purposes, may in the
course of their official duties, handle Sonoran pronghorn to aid sick
or injured Sonoran pronghorn, or to salvage dead Sonoran pronghorn.
However, non-Service personnel and their agents would need to acquire
permits from the Service for these activities.
(c) Coordination with landowners and land managers: The Service and
cooperators have identified issues and concerns associated with the
proposed Sonoran pronghorn population establishment through the NEPA
scoping comment period. The proposed population establishment also has
been discussed with potentially affected State agencies, Tribes, and
private landowners. Affected State agencies, Tribes, landowners, and
land managers have either indicated support for, or no opposition to,
the proposed population establishment, provided a NEP is designated and
a special rule is promulgated to exempt incidental take and some forms
of intentional take for management purposes from the section 9 take
prohibitions. More specific information regarding take can be found in
the Proposed Regulation Promulgation section of this proposed rule.
(d) Monitoring: A monitoring and adaptive management plan for the
population establishment program
[[Page 5739]]
would be implemented by the Service, AGFD, and other partners to
determine if the program is successful. The monitoring will assess all
aspects of the population establishment program, from capture and
movement of the animals to the captive breeding pen (Area A) or holding
area (Area D), monitoring of the animals in these captive facilities,
and monitoring and tracking released Sonoran pronghorn in the release
areas, including Sonoran pronghorn waters and any forage enhancement
vegetation plots developed to support the established herds. Monitoring
of released Sonoran pronghorn will be conducted to determine the
following: (1) Mortality and recruitment rates, (2) causes of mortality
among adult and juvenile pronghorn, (3) reliance on free-standing water
sources, (4) movement corridors and barriers to movements, and (5)
habitat preferences. Each released animal will be fitted with an ear
tag and radio collar. A limited number of Sonoran pronghorn will be
fitted with Geographic Positioning System (GPS) platform telemetry
collars. It is expected the transmitters will function for 3 to 5
years. Telemetry flights with a fixed-wing aircraft will be conducted
twice a month. Each Sonoran pronghorn will be observed from an altitude
of 1,000 feet (ft) above ground level with the aid of binoculars. Group
size and composition (sex and age), habitat type, and terrain will be
recorded. Additional monitoring of individual pronghorn and herd
movements will be done from the ground, particularly from high points
where valley habitats of the pronghorn can be viewed. All monitoring
flights and on-the-ground surveillance will be closely coordinated with
and approved by the Tribal, military, and other land managers and
owners where such monitoring will occur. As Sonoran pronghorn become
established and breed in the establishment areas, the percentage of
animals tagged or radio-collared will decline over time, and additional
animals may need to be captured and radio collared to adequately
monitor the herds. Ideally, at least 10 percent of a population will be
equipped with radio collars. Monitoring data will be assessed regularly
by the Recovery Team, and methods will be revised as needed to increase
the likelihood of successful population establishment and to increase
efficiency. A comprehensive review, assessment, and report of the
reestablishment program by the Recovery Team will occur at a frequency
of no less than once every 5 years.
(e) Public awareness and cooperation: Public scoping for the
Sonoran pronghorn population establishment project was conducted in the
fall of 2008. Actions included an October 30, 2008, scoping letter sent
to approximately 6,000 names, a news release to local media sources,
and a series of three open houses held in the Arizona cities of Yuma,
Tucson, and Phoenix, during November 18-20, 2008. We accepted written
public scoping comments until December 12, 2008. We received 44 written
responses about the project. We discuss issues identified in the
responses in the EA. The IDT used these issues to refine the proposed
action and alternatives in the EA, and to identify mitigation measures
to avoid or reduce potential project effects. The IDT also used the
public concerns to determine which resources would be the greatest
focus of the EA analysis.
Peer Review
In accordance with our policy on peer review, published on July 1,
1994 (59 FR 34270), we will provide copies of this proposed rule to
three or more appropriate and independent specialists in order to
solicit comments on the scientific data and assumptions relating to the
supportive biological and ecological information for this proposed NEP
designation. The purpose of such review is to ensure that the proposed
NEP designation is based on the best scientific information available.
We will invite these peer reviewers to comment during the public
comment period and will consider their comments and information on this
proposed rule during preparation of a final determination.
Required Determinations
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
proposed rule is not significant and has not reviewed this proposed
rule under Executive Order 12866 (E.O. 12866). OMB bases its
determination upon the following four criteria:
(a) Whether the proposed rule will have an annual effect of $100
million or more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the proposed rule will create inconsistencies with
other Federal agencies' actions.
(c) Whether the proposed rule will materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients.
(d) Whether the proposed rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq., whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. 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. We are certifying that this rule will not have a significant
economic effect on a substantial number of small entities. The
following discussion explains our rationale.
The area that would be affected if this proposed rule is adopted
includes the release areas at Kofa NWR and BMGR-E and adjacent areas
into which pronghorn may disperse, which over time could include
significant portions of the NEP, where valley habitats for the
pronghorn occur. Mountainous areas and developed agriculture and urban
areas in the NEP would not be occupied because these areas are not
considered habitat for Sonoran pronghorn. Because of the regulatory
flexibility for Federal agency actions provided by the NEP designation
and the exemption for incidental take in the special rule, we do not
expect this rule to have significant effects on any activities within
Tribal, Department of Defense, BLM, National Wildlife Refuge, National
Park Service, State, or private lands within the NEP. On National
Wildlife Refuges and units of the National Park System within the NEP,
Federal action agencies would be required to consult with us, under
section 7(a)(2) of the Act, on any of their activities that may affect
the Sonoran pronghorn. However, because current management of these
areas is consistent with the needs of the pronghorn (see part (d) of
Status of Proposed Population above), we do not anticipate that
consultation would significantly change proposed Federal actions on
those lands. In portions of
[[Page 5740]]
the NEP outside of National Wildlife Refuge and National Park Service
lands, in regard to section 7(a)(2), the population is treated as
proposed for listing and Federal action agencies are not required to
consult on their activities. Section 7(a)(4) requires Federal agencies
to confer (rather than consult) with the Service on actions that are
likely to jeopardize the continued existence of a proposed species. But
because the NEP is, by definition, not essential to the survival of the
species, conferring will likely never be required for the Sonoran
pronghorn populations within the NEP area. Furthermore, the results of
a conference are advisory in nature and do not restrict agencies from
carrying out, funding, or authorizing activities. Nonetheless, some
agencies, such as BLM, voluntarily confer with us on actions that may
affect proposed species. In addition, section 7(a)(1) requires Federal
agencies to use their authorities to carry out programs to further the
conservation of listed species, which would apply on any lands within
the NEP area. As a result, and in accordance with these regulations,
some modifications to proposed Federal actions within the NEP area may
occur to benefit the Sonoran pronghorn, but we do not expect projects
to be halted or substantially modified as a result of these
regulations.
If adopted, this proposal would broadly authorize incidental take
of Sonoran pronghorn within the NEP area. The regulations implementing
the Act define ``incidental take'' as take that is incidental to, and
not the purpose of, the carrying out of an otherwise lawful activity
such as, agricultural activities and other rural development, ranching,
military training and testing, camping, hiking, hunting, vehicle use of
roads and highways, and other activities in the NEP area that are in
accordance with Federal, Tribal, State, and local laws and regulations.
Intentional take for purposes other than authorized data collection or
recovery purposes would not be permitted. Intentional take for research
or recovery purposes would require a section 10(a)(1)(A) recovery
permit under the Act.
The principal activities on private property near the NEP area are
agriculture, ranching, rural development, and recreation. We believe
the presence of the Sonoran pronghorn would not affect the use of lands
for these purposes because there would be no new or additional economic
or regulatory restrictions imposed upon States, non-federal entities,
or members of the public due to the presence of the Sonoran pronghorn,
and Federal agencies would only have to comply with sections 7(a)(2)
and 7(a)(4) of the Act in these areas. Therefore, this rulemaking is
not expected to have any significant adverse impacts to activities on
private lands within the NEP area.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) If adopted, this proposal will not ``significantly or
uniquely'' affect small governments. We have determined and certify
under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that
this proposed rulemaking will not impose a cost of $100 million or more
in any given year on local or State governments or private entities. A
Small Government Agency Plan is not required. As explained above, small
governments would not be affected because the proposed NEP designation
will not place additional requirements on any city, county, or other
local municipalities.
(b) This rule will not produce a Federal mandate of $100 million or
greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act). This proposed NEP
designation for the Sonoran pronghorn would not impose any additional
management or protection requirements on the States or other entities.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the proposed rule does
not have significant takings implications. When populations of
federally listed species are designated as NEPs, the Act's regulatory
requirements regarding those populations are significantly reduced.
Section 10(j) of the Act can provide regulatory relief with regard to
the taking of reestablished species within an NEP area. For example,
this proposed rule would not prohibit the taking of Sonoran pronghorn
in the NEP area outside of National Wildlife Refuge and National Park
Service lands when such take is incidental to an otherwise legal
activity, such as agricultural activities and other rural development,
ranching, military training and testing, camping, hiking, hunting,
vehicle use of roads and highways, and other activities that are in
accordance with Federal, State, Tribal and local laws and regulations.
A takings implication assessment is not required because this rule
(1) will not effectively compel a property owner to suffer a physical
invasion of property and (2) will not deny all economically beneficial
or productive use of the land or aquatic resources. This rule would
substantially advance a legitimate government interest (conservation
and recovery of a listed species) and would not present a barrier to
all reasonable and expected beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this proposed rule has significant Federalism effects and have
determined that a Federalism assessment is not required. This rule
would not have substantial direct effects on the States, on the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. In keeping with Department of the Interior policy, we
requested information from and coordinated development of this proposed
rule with the affected resource agencies in Arizona. Achieving the
recovery goals for this species would contribute to its eventual
delisting and its return to State management. No intrusion on State
policy or administration is expected; roles or responsibilities of
Federal or State governments would not change; and fiscal capacity
would not be substantially directly affected. The special rule operates
to maintain the existing relationship between the State and the Federal
government and is being undertaken in coordination with the State of
Arizona. Therefore, this rule does not have significant Federalism
effects or implications to warrant the preparation of a Federalism
Assessment under the provisions of Executive Order 13132.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule would not unduly burden the
judicial system and would meet the requirements of sections (3)(a) and
(3)(b)(2) of the Order.
Paperwork Reduction Act
Office of Management and Budget (OMB) regulations at 5 CFR 1320,
which implement provisions of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.), require that Federal agencies obtain approval from OMB
before collecting information from the public. This proposed rule does
not contain any new information collections that require approval. OMB
has approved our collection of information associated with reporting
the taking of experimental populations (50 CFR
[[Page 5741]]
17.84(p)(6)) and assigned control number 1018-0095. We may not collect
or sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act
We have prepared a draft EA as defined under the authority of the
National Environmental Policy Act of 1969. It is available from the
Cabeza Prieta NWR (see for further information contact section), http:/
/www.regulations.gov, and from our Web site at http://www.fws.gov/
southwest/es/Library/.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior Manual Chapter 512 DM 2, we have consulted with 21
Tribal Nations whose lands or interests might be affected by this rule.
The Tohono O'odham Nation participated in scoping meetings and provided
comments on draft documents and proposals. The Ak-Chin Indian Community
also provided written comments. The only substantial comments from
Tribes were related to cultural resource surveys at the specific sites
where pens will be constructed, which we will do.
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 Statements of
Energy Effects when undertaking certain actions. This rule is not
expected to significantly affect energy supplies, distribution, and
use. Because this action is not a significant energy action, no
Statement of Energy Effects is required.
Clarity of This Regulation (E.O. 12866)
We are required by E.O. 12866, E.O. 12988, and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comment should be as specific as
possible. For example, you should tell us the numbers of the sections
are paragraphs that are unclearly written, which sections for sentences
are too long, the sections where you feel lists and tables would be
useful, etc.
References Cited
A complete list of all references cited in this proposed rule is
available upon request from the Cabeza Prieta NWR (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are staff members of
Cabeza Prieta NWR and the Service's Arizona Ecological Services Office
(see addresses and FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[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. Amend Sec. 17.11(h) by revising the entry for ``Pronghorn,
Sonoran'' under ``MAMMALS'' in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Pronghorn, Sonoran............... Antilocapra U.S.A. (AZ), Entire, except E 543 N/A NA
americana Mexico.. where listed as an
sonoriensis. experimental
population.
[[Page 5742]]
Pronghorn, Sonoran............... Antilocapra U.S.A. (AZ), In Arizona, an area XN ........... NA 17.84(v)
americana Mexico.. north of
sonoriensis. Interstate 8 and
south of
Interstate 10,
bounded by the
Colorado River on
the west and
Interstate 10 on
the east; and an
area south of
Interstate 8,
bounded by Highway
85 on the west,
Interstates 10 and
19 on the east,
and the U.S.-
Mexico border on
the south.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.84 by adding paragraph (v) to read as follows:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(v) Sonoran pronghorn (Antilocapra americana sonoriensis).
(1) The Sonoran pronghorn (Antilocapra americana sonoriensis)
(pronghorn) population identified in paragraph (v)(12) of this section
is a nonessential experimental population (NEP).
(2) No person may take this species, except as provided in
paragraphs (v)(3) through (6) of this section.
(3) Any person with a valid permit issued by the U.S. Fish and
Wildlife Service (Service) under Sec. 17.32 may take pronghorn within
the NEP area for scientific purposes, the enhancement of propagation or
survival of the species, and other conservation purposes consistent
with the Endangered Species Act (Act).
(4) A pronghorn may be taken within the boundaries of Yuma Proving
Grounds; Barry M. Goldwater Range; lands of the Arizona State Land
Department; Bureau of Land Management lands; privately owned lands; and
lands of the Tohono O'odham Nation, Colorado River Indian Tribes, Gila
River Indian Reservation, Ak-Chin Indian Reservation, Pascua Yaqui
Indian Reservation, and San Xavier Reservation within the NEP area,
provided that such take is incidental to, and not the purpose of, the
carrying out of any otherwise lawful activity; and provided that such
taking is reported as soon as possible in accordance with paragraph
(v)(6) of this section. Otherwise lawful activities are any activities
in compliance with land management regulations, hunting regulations,
Tribal law, and all other applicable law and regulations, and include,
but are not limited to, military training and testing, agriculture,
rural and urban development, livestock grazing, camping, hiking,
hunting, recreational vehicle use, sightseeing, nature or scientific
study, rockhounding, and geocaching, where such activities are
permitted.
(5) Pursuant to a Memorandum of Understanding (MOU) among the
Service, Arizona Game and Fish Department, and the Tribes listed in
paragraph (v)(4) of this section, any employee or agent of the parties
to the MOU who is designated for such purpose may, when acting in the
course of official duties, take a Sonoran pronghorn if such action is
necessary to:
(i) Aid a sick, injured, or orphaned Sonoran pronghorn, including
rescuing such animals from canals;
(ii) Dispose of a dead Sonoran pronghorn specimen, or salvage a
dead specimen that may be useful for scientific study;
(iii) Move a Sonoran pronghorn for genetic purposes or to improve
the health of the population; or
(iv) Capture and release a Sonoran pronghorn for relocation, to
collect biological data, or to attach, service, or detach radio-
telemetry equipment.
(6) Any taking pursuant to paragraphs (v)(3) through (5) of this
section must be reported as soon as possible by calling the U.S. Fish
and Wildlife Service, Arizona Ecological Services Office, 201 N Bonita
Avenue, Suite 141, Tucson, AZ 85745 (520/670-6150), or the Cabeza
Prieta National Wildlife Refuge, 1611 North Second Avenue, Ajo, AZ
85321 (520/387-6483). Upon contact, a determination will be made as to
the disposition of any live or dead specimens.
(7) No person may possess, sell, deliver, carry, transport, ship,
import, or export by any means whatsoever, any Sonoran pronghorn or
Sonoran pronghorn parts taken in violation of these regulations.
(8) It is unlawful for any person to attempt to commit, solicit
another to commit, or cause to be committed, any offense defined in
paragraphs (v)(2) and (7) of this section.
(9)(i) The boundaries of the designated NEP area are based on the
maximum estimated range of pronghorn that are released in and become
established within the NEP area. These boundaries are physical barriers
to movements, including major freeways and highways, and the Colorado
River. All release sites will be within the NEP area.
(ii) All pronghorn found in the wild within the boundaries of the
NEP area after the first releases will be considered members of the
NEP. Any pronghorn occurring outside of the NEP area are considered
endangered under the Act.
(iii) The Service has designated the NEP area to accommodate the
potential future movements of a wild pronghorn. All released pronghorn
and their progeny are expected to remain in the NEP area due to the
geographical extent of the designation and substantial barriers to
movement that form the boundaries of the NEP.
(10) The NEP will be monitored closely for the duration of the
program. Any pronghorn that is determined to be sick, injured, or
otherwise in need of special care will be recaptured to the extent
possible by Service and/or State
[[Page 5743]]
or Tribal wildlife personnel or their designated agent and given
appropriate care. Such pronghorn will be released back to the wild as
soon as possible, unless physical or behavioral problems make it
necessary to return them to a captive-breeding facility.
(11) The Service plans to evaluate the status of the NEP every 5
years to determine future management status and needs, with the first
evaluation occurring not more than 5 years after the first release of
pronghorn into the NEP area. All reviews will take into account the
reproductive success and movement patterns of individuals released,
food habits, and overall health of the population. This evaluation will
include a progress report.
(12) The areas covered by this proposed nonessential experimental
population designation are in Arizona. They include the area north of
Interstate 8 and south of Interstate 10, bounded by the Colorado River
on the west and Interstate 10 on the east, and an area south of
Interstate 8, bounded by Highway 85 on the west, Interstates 10 and 19
on the east, and the U.S.-Mexico border on the south.
(13) Note: Map of the proposed NEP area for the Sonoran pronghorn
in southwestern Arizona follows.
BILLING CODE 4310-55-P
[[Page 5744]]
[GRAPHIC] [TIFF OMITTED] TP04FE10.000
[[Page 5745]]
* * * * *
Dated: January 20, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-2230 Filed 2-3-10; 8:45 am]
BILLING CODE 4310-55-C