[Federal Register: July 26, 2006 (Volume 71, Number 143)]
[Rules and Regulations]               
[Page 42298-42315]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI80

Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of Northern Aplomado Falcons in 
New Mexico and Arizona

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), plan to 
reintroduce northern aplomado falcons (Falco femoralis septentrionalis) 
(falcon) into their historical habitat in southern New Mexico for the 
purpose of establishing a viable resident population in New Mexico and 
Arizona. The falcon is being re-established under section 10(j) of the 
Endangered Species Act of 1973, as amended (Act), and would be 
classified as a nonessential experimental population (NEP). The 
geographic boundary of the NEP includes all of New Mexico and Arizona.
    This action is part of a series of reintroductions and other 
recovery actions that the Service, Federal and State agencies, and 
other partners are conducting throughout the species'' historical 
range. This final rule provides a plan for establishing the NEP and 
provides for limited allowable legal taking of the northern aplomado 
falcon within the defined NEP area. Birds can only be released when 
they are a few weeks old, and this condition only occurs in the spring 
and summer of each year. In order to accomplish a release in 2006, we 
must expedite on-the-ground implementation.

DATES: The effective date of this rule is July 26, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule, are available for 
public inspection, by appointment, during normal business hours at the 
New Mexico Ecological Services Field Office, 2105 Osuna Road, NE., 
Albuquerque, New Mexico 87113.
    You may obtain copies of the final rule, environmental analysis, 
and monitoring plan from the field office address above, by calling 
(505) 346-2525, or from our Web site at http://www.fws.gov/ifw2es/NewMexico/

Supervisor, New Mexico Ecological Services Field Office at the above 
address (telephone 505-346-2525, facsimile 505-346-2542).



    Background information that was previously provided in our February 
9, 2005, proposed rule (70 FR 6819) has been condensed in this rule.


    The northern aplomado falcon (hereafter referred to as falcon) is 
one of three subspecies of the aplomado falcon and the only subspecies 
recorded in the United States. This subspecies was listed as an 
endangered species on February 25, 1986 (51 FR 6686). The falcon is 
classified in the Order Falconiformes, Family Falconidae. Historically, 
falcons occurred throughout coastal prairie habitat along the southern 
Gulf coast of Texas, and in savanna and grassland habitat along both 
sides of the Texas-Mexico border, southern New Mexico, and southeastern 
Arizona. Falcons were also present in the Mexican States of Tamualipas, 
Veracruz, Chiapas, Campeche, Tabasco, Chihuahua, Coahuila, Sinaloa, 
Jalisco, Guerrero, Yucatan, and San Luis Potosi, and on the Pacific 
coast of Guatemala and El Salvador (Keddy-Hector 2000). Falcons were 
fairly common in suitable habitat throughout these areas until the 
1940s, but subsequently declined rapidly. From 1940 to the present in 
Arizona (Corman 1992), and from 1952 to 2000 in New Mexico (Meyer and 
Williams 2005), there were no documented nesting attempts by wild 
falcons. In 2001 and 2002, one pair of falcons nested in Luna County, 
New Mexico. This pair was unsuccessful in producing fledglings in 2001, 
but produced three fledglings in 2002. To date, the 2002 nest has been 
the only known successful falcon nest in either Arizona or New Mexico 
since 1952.
    The causes for decline of this subspecies have included widespread 
shrub encroachment resulting from control of range fires and intense 
overgrazing (Service 1986; Burnham et al. 2002) and agricultural 
development in grassland habitats used by the falcon (Hector 1987; 
Keddy-Hector 2000). Pesticide exposure was likely a significant cause 
of the subspecies'' extirpation from the United States with the 
initiation of widespread DDT (dichloro-diphenyl-trichloroethane) use 
after World War II, which coincided with the falcon's disappearance (51 
FR 6686, February 25, 1986). Falcons in Mexico in the 1950s were 
heavily contaminated with DDT residue, and these levels caused a 25 
percent decrease in eggshell thickness (Kiff et al. 1980). Such high 
residue levels can often result in reproductive failure from egg 
breakage (Service 1990).
    Collecting falcons and eggs may have also been detrimental to the 
subspecies in some localities. However, populations of birds of prey 
are generally resilient to localized collection pressure (Service 
1990). Currently, long-term drought, shrub encroachment in areas of 
Chihuahuan grasslands, and the increased presence of the great-horned 
owl (Bubo virginianus), which preys upon the falcon, may be limiting 
recovery of this subspecies. On the other hand, falcons appear to be 
relatively tolerant of human presence. They have been observed to 
tolerate approach to within 100 meters (m) (328 feet (ft)) of their 
nests by researchers and have nested within 100 m (328 ft) of highways 
in eastern Mexico (Keddy-Hector 2000), and are frequently found nesting 
in association with well-managed livestock grazing operations in Mexico 
and Texas (Burnham et al. 2002). Burnham et al. (2002) concluded that 
falcons would be able to coexist with current land-use practices in New 
Mexico on the broad scale.
    Over the past decade, widespread formal surveys have been conducted 
in southern New Mexico habitats capable of supporting individual or 
breeding falcons (suitable habitat). Standardized falcon surveys have 
been conducted annually in suitable falcon habitats on White Sands 
Missile Range and Fort Bliss by the Department of Defense throughout 
the past decade (Burkett and Black 2003; Griffin 2005a; Locke 2005). 
White Sands Missile Range in central New Mexico contains one million 
hectares (ha) (2.5 million acres (ac)). The northwest corner (81,000 ha 
(200,000 ac)) is highly suitable yucca/grassland preferred by falcons. 
There is presently no livestock grazing and no public access to this 
area. The 145,139-ha (358,643-ac) Armendaris Ranch, located in south 
central New Mexico, contains undeveloped Chihuauhuan desert grassland 
managed by Turner Properties in cooperation with the Turner Endangered 
Species Fund. Armendaris Ranch managers have volunteered to provide 

[[Page 42299]]

reintroduction sites, and the Armendaris Ranch and areas immediately 
adjacent to known falcon habitat in Luna County have been surveyed on 
several occasions in recent years (Howard 2006a; Meyer and Williams 
2005). Falcon surveys were conducted in 2003 on the Gray Ranch in 
southeastern New Mexico, which contains 130,410 ha (322,000 ac) (Lewis 
2005). It includes extensive desert grasslands at its lower elevations. 
Bird life is abundant on the Gray Ranch; 43 percent of New Mexico's 
avian species occur there and would provide an excellent prey base for 
falcons. The Bureau of Land Management (BLM) office in Las Cruces and 
the New Mexico Department of Game and Fish (NMDGF) have also recently 
sponsored formal surveys for falcons in suitable habitats in the 
subspecies'' historic range in New Mexico (Howard 2006a; Meyer and 
Williams 2005; Lister 2006a; Lister 2006c). Therefore, large areas of 
the southern New Mexico habitats most capable of supporting individual 
or breeding pairs of falcons have been formally surveyed for the 
presence of falcons during the past 10 years, and the results of these 
surveys follow.
    After a 50-year absence, an unsuccessful nesting attempt was 
documented in Luna County, New Mexico, in the spring of 2001 (Meyer and 
Williams 2005). In 2002, a pair at this location successfully fledged 
three chicks. In 2003, only a single female was seen in the area of the 
2002 nest. In 2004, a pair of falcons was seen for a short time at this 
location, but no nesting was detected and this male left in late May 
(Meyer and Williams 2005). In 2005, only a single female was observed 
at this site (Meyer 2005). In 2006, this breeding territory has been 
repeatedly surveyed, and no falcons were detected there from February 
through May, although a falcon was reported to be observed in a nearby 
area in late May (Lister 2006c).
    Formal surveys and reliable sightings submitted to the Service show 
that a small number of falcons have occurred in New Mexico, with a 
small number of sightings occurring in every decade since the 1960s 
(Williams 1997; Howard 2006a; Howard 2006b; Meyer and Williams 2005; 
Service 2005; Howe 2006). Although it is a species highly sought after 
by bird watchers and other naturalists, an average of only 2.5 
sightings was reported per year during the 1990s in New Mexico (Service 
2005). Despite increasing public interest, survey effort, and reporting 
requirements (e.g., section 10 (a)(1)(A) recovery permits), from 2000 
through 2005, this average only increased to 4.0 sightings reported per 
year in the State, including the Luna County appearance of the first 
nest in either New Mexico or Arizona since 1952 (Service 2005). On May 
8, 2002, two additional falcons were observed that were thought to be 
different from the known nesting pair in Luna County. However, only one 
individual thought to be from that potential second pair was present 
two days later, and a second falcon nest was never located anywhere in 
the NEP area (Meyer and Williams 2005). In 2003 and 2004, other than 
the Luna County territory, no additional falcons were reported from 
formal surveys in New Mexico (Meyer and Williams 2005). In 2005 and 
through April 2006, there were nine sightings at locations in New 
Mexico apart from the Luna County territory (Burkett 2005; Banwart 
2006; Howard 2006b; Locke 2006). Only the sighting on August 11, 2005, 
detected more than one falcon. The two falcons observed on that day did 
not exhibit behaviors that indicated they were a pair, and a photograph 
taken of one suggested it was a juvenile (Howard 2005a;b). Repeated 
follow-up by highly qualified, experienced falcon surveyors of four of 
these detections, including the sighting of two birds, revealed that 
none of these falcons appeared to be local residents or defending a 
territory (Griffin 2005b; Howard 2005b; Lister 2006b; Lister 2006c; 
Locke 2006). Absolute numbers of falcons sighted in New Mexico are 
unknown because all but one sighting has been of unbanded birds. 
Montoya et al. (1997) and Macias-Duarte et al. (2004) banded a number 
of juvenile falcons in the Mexican State of Chihuahua between 1996 and 
2002. To date, one juvenile bird banded in this study has been seen in 
New Mexico. It was observed on Otero Mesa in 1999 (Howard 2006a). In 
Arizona, the most recent documented occurrences of falcons were 
recorded in 1975 and 1977, with one unconfirmed sighting in southern 
Arizona near the Mexican border in November 2005 (Howard 2006a). These 
sightings in New Mexico and Arizona may represent falcons dispersing 
from the population in Chihuahua that were opportunistically foraging 
in areas rich in prey due to vegetative growth from precipitation 
(Howard 2005a).
    It has been noted that significant re-colonization of habitats in 
Arizona and New Mexico by naturally occurring birds in Chihuahua would 
likely take decades, if it occurred at all, because the reproductive 
rate of the falcons in Chihuahua has typically been low. The low 
reproductive rate is possibly due to the effects of extended drought, 
and this population has not been expanding (Burnham et al. 2002; Jenny 
and Heinrich 2004). In addition, the majority of the breeding pairs in 
Chihuahua are clustered in close proximity to one another, but most are 
approximately 120 to 135 miles away from the southern New Mexico border 
(Howard 2006c). As stated in the Recovery Plan for the falcon (1990), 
``Regardless of the status of the aplomado falcon in Mexico, an attempt 
should be made to establish populations in the United States. If 
release sites are carefully chosen, reestablished populations should be 
relatively free from pesticide contamination. Releases may facilitate 
range expansion because pesticide contamination may have reduced the 
ability of most populations to colonize new patches of suitable 
habitat. The potential for range expansion is now more promising as a 
result of recent brush control efforts in southern and coastal Texas 
and the discontinued use of DDT.''

Recovery Efforts

    There are currently 46 pairs of aplomado falcons in the captive 
population, which produces more than 100 young per year. From this 
captive population, 1,142 captive-bred falcons have been released in 
Texas (Juergens and Heinrich 2005). The Peregrine Fund conducted a 
pilot release project in Texas from 1985 to1989, and increased 
restoration efforts began in 1993. These releases have established at 
least 44 pairs in southern Texas and adjacent Taumalipas, Mexico, where 
no pairs had been recorded since 1942 (Jenny et al. 2004). Moreover, 
pairs of reintroduced falcons began breeding in 1995, and to date have 
successfully fledged more than 244 young (Juergens and Heinrich 2005). 
Nests have been located on a variety of structures, both artificial and 
natural. Predation by great-horned owls, raccoons (Procyon lotor), and 
coyotes (Canis latrans) is significant, affecting more than half of all 
nesting attempts (Jenny et al. 2004). Nesting productivity increased by 
approximately 40 percent in 2003 and 2004, when falcons were provided 
artificial nesting structures with barred sides arranged so that 
falcons can enter the nest while predators cannot (Jenny et al. 2004). 
Pairs of falcons in south Texas successfully fledged young where they 
had never been successful prior to the use of the new artificial nests. 
Beginning in 2002, falcons have also been released in west Texas under 
a Safe Harbor Agreement with The Peregrine Fund. In 2005, 138 falcons 
were released at six sites on private ranches in the trans-Pecos region 
of the

[[Page 42300]]

State, and of these, 116 successfully reached independence (Juergens 
and Heinrich 2005).
    All of these releases in Texas have occurred on private property 
under Safe Harbor Agreement permits, currently with an enrollment of 
more than 728,000 ha (1.8 million ac). Safe Harbor Agreements are 
between a private land owner and the Service that permit future 
incidental taking of listed species on their private land. Releases 
have also occurred on Laguna Atascosa, Matagorda Island, and Aransas 
National Wildlife Refuges in Texas. We believe that it is also possible 
to accelerate the establishment of a breeding population in the 
Southwest through reintroductions of captive-raised birds in New 
Mexico. The experience in Texas, where the population went from no 
known pairs in 1994, to 44 known pairs that produced at least 244 young 
by 2005, illustrates the rapidity with which a population can be 
established through reintroductions.
    Despite the relative success of the falcon releases in Texas, we 
believe the Safe Harbor Agreements used to release falcons in Texas are 
not the best mechanism for re-establishing falcons in New Mexico and 
Arizona. Safe Harbor Agreements can only be developed for private land 
owners. There is a vast amount of public land in New Mexico and 
Arizona, totaling approximately 40 percent of the reintroduction area. 
Therefore, public land is very important for recovery of the falcon in 
this area. Not only is the public land important because of its high 
percentage in the reintroduction area, but it is important because of 
its habitat characteristics. The historical range in the NEP area is 
Chihuahuan Desert grassland, and public lands make up approximately 50 
percent of the Chihuahuan Desert grassland compared to private land 
(Young et al. 2002). We believe there is very low probability that 
falcons will populate lands outside of their historical range because 
those habitats would not be suitable for falcons. Thus far, we have not 
detected falcons inhabiting areas outside of their historical range.
    Extensive grasslands that would support individual or breeding 
falcons occur on Otero Mesa, White Sands Missile Range, southern 
Hidalgo County (Gray Ranch), and the Armendaris Ranch/Stallion Range 
area (Howard 2006a). Approximately one-half of the Chihuahuan Desert 
grasslands in New Mexico are federally managed, and often intermingled 
with State and private land. Falcons moving between Safe Harbor lands 
and non-Safe Harbor lands would receive different levels of protection 
from the Act. Activities that may affect falcons on Federal lands (or 
on non-Federal lands for projects using Federal permitting, funding, or 
authorization) would require section 7(a)(2) consultation. Falcons 
released on private lands with Safe Harbor Agreements that move to non-
Safe Harbor lands would receive the full protection of the Act. Actions 
that may take falcons on private lands would also be subject to the 
Act's regulatory requirements. We believe such an approach would be 
less efficient than establishing an NEP, would be difficult to 
regulate, and would ultimately provide less conservation benefit to the 
falcon than establishing an NEP.
    The Secretary has broad discretion to manage populations to better 
conserve and recover endangered species. The term ``experimental 
population'' means any population, including any of their offspring, 
authorized by the Secretary for release, only when the population is 
wholly separate geographically from nonexperimental populations of the 
same species. In the case of the falcon, (1) This subspecies has been 
known to disperse up to 250 kilometers, (2) it would be virtually 
impossible to preclude naturally occurring individual falcons from 
intermingling with the experimental population, and (3) there has been 
only one pair that has reproduced one time within the NEP area. 
Designation of a 10(j) NEP requires that the reintroduced animals be 
``wholly separate'' from any existing population. We do not consider 
the pair of falcons that bred in 2002 in Luna County to constitute a 
population. Therefore, the exclusion of the counties surrounding the 
2002 pair from the 10(j) designation is not necessary. We identify the 
experimental population as all falcons found within the NEP area, 
including reintroduced falcons and any lone dispersers and their 
offspring. We believe this is the best manner by which to manage the 
falcon reintroduction program to achieve species recovery. The Act does 
not require the protection of individuals to the exclusion or detriment 
of overall species recovery, or otherwise limiting the Department of 
the Interior's flexibility and discretion to define and manage an 
experimental population pursuant to section 10(j) (Wyoming Farm Bureau 
Federation v. Babbitt, 199 F.3d 1224 (10th Cir. 2000)). That decision 
affirmed the Service's determination of whether individual wolves 
constituted a population.
    Regulations define ``population'' as a potentially self-sustaining 
``group of fish or wildlife in the same taxon below the subspecific 
level, in common spatial arrangement that interbreed when mature,'' (50 
CFR 17.3). The term experimental population means ``an introduced and/
or designated population (including any off-spring arising solely 
therefrom) that has been so designated in accordance with the 
procedures of this subpart but only when, and at such times as the 
population is wholly separate geographically from nonexperimental 
populations of the same species'' (50 CFR 17.80). These definitions 
preclude the possibility of population overlap as a result of the 
presence of individual dispersing falcons, because 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. Congress defined 
``species,'' consistent with its broad conservation and recovery goals, 
to constitute distinct, interbreeding population segments or 
subspecies, not individual animals. By definition then, an individual 
animal does not constitute a species, population, or population 
segment. In the case of the gray wolf, the Department of the Interior, 
exercising its discretion under section 10(j), reasonably interpreted 
the phrase ``current range'' to be the combined scope of territories 
defended by the breeding pairs of an identifiable wolf pack or 
population (Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224 
(10th Cir. 2000)). We have used the same approach for the falcon. 
Therefore, a population of falcons does not exist in the NEP area. 
Breeding falcons are not evenly distributed between the United States 
border and the Chihuahuan group of falcon pairs. There is a gap of 
approximately 222 km (138 mi) between the Luna County pair in New 
Mexico and the most northern, known Chihuahuan breeding pair in Mexico 
(Howard 2006c). The single pair of New Mexico falcons that successfully 
reproduced only once in 2002 (after a 50-year absence) is neither self-
sustaining, a group, nor in common spatial relationship with the group 
of approximately 25 to 35 breeding falcon pairs in Mexico. These Mexico 
falcons occur 160 kilometers (km) (100 miles (mi)) or more south of the 
United States border. They are clustered in common spatial 
relationship, are self-sustaining, and are interbreeding.
    We do not consider the New Mexico 2002 nesting pair and any 
offspring produced by the pair to be a population. Biologically, the 
term ``population'' is not normally applied to a single pair, and so 
the few birds sighted in New Mexico could be considered dispersers

[[Page 42301]]

from the Chihuahuan population. In addition, we have no authority to 
manage a population in a different country. Therefore, the existence of 
a group in Mexico should not preclude conservation and management of 
falcons in the United States in order to achieve species recovery. 
Furthermore, two, or even three, birds are not considered a self-
sustaining population. Self-sustaining populations require a sufficient 
number of individuals to avoid inbreeding depression and occurrences of 
chance local extinction (Caughley and Gunn 1996).
    Designation of an NEP under section 10(j) of the Act requires that 
the reintroduced animals be ``wholly separate geographically'' from any 
existing population. As stated above, we do not consider the pair of 
falcons that bred in 2002 in Luna County, New Mexico, to constitute a 
population. Therefore, the exclusion of the counties surrounding the 
2002 pair from the 10(j) designation is not necessary. Creating an NEP 
area that excludes the counties surrounding the documented New Mexico 
pair (Hidalgo, Grant, and Luna counties) would create a complex 
regulatory situation. If falcons that are released in the NEP area move 
into the excluded area, then they would receive the full protection of 
the Act. Federal land managers in the NEP-excluded area may therefore 
be subject to the full regulatory requirements of section 7(a)(2) for 
falcons that were released in the NEP area. If a falcon released in the 
NEP area settles on private lands, the private land owner would be 
prohibited from any action that may incidentally ``take'' the falcon. 
We believe the recovery of the falcon can be achieved without imposing 
these regulatory restrictions on land managers and the public that 
excluding some counties from the NEP area would require.

Reintroduction Sites

    Falcons historically occurred in Chihuahuan Desert grasslands 
within the NEP area, and habitats in these areas are similar to those 
that support nesting falcons in northern Mexico populations. Primary 
considerations for identifying falcon release sites include areas: (1) 
Within or in proximity to potentially suitable habitat, including open 
grassland habitats that have scattered trees, shrubs, or yuccas for 
nesting and perching; (2) supporting available prey for falcons (e.g., 
insects, small to medium-sized birds, rodents); (3) with minimal 
natural and artificial hazards (e.g., predators, open-water tanks) and 
potential hazards that can be minimized where practical; (4) with 
access for logistical support; (5) with a large extent of potentially 
suitable habitat surrounding a release site and its proximity to other 
similar habitats; and (6) with a willing landowner or land manager.
    While the NEP area will include both Arizona and New Mexico, the 
reintroduction sites will only be on lands within New Mexico. The State 
of Arizona is supportive of having falcons re-established in the State 
under a 10(j) designation, but does not wish to conduct 
reintroductions. Reintroduction sites within the NEP area will be 
selected to increase the distribution of the population and its rate of 
growth. Selection will be based upon suitability and extent of 
available habitat, as well as any dispersal patterns from prior 
releases. Released falcons are expected to move around within the areas 
of their release, but may disperse to more distant areas. The 10(j) 
designation and supporting 4(d) rule cover both private and public 
lands in New Mexico and Arizona, so Safe Harbor Agreements will not be 
necessary with private landowners.


    The rearing and reintroduction techniques that will be used in 
establishing this NEP have proven successful in establishing a wild 
population of falcons in southern Texas. Falcons will be raised in The 
Peregrine Fund's captive propagation facility in Boise, Idaho. Newly 
hatched falcon chicks are fed by hand in sibling groups for up to 25 
days. They are then raised in sibling groups with minimal human 
exposure until their transportation to a reintroduction site at 32 to 
37 days of age. Careful timing of the age for reintroducing falcons is 
important to increase their chances for successfully fledging and 
reaching independence (Sherrod et al. 1987). Falcons are shipped by air 
between Boise and the release locations and driven to the hack site 
(i.e., release site). At the hack site, the falcons are placed in a 
protective box on top of a conspicuous tower and fed for 7 to 10 days. 
The box is then left open and falcons are allowed to come and go 
freely. Food is provided on the tower and, initially, the falcons 
return each day to feed. Eventually, the falcons begin chasing prey, 
making their own kills, and spending more and more time away from the 
hack site. A falcon is considered to be ``successfully released'' when 
it is no longer dependent on food provided at the hack site. This 
process generally takes from 3 to 6 weeks (Jenny et al. 2004). The hack 
site attendants will evaluate the progress of the released falcons. The 
reintroduction process can be extended to ensure a successful release 
or a bird may be returned to the propagation facility in Boise if it 
does not attain independence (Sherrod et al. 1987).

Status of Reintroduced Population

    Before authorizing the release of any population, the Secretary 
shall determine, on the basis of the best available information, 
whether or not such a population is essential to the continued 
existence of an endangered species or a threatened species. The 
proposed experimental falcon population will be designated ``non-
essential, experimental'' (NEP) because: (1) There are established 
populations in Mexico and a rapidly expanding population in south 
Texas; (2) reintroductions will continue in western Texas; (3) the 
Boise, Idaho, captive population is producing enough offspring to 
maintain the captive flock and provide falcons for release; and (4) the 
possible failure of this action would not appreciably reduce the 
likelihood of survival of the subspecies in the wild. We also believe 
the NEP designation lessens land-use restrictions associated with the 
Act, which makes the establishment of falcons in New Mexico and Arizona 
less controversial to private landowners and agency land managers, and 
should result in more cooperative falcon conservation efforts with 
stakeholders and a larger number of release sites and more widespread 
reintroductions. Therefore, the use of the NEP should be the fastest 
way to both (1) successfully establish a falcon population in New 
Mexico and Arizona, and (2) aid in recovery and eventual delisting of 
the falcon. Thus, we have determined this experimental population to be 
nonessential to the continued existence of the species according to the 
provisions of section 10(j) of the Act for the following reasons:
    (a) With at least three populations--one in eastern Mexico, a 
second in northern Chihuahua, Mexico, and a third becoming established 
in southern Texas--the experimental population is not essential to the 
continued existence of the species. The threat of extinction from a 
single catastrophic event has been reduced by a gradual increase of the 
southern Texas and captive populations. Thus, loss of the experimental 
population will not appreciably reduce the likelihood of falcon 
survival in the United States; and,
    (b) Any birds lost during the reintroduction attempt can be 
replaced through captive breeding. Production from the extant captive 
flock is already sufficient to support the release of birds

[[Page 42302]]

that would occur under this final rule, in addition to continued 
releases in west Texas (Juergens and Heinrich 2005).
    We fully expect that the NEP will result in the establishment of a 
self-sustaining, resident population, which will contribute to the 
recovery of the species. We expect these reintroductions to be 
compatible with current or planned human activities in the NEP area 
(Burnham et al. 2002). There has been only one reported conflict 
between human activities and falcons in Texas, where 1,142 falcons have 
been released over the course of 20 years (Burnham et al. 2002; Bond 
2005; Jenny 2005; Robertson 2006). That issue involved the use of 
agricultural pesticides in proximity to falcon reintroduction sites in 
Texas in the early 1990s, and a viable resolution of the conflict was 
obtained. The Service will use the best scientific and commercial data 
available, including, but not limited to, results from the monitoring 
plan developed with this rule and stakeholder meetings to prepare 5-
year evaluations of the reintroduction program. If the actions carried 
forward as a result of this final rule fail to demonstrate sufficient 
success toward recovery, as determined by the Service, then the 
Service, in coordination with other Federal land managers, the States 
of Arizona and New Mexico, and private collaborators, would reevaluate 
management strategies.
    Although there are still questions to research while these 
reintroductions proceed, the success of the southern Texas 
reintroductions suggests that this effort will have similar positive 
results for the recovery of the falcon. Based on that experience, we 
have good reason to believe that appropriately managed captively reared 
birds are suitable for release into the wild and can survive and 
successfully reproduce. Although prey-base biomass may be lower 
throughout the NEP area than in southern Texas, the prey-base biomass 
in the NEP area is similar to occupied habitat in Chihuahua, Mexico 
(Truett 2002). Furthermore, the establishment of a third self-
sustaining population in the United States provides further assurance 
that the species will recover here. For example, if the southern Texas 
population was significantly impacted by a catastrophic event, such as 
a Gulf coast hurricane, the NEP in New Mexico and the reintroduced 
falcons in western Texas would provide buffers for the species in the 
wild while the southern Texas population recovered.

Location of Reintroduced Population

    Section 10(j) of the Act requires that an experimental population 
be geographically separate from other populations of the same species. 
The NEP area covers all of New Mexico and Arizona, with the expectation 
that falcons would persist only within the Chihuahuan Desert, which 
extends north from Mexico into southern Texas, southern New Mexico, and 
southeastern Arizona. The NEP area is geographically isolated from 
existing falcon populations in Mexico and Texas by a sufficient 
distance to preclude significant contact between populations. There 
have been no documented nesting falcons in Arizona and only one known 
successful nest in New Mexico in over 50 years. However, we do not 
believe the presence of these falcons constitutes a population, as 
stated in the ``Recovery Efforts'' section above.
    It is difficult to predict where individual falcons may disperse 
following reintroduction within the NEP area. A 70-day-old male falcon 
dispersed 136 km (84.5 mi) from a hack site in Texas (Perez et al. 
1996), and a falcon banded in Chihuahua, Mexico, was observed 250 km 
(155 mi) north in New Mexico (Burnham et al. 2002). Perez et al. (1996) 
placed radio transmitters on 14 falcons in Texas and found that their 
home range size varied widely, from 36 to 281 square km (km\2\) (14 to 
108.5 square mi (mi\2\)). Natal dispersal may be localized (Burnham et 
al. 2002). Designation of a large NEP area around planned release sites 
takes into consideration the potential occurrence and dispersal of 
falcons in a large geographic area. Any falcon found within the NEP 
area will be considered part of the NEP.
    It is possible, though unlikely, that individual captive-bred 
falcons or their progeny from west Texas could disperse into the NEP 
area. The majority of falcon reintroductions in west Texas are further 
than 193 km (120 mi) from suitable habitat in New Mexico, and tall 
mountains separating the two regions may provide an obstacle to falcon 
migration. The Guadalupe Mountains span the border between Texas and 
New Mexico and rise to heights of 8,749 feet. Falcon reintroductions in 
west Texas only began in 2002, and as expected, there has not yet been 
any documented breeding by these reintroduced falcons. Furthermore, 
there have been no detections in New Mexico of falcons that were banded 
at west Texas reintroduction sites, and all of those reintroduced 
falcons should be banded.


    Because of the substantial regulatory relief provided by NEP 
designations, we do not believe the reintroduction of falcons will 
conflict with existing human activities or hinder public use of the NEP 
area. The NEP designation will not require land managers to 
specifically manage for reintroduced falcons. When NEPs are located 
outside a National Wildlife Refuge or unit of the National Park System, 
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)(1) requires Federal agencies to use their authorities to further 
the conservation of listed species. 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. The results of a conference are advisory in nature and do not 
restrict agencies from carrying out, funding, or authorizing 
    The Service, The Peregrine Fund, Turner Endangered Species Fund, 
the States of New Mexico and Arizona, BLM, Department of Defense (DOD), 
and other cooperators will manage the reintroduction. They will closely 
coordinate on reintroductions, monitoring, coordination with landowners 
and land managers, and public awareness, among other tasks necessary to 
ensure successful reintroductions of falcons.
    (a) Monitoring: The Service has developed a monitoring plan 
specific to this NEP and associated release efforts (see ADDRESSES 
section). Falcons will be observed every day before they are released. 
Facilities for release of the birds will be modeled after facilities 
used for falcons in Texas. Information on survival of released birds, 
movements, behavior, reproductive success, and causes of any losses, 
will be gathered during the duration of the reintroduction program. 
Program progress will be summarized and reported annually at 
stakeholder meetings. As described above, we plan to evaluate the 
progress of the program every 5 years.
    (b) Disease: (see information previously provided in our February 
9, 2005, proposed rule).
    (c) Genetic Variation: The captive breeding population of falcons 
is managed by The Peregrine Fund to maintain and maximize genetic 
diversity (Burnham et al. 2002). This

[[Page 42303]]

population was derived from nestlings collected from robust populations 
in Chiapas, Tabasco, and Veracruz, Mexico. Genetic testing was 
conducted to insure that progeny from falcons collected in southeastern 
Mexico would be suitable for release in northern Mexico and the United 
States, where the subspecies had been extirpated. Results from both 
mitochondrial DNA and microsatellite variation were analyzed, and 
revealed no genetic divergence between samples that would indicate any 
problems from reintroducing this lineage into the Chihuahuan grasslands 
of the United States (Kiff, in litt., 1995; Mindell, in litt., 1997; 
Burnham et al. 2002). This finding is consistent with the known 
dispersal tendencies of falcons and the fact that these populations are 
recognized as the same subspecies of northern aplomado falcon (Falco 
femoralis septentrionalis).
    (d) Mortality: 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 range. Therefore, for purposes of 
section 9 of the Act, northern aplomado falcons within the NEP will be 
treated as threatened wherever they are found. A threatened designation 
allows us greater discretion in devising management programs and 
special regulations for such a population.
    The Act defines ``incidental take'' as take that is incidental to, 
and not the purpose of, the carrying out of an otherwise lawful 
activity such as military training, livestock grazing, recreation, and 
other activities that are in accordance with Federal, tribal, State, 
and local laws and regulations. A person may take a falcon within the 
NEP area provided that the take is unintentional and was not due to 
knowing, intentional, or negligent conduct. Unintentional take will be 
considered ``incidental take,'' and is authorized under this final rule 
via a special rule under section 4(d) of the Act. Although a special 
rule under section 4(d) of the Act can contain the prohibitions and 
exceptions necessary and appropriate to conserve that species, 
regulations issued under section 4(d) for NEPs are usually less 
restrictive with regard to human activities in the reintroduction area. 
Thus, take of falcons which is not intentional and is incidental to 
otherwise lawful activity will be permitted. Applying the results 
obtained from the reintroductions in south Texas, we expect levels of 
incidental take to be low since the reintroductions should be 
compatible with existing land use practices in the area (Burnham et al. 
2002; Bond 2005; Jenny 2005). Intentional take such as shooting, 
knowingly destroying a nest, or knowingly harassing falcons from an 
active nest for purposes other than authorized data collection, will 
not be permitted.
    (e) Special Handling: (See information previously provided in our 
February 9, 2005, proposed rule).
    (f) Coordination with Landowners and Land Managers: The Service and 
cooperators identified issues and concerns associated with falcon 
reintroductions through the National Environmental Policy Act (NEPA) 
scoping and two public comment periods. The reintroductions have also 
been discussed with potentially affected State agencies and some 
private landowners wishing to have falcons released on their property. 
Affected State agencies, landowners, and land managers have indicated 
support for the reintroduction, provided the falcon experimental 
population is established as a NEP, and land-use activities in the NEP 
area are not constrained without the consent of affected landowners.
    (g) Potential for Conflict with Military, Industrial, Agricultural, 
and Recreational Activities: With proper management, we expect falcon 
reintroductions to be compatible with current and planned human 
activities in the NEP area, including agricultural, oil and gas 
development, military, or recreational activities. There has been only 
one reported conflict between human activities and falcons in Texas, 
where 1,142 falcons have been released over the course of 20 years 
(Burnham et al. 2002; Bond 2005; Jenny 2005; Robertson 2006), and that 
issue was resolved in the early 1990s. Well-managed activities on 
private, State, and some Federal lands within the NEP area should 
continue without additional restrictions during implementation of 
falcon reintroduction activities. As required by section 10(j) of the 
Act, when the NEP is located within a National Wildlife Refuge or 
National Park, for section 7 consultation purposes we will treat the 
reintroduced falcons as threatened under the Act, and therefore the 
consultation requirements of section 7(a)(2) will apply on these 
Federal lands. If proposed agricultural, oil and gas development, 
military, or recreational activities may affect the falcon's prey base 
within reintroduction areas, State and/or Federal biologists can 
determine whether falcons could be impacted and, if necessary, work 
with the other agencies and stakeholders in an attempt to avoid such 
impacts. If private activities impede the establishment of falcons, we 
will work closely with State and Federal agencies and/or landowners to 
suggest alternative procedures to minimize conflicts. The States of 
Arizona and New Mexico are not directed by this final rule to take any 
specific actions to provide any special protective measures, nor are 
they prevented from imposing restrictions under State law, such as 
protective designations and area closures. Neither of the States within 
the NEP area, both of which are participants in the northern aplomado 
falcon working group, has indicated that it would propose hunting 
restrictions or closures related to game species because of the falcon 
    The principal activities on private property near the initial 
release areas are agriculture, livestock production, and hunting. We do 
not believe that use of these private properties by falcons will 
preclude such private uses because these activities and the falcons' 
needs do not conflict with each other. These same human uses are 
occurring near falcon reintroduction sites in south Texas. As stated 
above, there has been only one reported conflict between human 
activities and falcons in Texas, where 1,142 falcons have been released 
over the course of 20 years (Burnham et al. 2002; Bond 2005; Jenny 
2005; Robertson 2006), and that issue, which involved the use of 
pesticides, was resolved in the early 1990s.
    Reintroduced falcons may disperse into other parts of the NEP area 
or even outside the NEP area. We believe that the frequency of 
movements outside the NEP area is likely to be very low based on the 
history of falcon reintroduction in Texas (Burnham et al. 2002), and 
the fact that the NEP area is large, spanning two entire States, while 
the reintroduction area is a relatively small portion. Any falcons 
outside the NEP area will be considered endangered under the Act. Any 
falcons that occur within the NEP area will be considered part of the 
NEP and will be subject to the protective measures in place for the 
NEP. The decreased level of protections afforded to falcons that cross 
into the NEP is not expected to have any significant adverse impacts to 
the wild population, since we do not anticipate this to occur very 
    (h) Protection of Falcons: We will reintroduce falcons in a manner 
that provides short-term protection from natural predators and human-
related sources of mortality. Reintroduction methods designed to 
discourage predators include tall hacking towers as artificial nests 
and full-time biologists to feed and protect the young falcons and 
reduce natural mortality. Reintroducing falcons in areas with less 

[[Page 42304]]

activity and development will minimize human-related sources of 
mortality, such as from collisions. Should causes of mortality be 
identified, we will work with the private landowners or agency land 
managers to try to correct the problem.
    (i) Potential for Conflict with Natural Recolonization of Falcons: 
Natural (i.e., unaided) falcon recolonization of New Mexico and Arizona 
would be dependent on dispersing falcons from Mexico, Texas, or 
possibly unknown nesting pairs within the United States. We do not 
consider the unaided recolonization of falcons in the NEP area a likely 
occurrence for a number of reasons. The half-century absence of falcons 
in Arizona and New Mexico indicates that the Chihuahua, Mexico, falcon 
population is not likely to recolonize New Mexico and Arizona with 
sufficient numbers to establish a population in the foreseeable future. 
The low fledging success in Chihuahua and lack of significant expansion 
of that population since observations first began in 1992 (Montoya et 
al. 1997; Marcas-Duarte et al. 2004; Young et al. 2004; Juergens and 
Heinrich 2005) suggest that birds from Chihuahua are not likely to 
provide enough dispersers to populate New Mexico. Furthermore, the only 
birds that are known to be currently nesting in southern Texas are 
beyond the average dispersal distance for falcons. Natal dispersal to 
eventual breeding sites may be localized (Burnham et al. 2002). The 
longest known falcon dispersal distance is 250 km (155 mi) (Burnham et 
al. 2002), whereas the straight-line distance from currently breeding 
falcons near Brownsville, Texas, to Carlsbad, New Mexico, is 
approximately 973 km (605 mi), much further than any documented 
dispersal by falcons.
    It is possible, though unlikely, that individual captive-bred 
falcons or their progeny from west Texas could disperse into the NEP 
area. The majority of falcon reintroductions in west Texas are farther 
than 193 km (120 mi) from suitable habitat in New Mexico, and tall 
mountains separating the two regions may provide an obstacle to falcon 
migration. The Guadalupe Mountains span the border between Texas and 
New Mexico and rise to heights of 8,749 feet. Falcon reintroductions in 
west Texas only began in 2002, and as expected, there has not yet been 
any documented breeding by these reintroduced falcons. Furthermore, 
there have been no detections in New Mexico of falcons that were banded 
at west Texas reintroduction sites, and all of those reintroduced 
falcons should be banded.
    We do not consider the presence of the successful breeding pair in 
2002 in Luna County to represent a population. The frequency and number 
of falcons in recent New Mexico sightings would, at that pace, be very 
unlikely to result in natural recolonization. Although there may be 
occasional falcon dispersal movements from Mexico to New Mexico, we do 
not believe this will lead to the establishment of a viable population 
within New Mexico. The population in Mexico has been known to exist 
since 1992, and likely existed prior to that; however, there has only 
been one known successful nest in the entire NEP area in over 50 years. 
Given the lack of a falcon population in the reintroduction area, and 
the low probability that falcons from Chihuahua, Mexico, can recolonize 
New Mexico, we believe that reintroductions are needed in order to 
establish a resident falcon population in the grasslands in the United 
    (j) Public Awareness and Cooperation: We will inform the general 
public of the importance of this reintroduction project in the overall 
recovery of the falcon. This designation will provide greater 
flexibility in the management of reintroduced falcons. NEP designation 
is necessary to secure needed cooperation of the States, landowners, 
Federal agencies, and other interests in the NEP area. For reasons 
stated, despite the relative success of the falcon releases in Texas, 
where there is relatively little public land, we believe the Safe 
Harbor Agreements used to release falcons in Texas are not the best 
mechanism for establishing falcons in New Mexico and Arizona. Safe 
Harbor Agreements can only be developed for private land owners, and 
the reintroduction area in New Mexico includes a vast amount of public 

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed NEP 
and draft environmental assessment in the proposed rule published on 
February 9, 2005 (70 FR 6819). We also contacted the appropriate 
Federal, State, and local agencies, tribes, scientific organizations, 
and other interested parties and invited them to comment on the 
proposed rule. The initial comment period was open from February 9, 
2005, to April 11, 2005. A second comment period was open from 
September 16, 2005, through November 15, 2005, to solicit comments on 
the draft monitoring plan and to announce the dates, locations, and 
times of the public hearings (70 FR 54701).
    In conformance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we solicited opinions from six expert 
ornithologists who are familiar with this species to peer review the 
proposed rule. Three of the six peer reviewers submitted comments; the 
others did not. Their comments are included in the summary below.
    We reviewed all comments received from the peer reviewers, State 
agencies, and the public for substantive issues and new information 
regarding the proposed NEP. Substantive comments received during the 
comment period have either been addressed below or incorporated 
directly into this final rule. The comments are grouped below as either 
peer review, State, or public comments.

Peer Review Comments

    (1) Comment: While a small population of falcons exists in 
southeastern Chihuahua, Mexico, there is very little evidence of a 
tendency towards natural reestablishment in the United States. Despite 
arguments to the contrary, the occasional appearance of a vagrant or a 
nesting pair does not forecast reestablishment and certainly not the 
existence of a viable population.
    Our Response: We agree with the commentor that any significant 
natural re-colonization of habitats in Arizona and New Mexico would 
likely take decades, if it occurred at all, because the reproductive 
rate of the population in Mexico is low, and this population is not 
significantly expanding, possibly due to extended drought (Burnham et 
al. 2002).
    (2) Comment: Aplomado falcons are colonizing New Mexico and Arizona 
on their own, as part of a natural range expansion.
    Our Response: Aplomado falcons are not likely to naturally 
recolonize in significant numbers. Please see our response to comment 1 
and information under section 2 (``Biological'') of the Background 
section, above.
    (3) Comment: Designation of an experimental population would hinder 
policy protections for naturally colonizing birds.
    Our Response: Birds that naturally recolonize areas in New Mexico 
will have reduced protections under the NEP; however, birds are not 
likely to naturally colonize in significant numbers. Thus, the benefits 
to falcon recovery of having large numbers of birds reintroduced is 
much greater than the potential effect of reducing protection for very 
few naturally colonizing individuals. In addition, all falcons will 
still be protected from direct intentional taking (e.g., hunting of 
falcons), and we anticipate little conflict with most otherwise lawful 

[[Page 42305]]

occurring in the NEP (e.g., grazing that uses best management 
practices). There has been only one reported conflict, which was 
resolved in the early 1990s, between human activities and falcons in 
Texas, where 1,142 falcons have been released over the course of 20 
years (Burnham et al. 2002; Bond 2005; Jenny 2005; Robertson 2006). The 
areas that falcons inhabit on private lands with Safe Harbor Agreements 
in Texas are more densely populated by people than the public lands in 
New Mexico. Therefore, if conflicts are occurring, they would be 
detectable in Texas, and we have had no reported conflicts after the 
one in the early 1990s.
    (4) Comment: One peer reviewer summarized the proposal as 
``biologically sound, politically tenable, but ethically 
irresponsible.'' The reviewer asserts that limited recovery funds 
should be spent on higher priority species (i.e., species with lower 
recovery priority numbers under the Service's Recovery Priority 
    Our Response: As we stated in the Recovery Priority Guidelines, 
``the priority systems presented must be viewed as guides and should 
not be looked upon as inflexible frameworks for determining resource 
allocations (48 FR 43098).'' Many other factors, including landowner 
cooperation, likelihood of success of projects, public cooperation, and 
partner contributions, may play into the decision to focus on specific 
species or actions. The falcon reintroductions discussed in this rule 
are supported by all of these factors.
    (5) Comment: Restoration of the falcon should occur within the 
natural predator community of the reintroduction area. Native predators 
(e.g., great-horned owls) should not be killed to protect released 
    Our Response: The release protocols have been modified over time 
and include carefully chosen nest sites and use of nest boxes to 
minimize conflict with natural predators. The Service has no intention 
of killing native predators to benefit falcon releases.

State Comments

    (6) Comment: In general, the States of Arizona and New Mexico 
supported the proposed rule. One State agency suggested we develop a 
10(j) population that would also allow for naturally occurring falcons 
(i.e., experimental status individuals will only be recognized outside 
areas that overlap with naturally occurring individuals) (50 CFR 
17.80). Such a rule could also include zones for incremental State-wide 
expansion of the 10(j) population based upon an annual review by the 
Service and stakeholders.
    Our Response: The incremental designation proposal would likely not 
increase recovery benefits to the falcon for two reasons. First, 
falcons have the capability to move about the landscape easily and 
there would likely be frequent movements between NEP areas and areas 
without this designation within New Mexico. Therefore, the suggested 
scenario would create a very complicated regulatory patchwork, as the 
same falcons move into and out of NEP areas, and thereby became subject 
to changed regulations under the Act. Second, we do not anticipate that 
falcons will require the protections of full endangered status in order 
to recover in New Mexico and Arizona. We believe that designating both 
States as NEP areas relieves concerns of landowners and managers 
regarding land-use restrictions, and will lead to more sites for 
reintroductions and faster recovery for the subspecies.

Public Comments

Issue 1: Procedural and Legal Compliance

    (7) Comment: The Service should designate critical habitat for the 
falcon, rather than designating a 10(j) population. If you finalize the 
proposed rule, then a critical habitat designation would be precluded 
and little to no regulatory protections would remain for occupied or 
unoccupied habitat.
    Our Response: The role that designation of critical habitat plays 
in protecting habitat of listed species, however, is often 
misunderstood. There are significant limitations on the regulatory 
effect of designation under ESA section 7(a)(2). In brief, (1) 
Designation provides additional protection to habitat only where there 
is a Federal nexus; (2) the protection is relevant only when, in the 
absence of designation, destruction or adverse modification of the 
critical habitat would in fact take place (in other words, other 
statutory or regulatory protections, policies, or other factors 
relevant to agency decision-making would not prevent the destruction or 
adverse modification); and (3) designation of critical habitat triggers 
the prohibition of destruction or adverse modification of that habitat, 
but it does not require specific actions to restore or improve habitat.
    We believe it is not likely that falcons will naturally recolonize 
areas in Arizona and New Mexico in the near future even though there is 
ample suitable habitat to support falcons. Because there is available 
habitat, but virtually no naturally occurring falcons, we believe that 
releases under a 10(j) rule are more beneficial to long-term falcon 
conservation than designation of critical habitat.
    (8) Comment: The proposed rule violates the ecosystem protection 
purposes identified in section 2(b) of the Act.
    Our Response: We believe that releasing falcons under the section 
10(j) provision of the Act is the most appropriate way to achieve 
conservation for this species, which has shown a remarkable ability to 
coexist with many human activities, and that this action is consistent 
with the intents and purposes of the Act. Falcon reintroductions are 
intended to return a missing predator to the grassland ecosystems to 
which it naturally belongs, and this should benefit ecosystem 
    (9) Comment: Does the 10(j) rule remove all section 7 
    Our Response: For the purposes of section 7 of the Act, we treat 
NEPs as threatened species when the NEP is located within a National 
Wildlife Refuge or a unit of the National Park System, and therefore 
section 7(a)(1) and the consultation requirements of section 7(a)(2) of 
the Act apply in these units. When NEPs are located outside a National 
Wildlife Refuge or unit of the National Park System, for the purposes 
of section 7 of the Act 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)(1) requires Federal agencies to 
use their authorities to further the conservation of listed species. 
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. The results of a conference 
are advisory in nature and do not restrict agencies from carrying out, 
funding, or authorizing activities.
    (10) Comment: One commenter noted that if the proposed rule is 
finalized, the falcon would be treated as a species proposed for 
listing on BLM or DOD lands. The agencies would only be required to 
confer on actions that may jeopardize the species. If the population is 
deemed nonessential, the jeopardy threshold would never be reached, 
indicating that conferences would be an administrative task with no 
protection for the falcon. The Service should recognize that the BLM 
would no longer consult on many activities previously considered to be 
significant threats to falcon habitat such as oil and gas development, 
livestock grazing, military

[[Page 42306]]

operations, or pesticide use. In fact, under the current nonessential 
experimental population proposal, the BLM could authorize a road or 
pipeline that destroys an occupied falcon nest without the need for an 
incidental take permit.
    Our Response: Consultation under section 7(a)(2) is only required 
for Federal projects that may affect listed species. It is unlikely 
that a Federal action would affect a significant number of falcons at 
the present time because the recent falcons sighted in New Mexico 
appear to be transients and there is a near absence of any falcon 
sightings in Arizona. Therefore, designating the reintroduced 
population as non-essential will not significantly change current 
practices regarding consultation under 7(a)(2), on areas outside of the 
National Wildlife Refuge and National Parks. Since the falcon will now 
be treated as a species proposed for listing, sections 7(a)(1) and 
7(a)(4) will apply to Federal actions.
    The falcon will be treated as a threatened species on BLM and DOD 
lands for purposes of section 9 of the Act. Through section 4(d) of the 
Act, we have greater discretion in developing management programs and 
special regulations for threatened species than we have for endangered 
species. Section 4(d) of the Act allows us to adopt whatever 
regulations are necessary to provide for the conservation of a 
threatened species.
    While it is true that consultation requirements are lessened, we 
believe that the incidental take associated with otherwise lawful 
activities will not pose a long-term threat to falcon conservation 
under this rule, as most activities that occur in the 10(j) area are 
compatible with falcon recovery. Furthermore, Federal agencies will 
continue to analyze the impacts of their actions under NEPA. In 
addition, birds will continue to be reintroduced into New Mexico, which 
will provide some buffer to the population against individual birds 
lost to incidental take. A special rule under section 4(d) of the Act 
is included in this final action, and it authorizes unknowing or 
incidental take of falcons (i.e., take that is incidental to an 
otherwise lawful activity). Direct take for research or educational 
purposes would require a section 10 recovery permit. Knowing take 
(e.g., shooting) or take due to negligence will not be permitted. 
Additional information about the special rule can be found under the 
Final Regulation Promulgation section below.
    (11) Comment: How will beneficial activities (e.g., prescribed 
fire, fencing, bank stabilization, storm water runoff control) be 
handled under section 7 in the 10(j) area?
    Our Response: These actions will be handled like any other projects 
subject to section 7 in the NEP area. Please see our response to 
comment 9 above.
    (12) Comment: One commenter was concerned that lessees and 
allotment holders have to remove cows from allotments during nesting 
    Our Response: In our experience with reintroducing falcons in south 
Texas, livestock grazing using best management practices has been 
compatible with successful nesting by falcons. It is possible that the 
conference opinions for grazing on Federal lands would recommend 
additional grazing guidelines; however, these measures are not 
mandatory, and it would be up to the Federal agency and lessee or 
allotment holders to implement at their discretion.
    (13) Comment: The final rule should confirm that military 
operations (e.g., low-level overflight, bombing and gunnery activities, 
target placement) will not be affected by the 10(j) designation, even 
if occurring over National Park Service or National Wildlife Refuge 
    Our Response: As stated in our response to comment 9, if aplomado 
falcons are found within a National Wildlife Refuge or unit of the 
National Park System and there may be impacts from military activities, 
section 7 consultation may be required. Any military operations that 
may affect the 10(j) falcons would only involve conferencing with the 
military and recommended actions, if any, would be at the discretion of 
the military to implement.
    (14) Comment: In order to streamline future conference opinions, 
the final rule should provide authorization to Federal agencies to 
permit habitat destruction.
    Our Response: Section 10(j) of the Act explicitly states that for 
the purposes of section 7, the species designated as non-essential will 
be considered a proposed species. Federal agencies will have an 
obligation to confer (rather than consult) with the Service on proposed 
activities that are likely to jeopardize the continued existence of the 
falcon. The results of a conference are advisory in nature and do not 
restrict agencies from carrying out, funding, or authorizing 
    (15) Comment: The Service should clarify the terms ``willing 
landowner or manager'' as they relate to one of the criteria in the 
selection of release sites. The term ``manager'' should also refer to 
an allotment permit holder in the case of Federal or State lands.
    Our Response: We will attempt to work with both land managers and 
allotment permit holders; however, we do not have authority over 
allotment permit holders or authority to require land managers to seek 
allotment permit holder approval of various projects.

Issue 2: Biological Issues

    (16) Comment: Many commenters recommended that we omit the 
reference to a specific numbers of pairs, increase the number of pairs, 
and/or clarify the definition of ``population'' we used in the 10(j) 
proposed rule due to the lack of scientific agreement on defining this 
term. That definition was, ``a minimum of two successfully reproducing 
falcon pairs over multiple years.'' One commenter suggested that we 
instead define a population as ``sustained and predictable presence of 
more than negligible numbers of successfully reproducing individuals 
over a period of many years.''
    Our Response: We have clarified the definition of ``population'' 
used in the proposed rule in the ``Recovery Efforts'' section of the 
    (17) Comment: Naturally occurring falcons already exist on the 
landscape in New Mexico and adjacent northern Chihuahua, Mexico (e.g., 
see Young et al. 2002, 2004; Meyer and Williams 2005). There have been 
about 45 credible sightings of falcons in New Mexico since 1990, within 
3 to 6 credible observations per year since the late 1990s. The 
territory in Luna County, New Mexico, has been occupied from 2000 to 
2005. Falcons have also recently been observed crossing the United 
States-Mexico border. The Service has not considered all of this new 
information. Therefore, a 10(j) rule does not seem to be a reasonable 
approach for falcon recovery.
    Our Response: In the ``Recovery Efforts'' section of the 
Background, we clarify the reasons why we do not believe that a falcon 
population exists in Arizona and New Mexico. In the case of the falcon, 
(1) This subspecies has been known to disperse hundreds of kilometers, 
(2) it would be virtually impossible to preclude naturally occurring 
individual falcons from intermingling with the experimental population, 
and (3) there has been only one known pair that has reproduced (and 
only one time) in over 50 years within the designated experimental 
area. Therefore, we identified the experimental population as all 
falcons found within the experimental area, including reintroduced 
falcons and any lone dispersers and their offspring. We believe this is 
the best manner by which

[[Page 42307]]

to manage the falcon reintroduction program to achieve species 
    (18) Comment: In the proposed rule, there is an inaccurate 
statement that the proposed nonessential experimental population is 
geographically isolated from existing falcon populations in Mexico and 
Texas by a sufficient distance to preclude contact between populations. 
In fact, New Mexico is easily within the documented flying (i.e., 
dispersal) distance of these falcon populations.
    Our Response: Even though falcons from Mexico may enter New Mexico 
occasionally, the 10th Circuit Court in the wolf case (Wyoming Farm 
Bureau Federation v. Babbitt) supported the use of the 10(j) 
designation under very similar circumstances of occasional, low 
frequency contact. In over 50 years, we know of only one pair of 
successfully reproducing falcons in New Mexico. This one occurrence 
does not indicate that there is self-sustaining, regular interbreeding 
occurring between falcons in New Mexico and those in Mexico. The single 
pair of falcons that successfully reproduced once in 2002, after a 50-
year absence, is not self-sustaining, not a group, and not in common 
spatial relationship with the group of approximately 25 to 35 breeding 
falcon pairs in the Mexican State of Chihuahua, 160 km (100 mi) south 
of the United States border. These Mexican birds appear to be self-
sustaining and interbreeding, even though the population is not 
expanding. In addition, there is a significant gap between the location 
of the pair in the United States and the most northern breeding pair in 
Chihuahua, and even more distance to the main cluster of breeding pairs 
there. Please also see the ``Recovery Efforts'' section of the 
Background for additional discussion on this subject.
    The only birds that are known to be currently nesting in Texas are 
beyond the average dispersal distance for falcons. Natal dispersal to 
eventual breeding sites may be localized (Burnham et al. 2002). The 
longest documented falcon dispersal distance is 250 km (155 mi) 
(Burnham et al. 2002). A straight-line distance from breeding falcons 
near Brownsville, Texas, to Carlsbad, New Mexico, is 973 km (605 mi), 
much farther than any documented falcon dispersal. It is possible, 
though unlikely, that individual captive-bred falcons or their progeny 
from west Texas could disperse into the NEP area. The majority of 
falcon reintroductions in west Texas are farther than 193 km (120 mi) 
from suitable habitat in New Mexico, and tall mountains separating the 
two regions may provide an obstacle to falcon migration. The Guadalupe 
Mountains span the border between Texas and New Mexico and rise to 
heights of 8,749 feet. Falcon reintroductions in west Texas began in 
2002, and as expected, there has not yet been any documented breeding 
by these reintroduced falcons. Furthermore, there have been no 
detections in New Mexico of falcons that were banded at west Texas 
reintroduction sites, and all of these reintroduced falcons should be 
    (19) Comment: The Service speculated about falcon numbers in New 
Mexico without conducting comprehensive surveys of potential falcon 
habitat. Additional falcons probably would be documented with 
additional surveys.
    Our Response: Over the past decade, widespread formal surveys have 
been conducted in suitable falcon habitats in southern New Mexico. 
Please refer to the discussion on survey results under the Biology 
portion of the Background section.
    (20) Comment: There is no justification for releasing such a large 
number of falcons in New Mexico, especially given the current 
increasing status of native birds and finite amount of suitable 
    Our Response: Young et al. (2005) indicated that there are 
approximately 9,060 km2 (5,600 mi2), or 906,000 
ha (2,238,766 ac), of suitable habitat in New Mexico. We believe there 
is sufficient suitable habitat for falcon recovery in New Mexico. 
Montoya (1995) estimated that 1 falcon pair required 4,300 ha (10,625 
ac) in Chihuahua, Mexico. If this size requirement for nesting 
territory also applies to the estimated quantity of suitable habitat in 
New Mexico, the State could support up to 200 pairs of falcons. Much of 
this suitable habitat occurs in Otero Mesa, Fort Bliss, White Sands 
Missile Range, the Jornada Plain (Armendaris Ranch and Jornada del 
Muerto), and the southwestern corner, or boot-heel, of New Mexico south 
of Interstate 10. Although releases will occur only in New Mexico, 
falcons will likely colonize suitable habitat in southeastern Arizona, 
further increasing the number of falcons inhabiting Chihuahuan Desert 
grasslands (Montoya 1995).
    (21) Comment: The Tenth Circuit Court of Appeals found that 
Congress gave the Service considerable discretion in defining the term 
``experimental population'' as it related to the establishment of an 
experimental population of wolves in the northern Rockies. In that 
case, the occasional presence of individual animals without any 
sustained successful reproduction appeared to be consistent with the 
purposes of a 10(j) population. The same logic should be applied to 
present rulemaking.
    Our Response: We agree and discussed this court decision in the 
``Recovery Efforts'' section of the Background, and in our responses to 
comments 17, 18, and 19.
    (22) Comment: The proposed rule is not consistent with Service 
policy on 10(j) populations published in the Federal Register (49 FR 
33885). As discussed in the policy, the proposal ``cannot reduce 
protections for native fish, wildlife, and plants that expand naturally 
into areas designated as experimental (49 FR 33885).'' The proposed 
rule appears to be a short-cut around natural falcon recovery that 
eliminates meaningful habitat protections with voluntary unenforceable 
    Our Response: Please see our responses to comments 17, 18, and 19.
    (23) Comment: It is not appropriate to conclude that in the long-
term the Chihuahua population of falcons would not be able to produce 
dispersing falcons under improved conditions. Please consider 
evaluating Mac[iacute]as-Duarte (2004) and Jenny et al. (2004) in 
relation to Burnham et al. (2002) and Montoya et al. (1997).
    Our Response: We evaluated the results in Mac[iacute]as-Duarte 
(2004), Jenny et al. (2004), Young et al. (2004), and Juergens and 
Heinrich (2005), and did not find information that would indicate that 
the population in Chihuahua has significantly expanded since its 
discovery in 1992. We found that there appears to be general agreement 
among the authors that the number of pairs has been fairly stable and 
that, in most years, productivity of the pairs has been low. 
Furthermore, we have no authority to improve conditions for the falcons 
in Mexico. Recolonization has not occurred in New Mexico since the 
birds were discovered in Chihuahua, and there is no indication that 
recolonization is occurring now, with only one known pair successfully 
reproducing one time in 2002 in New Mexico.
    (24) Comment: All released falcons should be marked to ensure that 
dispersal of birds does not trigger additional regulations to public 
and private lands.
    Our Response: In order to ascertain the success of the 
reintroduction effort, The Peregrine Fund will annually survey the area 
surrounding releases to locate surviving birds. Falcons will be located 
and identified and the number of territorial pairs will be recorded. If

[[Page 42308]]

nesting is documented, then nest success will be assessed and as many 
chicks will be banded as possible. All released falcons and their 
progeny will be banded to the extent possible. The Peregrine Fund will 
coordinate with the Service to develop a banding plan that complements 
banding efforts in Mexico and Texas. The NEP designation will cover any 
falcon in Arizona or New Mexico. Therefore, no additional regulations 
will be triggered whether a falcon is banded or unbanded. If a falcon 
should leave the NEP area, it would be considered fully endangered 
under the Act, unless it is found in a location where another 
designation exists or there is a Safe Harbor Agreement in place.
    (25) Comment: The Service should describe that a mixed designation 
which includes both experimental and nonexperimental (i.e., full 
protections under the Act) population areas for New Mexico and Arizona 
will be confusing and difficult to implement. A nonessential 
experimental population of falcons will assist in gaining support for 
the conservation of the falcon that might not exist otherwise.
    Our Response: We agree and have incorporated these points into the 
``Recovery Efforts'' section of the Background above.
    (26) Comment: The Service should refrain from releases of captive-
raised birds until there is a better understanding of the habitat 
requirements and genetics of the naturally occurring falcons. Any 
released falcons should be genetically appropriate for the Chihuahuan 
grassland population. The Service should conserve the native population 
of falcons, and not introduce individuals with a different genetic 
composition (e.g., from Veracruz, Tabasco, Campeche, and Chiapas, 
Mexico, outside of the Chihuahua Desert) or behavioral differences that 
may reduce the fitness of these locally-adapted birds.
    Our Response: Please refer to the discussion found in the ``Genetic 
Variation'' portion of the Management section. No new genetic 
information was provided to the Service during either of the two public 
comment periods for this proposal.
    (27) Comment: Several commenters suggested that we develop a 10(j) 
population that would also allow for naturally occurring falcons (i.e., 
experimental status individuals would only be recognized outside areas 
that overlap with naturally occurring individuals) (50 CFR 17.80).
    Our Response: Please see our response to State comment 6.
    (28) Comment: Please explain why the Service does not support the 
selection of the alternative that implements Safe Harbor Agreements for 
the falcon. This would achieve landowner cooperation, achieve species 
recovery, and continue habitat protections.
    Our Response: Please refer to the discussion found in the 
``Recovery Efforts'' portion of the Background section.
    (29) Comment: Explain why the population of reintroduced falcons 
would not be essential to the continued existence of the species.
    Our Response: The proposed experimental falcon population will be 
designated NEP because: (1) There are established populations in Mexico 
and a rapidly increasing population in south Texas; (2) reintroductions 
will continue in west Texas; (3) the Boise, Idaho, captive population 
is producing enough offspring to both maintain the captive flock and 
provide falcons for release; and (4) the possible failure of this 
action would not appreciably reduce the likelihood of survival of the 
subspecies in the wild. The NEP designation allows for regulatory 
flexibility for management that contributes to the conservation of 
falcons, which makes the reintroduction of falcons in New Mexico less 
controversial to land managers, and should result in a larger number of 
release sites and more widespread reintroductions. Therefore, we 
believe the use of the NEP should be the fastest way to successfully 
establish a falcon population in New Mexico and Arizona. We have 
concluded this reintroduced population to be nonessential to the 
continued existence of the species according to the provisions of 
section 10(j) of the Act for the following reasons:
    (a) With at least three populations, one in eastern Mexico, a 
second in northern Chihuahua, Mexico, and a third becoming established 
in southern Texas, the experimental population is not essential to the 
continued existence of the species. The threat of extinction from a 
single catastrophic event has been reduced by a gradual increase of the 
southern Texas and captive populations. Thus, loss of the experimental 
population will not appreciably reduce the likelihood of falcon 
survival in the United States; and,
    (b) Any birds lost during the reintroduction attempt can be 
replaced through captive breeding. Production from the extant captive 
flock is already sufficient to support the release of birds that would 
occur under this final rule, in addition to continued releases in west 
    (30) Comment: Nonessential experimental populations are usually 
considered where there is opposition from private landowners to an 
endangered species reintroduction. The majority of potential falcon 
habitat in New Mexico is managed by the Forest Service, BLM, and DOD. 
You have not demonstrated in the proposed rule or environmental 
assessment (EA) that there is opposition by private landowners or the 
general public to a reintroduction on the small amount of private 
lands. Even if there were, a reintroduction program could accomplish 
the same objectives by using Safe Harbor Agreements for the private 
landowners, as was accomplished in south Texas.
    Our Response: Comments received during the public comment periods 
from public agencies, private citizens, and landowners demonstrated 
that there would be a great deal of opposition to reintroducing falcons 
in Arizona and New Mexico without the 10(j) designation. The 10(j) 
designation gives us regulatory flexibility, which is beneficial when 
trying to reintroduce a new population.
    (31) Comment: Falcon recovery will have an impact on other species.
    Our Response: Falcons historically occupied this desert habitat, 
and the plants and animals that exist there evolved with this predatory 
bird. Thus, through falcon recovery, we are aiding in restoration of 
this desert ecosystem. In addition, we do not expect any significant 
impact to any other listed or unlisted species to result from falcon 
recovery. As predators, falcons require large home ranges in order to 
have adequate amounts of available prey (Keddy-Hector 2000); therefore, 
they would not occupy suitable habitat in large numbers. They are 
anticipated to be widely distributed in low numbers over the suitable 
habitat in New Mexico and Arizona. Furthermore, falcons are generalists 
and will consume a wide variety of insects, small mammals, reptiles, 
and small to medium-sized birds. Therefore, falcon recovery is not 
anticipated to negatively affect other sympatric species.
    (32) Comment: If DDT is still used in Mexico, then it does not seem 
logical to start a recovery process on the United States at the Mexico 
border only to fail because of the use of DDT in Mexico.
    Our Response: We have no knowledge of widespread use of DDT in 
Mexico, as its use was banned in 2000. In addition, we have seen a 
significant decrease in the concentrations of DDT remaining in the 
United States since its use was banned in 1972, leading to delisting of 
the American peregrine falcon in 1999

[[Page 42309]]

(64 FR 46541), and the currently proposed delisting of the bald eagle 
(64 FR 36454; 71 FR 8238; 71 FR 28293). We anticipate that sufficient 
numbers of falcons will reside and hunt in suitable habitat in New 
Mexico and Arizona such that any residual DDT remaining in Mexico will 
not preclude falcon recovery in the United States.
    (33) Comment: Habitat degradation was one of the primary threats to 
the species when it was listed as endangered. Recent information 
indicates that habitat and avian prey are important determinants of 
falcon habitat (e.g., Macias-Duarte et al. 2004; Meyer and Williams 
    Our Response: The intense overgrazing that resulted in shrub 
encroachment in grasslands has moderated, with widespread 
implementation of improved range management techniques, including 
decreased stocking rates, stock rotation, and prescribed burning 
(Archer 1994; Heady 1994; Burnham et al. 2002). In addition, DDT use 
was banned in the United States in 1972 and in Mexico in 2000. 
Therefore, falcon reintroductions are considered appropriate because 
habitat threats are continuing to be reduced. In addition, as described 
in this final rule, reintroduction sites will be carefully selected to 
optimize habitat suitability, and falcons are known generalists and 
will not be dependent on the availability of any particular type of 
    (34) Comment: Please explain how the reintroduction of falcons is 
compatible with existing land use practices (e.g., livestock grazing, 
oil and gas development), yet the Service has a documented history of 
finding these same practices are threats to the species (Service 1990, 
51 FR 6686).
    Our Response: In the 1990 recovery plan (and the 1985 and 1986 
listing rules) for the falcon, the causes of decline for the subspecies 
included brush encroachment and agricultural development that destroyed 
grassland habitat; channelization of desert streams that destroyed 
wetland communities that provided habitat for avian prey; and pesticide 
contamination, such as by DDT. On the other hand, livestock grazing 
that uses best management practices has been recognized as compatible 
with nesting falcons (Burnham et al. 2002), and oil and gas development 
was not mentioned as a threat in either the recovery plan or listing 
rules. Existing land use practices may be a threat to individuals of a 
species (i.e., may result in ``take'' of individuals under previous 
regulations); however, we believe the existing land use practices are 
compatible with overall conservation efforts for the subspecies as a 
whole. This has been demonstrated by the successful recolonization of 
falcons reintroduced in Texas over the past two decades, where there 
has been only one reported conflict with existing land use practices 
during that period of time and it was resolved in the early 1990s 
(Burnham et al. 2002; Bond 2005; Jenny 2005; Robertson 2006).
    (35) Comment: Initiating another reintroduction program in the 
Chihuahuan Desert is not prudent before the outcome of the program in 
west Texas is assessed. The Service should plan on conducting such an 
    Our Response: As we discussed previously in this final rule, we are 
designating the population of falcons in New Mexico and Arizona as 
experimental and will evaluate the success of our reintroduction 
program every 5 years. The releases in south Texas have demonstrated 
success toward the recovery of the falcon in the United States; and 
therefore, we do not believe it would be beneficial for falcon recovery 
to postpone this reintroduction effort to assess the success of the 
program in west Texas.
    (36) Comment: The Service should not base the EA and proposed 10(j) 
population on an outdated recovery plan. The Service should establish a 
formal recovery team and update the falcon recovery plan prior to 
finalizing the 10(j) rule and releasing birds.
    Our Response: A current recovery plan is not required in order to 
move forward with recovery actions, including any associated 
regulations. While we would like to update the recovery plan, we do not 
feel it is necessary to complete a revision prior to moving forward 
with this 10(j) rule. Falcon reintroductions such as these were 
recommended in the 1990 recovery plan, and we are implementing these 
recommendations. Furthermore, the recovery plan provides guidelines for 
the recovery process, and, in combination with the best available 
scientific information, we will continue to evaluate the application of 
these guidelines to the reintroduction process as needed in the future.
    (37) Comment: We received comments about agreements or memoranda of 
understanding with land managers that ranged from: (1) The Service 
should have a signed memorandum of understanding with landowners prior 
to finalization of the 10(j) rule in order to ensure habitat guidelines 
are followed, to (2) agreements or memoranda of understanding with land 
managers should not be required as they create undue burden on land 
    Our Response: We do not anticipate that there will be conflicts 
between falcon reintroduction and current land use practices. 
Therefore, at present, we do not feel that agreements or memoranda of 
understanding with landowners are necessary to provide suitable habitat 
for falcons. We will choose falcon reintroduction sites that meet the 
following criteria: (1) Within or in proximity to potentially suitable 
habitat, including open grassland habitats that have scattered trees/
shrubs/yucca for nesting and perching; (2) supporting available prey 
for falcons (e.g., insects, small to medium-sized birds, and rodents); 
(3) with minimal natural and artificial hazards (e.g., predators, open-
water tanks) and potential hazards that can be minimized where 
practical; (4) with access for logistical support; (5) with a large 
extent of potentially suitable habitat surrounding a release site and 
its proximity to other similar habitats; and (6) with a willing 
landowner or land manager. We will evaluate the success of these 
criteria through our 5-year review process, and if indicated, we will 
have the option of executing agreements or memoranda of understanding 
with willing landowners in the future.
    (38) Comment: The EA and proposed rule do not consider that natural 
recolonization is already occurring and could be facilitated by 
focusing scarce funding on habitat restoration, rather than releasing 
captive birds. Enhancing habitat for falcons is a better use of funds 
for the long-term recovery of the species and establishment of a 
naturally occurring population.
    Our Response: We believe there is ample suitable habitat to support 
falcons and that focusing on habitat enhancement is not the best use of 
funds. Because there is available habitat, but limited numbers of 
naturally occurring falcons, we believe reintroductions will serve a 
key role in the recovery of the falcon. Furthermore, the falcon 
reintroductions that result from this rule will have a large 
partnership component, which will help spread expenses among many 
entities. Under the 10(j) designation, section 7(a)(1) still applies 
and requires all Federal agencies to use their authorities to conserve 
listed species. Therefore, Federal agencies can still fund habitat 
enhancement projects for falcons in accordance with their 7(a)(1) 

Issue 3: The Monitoring Plan

    (39) Comment: The Service should establish a long-term monitoring

[[Page 42310]]

program that addresses nesting success, prey availability, vegetation, 
and causes of mortality. You should also develop an adaptive management 
process that includes stakeholders and a large-scale landscape 
conservation strategy.
    Our Response: The short-term monitoring described in the monitoring 
plan includes the documentation of nesting, nesting success, 
vegetation, and other habitat attributes of nest sites and territories. 
Recommended long-term monitoring activities include documentation of 
other avian species, including other raptors and potential prey species 
of falcons. As information becomes available from these efforts, we 
will be able to design more refined long-term monitoring efforts. The 
monitoring plan provides for an adaptive management process through 
annual stakeholder meetings and evaluation reports to review project 
data to determine if refinements to the program are needed.
    (40) Comment: The Service should provide a timeframe to implement 
and evaluate this approach to recovering the falcon.
    Our Response: Annual stakeholder meetings will be conducted to 
review project data to determine if refinements to the program are 
needed. We will use the best scientific and commercial data available, 
including, but not limited to, results from the monitoring plan and 
stakeholder meetings to develop interim objectives to assist in 
measuring the success of the program and to prepare 5-year evaluations 
of the restoration program. As indicated in section 5 (``Reintroduction 
Procedures'') of the Background, we anticipate releasing falcons for 10 
years or more. Although we have reason to expect success from this 
program, based on experiences in Texas, it is acknowledged to be a 
truly experimental effort involving uncertainties that preclude the 
identification of a more precise timeframe for implementation.
    (41) Comment: The 10(j) designation should have a quantifiable 
number of falcons as a recovery target or a date set to end the program 
if this program is not successful.
    Our Response: Section 10(j) and its implementing regulations do not 
have a requirement that we specify a population target or date, only 
that the release will further the conservation of the species. As 
stated in our response to comment 21, the best current estimate is that 
habitat in New Mexico is sufficient to support up to 200 pairs of 
falcons, and that Chihuahuan Desert habitat in Arizona may support 
additional individuals. We will evaluate the progress of the program 
through the annual meetings and reviews of the Peregrine Fund's annual 
reports, 2-year progress reports on agency Tier II monitoring efforts, 
and 5-year evaluations. Efforts under this 10(j) rule will cease when 
or if it is determined that the program no longer furthers the 
conservation of the falcon.
    (42) Comment: There should be provisions for banding progeny of 
captive-reared birds to evaluate the reintroduction program.
    Our Response: We acknowledge the value of banding the progeny of 
captive-reared birds to evaluating the program. The monitoring plan 
provides in the post-release procedures that as many chicks as possible 
from successfully nesting falcons will be banded.
    (43) Comment: Habitat conditions, particularly grassland birds that 
provide prey, should also be monitored.
    Our Response: As indicated in a response to an earlier comment, the 
monitoring plan includes assessments of habitat suitability and 
surveys, including surveys of other avian species that are potential 
prey for falcons.
    (44) Comment: The Service has not ensured that monitoring native 
falcons will occur if non-mandatory surveys are subject to available 
    Our Response: We note that conservation efforts by us and our 
conservation partners are always subject to funding support by 
Congress, State legislatures, or private individuals and organizations. 
Although we have no guarantees about funding in future years, we have a 
reasonable expectation that our partners will be able to carry out the 
monitoring activities that they have identified as appropriate.
    (45) Comment: The Service should include criteria and define the 
term ``success'' in the monitoring plan.
    Our Response: We will view the program as a success as long is it 
is furthering the conservation of the falcon. Although our best 
estimate is that habitat in New Mexico could potentially support up to 
200 pairs of falcons, we anticipate that information gathered during 
the monitoring efforts will allow us refine our understanding of what 
is achievable in terms of conserving the falcon.
    (46) Comment: Prey species are particularly important during the 
establishment of pair bonds and territories, which usually occur in 
late winter or very early spring. The breeding bird survey protocol 
should be used during this time of the year. Consider clarifying the 
methodology and timing for conducting prey base surveys.
    Our Response: We have adopted this recommendation and have added it 
to the monitoring plan's discussion of surveys of avian species.
    (47) Comment: The monitoring plan should include a discussion of 
what data should be collected in a given situation. For example, 
documenting stick nests would be especially important, but should be 
evaluated in light of other management goals/objectives and priorities.
    Our Response: We believe that the information we specified is the 
most appropriate for beginning the monitoring effort. As information is 
gathered, special situations will be noted and appropriate 
modifications to our protocol will be adopted.
    (48) Comment: The Service should evaluate key ecological factors to 
prioritize where management/recovery actions should be concentrated. 
These include variability of prey abundance, potential nest site 
availability, predator pressure, contaminant load, age and sex of 
dispersing falcons, and demography.
    Our Response: We will be using available information on the falcon, 
including a recently finalized assessment of falcon habitat (Young et 
al. 2005), in the selection of release sites. The monitoring plan 
includes the gathering of information on habitat suitability and on the 
presence of avian predators and prey.
    (49) Comment: The 10(j) rule should be removed once the population 
is ``self-sustaining,'' and standard ESA protections resume.
    Our Response: The removal of a 10(j) listing of an NEP would first 
require a finding that the information on which the original 
``nonessential'' determination was based had changed enough that the 
loss of the population would be likely to appreciably reduce the 
likelihood of survival of the species in the wild. We foresee little 
likelihood that success of reintroduction in the 10(j) area would occur 
while severe negative changes in the status of the falcon occurred 
elsewhere. Any change in the 10(j) listing would require us to engage 
in notice-and-comment rulemaking, including publishing a proposed rule 
in the Federal Register seeking public comment on that proposal 
(including, if requested, public hearings), and publishing a final 
determination in the Federal Register.
    (50) Comment: The monitoring plan lacks sufficient performance 
    Our Response: We have added a statement to the monitoring plan 
indicating that, based on information gathered as monitoring proceeds, 
we will develop interim objectives to assist in measuring the success 
of the program. Even with prior experience in reintroducing this 
species, progress in

[[Page 42311]]

the reintroduction effort cannot be predicted sufficiently to develop 
more detailed performance measures at this time. From our conservation 
efforts on this and other species, we know that it may take several 
years of effort before we can more clearly judge the likelihood of 
success of reintroduction. Information gathered as reintroduction 
proceeds will be used to evaluate progress on the program. Based on 
this information, we will consider more precise performance measures 
and adopt those that are likely to increase the likelihood of success 
of the program.
    (51) Comment: How long will re-introduction efforts continue?
    Our Response: We anticipate releasing falcons for 10 years or more.
    (52) Comment: The 10(j) rule should remain in place until the 
species is delisted.
    Our Response: Our intent is for the 10(j) rule to remain in place 
until the status of the species improves to a point where listing is no 
longer necessary, and the falcon can then be delisted.
    (53) Comment: How will the delisting process proceed when the 
falcon population has reached a sufficient level?
    Our Response: Once the threats to the falcon have been reduced, and 
populations are self-sustaining, the Service will publish a proposed 
rule to delist the falcon in the Federal Register. There would be 
opportunities for the public to comment and request public hearings. 
Information gathered during the public comment period would be 
incorporated into our evaluation of listing status. If we were to 
determine that listing is no longer appropriate, a final rule delisting 
the falcon would then be published in the Federal Register.
    (54) Comment: Will those involved in monitoring efforts always seek 
landowner and manager permission prior to entering private lands?
    Our Response: Yes. It is our policy that landowner approval will 
always be obtained either in writing or by record of telephone 
conversation prior to entering private lands. We also specify in our 
permits for work on listed species that the permit does not confer 
right to trespass, and that landowner permission must be obtained by 
the permittee. Our monitoring plan states that landowner consent either 
in writing or by record of telephone conversation is a prerequisite for 
data collection on private land.
    (55) Comment: Falcons do not normally breed until they are 2 years 
old, not 3 years old as indicated on page 3 of the draft monitoring 
    Our Response: This correction has been incorporated into the final 
monitoring plan.
    (56) Comment: The short-term monitoring section of the draft 
monitoring plan states that BLM will supply remote-sensing data. Only 
BLM in New Mexico will be supplying these data.
    Our Response: This correction has been incorporated into the final 
monitoring plan.
    (57) Comment: A new version of the habitat assessment protocol, 
Attachment A of the monitoring plan, is available from the New Mexico 
Cooperative Fish and Wildlife Research Unit.
    Our Response: We have replaced Attachment A with the newer version. 
We have also added a statement to the monitoring plan that the 
information from the protocol is intended to be used to improve site 
selection for releases.

Issue 5: Additional Comment

    (58) Comment: The Service should support research, management, and 
outreach efforts on public and private lands for the falcon within its 
core breeding range in the Chihuahua desert grasslands, including 
adjacent Chihuahua, Mexico.
    Our Response: We agree and, with our partners, will attempt to 
support and/or coordinate these activities to the extent that we are 


    We followed the procedures required by the Act, NEPA, and the 
Administrative Procedures Act during this Federal rulemaking process. 
Therefore, we solicited public and peer reviewer comment on the 
proposed NEP designation. As required by law, we have considered all 
comments received on the proposed rule, the draft EA, and the draft 
monitoring plan before making this final determination. Based on the 
above information, and using the best scientific and commercial data 
available (in accordance with 50 CFR 17.81), the Service finds that 
creating a NEP of northern aplomado falcons and releasing them into the 
NEP area will further the conservation of the species.

Effective Date

    We are making this rule effective upon publication. In accordance 
with the Administrative Procedure Act, we find good cause as required 
by 5 U.S.C. 553(d)(3) to make this rule effective immediately upon 
publication in the Federal Register. We expect that up to 140 falcons 
could be available for release in 2006 in New Mexico and western Texas 
(Juergens and Heinrich 2005). In order for this group of falcons to 
have the optimal amount of time to successfully reach independence, 
they will need to be reintroduced into the wild beginning in late 
spring and summer 2006 (Juergens and Heinrich 2005). Careful timing of 
the age for reintroducing falcons is important to increase their 
chances for successfully fledging and reaching independence (Sherrod et 
al. 1987). A 30-day delay would be contrary to the public interest 
because it would result in delay of reintroductions until spring of 
2007, as falcons are most successfully reintroduced when they are 
several weeks old and this age cohort only occurs in late spring and 
summer each year (Sherrod et al. 1987).

Required Determinations

Section 7 Consultation

    A special rule under section 4(d) of the Act is included in this 
establishment of an experimental population under section 10(j) of the 
Act. A population designated as experimental is treated for the 
purposes of section 9 of the Act as threatened, regardless of the 
species' designation elsewhere in its range. The Service is not 
required to consult on this special rule under section 7(a)(2) of the 
Act. The development of protective regulations for a threatened species 
are an inherent part of the section 4 listing process. The Service must 
make this determination considering only the ``best scientific and 
commercial data available.'' A necessary part of this listing decision 
is also determining what protective regulations are ``necessary and 
advisable to provide for the conservation of [the] species.'' 
Determining what prohibitions and authorizations are necessary to 
conserve the species, like the listing determination of whether the 
species meets the definition of threatened or endangered, is not a 
decision that Congress intended to undergo section 7 consultation.

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, this rule 
to designate NEP status for northern aplomado falcon in Arizona and New 
Mexico is not a significant regulatory action subject to Office of 
Management and Budget review. As described below, this rule will not 
have an annual economic effect of $100 million or more on the economy 
and will not have an adverse effect on an economic sector, 
productivity, competition, jobs, the environment, or other units of 
government. Therefore, a cost-benefit

[[Page 42312]]

and full economic analysis will not be required.
    Following release, birds may use private or public lands adjacent 
to release areas. Because of the substantial regulatory relief provided 
by the NEP designation (no penalties for unintentional take or 
restrictions against land use), we do not believe the reintroduction of 
falcons will conflict with existing human activities or hinder public 
or private use of lands within the NEP area. Likewise, no governments, 
individuals, or corporations will be required to specifically manage 
for reintroduced falcons.
    This final rule will not create inconsistencies with other agency's 
actions or otherwise interfere with an action taken or planned by 
another agency. Federal agencies most interested in this rulemaking are 
the Bureau of Land Management and Department of Defense because they 
manage large areas of suitable falcon habitat within the NEP area. 
These agencies participated in the northern aplomado falcon working 
group and had the opportunity to participate in the development and 
review of the action finalized by this rulemaking and to ensure the 
action is consistent with their land management plans. Because of the 
substantial regulatory relief provided by the NEP designation, we 
believe that the reintroduction of northern aplomado falcons in the 
areas described will not conflict with existing human activities or 
hinder public utilization of the area.
    This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Because there are no expected impacts or restrictions to existing human 
uses of the NEP area as a result of this rule, no entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients are expected to occur.
    This rule does not raise novel legal or policy issues. Since 1984, 
we have promulgated section 10(j) rules for many other species in 
various localities. Such rules are designed to reduce the regulatory 
burden that would otherwise exist when reintroducing listed species to 
the wild.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
804(2)), 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 affected by this rule includes the States of Arizona and 
New Mexico. We do not expect this rule to have any significant effect 
on recreational, agricultural, or development activities within the NEP 
area because the NEP designation provides no restrictions on most 
Federal (see next paragraph for National Wildlife Refuges and units of 
the National Park System) and all non-Federal actions that may affect 
falcons. In addition, the special rule authorizes unknowing or 
incidental take of falcons (i.e., take that is incidental to an 
otherwise lawful activity). Direct take for research or educational 
purposes would require a section 10 recovery permit under the Act. 
Knowingly taking falcons (e.g., shooting) will not be permitted. The 
action will not affect the establishment of future hunting seasons or 
conservation actions approved for migratory bird species. The principal 
activities on private property near the initial release areas are 
agriculture and recreation. We believe the presence of the falcon will 
not preclude use of lands for these purposes. Because there will be no 
new or additional economic or regulatory restrictions imposed upon 
States, Federal agencies, or members of the public due to the presence 
of the falcon, this rulemaking is not expected to have any significant 
adverse impacts to recreation, agriculture, or any development 
    When NEPs are located outside a National Wildlife Refuge or unit of 
the National Park System, 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)(1) requires Federal 
agencies to use their authorities to further the conservation of listed 
species. 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. The results of a 
conference are advisory in nature and do not restrict agencies from 
carrying out, funding, or authorizing activities. When the NEP is 
located within a National Wildlife Refuge or National Park, we will 
treat the reintroduced falcons as threatened under the Act, and 
therefore the consultation requirements of section 7(a)(2) will apply 
on these Federal lands.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    1. On the basis of information contained in the ``Required 
Determinations'' section above, this rule will not ``significantly or 
uniquely'' affect small governments. We have determined and certify 
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., 
that this rulemaking will not impose a cost of $100 million or more in 
any given year on local or State governments or private entities. A 
Small Government Agency Plan is not required. As explained above, small 
governments will not be affected because the NEP designation will not 
place additional requirements on any city, county, or other local 
    2. 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 NEP designation 
for the falcon will 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 rule does not have 
significant takings implications. We do not expect this rule to have a 
potential takings implication under Executive Order 12630 because it 
would exempt individuals or corporations from prosecution for take that 
is accidental and incidental to an otherwise lawful activity. Because 
of the substantial regulatory relief provided by the NEP designation, 
we do not believe the reintroduction of falcons would conflict with 
existing or proposed human activities or hinder public use of lands 
within the NEP area. Neither of the States within the NEP area will be 
required to specifically manage or reintroduce falcons.

[[Page 42313]]

    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 uses of the land or aquatic resources. This rule will 
substantially advance a legitimate government interest (conservation 
and recovery of a federally listed bird) and will 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 rule has significant Federalism effects and have 
determined that a Federalism assessment is not required. This rule will 
not have substantial direct effects on the States, in the relationship 
between the Federal Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
In keeping with Department of the Interior policy, we requested 
information from and coordinated development of this rule with the 
affected resource agencies in New Mexico and Arizona. Achieving the 
recovery goal for this species will contribute to its eventual 
delisting and its return to primary State management. No intrusion on 
State policy or administration is expected; roles or responsibilities 
of Federal or State governments will not change; and fiscal capacity 
will not be substantially directly affected. The special rule operates 
to maintain the existing relationship between the States and the 
Federal Government and is being undertaken in coordination with the 
States. Therefore, this rule does not have significant Federalism 
effects or implications to warrant the preparation of a Federalism 
Assessment pursuant to the provisions of Executive Order 13132.

Civil Justice Reform (E.O. 12988)

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

Government-to-Government Relationship With Tribes

    In accordance with Secretarial Order 3206, American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act (June 5, 1997); 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's requirement at 512 DM 2, we have notified the Native 
American Tribes within the NEP area about the proposed rule and this 
final rule. They have been advised through verbal and written contact, 
including informational mailings from the Service. Information was also 
presented at the Native American Fish and Wildlife Society meeting in 
New Mexico in 2003 (Murphy 2003). Furthermore, the potential 
reintroduction area for falcons in New Mexico does not overlap with any 
Tribal lands, and we do not expect falcons to move out of their 
preferred habitats. If future activities resulting from this rule may 
affect Tribal resources, the Service will communicate and consult on a 
Government-to-Government basis with any affected Native American Tribes 
in order to find a mutually agreeable solution.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 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. A Federal agency may not 
conduct or sponsor and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number. OMB approval is required if information will be 
collected from 10 or more persons (5 CFR 1320.3). ``Ten or more 
persons'' refers to the persons to whom a collection of information is 
addressed by the agency within any 12-month period, and to any 
independent entities to which the initial addressee may reasonably be 
expected to transmit the collection of information during that period, 
including independent State, territorial, Tribal, or local entities and 
separately incorporated subsidiaries or affiliates. For the purposes of 
this definition, ``persons'' does not include employees of the 
respondent acting within the scope of their employment, contractors 
engaged by a respondent for the purpose of complying with the 
collection of information, or current employees of the Federal 
government when acting within the scope of their employment, but it 
does include former Federal employees. The Office of Management and 
Budget has approved our collection of information associated with 
reporting the taking of experimental populations (50 CFR 17.84(p)(6)) 
and assigned control number 1018-0095. The monitoring plan for 
reestablishment of the falcon contains a requirement for information 
collection; however, it does not affect 10 or more persons, as defined 
above. Therefore, OMB approval and a control number are not needed for 
the data collection forms appended to the monitoring plan. In the 
future, if it becomes necessary to collect this information from 10 or 
more respondents per year, we will first obtain approval from OMB.

National Environmental Policy Act

    We have prepared an environmental assessment and Finding of No 
Significant Impact, as defined under the authority of the National 
Environmental Policy Act of 1969. These documents are available from 
the New Mexico Ecological Services Field Office (see ADDRESSES section) 
or from our Web site at http://www.fws.gov/ifw2es/NewMexico/.

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. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

References Cited

    A complete list of all references cited in this rule is available 
upon request from the New Mexico Ecological Services Field Office (see 
ADDRESSES section) and from our Web site at http://www.fws.gov/ifw2es/NewMexico/


    The primary authors of this notice are the New Mexico Ecological 
Services Field Office staff (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Final Regulation Promulgation

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


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

[[Page 42314]]

    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 existing entry for ``Falcon, 
northern aplomado'' under ``BIRDS'' 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

                                                                      * * * * * * *

                                                                      * * * * * * *
Falcon, northern aplomado........  Falco femoralis       U.S.A. (AZ, NM,      Entire, except       E                       216           NA           NA
                                    septentrionalis.      TX), Mexico,         where listed as an
                                                          Guatemala.           experimental
Falcon, northern aplomado........  Falco femoralis       U.S.A. (AZ, NM,      U.S.A. (AZ, NM)....  XN                      758           NA     17.84(p)
                                    septentrionalis.      TX), Mexico,

                                                                      * * * * * * *

3. Amend Sec.  17.84 by adding paragraph (p) to read as follows:

Sec.  17.84  Special rules--vertebrates.

* * * * *
    (p) Northern aplomado falcon (Falco femoralis septentrionalis).
    (1) The northern aplomado falcon (Falco femoralis septentrionalis) 
(falcon) population identified in paragraph (p)(9)(i) of this section 
is a nonessential experimental population (NEP).
    (2) No person may take this species, except as provided in 
paragraphs (p)(3) through (5) and (p)(10) 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 falcons for 
educational purposes, scientific purposes, the enhancement of 
propagation or survival of the species, zoological exhibition, and 
other conservation purposes consistent with the Endangered Species Act 
    (4) A falcon may be taken within the NEP area, provided that such 
take is not willful, knowing, or due to negligence, or is incidental to 
and not the purpose of the carrying out of an otherwise lawful 
activity; and that such taking is reported within 24 hours, as provided 
under paragraph (p)(6) of this section.
    (5) Any employee of the Service, New Mexico Department of Game and 
Fish, or Arizona Game and Fish Department, who is designated for such 
purpose, or any person with a valid permit issued by the Service under 
50 CFR 17.32, may, when acting in the course of official duties, take a 
falcon if such action is necessary to:
    (i) Aid a sick, injured, or orphaned specimen;
    (ii) Dispose of a dead specimen, or salvage a dead specimen that 
may be useful for scientific study;
    (iii) Move a bird within the NEP area for genetic purposes or to 
improve the health of the population;
    (iv) Relocate falcons that have moved outside the NEP area, by 
returning the falcon to the NEP area or moving it to a captive breeding 
facility. All captures and relocations from outside the NEP area will 
be conducted with the permission of the landowner(s) or appropriate 
land management agencies; or
    (v) Collect nesting data or band individuals.
    (6) Any taking pursuant to paragraphs (p)(3) through (5) of this 
section must be reported within 24 hours by contacting the U.S. Fish 
and Wildlife Service, New Mexico Ecological Services Field Office, 2105 
Osuna NE, Albuquerque, NM 87113; (505) 346-2525. Upon contact, a 
determination will be made as to the disposition of any live or dead 
    (7) No person shall possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any such species 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 (p)(2) and (p)(7) of this section.
    (9)(i) The boundaries of the designated NEP area are based on 
county borders and include the entire States of New Mexico and Arizona. 
The reintroduction area is within the historical range of the species 
in New Mexico.
    (ii) All falcons found in the wild within the boundaries of the NEP 
area after the first releases will be considered members of the NEP. A 
falcon occurring outside of the NEP area is considered endangered under 
the Act unless it is marked or otherwise known to be a member of the 
    (iii) The Service has designated the NEP area to accommodate the 
potential future movements of a wild population of falcons. All 
released birds and their progeny are expected to remain in the NEP area 
due to the geographic extent of the designation.
    (10) The NEP will be monitored closely for the duration of the 
reintroduction program. Any bird 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 or permitted Tribal wildlife 
personnel and given appropriate care. Such birds 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 or they 
are euthanized if treatment would be unlikely to be effective.
    (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 expected to be not more than 5 years after the first release 
of birds 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.
* * * * *

[[Page 42315]]

    Dated: July 7, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-6486 Filed 7-21-06; 3:06 pm]